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Law Assignment Question
You work for an advertising company and are asked to review a holiday package from a brochure before it goes to print. You are asked to provide advice to the advertising company on the legal effect of the representations in the brochure. You are asked to produce a report for management outlining the issues relating to the brochure.
Select a package holiday brochure. Read it and analyse it, looking to answer the following questions in your report;
- Identify the key information about the holiday as set out in brochure.
- Critically analyse the package using the principles of contract law found in case law and categorize the statements into representations, terms, conditions and warranties.
- Critically analyse and identify any material in the brochure which is potentially;
- unconscionable
- misleading or deceptive
- false representation
- bait advertising
- offers gifts or prizes
In your report explain the effect of these representations having regard to the consumer and consumer protection laws. You should outline the law relating to advertising including improper business practices, any legislation regulating advertising, unlawful sales techniques and the powers of enforcement.
- Critically examine the brochure and identify any exclusion or limitation clauses and explain using the principles of contract law whether the clauses would be valid.
Law Assignment Solution
The Western Panorama is a holiday tour package that is offered by Flight Centre Travel Group Limited under the name of Infinity Holidays. This holiday is or eight days and seven nights. The path or trial is as follows
- Los Angeles ( Day 1)
- Las Vegas ( Day 2)
- Death Valley National Park ( Day 3)
- Mammoth Lakes ( Day 3)
- Yosemite National Park ( Day 4)
- San Francisco ( Day 5 and 6)
- Monterey ( Day 7)
- Central Coast ( Day 7)
- Barbara ( Day 8)
- Los Angeles ( Day 8)
The cost mentioned was informed to include:
- Bus facility as specified in the itinerary.
- Three meals every day as specified in the guidebook.
- Places of the visit as stated in the guidebook.
- The stay shall be as mentioned in the guidebook. The holiday includes a seven-day accommodation in a three or four-star hotel and transport in air-conditioned deluxe bus service.
The Analysis
A false statement before a contract will often give rise to liability for contravention of the Australian Consumer Law.[1] There are different contractual statements which have different solutions based on case to case analysis.
Any provision forming part of a contract is a contractual term. A condition is a term that forms the very foundation of any contract. Any violation of these terms gives the right to terminate the agreement, allowing the affected person who has been injured at the option of rescission and/or claims for damages.
Express terms may be integrated by a course of preceding transaction between the parties. This can only be possible if both the persons have had regular transaction with one other over a considerable duration of time prior to the making of the agreement in question; wherein such a scenario the case with the latest contractual terms is likely to be used an can be incorporated into the contract despite there being no specific reference made to them.
A warranty is a proposition or prerequisite that a certain fact in relation to the subject of the contract is or shall be as it is declared or promised. A warranty can be defined as the promise of indemnity if the contention or claim is false. It refers to an agreement to protect the beneficiary against being denuded if the fact is or becomes false. A warranty is a party's affirmation as to a particular fact coupled with an implied reimbursement if that fact is untrue. In case of a breach of warranty claim is allowed only for damages.
A representation can be defined as a proclamation of the fact that makes another individual insinuate into the contract. It is a statement, made during or the before the time of entering into the contract, regards an anterior forgoing fact or immediate perpetual circumstance related to the contract which energizes such party to enter the contract.
If a representation is made in the development of transaction from an agreement for the purpose of influencing another person to act upon the agreement, and this actually ensures he acts upon it, by entering into the contract, that is evidential ground for drawing a inference that it was meant to be a warranty [term]. It is not required to speak of it as being ancillary. It is sufficient that it was an intention to be acted upon and was acted upon.
A ‘sales puff‘ can explain as an exaggeration of the product during sales talk. It is not the intention of the seller that it must be taken in its plain sense. Any normal prudent man would be able to recognize this. Hence according to law, a sales puff does not constitute a ‘ representation ‘. Thus there lies no remedy against it, even if they turn out to be untrue.
An innominate term was a new concept that was developed in English Contract law jurisprudence. A breach of a term mentioned in the contract which can or cannot go into the foundation of the contract depends on the case and type of breach. Thus in the case of breach of such conditions, as with all conditions, can give rise to a claim for compensation. This condition that revokes the contract relies upon whether the benefit of the contract has been withdrawn from the non-guilty party. This principle was affirmed in the landmark case of Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd when the principle of qui facit alium facit per se was again reaffirmed……………
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