Fundamentals of Law

Question: Discuss about theFundamentals of Law. Answer: Introduction: Enforceability of the Contract and its Defenses In order to form an enforceable contract, according to Australian contract law the presence of certain elements are vital which consists of offer, acceptance, certainty, consideration. With the purpose to form an enforceable contract it is essential to make an offer by the offeror to the offeree. While making an offer aspects like intention of the contract that are essential to be legally bound are required to be expressed along with the certainty of the material terms that are judged on the basis of objective standards (Falk et al., 2008). In the context of the provided case of Hevvy and Traynor it can be noticed that when Hevvy approached Traynor that he wanted to lose 10 kilos and asked about the charge, Traynor said that think about the charges and let him know about it. Later, he stated that he would charge $30 per training session with the help of a voicemail, till Hevvy losses the desired weight. The voicemail send by Traynor can be considered as offer. The above mentioned discussion forms the negotiation. When the offer made to the offeree by the offeror is accepted by him or her in exchange of something it results in the acceptance of the offer. A formed contract is not enforceable until acceptance occurs. The process of acceptance requires expression of consent to the terms of the offer in the way it has been approved by it and judged with the help of objective standard. The fact that in the next morning when the offer was made he went to the gym with Traynor which continued for the next weeks reflects the acceptance of the made offer on the part of the offeree in the given scenario i.e. Hevvy. Other than that, exchange offer provided by the offeror which is accepted by the offeree in the form of goods, materials or money consists of consideration. Hence in order to exchange legal value consideration is bargained which is beneficial to the promisor and disadvantageous to the promise (Thel and Yorio, 2011). In the provided scenerio it can be noticed that a bargain in order to exchange promise to pay was performed when Traynor demanded for $30 per training session from Hevvy. In the contract terms it could also be noticed that a promise was made by Traynor to provide training session to Hevvy until he losses 10 kilos. This clearly reflects the presence of consideration in the contract. In order to form an enforceable contract, the presence of certainty or the absence of formation defects is essential with the help of which the involved parties will have a clear terms of the contract that helps them in following it (Anderson and Young, 2006). In case of the provided scenario, it can be noticed that the purpose of the contract which was weight loss of Hevvy by 10 kilos and the charge of the training session i.e. $30 per training session was clearly stated. It clearly manifests the presence of certainty in the contract terms. Hence on the basis of the above mentioned grounds it can be stated that Hevvy and Traynor had formed an enforceable contract. Under Statute of Frauds of Australian Contract Law Traynor might defend the claims made by Hevvy that enforceable contract has been formed. In accordance to Statue of Frauds the vital parts of the contract are required to be recorded in writing and taken consent with the help of signing. Hence under Section 126 of Instruments Act 1958 (VIC) as no writing along with the signed consent of the essential terms of the contract that the desired amount of weight that Hevvy wanted to lose was present, Traynor can defend his claim that the formulated contract was an enforceable one. With the help of Frustrated Contracts Act 1978 also Traynor can defend the claim made by Hevvy that the formulated contract is an enforceable contract. In Frustrated Contracts Act 1978 under the doctrine of impracticability it can be made effective (Austlii, 2015). It states that in case if without the fault of neither of the party involved in the contract an event occurs as a result of which the situation changes which makes the completion of the task impracticable or impossible the contract will turn out to be frustrated. Hence with the help of implementing doctrine of impracticability, if Traynor can establish that that due to the circumstances which includes construction work on the route between the houses of Traynor and Hevvy as a result of which the traffic became heavier, along with the aspect of increased gas price which makes the cost unbearable for him to continue providing training to Hevvy, then the contract will be considered to be frustrated. This would result in the t ermination of the contract the reason being the occurrence of the frustrating events. Thus with the help of implementation of doctrine of impracticability Traynor will be released from any kind of future obligations which he may have to face due to the claim of enforceable contract of Hevvy. Remedies Hevvy can ask for punitive damages under Australia Contact Law [reformed 2012]. However it is mentionable here that, in the provided scenario of Hevvy and Traynor, as there is absence of tortiuous misconduct damages for the breach of the terms of the contract will not be recoverable. It is mentionable here that, as a substitute for performance damages for the breach for the terms of the contract are provided (Australiancontractlaw, 2013). As a result the nature of its formation is of such a nature to place the plaintiff in the situation they were supposed to be if the contract would have been performed effectively. Hence, punitive damages are not offered. Under Australia