程序代写案例-UESTION 1:
时间:2022-05-06
EXAMPLE OF AN EXCELLENT ANSWER
WRITEN BY A STUDENT

QUESTION 1:
Brodie arranges for Rafael to deliver and install a new commercial-grade Wood Fired
Oven CG-WFO in his Sicilian restaurant. An express term of the contract states that
Rafael must deliver and install the CG-WFO oven by 1 July. However, Rafael is
running behind schedule and does not deliver the oven until 14 July.
As a direct consequence, the launch of the new oven and the glorious pizza that only
it can create – the Sicilian mafiosa capricciosa pizza – was delayed. The delay meant
the advertising leaflet (with a launch date of 1 July) that cost Brodie $1000 was
useless. Brodie had to order a new set of advertising leaflets with the new launch date
of 14 July. Many customers were disappointed.
Brodie estimates approximately $12,000 of loss in profit because of the
delay. Furthermore, Brodie could not cater for a traditional Sicilian wedding on 8 July
and estimates a loss of $20,000 profit because of the cancellation.
Advise Brodie
(i) whether he could have terminated the contract for delay in the delivery and
installation of the CG-WFO oven. (5 marks)
(ii) if he may be entitled to any damages. (5 marks)

ANSWER

i) The legal issue here is whether or not the innocent party (Brodie) has the right to
terminate the contract. To resolve this, the question is raised whether the term that
has been breached by the defendant (Rafael) is a condition or a warranty, or in the
case of an innominate term whether or not it has deprived the innocent party of
substantially the whole benefit of the contract. The term in question is the express term
that: 'Rafael must deliver and install the CG-WFO oven by 1 July'.
The courts would apply a test of essentiality in relation to this dispute, which involves
assessing whether from the general nature of the contract as a whole that the
particular contractual promise in question is of such high importance that the promisee
wouldn't have entered into contract unless absolutely assured of strict or substantial
performance of the promise. The general rule for time clauses and issues involving
time is that they are usually warranties, unless the time for performance is expressly
said to be 'of the essence' in which case it would be regarded as a condition. Here,
the installation of the oven by 1st of July is not made 'of the essence' and hence can
be considered a warranty allowing damages only for breach.
Authority for this is the case of Bettini vs Gye. The clause of the contract establishing
that Bettini would attend rehearsals six days prior to the commencement of his
engagement as an opera singer was deemed by the court as a warranty because the
breach would only, realistically, affect the first week or so of performance which was
rather insignificant in the context of a 15 week engagement. As a consequence, Gye
was only able to seek damages and wasn't granted the right to terminate the contract.
Here, the two week delay in the delivery of the oven is similar in nature to Bettini's
breach in that it doesn't cause irrecoverable loss to Brodie's restaurant and he would
still be able to reap the rewards of the newly installed oven and the glorious pizza it
can create, albeit two weeks later than initially agreed.
Further, the case of Hong Kong Fir Shipping vs Kawasaki provides valuable authority
in the unlikely case that the court would deem this term in the contract as an
innominate term. In instances where the term is hard to classify when the contract is
made, the courts look at the consequences of the breach and to what extent they
deprive the innocent party of substantially the whole benefit of the contract. In the
grand scheme of the operation of Brodie's restaurant, which is treated as an indefinite
entity until operations are wounded up sometime in the future, the seriousness of the
consequences of the pizza oven being delivered only two weeks late are minor. This
would then direct the courts to regard the term as a warranty, hence depriving Brodie
of the right to terminate the contract.


