Introduction to Ethics and Business Law Free-Samples for Students

Questions 1.Was it a term of the contract between Mikaela and Tower Flours that the almond flour would be gluten free? (5 marks) 2.Was there an implied term in Dan and Jacobs contract with Mikaela, that their wedding cake would be gluten-free? (3.Was the icing colour a condition or a warranty of the contract? (3 marks) 4.Is Mikaela still responsible for the icing being the wrong colour on Kimikos cake? Answers: 1.In the present case there is a lady namely Mikaela running a cake shop. She sources her ingredients from a shop i.e. Tower Flours. The shop owner in the case of Tower Flours is Ricky. Prior to placing an order from the shop, Mikaela asked from Ricky as to whether the flour they sell is free from gluten. She made this enquiry with the thought process that flour containing gluten might harm the customers health. In the present case the customers Dan and Jacob had ordered for almond flour cake and they had specifically made no request for the ingredients to be gluten free. From the present case it can be inferred that an online contract has been entered between Mikaela, the owner of the cake shop and Ricky, the owner of Tower Flours. However it can be understood that the terms of the contract had not been expressly mentioned in the online contract[1]. Whatever discussion and agreement had been done included the terms which were not specifically mentioned in the online contract. Hence it is essential to mention the terms and conditions in a written manner because in case there is a breach of any term or condition it can be easily contested in the court for redress. Hence there seems to be absence of an express contract. The terms have been agreed upon in an implied manner[2]. The online contract has no clear mention of the facts that the cake delivered does not contain any gluten. However it was clearly discussed in an oral manner that the almond flour that would be used for making the cake would be gluten free. The rules of commercial contracts suggest that an agreement entered between two parties must contain terms and conditions in an explicit written manner[3]. As per the common law of Australia, it is imperative that some of the important terms and conditions of a contract should be expressly mentioned. 2.In the present case there is a wedding for which a cake has been ordered. The bride and groom in this case are Dan and Jacob respectively. Herein Dan and Jacob had order a cake which had to be made from almond flour. However they had not expressly mentioned that the cake should not contain any gluten. It has been seen that Dan suffers from coeliac disease and has a severe reaction after the consumption of the cake. The order given in this case was only for a cake made out of almond flour. There was no clear instruction suggesting that the cake should be free from gluten. Thus it can be inferred that there was no implied term present which suggested that cake must be devoid of gluten. However the Australian Consumer law is applicable nationally. There are certain terms which are not mentioned clearly in a contract[4]. They can be inferred only through the intent and conduct of the parties to the contract. For example, any company has their own confidentiality policy. Thus if a staff discloses any confidential information out of the organisation, he will be held for causing breach. Usually terms are decided by parties to the contract. However rules and provisions of the consumer can imply certain terms into the contract. As per the consumer law, it is the duty of the seller to ensure that the goods sold to the customer are of high quality and does not cause any harm or damage to the customer. It is upon the court to take into consideration the existing situation[5]. On the basis of the situation the court can decide as to which term is to be considered or not to be considered to address the breach. Thus in the present case Dan and Jacob can use the provisions of th e consumer protection law to sue Mikaela for the breach of contract. However in the present case Mikaela can claim defence that she had no knowledge of the cake containing gluten. She can claim breach of contract and counter sue Ricky for not complying with the terms and conditions. She can take recourse of the provisions of the consumer laws of Australia for holding Ricky liable. She might face issues of proving the fact there was a discussion pertaining to the need of the cake being gluten free. She can take recourse of the provisions of Misrepresentation Act 1972 for her claim[6]. 3.In the present situation there is another contract entered between Kimiko, a customer and Mikaela, the owner of the cake shop. Under the case scenario, Kimiko has set certain terms and conditions prior to placement of an order. She had stated that she wanted a chocolate cake containing purple and blue icing. The purpose of the cake was for a sports function. There was a sign displayed earlier by Mikaela on the wall near the counter where it was mentioned that the organisation does not take responsibility for a warranty breach. On the delivery of the cake it was discovered by Kimiko that icing colour on the cake was green and blue. This was contrary to what Kimiko had ordered. Hence it clearly depicts the breach of a condition. It was expressly mentioned by Kimiko that there should be two characteristic of the cake. One that the cake had to be a round chocolate cake and the cake needed to have purple and blue icing[7]. The purpose of having a blue and purple icing was of significant essence as it would serve a specific purpose. Thus the negligent act on the part of Mikaela has led to a breach of condition. Kimiko is entitled to repudiate the entire contract and claim for damages. Mikaela cannot claim that the icing colour was a warranty. 4.During the order being placed, it was specifically mentioned by Kimiko that the cake should be round and be of chocolate flavour. She was very specific about the colour of the icing of being purple and blue. She was very specific about the icing as it would serve a certain purpose. Any contract is comprised of two very important terms namely conditions and warranties. Conditions are those important terms of a contract which if breached entitle the innocent party to exercise certain powers[8]. Hence the innocent party can either cancel the contract or ask the defaulting party to pay damages for the loss or breach of condition. Conditions are classified as a pre condition and subsequent condition. In both the cases they are treated as condition as a whole. In the present case the scenario suggest that the requirement set by Kimiko is a pre condition. The concept of condition can be described with an example. Suppose there is a term that a buyer of a property is entitled to vacant possession it refers to a condition. If the seller is unable to provide vacant possession, the buyer is entitled to repudiate the contract as well as claim for damages. These remedies are usually clearly mentioned in the contract[9]. The procedure that could be suggested to Kimiko is that she should first provide a notice to Mikaela citing that the breach should be made right within a specific time period. If the notice is not complied with, Kimiko can take further recourse. In case Kimiko cancels the contract due to the breach of the condition, she will be entitled to get back any advance money provided by her to Mikaela for the p reparation of the cake. References J. W Carter,Contract Law In Australia(LexisNexis Butterworths, 1st ed, 2013). J. W Carter,Cases And Materials On Contract Law In Australia(LexisNexis Butterworths, 1st ed, 2012). Eugene Clark et al,Contract Law In Australia(Kluwer Law International, 1st ed, 2013). Justin Malbon and Luke Nottage,Consumer Law Policy In Australia New Zealand(Federation Press, 1st ed, 2013). David Echeverry Botero, "Contract Interpretation Law In Australia: It Is A Maze, Not A Straight Way" (2015) 2IUSTA. Greg Marston and Tamara Walsh, "A Case Of Misrepresentation" (2008) 17Griffith Law Review. Charles E Chadman,The Elements Of The Law Of Sales Of Personal Property And Equity Or Chancery Jurisprudence(Bridge Publishing Group LLC, 1st ed, 2009). J. W Carter,Carter's Breach Of Contract(LexisNexis Butterworths, 1st ed, 2011). Neil Andrews,Contractual Duties(Sweet Maxwell, 1st ed, 2011).