Albert River Ferry - Case Study Example

Running Head: CASE STUDY Case Study [Name of Writer] [Name of Institution] Case Study Case Scenarios: The following cases and scenario are fictional, however, you should treat them as though they were genuine cases. To answer this question you should not go beyond what you have learnt about precedent in module 4 and the preceding modules. It is a fundamental rule of contract law that a party to a contract should have reasonable notice of the conditions of the contract before they enter it. These cases concern that issue. Case Study: “Albert River Ferry case” Facts: In the case of Starbo v Worldwatcher Ltd (1999) VR 372, the Victorian Supreme Court decided that Mr Starbo was not bound by the terms and conditions of Worldwatcher Ltd when he downloaded Worldwatcher’s software from the internet. Mr Starbo had gone to Worldwatcher’s home page on which there was a notice at the bottom of the page stating that software downloads were subject to Worldwatcher’s licence agreement and there was a link to the licence agreement. The link for the download was above the link to the licence agreement. The court held that Mr Starbo was not bound by the licence agreement in the circumstances because the statement at the bottom of the page did not provide reasonable notice of the licence agreement terms before he downloaded the software. Tiffany Tolmie, who lives in Brisbane, Queensland is being sued in the Queensland District Court by the software company Bigsound Ltd for using its software in breach of its licence agreement. Tiffany had downloaded the software from Bigsound’s webpage. A notice at the top of the webpage stated that the use of the software was subject to the licence terms and conditions which could be accessed from a link at the bottom of the page. Answer the following questions: Issue: Validity and enforceability of a contract for the purchase and sale of cotton entered into between willing buyers and sellers, both adult and experienced cotton farmers and buyers. (a) Which of the two precedents, Worldwatcher or the Albert River Ferry case is the most authoritative as far as the Queensland District Court is concerned and why? (b) In dot point form list the main elements of each of the precedents. Remember the precedent should be expressed in general terms. (c) Are these two precedents necessarily in conflict? Explain. (d) By discussing the precedents in the context of the facts in Bigsound v Tolmie, give a reasoned conclusion as to what you think might be the outcome of that case. Ruling: License Agreement valid. Rationale: Whatever causes the market to go up and down after the date of a contract has no relevance to its validity. Question 1 (a) If we accept the hypothesis of Queensland District Court, that judges do indeed make law through their decisions, we need to look closely at the judges themselves to decide whether starbo and tolmie are capable of performing that function. Someone must be trusted. But in their case judges reach very different decisions upon the same facts; there is no common agreement as to what the law is, and Worlwatcher argues that in this case the judge is not only applying the existing law, but he is making new law. Question 1 (b) No doubt, this web-based software license agreement is a lawful agreement among midnight coders, llc (the licensor) as well as the purchaser of the software. by clicking the recognize box or by downloading tools, deploying, copying or otherwise using the software, you symbolize (i) that you have been certified to recognize these terms on behalf of the client (the entity on whose behalf you correspond to you are endorsed to act, in which event you and your shall submit to you and such entity, as the case may be), or (ii) that you propose to be personally bound to the terms of this website contract as the buyer. If Starbo is not so authorized or do not propose to be personally bound, then licensor is disinclined to license the software in addition to the downloading, deployment or use of the software is a infringement of U.S. and global copyright laws and gathering. If he recognizes these terms for an entity on whose behalf he is certified to act, you may utilize the software only on behalf of such entity. If he proposes to be personally bound, use of the software is incomplete to his personal use. Question 1 (c) Another question “Are these two precedents necessarily in conflict?” which must be addressed is whether or not the largely similar background of judges results in judicial clones for watcherworld that not only think alike but tend to think along conservative or at any