Day 57 How to make other people accept our opinion within a limited time

How to make other people accept our opinion within a limited time

During our daily life, it is normal that we hold a different opinion with others. Sometimes it is crucial for us to create influence over other individuals and makes them agree or at least not against our idea. In most scenarios, people we face care completely strangers, so we should not expect them to sacrifice their own time to be persuaded by us. Since our action did not have any effect on their lives, they may not even care to listen our explanation. Let alone think on behalf of our perspective. Therefore, we must start our preparation before we meet up with these people, and it is the only opportunity that we may generate some impact on them.

The simple the best, this is genuine. In fact, the major factor that affect people’s decision has always been the cost-benefit evaluation. Hence if we want to make our target individuals to agree our opinion in a limited time, we must aim to enhance the extra benefit side. We should create a strong incentive, which let them feel that accepting our thoughts will provide additional gain to them. In other words, we show something of value to our target individual. This value can be based on various approaches. It can either be the emotional or actual benefit. Since the time is restricted, we may not be able to provide enough evidence to indicate an actual gain generated through accepting our view. Thereby, we should use the emotional approach more frequently. The emotional approach can be the sense of approval or sympathy. Ordinally, our goal is the approval. We have to understand what exact qualities that our objective personnel is seeking for or admire the most. For instance, an employer will prefer his/her employee who is diligent and integrity. The university would like to see their future student to present high incentive to study hard. And the landlords will be more likely to choose an honest tenant who also has the ability to pay the rent on time. However, our time is limited to performing these qualities, because we may only get to meet our target in person once or twice. Consequently, we need to emphasize our image from other sources. Supplementary materials that back up our opinions are extremely useful. Even though most people do not read them carefully afterwards, it presents the image itself that we are actually putting effort on the task. In order to outline as much ideas as possible during the skim, we should provide an index and utilize dots/paragraphs in the documents. In addition, an referal letter is very effective to reflect our qualities, due to people tend to believe other people’s judgements when they have restricted source of information. The main point is to make our target think we are their peer who shares the same interest, thus even they do not care about our opinion. They tend to accept it due to there is no extra cost. 

In conclusion, it will be extremely hard once people have made their evaluation over our opinion. So we must influence them before they make the decision.

Day 56 Self-adjustment after failure

Self-adjustment after failure

Although we prefer to enjoy the nectar of success, failure always associates with it. According to the statistic, the chance for us to achieve and fail our objective is fifty-fifty without the influence of outsider factors. Therefore, the setback is an inevitable fact that all of us must learn to deal with. However, the sense of defeat may crush our confidence in the further participation upon similar tasks. Consequently, we will act negatively or even tend to avoid the reality which we have been defeated. I want to introduce some useful techniques to confront our failure and encourage ourselves to continue pursuing other goals.

In my opinion, the most important part is to adjust our mentality after we failed. We must understand sometimes that failure is unpreventable, because there are so many elements can vary the outcome. For instance, If we are applying a course at the university, our anticipated result should be the offer granted. But there are factors we cannot control such as the number of our peers who also applied for the same course, the working attitude of the officer handling our supplementary material, and even the certain preference or bias towards the specific group. So when our effort was not remunerated with the expected outcome, do not be frustrated. Ask ourselves, did we endeavor to influence every reasonable factor in order to reach the target? If we did, there is noting to be regretted. So what we need to do is to put ourselves together and keep up with the good work. In addition, we shall establish psychological barriers before the result come out. It sounds negative, but it is indeed rational behavior. That is supported by the Murphy’s law, which stated ‘anything that can go wrong will go wrong’. Hence we must prepare to face the least favorite outcome while proceeding towards to the object. Along with this precautionary protection, we will not be devastated by the sudden failure and able to react based upon the situation. Furthermore, I found out that rating the outcome on scale from one to ten can provide enormous psychological comfort. Because we will realize the scenario is not too bad, which indicates our effort was not totally wasted. That will stimulate our passion to maintain diligence and eventually bring us the desired output.

