This is a BUSINESS LAW ANALYSIS REPORT 1 and 2.
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Business Law Analysis Report 1
Question 1
Identification & Explanation of appropriate Law/Rule
The relevant law which is relevant to this issue is the Contract Law. A contract could also be created if there is nothing in writing between the two parties so this means there are different types of the contracts. When a written contract is made between the two parties based on certain terms and conditions, then it is defined as the legal agreement which is made between the two parties or more than two parties and it creates the obligations and the rights between them which are legally enforceable (Vickery, 2011). There are different courses of business in which contracts and their execution could be exercises such as in the sale and purchase agreements or transactions relation to the mortgages and loans (Michida, 2003).
Application to the facts of the case
The delivery of the baked goods from Alfred to Joseph’s restaurant was being done not under any of the written contracts. The deal to supply these goods to Joseph has not been agreed in any written form . Therefore, this is not a formal contract. However, there is a simple or the implied contract which exists between these two parties. This contract is implied by the conduct of the supply (Latimer, 2012). Therefore, currently now if, Joseph wants to increase the output for his business to about 100 croissconenuts per day, then it is completely the will of Alfred that he increases the supply size or not and he is not under and legal obligation to agree to Joseph as there is no formal contract between the two.
However, it orders to do this Joseph can approach Alfred to sign a formal contract for the new supply size and if Alfred agrees then a new contract could be signed by them. To create this contract, the main elements required by Joseph are an intention to create a contract, agreement to be formed, a consideration which is something of value given to Alfred, the capacity of both the parties to make a legally binding contract, genuine consent and legality of the activity.
Conclusion
Joseph should not continue with the current verbal agreement for the delivery of the supply of the baked goods. It is also possible that Alfred increases the price for the same goods along with increasing the supply size as he is not legally bound by any contract. It is recommended for Joseph to form a formal contract with Joseph on the most suitable terms and this must consist of all the elements as highlighted above.
Question 2
Identification & Explanation of appropriate Law/Rule
The appropriate business law in this question is the Business Structure laws. There are many important reasons due to which most of the businesses or the individuals want to structure their individual businesses and change its structure. One of the important reason is management and control of the new entity. Under this, all the partners formalise the percentage of the ownership of the business and each of them aid in the formal decision making of the business and also profit making (Vickery, 2011). The capital requirement is another important factor due to which many businesses are capitalised. There is also a difference in the tax payments according to the different business structures. However, the most important reason due to which the partners or individuals create different business structures is a limited liability (Latimer, 2012).
Partners often wish to limit the extent of their liability in business to all the outside parties to order to protect all of their personal assets. There are many different forms of the business structures which include the sole trader, partnership, trust and the company. Under a sole trader, there is a single business owner who is indistinguishable from the business. The partnership is a legal form of the relationship between two or more individuals, and all of them work for the business to generate profits (Harper, 2011). A trust is also a type of the business structure in which the trustee carries out all the functions of the business on the part of the beneficiaries. Finally, the company is also a type of the business structure under which the company is considered as a separate legal person, and it is considered to have a separate legal capacity of an individual.
Application to the facts of the case
Based on the above law, the most suitable business structure for Joseph and his two siblings would be to set up a new entity which would be a separate company with its liability. This company would be a separate legal person, and it will have the separate legal capacity of a person. This company will also have the capacity to hold the assets and also enter into its contracts. However, apart from all of these characteristics the most important characteristic or the benefit of setting up a new company is that all the three owners of the company would possess limited liability after the formation of the company which is not possible as a sole trader or partnership. When Joseph forms the company with his two partners with a total shareholding of 33.33%, then this company would be only liable to the third party claims to the extent of the assets which are held in the name of the corporation. After the creation of the corporation, these three owners can also appoint directors for managing the company.
Conclusion
The creation of the new company would limit the liability of Joseph and its two partners. Therefore, this is the most suitable structure for Joseph. However, the creation of the company requires a great deal of the work in the form of taxation, maintenance and formation as compared to sole traders and partnerships.
Question 3
Identification & Explanation of appropriate Law/Rule
The appropriate business law which is applicable to this specific question is the laws and rules regarding Intellectual Property in the businesses. Intellectual Property could be defined as the ownership which is possessed by the owner of the business over the outcomes, byproducts or the intellectual activities of the business. Through this, all the business owners can maintain a monopoly right over their intellectual activity and the output of their business (Latimer, 2012). There are many different forms which could be taken by the intellectual property. For instance, it could take the form of the official name, slogan, and logo of the company. There are also many different types of the intellectual property which include copyrights, designs, patents and trademarks. The copyright gives the owner of the business all the exclusive rights and also the enjoyment of the way in which all the original ideas are expressed for the work. The second type of the intellectual property is design, and this is the pattern, shape, visual features and the configuration of the handmade or the manufactured products (Peter K, 2007). Patents are the third type of the intellectual property. Patents are thought to be a way to protect the inventions of the company. These patents can run for around 20 to 25 years based on the type of the invention. Finally, the trademark is the distinctive mark or the symbol, and this could be used to identify the good, product, brand or the business (Vickery, 2011).