Contact Law [reformed 2012] he can also claim for remedies under equitable remedies which includes the doctrine of specific performance. The doctrine of specific performance consists of an order with the help, of which the breaching party, which in this case is Traynor, would be directed to perform in accordance to the contract in the manner it will be specified by the court. In case damages will be insufficient in providing adequate compensation specific performance will be ordered. However, in association to contracts of personal services, (in the case of Hevvy and Traynor, Traynor was hired by Hevvy in order to loss the desired weight, makes it a personal service) specific performance will not be awarded. In such a situation, Baltic Shipping v Dillon High Court of Australia (1993) 176 CLR 344 can be referred. It states that in case either of the involved parties faces mental and emotional distress along with the presence of few other conditions damages for distress and disappointment can be availed under Australia Contact Law [reformed 2012]. Para 44 of the mentioned case states that unless as a result of the breach of the contract in the following period physical inconvenience is caused as a result of it (Australiancontractlaw, 2013). Along with it providing enjoyment, freedom from molestation and relaxation is the objective of the contract, and then only damages will be provided to the aggrieved party. In this context, if Hevvy and Traynor case is referred it can be noticed that due to the breach of the contract terms not only did he have to face emotional distress, he also had to face physical inconvenience as his weight had increased, thus making him liable for the damages for dis tress and disappointment resulted due to the breach of the contract terms. Under Australia Contact Law [reformed 2012]Chapter 5 he may as well ask for remedies under which he may ask for the recovery of the amount of damages. Other than that he may ask for non-punitive orders, civil pecuniary penalties etc. Mortgages over real propertys deals with the loan, where as a collateral real estate or property is used. There are number of legislations associated mortgages over real property depending upon the state or territory. One of such mentionable legislation is Real Property Act 1990 (NSW). It deals with aspects associated with mortgages over real property like identification of the mortgagor prior the presentation of mortgage Real Property Act 1990 (NSW) SECT 56C (Austlii, 2014). A kind of property interest that is formulated with the help of any agreement or by laws operation over assets in order to secure an obligations performance generally the performance of a debt can be stated as security interest. Security interests beneficiary is provided with specific rights which are which are preferential rights in secured assets disposition. Personal Property Securities Act 2009 is a mentionable legislation associated with security interests in personal property (Ppsr, 2015). The legislation deals with transactions and mortgages associated with motor vehicles, financing leases etc. A property or additional asset which is offered by a borrower as a means of lender in securing the loan is collateral. It is mentionable here that in case on the part of the borrower making the promised loan payments is stopped the lender is entitled to seize the collateral in order to recoup its losses. Personal Property Securities Act 2009 (Cth) deals with the aspect of collateral. It mentions aspect associated with collateral which is matter to a perfected security interest. The notion that as a result of registration of a land, it is required to be reflected with the help of the title, the entire significant and essential details which is purchaser is required to be informed about prior purchasing the land is the mirror principle. The provisions which turn mirror principle as per the applicability to land registration and wanting is deal with in Land Act 2002. A propertys recipient is the grantee i.e. the individual who will be taking the title in accordance to the name in the legal document which is used in order to transfer the real estate. It is mentionable here that, grantor is the individual surrendering the property. The Real Property Act 1886 deals with the aspect of grantee under three classes i.e. when the applicant is original grantee, when the applicant is not original grantee, when there is imperfection in the title. References Anderson, J. and Young, L. (2006). Trade and Contract Enforcement. The B.E. Journal of Economic Analysis Policy, 5(1). Austlii.edu.au. (2014). REAL PROPERTY ACT 1900 - SECT 56CConfirmation of identity of mortgagor. [online] Available at: https://www.austlii.edu.au/au/legis/nsw/consol_act/rpa1900178/s56c.html [Accessed 3 Sep. 2016]. Austlii.edu.au. (2015). Frustated Contracts act1978. [online] Available at: https://www.austlii.edu.au/au/legis/nsw/consol_act/fca1978247/ [Accessed 3 Sep. 2016]. Australiancontractlaw.com. (2013). Australian Contract Law | Julie Clarke. [online] Available at: https://www.australiancontractlaw.com/law/remedies-damages.html [Accessed 3 Sep. 2016]. Australiancontractlaw.com. (2013). Australian Contract Law | Julie Clarke. [online] Available at: https://www.australiancontractlaw.com/cases/baltic.html [Accessed 3 Sep. 2016]. Falk, A., Huffman, D. and MacLeod, W. (2008). Institutions and contract enforcement. Cambridge, Mass.: National Bureau of Economic Research. Ppsr.gov.au. (2015). PPSR overview | PPSR. [online] Available at: https://www.ppsr.gov.au/ppsr-overview [Accessed 3 Sep. 2016]. Thel, S. and Yorio, E. (2011). Contract enforcement. New York: Wolters Kluwer Law Business.