Law subject essay

I have written an essay. It is for the law subject at undergraduate level. I am not a native English speaker.
Could someone help me and check my essay for grammar and other errors?

Many thanks,

Alex

http://picccs.mine.nu/pics/essay.htm

In my opinion, the major issues in this case are terms and conditions of agreement between the two parties and misrepresentation. Therefore, the discussion in this essay will be focused on terms and conditions of the agreement and possible misrepresentation which might have occurred during the negation between the two parties.

The main arguments for Banjo’s case is that of the term of the agreement to deliver a rare and expensive Graham car manufactured in 1930’s which Banjo described in the brochure. And that the term has been misrepresented by Hick during negotiation.



The contract between the parties was negotiated in writing. Therefore, the parol evidence rule applies which states that if there is a record embodied in a document, the extrinsic evidence is not generally admissible.

Mercantile Bank of Sydney v Taylor (1891) 12 LR (NSW) 252



To determine if a statement has become a term of the contract in the course of negotiations, it is necessary to determine if the parties intended the statement to become the term of the contract. The courts developed a number of subrules that assist in determination of that intention. Among these are:



- Was the statement followed by a reduction of the terms to writing and, if so, was the statement included?

- Did one party have special knowledge or skill on which the other was entitled to rely?

- How important was the statement in the minds of the parties? Graw (2002 p. 200)



Banjo prepared a brochure in which he described the car required for the film.

The brochure was enclosed with the letter Banjo sent to Hick stating: “I will be happy to buy your Graham car provided it is appropriate for our film which is described in the enclosed brochure.”

Nemeth v Bayswater Road Pty Ltd [1988] 2 Qd R 406



It is also clear from the facts that Hick possessed greater knowledge about the Graham car he was offering for sale. Hick was the owner of the car and Banjo relied on his knowledge about the car.

Dick Bentley Productions Ltd v Harold Smith Motors Ltd [1965] 1 WLR 623



Furthermore, it can be argued that a reasonable person in Hick’s position should have become aware of the fact that it was very important for Banjo to buy a rare, expensive Graham car manufactured in 1930’s, which was described in the brochure he provided to Hick.

Bannerman v White (1861) 10 CB (NS) 844; 142 ER 685



Given these arguments, in my opinion, the written statements Banjo made in his letters became the terms of the contract.

Banjo can support his case further stating that the information Hick provided was not fully disclosed. He trusted Hick who possessed greater knowledge about the car Hick was selling, and therefore Banjo was induced to buy the car by the statement Hick sent in his letter, and by the photograph Hick provided.

There is a fine dividing line between “mere representation” on one hand and a representation of fact on the other. Only when it is proved that the representation of fact is not true, Banjo can rescind the contract. To prove that the representation of fact is not true Banjo will need to prove four things:

- That false statement was made;

- That the statement was one of fact

- That it was addressed to the party misled (before or at the time the contract was made);

- That it was intended to induce and did actually induce the contract. Graw (2002 p. 274)
Hick sent Banjo a photograph with a note stating “this shows you the excellent condition of my car.” Hick was silent about that fact that the car was not “expensive” model which Banjo asked for in advertisement and probably described in the brochure. Generally, silence does not constitute misrepresentation; however, there are three fundamental exceptions to this presumption:



- Half truths;

- Statements which become false;

- Contracts uberrimae fidei. Graw (2002 p. 275)


During the negotiation, Hick must not have misleadingly told only part of the truth. The statement that does not present the whole truth may be regarded as misrepresentation. Banjo can argue before the court that he was misled by the information which was not fully disclosed by Hick, and therefore the false statement was made on Hick’s part.

Nottingham Brick & Tile Co. v Butler (1889) 16 QBD 778

Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563

Furthermore, silence can also constitute misleading or deceptive conduct under s 52 Trade Practices Act 1974 (Cth)

Henjo Investment Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83

The statement which Hick did not fully disclose was addressed to Banjo. And the statement Hick made was the statement of fact.

In addition, Banjo must show that Hick’s statement was intended to induce and successfully induced him in entering the agreement with Hick.

Given the facts, it is clear to me that Banjo relied on Hick’s information and that Hick’s statement was material to the contract. There were no additional information provided during the negotiation by other parties, and there were no extrinsic factors which influenced Banjo’s decision to enter the contract. Banjo was influenced, and any reasonable person in Banjo’s position would have been influenced by Hick’s statements. As a result, Banjo entered this agreement.

The argument in Hick’s defence is that he did not make a false statement about the car he was selling, and it was Banjo who was negligent to check the car before the contract was settled. Furthermore, Hick can argue that when he sent a photograph of his car to Banjo stating: “this shows you the excellent condition of my car” – this was a mere representation to influence on Banjo decision which occurs in regular dealings between the traders and the customers.

Dimmock v Hallett (1866) LR 2 Ch App 21

Hick’s statement was never meant to be binding. Therefore, his statement was not intended to be the term of the contract. In addition, Hick was not obliged to provide further information about the car he was selling. Silence to any direct questions generally is not regarded as misrepresentation by courts. This is stated in

Smith v Hughes (1871) LR 6 QB 597



In my opinion, Banjo has stronger arguments which show that the terms of the contract were misrepresented by Hick. Therefore, Banjo is entitled to rescind the contract.



Bibliography



Dr Moles, Robert N 2006 Contract Law, Networked Knowledge, viewed on 21 July 2007

http://netk.net.au/ContractLaw.asp

Graw, S 2002 An Introduction to the Law of Contract, Lawbook Co, Sydney