Recent Question/Assignment

Assignment
1. ADMINISTRATIVE DETAILS:
• Date stamp location
• Department/Faculty information
• General instructions, e.g. This form must be attached to all submitted written work with all sections completed. An incomplete form may result in the delayed return of your assignment or of your mark for the assignment. Please keep a copy of all assignments before submitting them for assessment.
• Student and assessment information.
1. COMPULSORY STUDENT DECLARATION DETAILS:
STUDENT DECLARATION
Please tick to indicate that you understand the following statements:
I declare that:
1. Assessment
In this assignment we have been given a task to show how some of the words which cannot be understood easily by common man play vital role in misinterpreting. In this project we will be highlighting those kinds of words which cannot be easily understood and we will also explain those words in simple English so that it can be easily understood. There are many such confusing terms in the above contract which has been taken down from the internet but we will be taking three as per the requirement. We will also highlight such six words which cannot be understood easily and will explain whether these words are condition or warranty and we will support our statement with a valid reason.
2. Translation
Abide by the employer’s work rules: This phrase cannot be easily understood by the common man. The above contract is between the employer and the employees. The phrase states that the employees should stick or follow the rules propagated by the employer. The Word ‘abides ‘means to stick to certain things or follow the things strictly. The employer’s work rule means to follow the rules and regulation of the company. Carter, JW (2002).
Refrain from criticizing the organization or its management: This is a phrase where the employees cannot criticize its organization or management in any case. The word refrain means to cease or stop. Here the employees cannot criticise its management in any case. This statement is very hard to understand.
The employee is granted back pay but denied reinstatement: This clause states that that the employees can get the back pay means the payment which they use to get they may get partially or fully but will not get the post which he used to hold Latimer, P (2005). It is like that if any employee loses its post can get the same amount fully or partially but will never be able to get the post he used to hold. Turner, C (2004).
3. Explanation of the terms
These are the following six words which are important in the contract and we shall decide whether they are terms and then gradually decide whether they play the role of warranty or condition in the contract
1. Follow supervisor’s directions
2. Mediator
3. Employee awarded punitive damages
4. Employee is reinstated but no back pay awarded
5. Supreme court
6. Binding arbitrator
Analysing the terms
1. Issue: whether the clause follow the supervisor’s direction can be treated as a term in the above mentioned contract
Rule: Here we can apply the rule of five tests which have certain rules regarding different types of terms and when a clause can be stated as a term. Here it can be treated as innominate term which means that if that term is breached it can have serious effect on the contract and given the power to the party which is innocent to cancel the contract.
Application: here this is a clause which states that the employer wants the employees to listen to the supervisor because if they don’t it leads to problems in the workplace, thus it is an important term and if it is not followed the employer can cancel the contract
Conclusion: hence it can be concluded that this is a term.
2. Issue: Whether the clause mediator is a term in the present contract.
Rule: here we can apply the rule of innominate term as in the case of Hong Kong fir shipping company limited v Kawasaki risen kaisha ltd, because if the condition or clause is breached and instructions of the mediator are not followed it can lead to the suffering of the innocent party.
Application: It can be applied in this way, suppose the mediator is a clause in the contract and the decisions taken by him will be accepted if this condition is breached the employer will be in a bad position hence it is a term in the contract.
Conclusion: hence it is a term in the contract.
3. Issue: whether the clause follow the Employee awarded punitive damages can be treated as a term in the above mentioned contract.
Rule: this is a clause set up for the contract that till the case or dispute is not solved and if it is solved then the innocent employee who has lost his pay in the process would be given the payment. Here the rule of condition precedent term is applicable, because till the dispute is settled no payment will be made.
Application: It is a clause mentioned in the contract and after the dispute is settled it can be used by making the payment to the employee in this contract
Conclusion: hence it can be treated as a term in the contract
4. Issue: whether Employee is reinstated but no back pay awarded clause should or should not be treated as a term in the contract
Rule: This is an important clause in the contract but it stops the employee from receiving what he deserves i.e. the payment for the time the dispute was going on here it is an important term which prevents one party from getting the rights they deserve. Here the rule of innominate term is applicable.
Application: in the present contract it is used as a term to suppress the payment or stops the payment of wages hence it is term in the contract.
Conclusion: The clause is the term in the contract.
5. Issue: Whether the term Supreme Court can be used as a term in the contract.
Rule: in this case we can apply the rule of condition subsequent term, which means that the contract would be terminated if events like this occur as was found in the case of Head v Tattersall.
Application: in the present scenario Supreme Court is used as a mechanism of dispute redresser and if their verdict is not taken into consideration the court has the power to cancel the contact.
Conclusion: it is indeed used as a term in the contract.
6. Issue: it is to be found out that Binding arbitrator is being used a term in the contact.
Rule: even here the rule of condition subsequent term is applicable or it can use as implied term as there is the relation with law (The Moorcock 1889).
Application: here the disputes would be solved using this rule, and it has been mentioned that any decision taken would be binding on the parties to the contract.
Conclusion: hence it can be treated as term in the contract.
Stating whether warranty or condition
1. Issue: deciding whether the term Follow supervisor’s directions is a warranty or condition
Rule: here the rule of object test should be used if the inclusion of the term is very important in the contract as in the case of associated newspapers ltd v Bancks.
Application: here in this contract it is a very important clause because to avoid dispute supervisor’s decision should be taken.
Conclusion: Hence it should be treated as a condition.
2. Issue: deciding whether the term Mediator is a warranty or condition
Rule: Here the rule of object test is used the whole effect of the breach of the term should be considered as in the case of Poussard v Spiers & Bond.
Application: Here mediator is not a very important clause as there are better options in the contract which are much more binding.
Conclusion: Thus it should be treated as a warranty.
3. Issue: deciding whether the term Employee awarded punitive damages is a warranty or condition
Rule: Here the rule of object test is used the whole effect of the breach of the term should be considered
Application: If this term is breached it would have a comparatively lesser effect as it cannot force the contract to be terminated
Conclusion: hence it should be treated as a warranty.
4. Issue: deciding whether the term Employee is reinstated but no back pay awarded is a warranty or condition
Rule: here the rule of object test should be used if the inclusion of the term is very important in the contract and the term should be very important to the existence of the contract
Application: The term is not that important to be considered as a condition because this clause can give rise to dispute but no termination of contract.
Conclusion: It should be treated as a warranty
5. Issue: deciding whether the term Supreme Court is a warranty or condition
Rule: here the rule of object test should be used if the inclusion of the term is very important in the contract the relevancy of the contract depends upon it
Application: Upon not following the term the contract would be terminated and damages would have to be paid to the innocent party.
Conclusion: Hence it should be treated as a condition.
6. Issue: deciding whether the term Binding arbitrator is a warranty or condition
Rule: Here the rule of object test is used the whole effect of the breach of the term should be considered it is a really important term
Application: If the decision is not accepted then the contract would be terminated and damages would have to be paid to the innocent party either the employer or the employee.
Conclusion: Hence it should be treated as a condition.

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