Assignment Coversheet

The Business School

Part A Differences between Common Law & Equity. Todays world there are many different kinds of law are present that are can be depending on the regions, religion, cases, etc. We live for a stat develop to the business of making continual improvement in the life of the community by means of legal innovation ... (Legislation-State, 1885) observed by Sir John Seeley. The two systems in which people are confusing about are Common Law and Equity Law. Because many people dont have knowledge about the law and there are many changes occurred in rules and regulation according to situation, surrounding and cases. Common Law is a system in which judges drive their decision about current cases on behalf of the similar previous cases decision. Equity Law is a system in which fairness and equity is more preferred. Common laws are laws that come from the past hearing in courts and their decisions are written down and those decisions become LAW. Common law is also known as statutory or precedents law. In common law system it is believed that justice is prevailed in the previous decision of courts. In general common law system treats same all the cases in which dispute, consequences, situation and facts are similar. But if there is any difference of opinions between laws, first they provided the similar past cases first and also provides reasoning but law can be altered and changed on the circumstances. And if law is altered or change then it is enforceable in the future cases which are similar circumstances and situations. After 200-300 years, development of system of law in England then Equity law system introduced. At that time kings enforces and fill the courts of law system and trained to administer punishments that were set in stone. After settings the punishments if anyone is not satisfied with the punishment or the decision made by the courts in England, they have an option to appeal to the Kind for a minor penalty. After sometime when numbers are increasing in the appeal cases, King transfers this duty to High Chancellors. High Chancellors includes the church clergymen or nobles and they making decision take all consideration of surrounding factors which are affecting the case before making decision. Later on this court became known as Court of Chancery and later on in 17th century, Court of Chancery start appointed lawyers instated of church clergymen or nobles. Equity law strict precedent law that may provide too unique and punishment. Equity law is system in which first consider each pros and cons and analysing each factor of the case then provides the decision. Equity gives punishment on the basis of the circumstance, aspects and the motive of accused and tries to justice and fairness. Whenever disagreement of the application or difference of opinions on common law. For example, Robbery is a crime in common law and is punishable. So if any one robbed someone or steal something then he will definitely get punished because they

never took consideration of circumstances of the person who robbed and cater according to the facts and figured of the Robbery case and make decision on behalf of previous similar cases in common law but when this case goes to equity law then the judge will take consider circumstance of the person who robbed and asked the reason behind the robbery and include those circumstances and reason in making decision. In modern time, common law and equity have seemed to merge in many countries to create a more fairness in legal and law system of countries. But there are some major differences between common law and equity in making solutions that are presented by both. In common law decision are always in terms of monetary but in equity court can also offer to do something or stop something to do. For example, if someone stole something. In common law decision the victim will receive monetary benefits against that thing commonly and always outcomes are similar to the previous case. In equity the victim will receive its thing back. And decision can be changes according to the circumstances of the situation. Another major difference in common law and equity law is in court jury is present and determine the outcome in common law and in quity court only judge will decide the decision.

Part B:

Sam Vs Bernie:
Issue: The issue between Sam & Bernie was Sam advertised an ad in newspaper which is one way offer similar to some cases of... (Spencer v Harding,1870) , (Harvey v Facey, 1893) & (Harris v Nickerson, 1873).In response to the advertisement Bernie called next day to Sam and told Sam that my TV is fulfilling all his requirement and he also said that he would bring it to Sams house around 3 pm. Next day Bernie brings TV to Sam house but Sam already bought TV from Peter. Bernie claim that he wanted money 600$ which TV worth it. But Sam refuse to pay because acceptance is not communicated to the seller which is one way similar to the case of (Felthouse v Bindley, 1862) and Bernie became angry and told Sam that he will face some trouble if he didnt bought TV from him which is similar to some cases (Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd, 1991) & (Barton v Armstrong, 1976) which indicates the cases of duress to person. Rule: The rule of Invitation to treat is an announcement of willingness to enter in negotiation; it is not an offer and is not in binding a contract. The rule of Personal duress in which in result of threats person enter into in a contract. Contract is voidable because there is effect of a finding duress and influence in making decision. Application: The Sam make an invitation to treat is an intention to buy, not an acceptance. The contract is not complete, until the Sam indicated the acceptance of the TV from the Bernie on call that he will purchase TV from him. Between Sam and Bernie there is a contract in which the person (Bernie) is responsible for making Sam to enter in contract and pay for the TV. This is a case of duress to person in which one party (Sam) enforced by the other party (Bernie) to enter in a contract and in this contract there is one party is forced by the other party so enforced party lose rights to void the contract or terminate the contract or reject to enter in the contract due to unlawful threats. Common law developed the remedy of duress to tackle these kind of incidence where other party influence (like threats of violence or unlawful) the decision of deceived party. Conclusion: In conclusion, Sam only give and invitation to treat. He didnt make any acceptance of an offer made by Bernie. So, he can terminate or void the contract between the him and Bernie which is enforced by Bernie similar cases (Hawker Pacific Pty Ltd v

