People would always think that the agreement between individuals. The two parties of the agreement or the contract should be limited by the legal power of the agreement and contract. However, not every agreement could have the legal power. There are lots of kinds of agreement, oral agreement, written agreement and contract, the legal power they have would be different. And the duty for breach would be different. In this essay, two cases would be analyzed in order to find out the duty for breach and to identify the agreement or contract with legal power.
Before asking the compensation, the words made by Kathy with Mark and Laura should be defined. As the case shows, there are two promises exist. One is the Organization which invited Kathy for the report and one is Mark and Laura offers. The definition and nature of these two promises could be different. The one the organization has would be connected with the profit the organization would have. They invited Kathy for the speech and they should pay for it. But the one Kathy had with Mark and Laura is hard to be defined. As it is known, it is hard to define the promise with profit and the promise made between friend base on the consideration (Stone, 2005 , p111). The full compensation for the loss which is caused by the non-performance of the promise should be paid by the party which break the promise (Erbacher S., 2002, p339). And in this case, the promise is Mark and Laura would lift Kathy to Melbourne Airport. And the point is whether Mark and Laura could get any profit from this promise. As mentioned, Mark and Laura are the students for Fundamentals of Law in university. And Kathy is good at the human right issue which might have connection with the major of Mark and Laura. As it is known that Mark and Laura had lunch with Kathy after her speech and it is absolutely that they have been attracted by her study. The promise could be considered as the gift the fans offer to their idol---- Kathy. Or it could be defined as the exchange promise.
Mark and Laura would get the profit from this promise for they could gain Kathy’s favorable impression in the lunch if they offer the lift. Also, they could get the helpful idea for their study from Kathy base on this favorable impression. Therefore, they make that promise. They might deny this definition of their promise and insist that their offer would be the consideration from friends. However, Kathy did not think so. Kathy had the opportunity to choose other service providers to transport her to the airport. But she considered the words from Mark and Laura as a promise which needed her to keep as well as they should do. She absolutely did not consider the promise as the consideration from friends and it was an exchange between them. Therefore, she had the reaction as not to have other agreement with anyone else. The Organization pay Kathy’s speech by the ticket and Kathy thought she would pay for the lift by her lunch speech with Mark and Laura. And as Kathy is the export in her field, her speech would be helpful for Mark and Laura. Therefore, the loss she had for buying another ticket should be carried by Mark and Laura.
Though Mark and Laura sent the email to Kathy for apology but it was too late. It could be considered that they get the benefit from Kathy but did not perform their promise in this exchange. Therefore, Kathy could suit them for their non-performance. The key point in this case is the benefit between two parties. For Kathy, the benefit would be the lift to Melbourne Airport. And she paid for it by her individual speech with Mark and Laura. The benefit for Mark and Laura would be the things they got from the speech and they should pay for it by the lift to Melbourne Airport. But their non-performance broke the promise and gave Kathy the loss. They should pay for it. However, they could refute this point by assuming that they offer the lift as the friends’ consideration. And this refuting would be beaten by the connection between their major and Kathy’s study. Also, it could be suspected that Mark and Laura did know that they could perform the promise because the day Kathy depart would be the date they should submit their assessment. They had the chance to help Kathy to avoid the loss. They knew the assessment submit date and also they had time to phone Kathy or email her that they could not go to pick her to the Airport. But they did not do these things till Kathy got the loss. They should pay for this non-performance.
First of all, it should be known that once the agreement had been signed, the contract between two parties would be protected by law and has the legal power for protecting the right for both parties as well as the legal power for forcing both parties to perform their duty. However, the contract should be agreement which had been made base on the negotiation between both parties (Latimer & CCH Australia Limited, 2008, p393). The contract should be read fully as a whole and any missing in the terms of the contract would make the signature useless in the contract. Also, the sign for contract should be done under that condition that both parties of the contract know their responsibility and duty in the contract and they would be willing to be bound by these terms. In this case, Nonaka and Namiko did not know the exactly terms for the contract and they signed it before understand one single word in the contract. They do not understand the meanings of the terms and conditions in the contract. According to this fact, the contract would be regarded as meaningless. However, as the contract had been signed and Nonaka could not provide the evidence to improve that they do not understand the contract when the sign it, this case could not be suit according to the contract definition and the process for signing it.
The law suit should be raised according to the contract equality to both parties. The unfair contract would presented in some ways (Beale, Bishop & Furmston, 2008, p946). In this case, it could be found that the term “Happy Stay Hotel will take utmost care of their guests but will not take responsibility for any loss of goods of guests within the premises of this hotel” is absolutely favorite to the hotel part for it releases Happy Stay from its legal responsibility to the guests in the hotel. It is known that hotels have the duty to guarantee the safety of customers when they stay in the hotel. And this guarantee should cover the customers’ stuff as well. In this case, if the hotel could be duty free from the stealing and could insist on the unfair contract is legal, it could be suspected that the hotel would have the chance to steal customers’ stuff but be free from the legal punishment.
Nonaka and Namiko could suit the hotel for the unfair contract as they are the customers and ask the court to define the contract to be the illegal one and then they could ask the hotel to share the loss of their camera. But for this condition, there is one thing needs to be made sure. It is that whether the camera dismissed in the hotel room or it had been stolen or left in somewhere else.
Besides the unfair terms rule for commercial contracts, the contract could be defined as illegal from another angle. In this case, the contract between Happy Stay and Nonaka could be considered as the unfair contract between sellers or service providers and customers (Harris, Campbell & Halson, 2005 , p137). The contract was not made base on the negotiation and the terms and conditions in this contract would not be the escape clause. Therefore, this contract could be unfair and illegal. But if the unfair terms appear in the escape clause and the hotel had written the condition for which the hotel could be duty free, these terms would be legal. The conditions for this case which would help the hotel to be duty free are: loss in the room when customers do not lock the room, customers put their stuff in the unsafe place in which the hotel had noticed, customers do not take care of their stuff and customers do not obey the suggestions from the hotel. In these condition, hotels should be duty-free. And in this case, Nonaka did not tell clearly how the camera lost. If the camera had been left in the room when the room was locked and had been stolen when the lock had been damaged, hotel should be responsible for the breach of security duty. But if the camera was lost when it was left in the open room and the hotel had told the customers to lock their room when they are out, the breach of duty should be on Nonaka’s side. Also, it could not ignore the possibility that the hotel staff stole the camera.
In conclusion, the contract in this case could be the unfair one if the hotel did not list the unfair terms in the escape clause under certain condition. And the thing Nonaka and Namiko should do in this case is to find out whether the hotel had the duty for the loss or not. And also they could suit the hotel for the unfair terms.
In conclusion, not all the promise or agreement could be an legal contract. For the invalid contract, the parties do not need to perform their promise. For the agreement between individuals, the consideration from friends and the legal contract should be divided. Also, the parties of the contract should know and sure that the terms in the contract are fair. Otherwise, they have the right to refuse the performance of the contract. To make the contract or agreement to have legal power, the process for making the contract and agreement should be legal.
Beale H. G., Bishop W. D. & Furmston M. P., (2008), Contract: Cases and Materials, Oxford, Oxford University Press, p946
Erbacher S., (2002), Restitution Law, London, Cavendish Publishing Limited, p339
Harris D., Campbell D., & Halson R., (2005), Remedies in Contract and Tort, Cambridge, Cambridge University Press, p137
Latimer P & CCH Australia Limited, (2008), 2009 Australian Business Law, Australia, McPherson's Printing Group, p393
Stone R., (2005), The Modern Law of Contract, London, Cavendish Publishing Limited, p111