Explain how the contracts Avinash made with the café were formed:
this case, we need to identify where the contract was formed between avinash
and the café.
to Contract law, there are four elements namely offer; acceptance,
consideration and legal intention are
considered to develop a valid contract. It is required to have all these
elements while forming a contract, which can be enforced in terms of validity
and legality. If these elements are not considered, a contract is regarded as a
void contract or cannot be enforced legally. In order to formulate a valid
contract, one party needs to give a lawful offer and other party needs to
accept that offer in legal way. Parties need to be competent physically and
mentally to develop a legal relationship. Both parties must have conscious
intention and free consent to enter in the contract without any external force.
There should be legality in the objects of the contract agreement with certain
terms and conditions.
In given case, Avinash gave order for
cappuccino- and a Danish pastry to cafe and café offered this order at price of
$7.50. All the conditions were provided on ticket as it was in written form
also. However, Avinash did not notice the clause stated on the reverse side of
ticket. In this case, both parties were competent physically and mentally and
completed the order. In this case, all essential elements of a valid contract
are involved because of presence of offer, acceptance, certainty, conscious
intention, object legality, legal consideration and proper communication
between the offeror to the offeree. However, it was individual fault of Avinash
to not to notice the clause given the reverse side of ticket. But due to involvement of all elements, this
contract will be considered as a valid contract.
the basis of the contract law, it can be stated that there is a valid and
enforceable contract between Avinash and Café as it involves all the required
elements of a valid contract.
Paterson, “Introducing The New, National Australian Consumer Law”
(2011) 36(1) Alternative Law Journal.
Determination of Café’s liability in relation to Avinash’s injury
this case we need to identify whether the café is legally entitled to rely on
the clause printed on the ticket to avoid liability in relation to Avinash
to Consumer law, consumer can be defined as the person who uses the goods with
the approval of the buyer. The consumer buys the goods for consideration. At
the same time, exclusion clauses are clauses that state that there is no
liability for one party any happening to another party (Howells & Weatherill, 2017).
These clauses can be valid if they have been incorporated in the contract and
are not contrary to law. But these clauses should be legal means there are some
obligations of the seller to the consumer and cannot be excluded as per the
Sale of Goods Act 1895. It advocates for the conditions of fit for purpose and
merchantable quality. A seller will be
liable if he/she breaches a fundamental term of a contract (Asmat & Tennyson, 2014).
If there is a willful misconduct by the seller, then this law protects the
consumer. It is the duty of trader to provide adequate quality of the product
to the consumer.
the given case, Avinash is a consumer as he consumed the food offered with the
approval of the café. Apart from this, the consumer protection act can be
applied in this situation as the café cannot avoid the liability to the
consumer in relation to the quality of the food which it provides. In this
case, tooth of Avinash broke due to insufficient care by the workers of café
who made pastry; it will be liable in spite of the exclusion clause printed on
ticket. Even, the café manager did not make the customer or Avinash aware about
the exclusion clause. It can also be supported by the case of Thornton v Shoe Lane Parking Ltd.
(1971) 1 All ER 686, in which court ensured the liability of the parking
company even on the back of ticket, an exclusion clause was printed regarding
no liability for
cars left on their premises. It is because there was
insufficient care done by the parking company (Bar-Gill & Ben-Shahar, 2013).
Courts consider the exclusion clauses as the narrowest reading possible as it
is more favorable for the consumer to get the damages.
on the above mentioned law and legislation, it can be concluded that café will
be liable for the injury to Avinash as it ignored the quality of its products
that resulted in the harm to the customer. So, it is the liability of the café
to pay the damages or compensation to Avinash for tooth repairing.
Corones, Australian Consumer Law (Thomson
Reuters (Professional) Australia Pty Limited, 2016).
Differences between express and implied terms
are two sorts of terms in contracts called as implied and express terms to make
the included parties to play out their obligations and duties in like manner.