rate 'establishment' lines. Positivists, such as starbo and tolmie, argue that judges require discretion to fill in criticism gaps. On the other hand critics of starbo such as tolmie, state that decisions in hard cases should be made through the use of legal principles not just rules. Judicial decision making is a very controversial issue in jurisprudence and there are many opposing arguments from positivist and natural law perspectives. Tolmie does not fall comfortably into either camp. Nowhere does he suggest that if a legal system fails to comply with his scheme, then its legislation lacks validity. He speaks of morality, it is true, but when he does so it is to indicate what he thinks is right. Nowhere does he link morality with validity after the manner of a natural lawyer. Validity is not a concern of his. Therefore he is clearly not an orthodox natural lawyer and he is definitely not a positivist, so he meets in the middle. Question 1 (d) Outcome of the case An acceptance is the unconditional assent to all the terms of the offer; it is deemed to be effective only when it is communicated. In Starbo v Worldwatcher Ltd 's case, Starbo had learned that he spouse to follow the agreement terms. At that time, acceptance of the offer by Starbo was communicated to them. Apparently, it was likely that a procedure is completed at this point. One notable case shall be mentioned is Starbo v Worldwatcher Ltd (1999) VR 372. The plaintiff gave an offer to the purchase. One of the officer, without authority, told him that his offer was being accepted. Subsequently, the terms changed the mind and rejected the offer. The Court held that there was the manager was not authorized by the school, hence there was no valid acceptance, and there wasn't a breach of license agreement. License Agreement The maxims of equity are significant central principles that underlay all equitable remedies, but it is the unconscionable conduct of a person that has evolved to determine equities jurisdiction to relieve against forfeiture. A contract/agreement may provide that on termination, the promisee may keep or forfeit money paid under the contract or the goods or interest in land of the promisor. Equity has an ancient jurisdiction to alleviate against forfeiture on such grounds as fraud, accident or error. The normal evenhanded remedies are used here. For instance, in order for refund of money the remedy would be an command or exact performance. Characteristically, equity will intervene to relieve against penalty only if the promisee has acted unconscionably or the penalty is harsh or of the nature of a punishment. Answer: Remanded to lower court for findings on unconsionability as a substance of law. It is barely probable that Williams unstated what she was consenting to. Case notes: “Unconsionability has normally been recognized to comprise an absence of significant choice on the part of one of the parties jointly with contract terms which are irrationally constructive to the other party.” (pg. 539) Worldwatcher Ltd was approximately inducing breach by selling all of these items to Starbo. If he fully understood the agreement terms, would that be OK? No, the agreement is still aligned with public policy. Conclusion Just single line is required for this case study winding up. Cultural or professional conflict could be the main cause for joint venture crumple. Acceptance of cultural difference is vital significant for the achievement of joint venture. Global business scenario in modern era give details the significance of the cross cultural study. Corning and Vitro could keep away from the failure of the joint venture coalition if they were aware the situations in the joint venture corporation. References N. E. Simmonds, Central Issues in Jurisprudence, 2nd Edition, Sweet & Maxwell, (2002) Michael Freeman, Lloyd's Introduction to Jusriprudence, Sweet & Maxwell, (2001) J. W. Harris, Legal Philosophies, 2nd Edition, Butterworths, (2000) J. G. Riddal, Jurisprudence, 2nd Edition, Butterworths, (2001) Jeremy Waldron, The Law, Routledge Publishers, (2007) W. Morrison, Jurisprudence - From the Greeks to Post-Modernism, Cavendish Publishing, (2007) C. O. Boulder, Jurisprudence: Theory and Context Boulder, Westview Press, (2006) Bernard. S. Jackson, Making Sense in Jurisprudence, (2006) N. Duxbury, Patterns of American jurisprudence, Oxford, (2005) H. L. A. Hart, The Concept of Law, 2nd Edition, (2004) John Griffith, Judicial Politics Since 1920, A Chronicle, Blackwells, (2003) Natural Law Theory: Contemporary Essays, Oxford: Clarendon Press, (2002) Simon Lee, Judging Judges, Faber & Faber, (2003) Read More