Institutional Affiliation Friends Whereby

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Institutional Affiliation Friends Whereby

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Institutional Affiliation Friends Whereby

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Question:

Discuss About The Institutional Affiliation Friends Whereby?

Answer:
Introducation

The case between Saurav and Rahul is about two friends whereby Mr. Saurav intends to buy a plane from Mr. Rahul. Rahul agreed to sell the plane to Saurav so that he may purchase a newer one. Saurav promised to pay for the plane after ten days. Because of the surety from Saurav, Rahul acquired a high interest loan and purchased the new plane. However, before the end of the ten days, Saurav pulled out of the agreement citing he has been advised by his tax accountant not to buy the plane as he is over committed on other commercial deals. Therefore, this paper examines the legal rights of Saurav in this case.
Referring to the case scenario between Saurav and Rahul, it is evident that there was an oral contract. It is because Rahul provided an offer that Saurav accepted, meaning that he had an intention to buy the plane and agreed to it when he made a promise to perform his obligation within ten days. When a party failed to perform his obligation as per the contract, then he breaches the contract (Ganglmair, 2017). Breach of contract is a term that is used to describe a non-performance party in a contract. In this case, when Saurav agreed to the terms of the contract, but withdrew from it before performing his obligation, it can be said that he breached the contract between him and Rahul. Moreover, a valid contract must contain the element of consideration exchange in the agreement. Consideration may be money or something valuable (Walkley, 2016). It can also include interest, a right, or benefit. The parties involved must benefit in one way or the other. In this case Saurav was to get the plane while in return Rahul was to get money.
Moreover, for Saurav to withdraw from the agreement he needs to know that Rahul has legal rights to performance, right to damages, and fundamental breach among others. Under specific performance, Rahul can sue him by failing to perform his obligation as per the agreement (Atwell, 2015). It means that if the parties agreed to the terms as to performance of a contract, the court can enforce the said obligations as provided under commercial law. Rahul can also claim for damages he incurred due to the agreement he entered into with Saurav. The compensation for such damages is supposed to take him back into the position he was in if he could have not entered into the contract. Other than that, Rahul still has the right under fundamental breach. Due to the situation the breach put him into, he can say that the breach substantially deprive him what he expected under the contract (Ganglmair, 2017). Therefore, for Saurav to be excused from the liabilities, he must prove that the breach was not foreseeable.

The Case between a Guarantor and Australian Bank
For many years there has been an increment litigation concerning the enforcement of the commercial guaranties by lenders. Due to the increase in defaulting by borrowers on their loan obligations, banks in many cases have taken action against guarantors for them to recover damages arising from the borrower’s default. Here is the case where an Australian bank is facing the same scenario. The case involves a mother who guaranteed her son’s loan business loan from the bank using her home. She signed the guarantors’ agreement based on the trust she has on her son. Being that she was not conversant with English, the bank advised her to seek an independent legal advice before an experienced, certified interpreter before signing any document that guarantees business loan to her son. In less than two years later, Ming’s business faced problems from a significant legal ruling that made his business to face insolvency.

Counter Argument
In the case Blest v. Brown (1862) case, Lord Westbury said that surety must always be collected in whatever manner a surety is bound. The court said that beyond a proper interpretation of the engagement, the guarantor receives no benefit or consideration beyond the proper interpretation. Guarantor is bound to proper effect and meaning of the written agreement that she signed (Australian Competition and Consumer Commission, 2014). But, in case there is any alteration in the written agreement whether it is to the benefits of the guarantor, even if there it is an innocent alteration, the guarantor has the right to say that her obligation is over. It is because the contract no longer fits the conditions of engagement.
Other than that, it was stated in a Canadian Imperial Bank of Commerce v. Patel (1990) that a principal debtor clause changes a person who has guaranteed someone else into a full-fledged debtor (Australia Banking, 2016). However, if the guarantor is to treated as the such, she must get notification from the bank stating the renewal agreements and the new terms. In case the bank fails to notify the guarantor about the new developments, she must get relieved from her initial obligations.

