An implied duty of good faith is to ensure an acceptable level of co operation and fairness in contract performance. It is used to preclude any unfair conduct in the course of performing a contract or exercising contractual powers. The High Court of Australia has not yet decided whether or not Australian law should recognize a duty of good faith which applies to the performance of all contracts. However, a duty of good faith has been recognized by lower courts in a number of cases. The concept of good faith should not be viewed as irrelevant and unnecessary as it encompasses the value of ensuring that contracts are performed with fairness, however not all contracts should encompass this principle. Rather, the courts need to look at the particular contract to see whether there is a concept of good faith and whether this term should be implied or whether it is excluded by express terms. As outlined by Elizabeth …show more content…
In Burger King and Alcatel Australia Ltd v Scarcella the Court of Appeal was dealing with a commercial contract and, in both instances, the court was prepared to imply a term of good faith in contractual performance and enforcement. Unfortunately, the mere fact that a commercial contract was involved in both instances has resulted in these decisions being accepted as a precedent for a legally wider proposition. The decision in Burger King was repeatedly cited by judges at first instance in New South Wales as authority for the proposition that a duty of good faith will be inferred in all commercial contracts. However, at no stage was this proposition expressly stated by the Court of Appeal in either Alcatel Australia Ltd v Scarcella or Burger King. Although the Court of Appeal in Burger King did state the two tests for implication of a contractual term as a matter of law, they merely seemed to satisfy themselves that the second test of necessity was
Imagine living in a state where one is providing service to a client and the client divulged that he admits to wanting to end his ex-girlfriends life but one lives in a state where there is no duty to warn. What does one do in a situation like this? This question comes about due to the Tarasoff v. The University of California Board of Regents case as well as the fact that there is no uniformity in the United States over duty to warn or protect. Some states have permissive statutes while some have an established mandatory duty to warn while very few have no statute at all. According to Doverspike (2007), the APA standard is permissive ("may disclose") rather than mandatory ("shall disclose"). The APA Code of Ethics 4.05 part 3 states that disclosures without consent are is only allowed when mandated by law to protect the client, psychologist, or others from harm (Fisher, 2013, p. 346). How does one protect the confidentiality of a client but also protect others from potential harm? The Tarasoff v. The
...aw in the US and Australia where the doctrine can be used to found a cause of action to remedy the non-performance of a promise unsupported by consideration. In the UK however, it is a means where contractual rights may be suspended, but not by which new rights can be formed. In the US, where the doctrine can be used as a cause of action and has been used in multiple cases, commentators have claimed that the doctrine is a ‘flexible means of achieving fairness’ and ‘cannot be reduced to a precise formula or series of tests’ .
have the right to return to your old job if your leave period lasted 4
The case of BROGDEN v METROPOLITAN RAILWAY illustrates one of the early cases of implied terms; in which the conduct of a party is sufficient for the courts to hold an implied terms judgement, despite a lack of an offer & acceptance. The unilaterally signed agreement was actually a counter-offer, despite there was no mutual agreement to the changes of terms by Brogden. But the courts held that the conduct of Metropolitan Railway as valid.
...‘Consideration: Practical benefit and the Emperor’s new clothes’ in Beatson and Friedmann (eds). Good Faith and Fault in Contract Law (Oxford University Press, 1995);
HILLIARD, J. And O’SULLIVAN, J. (2012) The Law of Contract [Online] 5th Ed. Oxford: Oxford University Press. Available from - http://books.google.co.uk/ [Accessed: 2nd January 2014]
REFLECTIONS OF TODAY’S CIVIL LAW CODE AS A METHOD OF LEGAL ORGANISATION AND AN ALTERNATIVE TO AUSTRALIAN COMMON LAW XIAO-XIAO KINGHAM INTRODUCTION As society advances with time, Australia’s established common law system could arguably be failing to serve the people as effectively and efficiently as what was once intended. Adaption to present circumstance through assessing the nature, institutes, ideologies, conception and application of law is likely essential to maintain its relevance in the near future. Some have even gone so far as to suggest abandoning common law together and instead replacing it with the widespread and historically ingrained civil law.
Australia’s implementation of remedial institution allows courts to treat constructive trusts as an equitable remedy, that are discretionary in nature. This differs from England Courts where the institutional elements order that trusts arise upon the behaviour of the individuals rather than judicial discretion. Similarly, the use of discretion or lack of discretion by judges has major impacts on third parties who have an interest in the property. Problems within England’s institutional trusts states the possibility to render the action of the law ambiguous and place a greater burden on third parties. Suggestions in Varma v Varma state that courts should consider the influence of their verdict on third parties and provide relief accordingly.
INTRODUCTION There have been some remarkable corporate collapses in Australia since the beginning of the 21st century, for instance, the failures of Tel. One and HIH Insurance. It is alleged that the collapses of these two companies was due to their poor corporate governance practices. These incidents have raised a question about the current corporate governance practice in Australia. This article is going to examine this issue in particular regarding to the concept and standard of director’s duty of care, skill and diligence (hereafter referred as “duty of care”).
Discuss how parenting and caring responsibilities, including duty of care, setting limits and discipline, contribute to building a positive relationships with the dependent
Legal Right and Legislation for Consumers in Australia Every consumer in Australia is covered by a set of guarantees provided and enforced by the Australian government. These guarantees are called Consumer Protection. They are imposed on all parties in which a contract is signed, which is a legally binding agreement between a consumer and the seller which entitles certain rights. These rights were introduced to protect against unethical trading from either parties.
A contract is an exchange of promises or the exchange of a promise for an item or act in return, which is enforceable by law (Kubasek et al, 2014). There are many different types of contracts such as express, implied, void, voidable, and quasi. It is important for contracts to be enforced in order to foster trust in the market place. Although, there is a substantial monetary reason for the Scuppernong grape product manufacturer to end its relationship with Don Willetts, Don’s request for continued relationship due to good faith and fair dealing and an implied contract must be honored.
This essay looks at the statutory duty of good faith and how it has developed since its introduction in the form of section 4 of the Employment Relations Act 2000. When the Employment Relations Act 2000 was introduced a statutory duty of good faith was created by s 4(1). The duty requires parties to an employment relationship to deal with each other in good faith and states that they must not mislead or deceive one another. The wording of the good faith duty is purposefully based on provisions from the Fair Trading Act 1986 so that existing precedents could apply to the new provision.
The law governing the conduct of insurance companies and the manner in which customers can recover damages for their misconduct is complex. Insurance carriers must honor any responsibilities outlined in their policy. Specifics of policy can vary, but all insurers have a legal obligation to abide by the implied covenant of good faith and fair dealing to the persons they insure. Insurance bad faith is a legal term unique to the law. It describes a tort claim that an insured person may have against an insurance company for bad acts.
1.0 Introduction In this Essay we will be discussing what a consideration consists of and how to recognise the element that is influencing the court’s decision when the issue comes in relation to performing their existing duties. We shall also discuss what are the general rules when it comes to the formation of a contract and what are the different solutions when it comes to the breaching of a contract with examples of some cases. This topic needs an analysis of how consideration has the main role to play when it comes to an enforceable contract. To understand this, we need to first know what the definition is given for consideration in contract law. 2.0 Origins of consideration As said by Edward Jenks, the doctrine of consideration was practised in 1890.