help with uni law question

[theuserformallyknownasd00d]

Hey guys, my girl has a law subject in her photography and design degree, neither of us can really be confident.. anyways here is the scenario:

I phoned a women who was selling a truck for $300,000. On the phone call I specifically asked if the truck has heavy duty suspension in which the women replies Yes it does have heavy duty suspension.

I sent her a contract to sign for the sale and delivery of the truck. money was to be exchanged when the truck was delivered on the day. she sent it back and a delivery date was set.

On arrival the truck did not have heavy duty suspension and I pulled out of the deal. The contract didnt mention heavy duty suspension, it was only discussed on the phone call. The women has decided to sue me for $300,000 and I was wondering what the legal situations were ie who will win and for what reasons! I need to mention that I wouldnt have entered into the contract knowing the heavy duty suspension wasn't fitted.

Misrepresentation or...?

Anyways hopefully somebody can help us out, its such a bloody ridiculous essay to have to write for a photography major!! and btw, this isnt real, I wish i had $300,000 but def isnt the case!

thanks again guys!

Edited August 10, 2011 by thed00dabides

[Bert&Ernie]

maybe try and contact to the phone company

or something like that

[Rabaelthazar]

I'm pretty sure the correct answer is to get in touch with your mafia contacts and explain the situation. Legal problem will disappear, title to truck will magically be transferred into your name and the only thing you'll need to deal with is a slightly dirty conscience. Yes, definitely, that's it.

Tell your girl to write that as the answer.

[migraineur]

Try these for places to start. I'm assuming she knows to not cite Wiki though ;)

http://en.wikipedia.org/wiki/Oral_contract

http://en.wikipedia.org/wiki/Mistake_(contract_law)

http://en.wikipedia.org/wiki/Misrepresentation

[Rabaelthazar]

Out of curiosity, do ACCC laws apply to private sales?

If the woman selling the truck in question (and jeez, what the hell kind of truck costs $300,000??) was representing a retailer/wholesaler then ACCC laws would protect you as the buyer based on the fact that the product you bought was significantly different from that originally presented to you.

Again, not sure how that relates to a private sale.

http://www.accc.gov.au/content/index.phtml/itemId/142

(I still say it's easier to just call in the hitman)

[santiago]

settle for $4k

[7baz]

i believe in the court of law , the attempt to sue can backfire as its a possible charge of obtaining property by deception.

[Torsten]

All verbal aspects of a sale are part of the sales contract in australia. Two problems though:

1) You have to prove it. if you can't prove it then the written document trumps. Witness statements are not good evidence in this case unless the witness is entirely independent.

2) If the contract says that any verbal assurances are made void by the contract and that the contract itself represents the deal in totality, then you would need to argue why that should not apply in your case [eg if you have a recording where the seller says 'don't worry about the fineprint - your truck definitely has heavy suspension'].

The same applies to real estate deals which is why you can sue the agent if you can show that the agent misrepresented something - however you usually can't get out of the deal itself.

It is always good to record negotiations, but beware that doing so without telling the other party can get you into a whole different pot of hot water.

[TheExplorer]

First and foremost, a contract exists as an agreement has been formed (through offer and acceptance) and all of the other elements (consideration, capacity, intention and certainty) are sufficient. There are two ways I would look at this case: either try to prove that the heavy duty suspension was an unwritten term of the contract, or try to prove misrepresentation.

To prove that it was a term of the contract you would need to prove at least one of the following:

- Relative knowledge: That the woman was a dealer or an expert in the field.

- Reliance: That you relied on her statement when entering the contract.

- The strength of the statement: Her statement was strong and unambiguous.

- Timing: That the contract was entered into immediately after the statement was made.

If you could prove that the heavy duty suspension was a term of the contract then I think it would be classified as a breach of contract.

Mirepresentation is the next option. This shouldn't be too hard to argue as there was a false statement of fact made from the woman to you and it had the effect of inducing you to contract. Proving that you would not have contracted without the truck having heavy duty suspension would require the provision of external evidence showing that it was required. If you can prove this, then the contract becomes voidable (rather than void ab initio - null from the beginning). Usually, rescission can be done either by informing the representor or by requesting an order from the court. As you are already going to court, I dare say the judge would rescind the contract and restore the parties to the positions they were before entering into the contract.

Also, there are different types of misrepresentation:

- Fraudulent

- Negligent (under statute or under common law)

- Innocent

I would probably classify this case as negligent or innocent. These types usually only allows for recission of the contract. However, if you were able to prove fraudulent misrepresentation, then you may also be liable for damages, especially if you could prove something like lost wages.

I think that's the approach you should look at taking. Although I haven't done contract law for a while. Also, I think they would only be looking for a basic answer given the actual degree, but if you were to look into it further, the topic of misrepresentation is very messy as it is based on the old Misrepresentations Act and also the Trade Practices Act s 52 and its Fair Trading Act mirror provisions in each State and Territory. Oh and lastly, it is always good to back up your case with precedent cases, especially in Australia as we have a common law system. These could be used for your case:

- Hedley Byrne v Heller [1964] A.C. 465

- Esso Petroleum Co. Ltd. v Mardon [1976] Q.B. 108

- Lockhart v. Osman [1981] VR 57

- With v O’Flanagan [1936] Ch. 575

Edited August 10, 2011 by TheExplorer

[dosileflynn]

The above answer is farily comprehensive. generally when a contract is reduced to writing, that becomes the agreement as long as both parties agree to it: The Parol Evidence rule. thus because the agreement of 'heavy duty suspension' was not included in the written contract, it is excluded from it.

How this can be overcome in certain situations, such like the one at present, where there is a misrepresentation, is one can say: Your assurance that the vehicle had heavy duty suspension was at the essence of the contract and as such it is to be implied as a term of the contract, or that it was so crucial as to create a collateral contract, which fixes onto the original contract.

basically the person who falsely claimed the car has heavy duty suspension is in breach and is at fault.

but if it is a law essay you cannot just write the answer out like this, as you will be accused of plagiarism. you need to take the ideas presented here, and find cases/journals/textbook quotes to support your arguement.

[Rabaelthazar]

Er, don't mean to be rude but why the fuck are we doing your homework for you?

(actually i think i do mean to be rude)

You should be hitting the law library at your uni.

 

We're not doing his homework. We're doing his girl's homework.

Come on, be a gentleman.

[theuserformallyknownasd00d]

thanks for your great answers Torsten, TheExplorer and dosileflynn, they were all along the same lines as what we were already thinking. At least what we'd done to this point was was up the right alley and almost point for point inline with theExplorer :-D I have read through about 4 cases which were between 150-200 pages each, which not an easy task for a music buyer but we should at least get a pass!

as for the bikini pics, bro I wish I had them to share! But then again, if she'd given me some no doubt she'd have given someone else some at some point, so maybe I dont wish at all and should just be happy :-P