Application to the facts of the case
Joseph is looking for to obtain a design on his signature baked goods to protect his baked goods. As discussed, this is one of the types of the intellectual property, and Joseph can use this to protect his property. When the design for the Croissconenut would be made on the baked goods, then this would protect his goods from copying. The design which would be created would be obtained through the Designs Act of 2003 for around ten years. When this design would be approved for the protection of the baked goods, then this would enter into the central registry. This design needs to be new and distinctive, and it must not match any of the previous designs which might have been created within the industry. If there are similar designs in the market, then Joseph will not have the right to create this design. However, it seems that Joseph has created a design which is innovative and new, therefore, creating the designs is the best way to protect the intellectual property.
Conclusion
The design is the best type of the intellectual property which should be made by Joseph under the Designs Act of 2003. This will protect his baked goods, and it will then enter into the central registry.
Question 4
Identification & Explanation of appropriate Law/Rule
The appropriate law which is applicable to this question is the law of tort. Tort is defined as the civil wrong. There are the wide array of the torts which are recognised in law, and there are many different types of the torts which are similar to crimes. There are also certain instances, in which the individuals’ action constitutes the tort and the crime both. There are many different types of torts, but they could be broadly categorised into two basic categories of torts. The first one is the intentional torts which are intentional wrongdoings. The second category is of negligence which means the civil wrong which is unintentional, but it exits as a result of the failure to recognise the duty owed to another (Latimer, 2012). Liability is an important concept under the law of tort, and the most critical element of the law of tort is the recognition that not all of the incidents in which a particular party is injured incur a tort liability.
But the tort liability is only created when there are certain elements met. First of all, it must be proven that the defendant owed the plaintiff a duty of care, the defendant breached that duty of care and finally, the plaintiff suffered harm as a result of that breach. A duty of care is said to exist when it is reasonably foreseeable that the defendant or the others may be injured by one’s actions or behaviours (McDonald, 2014). Second, it must be determined that this duty of care had been breached by the defendant, for instance, the risk of harm was foreseeable which was significant and there was also a reasonable person in the defendant’s position which would have taken the precautions against all the harm which occurred (Vickery, 2011).
Application to the facts of the case
If the three conditions for determining the negligence could be proved in the court, then Joseph would be liable to pay the compensation of $ 4000. The first condition is met in this case, and Joseph owed the bicyclist a duty of care. Determining that this duty of care was breached by the defendant was breached is difficult to prove here. However, if Grand Opening sign had been placed in the middle of the road recklessly then it would be said that Joseph had breached this duty of care. Therefore, furthermore, information is required here. If the sign board is placed on the sidewalk, then this duty would not be breached. Then the third condition for liability would also be met here which is the plaintiff suffered injury as a result of this breach.
Conclusion
If it is found with sufficient evidence that the Grand Opening sign board had been placed in the middle of the road recklessly by Joseph and in this way, he breached the duty of care. He would be then liable to pay the damages of $ 4000 to the bicyclist. If this matter goes ahead for trial, then this matter would go in the district court of the state.
References
Harper, D. (2011). “company”. Online Etymology Dictionary.
Latimer, P. (2012). Australian Business Law (31st Ed). Wolters Kluwer Publishing.
McDonald, B. (2014). “Legislative Intervention in the Law of Negligence: The Common Law, Statutory Interpretation and Tort Reform in Australia”. Sydney Law Review.
Michida. (2003). Contract Societies: Japan and the United States Contrasted. Pacific Rim Law & Policy Journal.
Peter K, Y. (2007). Intellectual Property and Information Wealth: Copyright and related rights. Greenwood Publishing Group.
Vickery, R. &. (2011). Australian Business Law (7th Ed). Pearson Publishing: Australia.