Helicopter Charter Pty Ltd,1991) & (Barton v Armstrong, 1976) both cases faces the duress to person by other party therefore contract between Sam and Bernie is voidable. Sam also can take case on Bernie due to Personal Duress in common law.

Sam & Peter:

Issue: In this case there is another issue between the Sam and Peter. Contract between the Sam and Peter is in this case has been fulfilled but there is a fraud done by the Peter of misrepresenting of the TV. Thus fraudulent misrepresentation occurred. Peter called Sam and invited him to look TV which he is after for and make an invitation to treat by adding a DVD unit with TV to sell in the same price which is one way similar to the case... (Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd, 1953). Sam visited the Peters house for looking for a TV. When he checked the TV Sam asked about the price Peter quoted $600 Sam make an counter offer on Peter price of $550 and petere accepted the offer. Sam give money in considration of TV fulfilling his requirment and brough television to his home. And when he turn on TV in his home he came to know that TV is not displaying colours. Some cases are similar which are (Bisset v Wilkinson, 1927) & (Esso Petroleum v Mardon, 1976). Then Sam took TV to an electrician for check up and try to find fault for which Sams pay charges of it. Peter not tell about this fault in TV when Sam is checking TV Peter also show Black and white movie when Sam checking TV. Petere misrepresent his thing which is simialar to the cases of (Derry v Peek, 1889) & (Krakowski v Eurolynx Properties Ltd,1995). Rule: Rule of fraudulent misrepresentation is false representation of things by person who having an intention to do misrepresenting. The contract is voidable. The remedy is not found in this contract but there is a fraud which is also known as Tort of Deceit. Because the contact is on the bases of fraud which is voidable by deceived party (Sam) (Gibson & Fraser, 2012). Application: In this case Sam and Peter made a contract in between by fulfilling all the elements of contract, there was an offer made by Peter and Sam make a counter offer against that offer and consideration of genuine consent. The contract is voidable due to this contract is made on misrepresentation or fraud bases in which one party deceived by other party. Peter knows about the fault but he intentionally make a fraud and didnt tell to Sam. It is similar to case of (Derry v Peek, 1889) in which one party deceived

by other party deliberately and also in the case of (Krakiwiski v Eurolynx Properties Ltd, 1995). The deceived party has to bear the damages of the faulty TV and charges of electrician because there is no remedy available in contract law for the misrepresentation but the remedy is available in tort of deceit case which is available in common law and apply to the circumstances. Conclusion: Yes, contract between Sam and Peter is voidable because there is fraudulent act occurred by peter of misrepresenting of TV intentionally and this is similar to some of the cases like (Derry v Peek, 1889) & (Krakiwiski v Eurolynx Properties Ltd, 1995).

Key terms uses:

Invitation to Treat: Invitation to treat is only to invite to make an offer not accept the offer or make a offer. Duress to Person: Duress consist of an unlawful threatened violence to party or threatened of scarcity of the liberty in making a decision , in this the other party influence in making a decision or entering in a contract which is make loss to the deceived party and gain for the other party. Fraudulent Misrepresentation: Fraudulent Misrepresentation is an act in which one party intentionally make a fraud and try to mislead the other party and it can be done by written, oral or by conduct. Counter Offer: Counter offer is make when you are not happy with the offer from the offree anthen you reject the offer and make your own offer which is an option for the other party to accept the offer. Tort of Deceit: Because the contact is on the bases of fraud which is voidable by deceived party.

References: 1. Legislation-State, 1885 2. (Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd, 1953) 3. Bisset v Wilkinson [1927] AC 177 4. Esso Petroleum v Mardon [1976] QB 801 5. Spencer v Harding (1870) LR 5 CP 561 6. (Harvey v Facey, 1893 AC 552 7. (Harris v Nickerson, 1873 LR 8 QB 826 8. Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 298 9. Barton v Armstrong [1976] Privy Council 10. Felthouse v Bindley, 1862 II CB (NS) 869 11. http://www.e-lawresources.co.uk/Duress.php