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论文题目：Commercial Law Assignment
Please Note: You must use the problem-solving method throughout this assessment, including the use of case law and statutory authorities to support your answers where appropriate. Assignments are cross-checked for similarities. Please ensure your work is your own. Serious penalties are imposed for dishonest conduct. Any material which is copied and not referenced and placed in quotation marks will not be marked. You need to show genuine understanding of this subject by expressing your answer in your own words. You are required to reference material in the proper way. Information on the APA referencing format and on citation of legal materials is available from the Library. Your assignment should contain a bibliography. Assignments must be word processed. Please keep a copy of it on disk until the marked assignment has been returned to you. The number of marks allocated to each question should give you a guideline as to the length of the answer. Ensure that you allocate your efforts accordingly. All assignments must be accompanied by a completed coversheet verifying authenticity. You must also submit an electronic copy of your assignment by email attachment to Any assignment submitted after the due date will incur penalties (see your Course Outline). Any applications for extension of time will be considered having regard to NMIT policy for granting such applications and will take into account the amount of progress the student has made towards completing the assignment. Therefore students are encouraged to work progressively towards completion of the assignment as the topics are covered in the lectures. PART ONE ESSENTIALS OF A VALID CONTRACT 4 MARKS Craig negotiated with Indigenous Timber Construction Limited (“ITCL”) for the construction of a new family home. The contract price was $255,000 and it was to be built on a section of land that Craig had purchased in Pine Tree Grove, a new subdivision in Greymouth, where Craig worked at Monteith's Brewery.#p#分页标题#e# The west boundary of the section had a steep bank sloping upwards from where the house was to be built. On the top of this bank the neighbouring property owner had, some years ago, brought a significant amount of soil on to his section to level part of the backyard which sloped away into a gully. A later owner had erected a garden wall constructed out of substantial hardwood sleepers laid horizontally on top of each other, and held in place by old railway lines rammed vertically into the ground. Although not designed as a retaining wall, the neighbour had brought in further soil, which was placed behind this wall. The area was then levelled, and part of it asphalted for a driveway. Over the passage of time, the fill has compacted, and the asphalted area has subsided, and cracks have begun to appear in the seal. By the time Craig purchased the section, the timber wall was largely hidden behind trees and shrubs, and ITCL were not aware of the possible difficulties this structure might present. ITCL began the project by excavating the site. This included some excavation at the foot of the bank, which caused some of the fill to tumble into the excavations from the neighbouring property. At this point the owners of this property protested that the excavation was causing cracks to develop in their sealed driveway area, and demanded that the excavation cease. ITCL however continued with the excavation work, and in due course began construction of Craig’s house. In due course the owners of the neighbouring property decided to sue for damages. Required: Question One (b) Suggest and explain any additional elements that may cause this contract to be vitiated. Question Two #p#分页标题#e# Explain the difference between an Agreement and a Contract. (1 mark) PART TWO OFFER AND ACCEPTANCE 20 MARKS Question One Derek decided to organise a surprise birthday party for his partner Amanda. He contacted Bubble and Squeak Cuisine who advised that they could provide a buffet meal for $30 per head. Over the next few weeks a number of friends contacted Derek to tell him that they were no longer able to come to the party. Derek contacted Bubble and Squeak Cuisine to advise them that only 40 people would be attending. They said they would make the appropriate arrangements. On the night of the party only 30 people attended, so the restaurant allowed several other casual diners to also participate in the buffet. At the end of the evening, each of the guests paid Derek their $30 and he went to pay the ($30 x 30) $900 to the restaurant. They however insisted that the amount owing was ($30 x 60) $1,800. There was a heated argument between Derek and the restaurant manager which embarrassed Amanda and she expressed her displeasure on the way home. By the time they got home Derek was into his second heated argument for the evening. (a) Use the rules of offer and acceptance and any appropriate precedents, to explain which amount should have been paid to Bubble and Squeak Cuisine. (b) Explain what the situation would have been if, when Derek contacted the restaurant they said that they were only prepared to charge $30 if a minimum number of 40 guests attended. If a lower number attended then the charge would be $35 per head. If only 30 guests attended, explain how the rules of offer and acceptance would apply. Question Two