Business Law Analysis Report 2
You can get the question on Business Law Analysis Report 2 here
Question 1
Identification & Explanation of appropriate Law/Rule
The appropriate law which is applicable to this question is the Consumer Protection Law of Australia. A consumer is defined as the one who purchases the goods or the services. Regarding the law, these goods are acquired for use in household, personal and the domestic use. Regarding the Australian Consumer Law, there are some the consumer guarantees and all of these types of the guarantees cover the purchases which are made for the domestic, personal and the domestic household use (Vickery, 2011). All these remedies provide the remedies to all the customers who are delivered the negligent, defective and deficient products or the services (Kelly, 2012). These remedies can take the form of the refund, repair and replacement (Latimer, 2012). Along with this, all the guarantees which are provided by the ACL, the sellers can also provide their warranties regarding the quality of the products. There are many different forms of the warranties such as the express, voluntary and extended warranties.
Application to the Facts of the Case
The situation presented in this question is unclear about the fact that whether the contract which had been agreed between both the parties had specified any the warranty if there are any defects found in the original products which have been delivered. If the contract has mentioned express warranties such as the ovens which would be supplied would be of high quality and free of all the defects, then the seller is now under obligation to refund, repair or replace the products. In this case, Joseph wants the complete refund, and if there has been an express warranty in the contract, then he can demand 100% refund.
Conclusion
According to the ACL, a contract has been made for the sale transaction and online delivery of the ovens. If this contract has mentioned an expressed warrant, then the seller is liable to refund the 100% of the amount to Joseph. The terms of the warranty would state a refund since; the promised quality has not been delivered. However, if this is not mentioned which seems more likely, then the remedy of repair would be applicable in this case.
Question 2
Identification & Explanation of appropriate Law/Rule
The appropriate business law which is applicable to this question is the law of Financial Instruments and Transactions. The majority of the transactions which are conducted in the normal course of the businesses rely less on cash for the purchase and the sale of the goods and the services. There are many different substitutes to cash, and one of them are the negotiable instruments (Latimer, 2012). There are many types of these negotiable instruments such as the bills of exchange and the most common example for the bills of exchange is the cheques. Cheques still play today a vital role in all the different types of the financial transactions which are conducted by the businesses (Chisholm, 2013). These bills of exchange could be defined as the unconditional written orders for paying on demand or at a particular time in the future by the drawee (Vickery, 2011).
There are many different types of bills of exchanges such as trade bills, bank bills and finance bills. Cheques are also a similar type of the instrument like the bills of exchange, but the difference is that these are available for broader uses also. There are also many different types of cheques which are governed by the Cheques Act of 1986. One type is the cross cheque which shows two parallel lines on the face of the cheque. For this cheque, the amount could not be cashed, but it could only be deposited into an account of the drawee. Another type is the Bearer cheque which is automatically payable to the order of the bearer which means that anyone can collect the amount due by presenting the cheque. No endorsement is required in these cheques.
Application to the Facts of the Case
The two cheques which have been paid to Joseph in return for the sale of the two ovens are both valid cheques and they are not fraudulent at all. The first cheque with two parallel lines is a cross cheque, and Joseph will have to simply deposit those funds into his bank account directly, and he will not be able to withdraw the amount in cash. The second cheque is a bearer cheque. It does not matter which party this cheque has been written to since the cheque is not endorsed. Joseph can withdraw the amount in cash by showing it to the bank.
Conclusion
Both the cheques are valid and are not fraudulent. The first cheque is a cross cheque whereas the second cheque is a bearer cheque.
Question 3
Identification & Explanation of appropriate Law/Rule
Then most appropriate and the applicable law in this question is the Employment law of Australia. The relationship between the employees and the employer is unique, and there are rights, duties and obligations which are attached to this relationship. These relationships are governed by some laws and rules such as the Fair work act 2009, awards, Enterprise Agreements and Common Law Rules (Vickery, 2011). There are many different types of employment categories, and the two most important of these categories are the employees and the independent contractors or freelancers. Employees have to sign a contract of service which is legally binding, and it is the written contract which is made between the employer and the employee.
On the other hand, the independent contractors are hired for the performance of the specific services for payment or any other form of consideration. Another difference is that the freelancers retain the right on how they complete the work, but this right is not possessed by the employees. To determine the employment relationship the Multi-factor test can be performed (Latimer, 2012). There are certain factors to be answered under this test such as how much control the workers have on their work, have they been entitled an independent contractor in writing, how is the worker paid and does the client deducts payroll taxes. There are also certain other questions such as who supplies the necessary tools for the work, does the worker works exclusively for the client and does the worker operate through a separate business or entity (Cooper, 2009).