Express terms can be characterized as the terms, which are considered by the
parties at the time of defining an agreement. These terms are said in written
or oral structures amid the arrangement of an agreement. The impact of express
terms is to authorize every single included party to go about according to
these terms for maintaining a strategic distance from any breach of agreement
in future (Appleman
et al., 2016). On the opposite side, implied terms are built into
the agreement as an issue of the standards and controls under the law in
various occurrences, for example, by statue, by customary law, by custom or
trade utilization, and so forth. Business contracts incorporate statuary
implied terms in sale of goods acts 1979 and the supply of goods and services
act 1982. These terms have impact without express terms. An agreement can fit
into one of two classes: express contracts and suggested contracts. An express
contract delineates the guarantee that was made between the parties in understandable
and convinced terms. An implied contract, then again, is one that leads the
parties to trust that an agreement exists in view of the practices of those
included. An agreement to buy a house is a decent case of express contract
utilize. It is because there are particular components to the agreement that
are obviously communicated and, if pleasant, are approved clearly by the buyer.
The components of an express contract incorporate the offer, the acknowledgment
of that offer, and a common agreement between the parties in relation to
contract terms. A few contracts essentially occur because of condition, and
those agreements are alluded to as implied contracts. In the given case,
express terms are related to offering of order by café at $7.5, but implied
terms are that the products offered by the café should be of quality and should
not harm the consumer.
contract is a legally reliable contract that includes the terms which are
expressed in oral or written way. In order to meet the express terms, it is
required to offer to be made by one party and another party should accept this
offer. In order to decide the validity of the express contract, a court needs
to scrutinize the interchanges that are framed between the parties while
developing the contract. An express contract is an agreement with unmistakably
stated terms.This varies from an implied contract, which is an agreement that
is accepted to exist in light of the practices of those included. The terms
that are unequivocally characterized inside an express contract incorporate the
amount of merchandise conveyed (or particular services rendered), and
additionally the time period amid which the transaction is required to occur.
The acknowledgment of an express contract must be unequivocal, which implies
that it must adjust precisely to the terms offered in the agreement. If party
consents to the agreement yet hope to alter its terms and conditions somehow,
at that point that party isn’t unequivocally consenting to the agreement, and
is rather hoping to develop a counter-offer. Once a counter-offer has been formulated,
at that point the agreement never again qualifies as an express contract. But, express
terms do not consider all terms applied of the understanding. In particular
situations, the court implies terms into a contract for the business adequacy
to the contract.
the other hand, terms might be implied as an issue of law. In other words they
are inferred as a matter of policy and used as application to all agreements.
Additionally terms might be implied as a matter of fact. In other words, it can
be stated as an issue of development of the assumed interests of the parties in
a contract. In the case of Foley v Classique
Coaches Limited (1953), it is identified that an implied term was applied
within the matter of fact. If it is right to imply such terms, then this term
can be implied in the particular condition. If it is sensible, then this term
will be applied by the court in a case. For instance, in case of Trollope and
Colls Ltd v North West Metropolitan Regional Hospital Board (1973), the court
declined to imply a term because it was not sensible to apply this term in a
harsh contract. If there is a conflict between express terms and implied terms
then implied terms cannot be applied to the contract. For example, in the case
of Martin Grant and Co Ltd v Sir Lindsay Parkinson and Co Ltd, the Court of
Appeal refused to apply an implied term in a construction subcontract. It was
declared by the court that the key contractors will make adequate work
accessible to the sub-contractors for making sufficient progress and implement
their activities in a productive and monetary way. At the same time, the
fundamental contractors ought not block or counteract the sub-contractors in
the execution of the sub-contract works .It is required by the parties to trade
something or value or have a loss to make an express term substantial in a
court. It is because this term binds the parties to the contract terms with the
expectations of holding up the completion of their work to win rewards or avoid
any loss. This term is fulfilled by the parties by paying the money in exchange
of the product delivered or service provided by another party .For instance, an
express contract is framed when one party offers to install new refrigerator in
the other party’s home for the payment of $1,000 showing clear terms. One party
is getting an installation of refrigerator, and the other party is paying a
reasonable sum for that offering. Such understanding can be good to prove an
express term in a court effectively.