On 12 October John rang and confirmed that he would arrive on 19 October ready to begin on the 20th. Quentin was happy with the arrangement. On the evening of the 19th John went to see Quentin and explained that since he had sent the circular there had been an increase in wage rates and said that he would be charging $0.14 per plant, which was a compromise. Quentin reluctantly agreed verbally, as it was too late to secure another contractor. Half an hour after planting commenced Quentin inspected the quality of the work done, Quentin was not at all happy because of the large number of plants that appeared to have been chewed by insects even before they were planted. Also, the rows were not straight which was going to make it difficult for future mechanical cultivation. He asked John to ensure that he be more careful and that he hoped the quality of the plants and planting would improve. At the end of the day he was still not happy and when he approached John there was an argument which resulted in John walking out leaving 20,000 plants still to be planted the next morning. That night Quentin engaged another contractor to complete the planting. Two days later Quentin received an account from John as follows: 80,000 lettuces planted @ $0.16 = $12,800.00. Payment required within 7 days
PART THREE CONSIDERATION 10 MARKS Question One Amanda has recently purchased a small farm as an investment. Her intention is to lease the property in due course. In the meantime she allows Simon her brother, to stay there free of charge. The barn was in urgent need of repairs so Simon, who is a builder, carried out these repairs on his own initiative. Amanda was very grateful for Simon’s work and promised to pay him for it. In due course a cheque from Amanda arrived in the mail. Unfortunately, the cheque was dishonoured by the bank, and when Simon approached Amanda about this, she told him she could no longer afford to pay him.#p#分页标题#e# Required
Fiji Travel, a New Zealand firm that offers package holidays to Fiji, owes International Air $25,000. Because of the downturn in tourist numbers to Fiji, the Travel firm is unable to pay the full amount due. They offer to pay International Air $15,000, and also offer any interested staff from International Air, cut-price package deals for holidays in Fiji. International Air agrees to this arrangement. However 6 months later, none of International Air’s staff have taken up the cut-price package deal, so they demand payment of the remaining $10,000 that was due. Required PART FOUR INTENTION TO CREATE LEGAL RELATIONS 6 MARKS Last night at the Dog Tucker Bar & Grill on Ponsonby Road, Jack Braeburn had a chance meeting with former university friend/flatmate Craig Enza. It had been some years since they had last seen each other and in the meantime Jack had purchased a substantial Hawkes Bay orchard property and, more recently Craig had set up a small produce exporting company. They discussed how life had treated them over the years, rugby, cricket, orcharding, export prices and so on. The following conversation occurred among these discussions.
Jack: Craig: Jack: Craig:
Considering the issue of Intention to Create Legal Relations, decide whether a valid contract has been formed between Jack and Craig for the marketing of Olifigs. PART FIVE CONSENT 25 MARKS The argument between Derek and Bubble and Squeak Cuisine at Amanda’s last birthday led to Amanda complaining about the embarrassment she considered Derek had caused her. An argument ensued and Derek threatened to call off their wedding. Despite this, and Derek’s participation in TV2’s home grown reality programme ‘Temptation Island’ (which was filmed recently over a two week period on the Chatham Islands), Derek and Amanda married recently, and purchased a home described as a ‘handyman’s delight’. They also purchased a large screen TV as Amanda is keen to watch the ‘Temptation Island’ series which is due to broadcast in about a month. Amanda detected a certain reluctance on Derek’s part to agree to the purchase of the TV but he seemed much more enthusiastic about the house purchase. They purchased this particular house because of its location, and because of its potential to serve as an excellent family home once renovations and additions had been completed. Derek has his own joinery business, and Amanda is an economic development consultant.#p#分页标题#e# At about the same time as they get this news Amanda and Derek have a visit from Amanda’s older brother Craig. Things are not going well for Craig in his produce exporting business. Craig has become concerned a contract he entered into with Superjack Valley Orchards Limited for them to supply Craig with 2000 tray cartons of organically grown ‘Pacific Rose’ apples. Craig has a separate contract with a Dutch supermarket chain who has agreed to purchase the apples from Craig. The supermarket chain has imposed strict quality controls on Craig and when he was negotiating his own contract with Superjack’s he was very concerned that they were experienced growers of organic fruit and were capable of delivering product of a quality he had agreed to on-sell Prior to the written contract between Craig and Superjack Valley Orchards Ltd being signed, the managing director of Superjack Valley Orchards Ltd made the following verbal statements to Craig: 1. “We have been involved with the pip-fruit industry for 25 years”. 2. “Our apples were nominated by ENZA for the New Zealand pip-fruit awards”. 3. “We have marketed our product at the annual Nuremberg Organic Foods Trade Fair for the past five years”. 4. “Our fruit is at least 15% larger than that of our competitors”. 5. “We expect a significantly higher yield from our trees this year because we applied a very expensive organically produced fertiliser over the winter which has worked well on similar orchards in Tasmania”
Since entering the contract Craig found out the following information: (i) Although one of the directors had been involved in the pear-growing industry for 30 years, the company itself has only been in existence for one year and the other four directors are new to the industry. (ii) The apples were nominated for the award in 1985. (iii) The fruit produced by Superjack Valley Orchards Ltd for this contract was 3-4% larger than average. (iv) The trees produced a slightly smaller than expected yield: it seems that the fertiliser was incorrectly applied.
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