Application to the Facts of the Case
If we apply the multi-factor test to the Joseph and the cleaning crew’s relationship, then it could be said that they show the suggestions for the contractor as well as an employee of Joseph. First of all, if we look at the aspect of control then although Joseph watches each aspect of the work performed but he does not control them, but this has not been stated in writing. The crew is paid on a weekly basis which means regular periodic payments are paid which is common in an employer-employee relationship. It is not clear whether Joseph deducts the payroll taxes. The tools are supplied by the crew for the work then this suggests a contractor relationship. But on another hand, they work exclusively for Joseph then this is more common for an employer-employee relationship. Finally, they have a separate business structure as a sole trader then this again suggests that they are independent contractors.
Conclusion
If we look at the multi-factor test result, then it could be said that majority of the factors suggest that the cleaning crew is the independent contractor for Joseph and if they sue for the rights as the full-time employees then Joseph will not be harmed as long as there is nothing in writing.
Question 4
Identification & Explanation of appropriate Law/Rule
The most appropriate business law applicable to this question is the Real Estate business law. The property is the actual object which is owned by anyone, and there are many types of property such as real and personal property. Real property consists of the land and all things attached to it, but personal property is basically about all the other types of the property such as the leases over land (Sullivan & Sheffrin, 2008). If a person owns personal property, then he can lease it. The lease can be defined as a contract in which the lessor grants the exclusive possession of the property to the lessee for an established period and the lessee pays a consideration such as rent. There are many different forms of leases such as fixed form leases and periodic leases (Vickery, 2011). Fixed leases are created for a fixed time, and they terminate at the end of the stated period leases terminate with sufficient notice of termination. Finally, leases could be terminated through four different ways which are expiration, notice to quit, surrender of lease and forfeiture (Latimer, 2012).
Application to the Facts of the Case
If we look at the nature of the lease in this situation, then the lease between Joseph and his uncle is a periodic tenancy. A formal agreement had been made between the two parties, and it did not state anywhere the period of the lease when it would be automatically terminated. On the other hand, Joseph has been paying rents on a periodic basis such as monthly rents. The condition for the termination of such leases is to provide sufficient notice of termination to the landlord. The period for paying this notice has not been written in the formal agreement but minimum six months notice needs to be provided. Therefore, Joseph will have to wait for six months before terminating this lease legally. If the uncle agrees to surrender the lease, then this lease could be terminated immediately.
Conclusion
This is the period lease, and Joseph needs to provide six months notice to his uncle before this lease is terminated.
Question 5
Identification & Explanation of appropriate Law/Rule
The most appropriate business law applicable to this question is the Privacy Law of Australia. Privacy is governed by the federal Privacy Act of 1988 in Australia. The Privacy Commissioner is the one who is tasked with the job of enforcing the privacy act. The scope of the privacy law is broad, and it covers the both the private as well as the government industries. All those businesses which have revenues more than $ 3 million per year have to comply with the privacy law (Ryan, 2011). Along with this, electronic commerce has also become an increasingly commonplace and it also presents us today with many opportunities and challenges in a legal aspect (Latimer, 2012). E-Commerce may be defined as all the business transactions which are carried out over the Internet or other electronic networks. The Electronic Transactions Act of 1999 provides all the regulations and the rules for governing E-Commerce (Vickery, 2011). There are also many different areas of law which are integrated with e-commerce such as defamation, intellectual property rights, spamming and limits to pornography.
Application to the Facts of the Case
If we analyse the situation presented in the case, then it could be said that the Privacy Act is being breached by Joseph. The reason for this is that he has personal and confidential data of his employees on his record keeping system, and there are no security measures which have been adopted such as passwords on the most confidential information about the employees or the skyrocketing profits of the company. This is important, sensitive and confidential information and since Joseph is using he WiFi of the neighbouring restaurant, therefore if this information gets leaked then it will damage the reputation of the company and the employees can sue Joseph for his negligence.
Conclusion
The Privacy Act of 1988 is applicable on Joseph, and he is liable to secure and protect all the private information about his employees and his business also. He can seek guidance from the Privacy Commissioner.
References
Chisholm, H. (2013). “Bill of Exchange”. Encyclopædia Britannica. Cambridge University Press.
Cooper. (2009). The ‘New’ Industrial Relations and International Economic Crisis: Australia in 2009. Journal of Industrial Relations.
Kelly, J. (2012). “Shoppers and parents among those to benefit from law changes at midnight”. The Australian.
Latimer, P. (2012). Australian Business Law (31st Ed.). Wolters Kluwer Publishing.
Ryan, F. &. (2011). Regulation of the Cloud in Australia. Journal of Internet Law.
Sullivan, A., & Sheffrin, S. M. (2008). Economics: Principles in action. Upper Saddle River, New Jersey 07458: Pearson Prentice Hall , 523.
Vickery, R. &. (2011). Australian Business Law (7th Ed). Pearson Publishing: Australia.
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