Remedies
In most cases under the principles of Interpretation the guarantees and guarantors are accorded with a contract of adhesive. This means that the documents are prepared by the bank on a standard form. Therefore, the borrower and the guarantor have no part in the agreement negotiation. They are left with no option but to sign if the loan was to be granted. It happens when the guarantor is a family member like in the Mrs. Ming’s case where she had limited commercial experience. For the sake of accommodation, she willingly signed the guarantee. Because of her lack of knowledge on what she was doing, her favor to her son led her to financial tragedy.
Because the guarantor had no control over the situation, it would be advisable that she applies for contra proferentem rule. It is the reasonable and satisfactory means of tackling the situation since the banks that always draft these accords can easily amend their documents to ensure that they do not have any ambiguity. The contra proferentem rule is vital in situations where the construed clause creates limitation of liability (Bishop, Snowling, Thompson, Greenhalgh & null, 2016). Where there is only one sensible interpretation, the guarantor should understand should be able to understand. In such cases the contra proferentum rule is not applicable. However, in if there are two or more interpretations available that might be sensible; the guarantor should get construed against the party that prepared it. In the case of Mrs. Ming, the court should have looked for an interpreter who could have interpreted the contents of the documents in Mandarin, Cantonese or Shanghai languages for her to understand before allowing her sign. The law also states that if there is ambiguity as to the meaning of the clauses that binds the guarantor, there must be a clear interpretation and the resolution made must favor the guarantor.
Moreover, under accommodation sureties, the guarantor expects little or no remuneration. Because of assisting others to accomplish their plans without expecting anything in return, the protection is offered. An example of the accommodation sureties application was in the Assurance Co. v. Johns-Manville Canada Inc., (1983). The law has been put in place to protect such guarantors by strictly construing their obligations and reducing to them the consequences terms of the contract of surety (Australian Competition and Consumer Commission, 2014). Moreover, the guarantor who has right of material alteration by virtue of principle debtor clause, may waive these rights by the terms of the contract.

Possibilities of the Bank Making a Crime
There are various possibilities of the bank making a crime. Firstly, if the bank intends to change the obligations of the principal debtor and make the guarantor the principle debtor, it must notify the respondent. Failure to notify the guarantor about the renewal agreement and the new terms, the bank must release her from the contract (Australia Banking, 2016). In this case, being that the bank wants Mrs. Ming to take the responsibilities of his son without notifying her about the new developments may make the bank lose the case against her. If the bank proceeded to take her home without the renewal agreement then it will be a crime.
Additionally, being that there was an ambiguity in the interpretation of the contract; the bank cannot be allowed to take Mrs. Ming home. It is because the law requires that there must be clear interpretation of the clauses that binds the guarantor in the agreement (Bell, 2017). If the bank has not strictly construed the clauses that bind the guarantor, then, holding her responsible will be a breach of commercial law. Further, being that Mrs. Ming intensions was to assist his son acquire the loan without benefiting from the loan; she is also protected under accommodation sureties. Consequently, the bank cannot bank take their property because the law strictly construed her obligations and limited her to precise terms of the contract of surety (Mullen, 2016). Again goes against such laws may land the bank into crime.

References
Atwell, C. (2015). Cooling off periods in franchise contracts: from consumer protection mechanisms to paternalistic remedies for behavioral biases. Business & Politics, 17(4), 697-721.
Australia Banking. (2016). Acquisdata Industry SnapShots: Australia Banking, (5104), 1-98.
Australian Competition and Consumer Commission. (2014). Travel Law Quarterly, 6(4), 338-339.
Bell, L. (2017). Boundary Dispute: The Presumption Against Extraterritoriality as Judicial Nondelegation. Brigham Young University Law Review, 2017(2), 427-485.
Bishop, D. M., Snowling, M. J., Thompson, P. A., Greenhalgh, T., & null, n. (2016). CATALISE: A Multinational and Multidisciplinary Delphi Consensus Study. Identifying Language Impairments in Children.
Ganglmair, B. (2017). Efficient Material Breach of Contract. Journal Of Law, Economics & Organization, 33(3), 507-540.
Mullen, S. (2016). Damages for Breach of Contract: Quantifying the Lost Consumer Surplus. Oxford Journal Of Legal Studies, 36(1), 83-109.
Walkley, P. (2016). What turns buyers off. Money (Australia Edition), (195), 69.

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