ii) The legal issue here is whether or not the innocent party (Brodie) is entitled to any
remedies to compensate him for Rafael's breach of contract. In common law
jurisdictions, remedies are generally available in the form of damages for every
breach, no matter how large or small, provided the principles of causation, remoteness
and mitigation are fulfilled.
Firstly, the measure of damages rests upon the principle of Robinson vs Harman, that
is, to put the innocent party in a position that he would have been expected to have
been in if the contract had been performed properly. These are called expectation
losses: the key being it is not the idea of the court to punish Rafael for his breach, not
put Brodie in a better position than he would have been in if the contract ran smoothly.
Moreover, the court would consider the hypothetical situation in which Rafael had
delivered the pizza oven as agreed by the parties on the 1st of July and it was available
for pizza production for all events that followed.
The causation principle for damages states that losses must be caused by a breach
of contract. Hence, Brodie will have the onus to prove that the defendant's breach
caused his loss in this situation. Reg Glass vs Rivers Locking provides authority for
what is commonly known as the 'but for test', that is, damages are only available if 'but
for' the breach, the loss would not have occurred. No doubt, Rafael's breach which
caused the pizza oven to be delayed has caused $1,000 of loss for the pamphlets, as
well as $12,000 lost profits for the two week period plus the $20,000 lost profit from
the cancelled Sicilian wedding.
As was part of the ruling in Payzu vs Saunders, the plaintiff has a duty to mitigate their
losses as far as possible. Whilst it would be incredibly difficult for Brodie to finalise an
alternative supplier of a high quality pizza oven that would suit his needs in just two
weeks, perhaps when he was informed of the delay in the delivery of the oven he
should've made an effort to hire something like a portable oven for temporary use.
In order to determine the losses available to Brodie, the remoteness principle states
that only losses that were reasonably foreseeable at the time of contracting are
recoverable. This is satisfied if the loss is within either of the two limbs of Hadley vs
Baxendale: the first being that the loss must arise naturally from the breach and the
second that only those losses are covered that are in the parties' reasonable
contemplation at the time the contract was made. Using the precedent of Victoria
Laundry vs Newman Industries, it is likely that the lost profits of $12,000 caused by
the delay will be deemed to have arisen naturally. This is provided the $12,000 two
week profit figure is a reasonable estimate of his business' output. However, similar to
the lucrative government contract in Victoria Laundry vs Newman Industries that didn't
fall under either limb of the remoteness principle, the $20,000 proceeds lost as a
consequence of the cancelled wedding did not arise naturally (first limb), nor were they
actually contemplated (second limb) between Rafael and Brodie at the time of
contracting. The reason for this is that there isn't any evidence of Brodie giving Rafael
notice of the wedding. As for the $1,000 expenditure on useless advertising leaflets, it
is unlikely the court will deem this as having arisen naturally from the breach because
a special advertising campaign for the pizza isn't predictable unless Rafael was
expressly aware. In the situation where Brodie informed Rafael of the expensive
advertising campaign taking place that relied on punctual delivery of the oven, this
$1,000 loss would fall under the second limb of remoteness. However, there is no
evidence of this and as it stands, the loss would be too remote to be considered
recoverable.
Finally, it is generally accepted in common law that damages for disappointment (in
this case to customers) are not recoverable. Reason being, they are too remote as
don't come under either of the two limbs of Hadley vs Baxendale. Here, the contract
is not for the sole purpose of Brodie's pleasure as was the case in Jarvis vs Swans
Tours for a cruise holiday, and therefore Brodie can't claim damages for any
disappointment caused.
In conclusion, Brodie can claim damages of $12,000 for loss of ordinary profit over the
two weeks the oven was delayed, however he cannot claim them for the loss of
$20,000 as a consequence of the cancelled wedding nor for the $1,000 advertising
pamphlet.

QUESTION 2:
Assume, for part (b) only, that Rafael was unable to deliver the oven because of a
new law (enacted after the contract) that prohibits the sale of wood-fired combustion
stoves (like the CG-WFO) because of the toxic emissions they produce. Advise
Rafael about this new legal development prohibiting the sale of CG-DFO ovens. (5
marks)
FACTS REPEATED BELOW
[Brodie arranges for Rafael to deliver and install a new commercial-grade Wood Fired
Oven CG-WFO in his Sicilian restaurant. An express term of the contract states that
Rafael must deliver and install the CG-WFO oven by 1 July. However, Rafael is
running behind schedule and does not deliver the oven until 14 July.
As a direct consequence, the launch of the new oven and the glorious pizza that only
it can create – the Sicilian mafiosa capricciosa pizza – was delayed. The delay meant
the advertising leaflet (with a launch date of 1 July) that cost Brodie $1000 was
useless. Brodie had to order a new set of advertising leaflets with the new launch date
of 14 July. Many customers were disappointed.
Brodie estimates approximately $12,000 of loss in profit because of the
delay. Furthermore, Brodie could not cater for a traditional Sicilian wedding on 8 July
and estimates a loss of $20,000 profit because of the cancellation. ]


The legal issue raised in this question is the effect of the supervening illegality that
prevents the sale of CS-DFO ovens for environmental reasons on the contract
between Rafael and Brodie. A contract can be terminated in a number of ways: by
performance, by breach or by frustration. To resolve the issue, the most relevant
question is whether or not this new law is a frustrating event that excuses both parties
from their obligations under the contract.
In the case of Codelfa Constructions vs SRA, the injunction issued by the court that
made performance of a major portion of the contract legally impossible was accepted
by the court as a frustrating event. Here, the new law is similar in nature to the
injunction in that it is a supervening event outside of both parties' control that makes
performance of the delivery and installation of the oven illegal. At the time of
contracting, such an event could not have been reasonably foreseen by either party
and the length of time for which the law will exist is indefinite. The court would most
likely deem it unfair for the contract to be enforced in the case that Brodie took legal
action against Rafael and argued that the contractual obligations to deliver the oven
still remained.
Whilst the courts adopt a narrow view of frustration and are reluctant to allow a party
to be excused, particularly in a commercial type transaction such as this where the
contract is a product of lengthy negotiations and both sides are lawyered up and well
resourced, the ruling in Davis Contractors vs Local Council as well as Tsakiroglou vs
Noblee wouldn't be applicable in this situation as the new law preventing the sale of
these ovens extends beyond simply making performance of the contract more onerous
or inconvenient, it makes the contract blatantly illegal and hence impossible for both
parties to fulfil their obligations.
Overall, there is a strong case to suggest that the contract between Rafael and Brodie
will be destroyed entirely without consequence because of the frustrating event,
meaning damages for any of Brodie's losses are not recoverable.


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