After we successfully adjust our mental status, a conclusion is essentially required. We have to summarize the reason for our failure, and act carefully to avoid it in the future. We must remember that all of our self-adjustment processes are aiming to retain our confidence, but not intend to make us ignore our defeat. On the contrary, we should keep this failure in our mind in order to utilize it as the fuel to motivate our future activities. What done is done, we cannot change the past, but at least we shall make our future brighter with the experience we learned, shamed and regretted.

Day 55 Planning before the uni study

Planning before the uni study

I have finished the reviewing process on last period. Therefore, it is the time to plan for the next month in lunar new year. 

Remember the procedure of planning, the first step will be defining the objects. I have to know what do I want to achieve before the trimester commencement on 9th March. That is corresponding to the goal-setting stage, which provide me the direction to put my effort. According to the skills and strengths enhancement plan in a larger scale, I will have to prepare for the units enrolled in the first trimester along with improving other skills such as language, investments and MYOB/Excel. I have enrolled in four subjects in semester 1 including: Corporations Law, Business Information Systems, Fundamentals of Finance and Financial Accounting. In addition, I want to boost my English skills on vocabulary, writing, and communicating. Furthermore, I will try to participate in Chinese stock market in the next period, because I am expecting to transfer the variety of skills into my own strengths on human capital. At last, a systematic study of the MYOB system is also needed to be completed.

After clarified the object, I will develop the strategies to achieve it. The prescribed text books are accessible through the university library. In order to obtain a better understanding and easier comprehending progress in the future study, I decide to briefly preview the whole book in the next period. Besides that, a detailed study for the first three chapter of these books is necessary. As to reach maximum effective, I will create summarizing key notes for the units, and complete the first three chapters’ problems. These notes shall be in typing due to the purpose of concision and better undesirability on revision. On the other hand, the English study will follow the same pattern plus some more resources available. My daily writing practice will continue as well as the vocabulary building. However, I am going use http://www.vocabulary.com/ to assist this process. I also decide to participate during the English learning course provided by the university in Clarity English Programs, which helps me to establish a straight-forward understanding on functional English in university study. Moreover, the participation in Chinese's stock market is on the schedule once I unfreeze my trading account back to China. Hence I have to study related knowledge and observe the professional’s investment decision. Meanwhile, I will try to analyze the reason behind their actions, as to accumulate experience in this area. For the MYOB operating study, I tend to apply for the online course for the official website, otherwise I will have to borrow relative materials from the library.

The last step of planning is to allocate the time. I assume the time available for me to perform a full-day study will be 18 days, because the travel cost plus festival/other events in the next month. With a simple calculation, my anticipated outcome will be : preview each textbook in four days, complete the English and MYOB course in 18 days. The daily writing, vocabulary adding， and investment learning will not be affected.

This is only a basic outline to construct the plan. The unexpected events will vary the actual schedule, thus a flexible time should be considered ahead.

Day 54 Summary for preceding study

Summary for preceding study

It is the 53 day since I started myself-enhancement plan. Therefore, I would like to make a brief conclusion for my performance in the past period. Recalling the ‘five c’ method I introduced in my prior writing practice, and this summary will be based on it. 

Starting with cautious, in the last 53 days, I analyzed the reason for my past failure. It is important for me to understand the consequence for my behavior, so I managed to consider before I act. In the meantime, I successfully maintained a diligent study pattern, which allowed me to avoid dilemmas of laziness and emptiness. I kept being rational, evaluated my action on the cost-benefit principle, hence I prepared myself very well for any incoming challenges.

In addition, the clear and concise plan helped me a lot on achieving my personal goal during this period. It made the progress of completing tasks methodical, thereby I know every specific step that needed to be carried out. Consequently, I followed the plan in order to gradually reach the anticipated target. The detailed plan also stimulated my passion to work harder, as to meet the time requirement efficiently without scarifying study quality. However, I realized unexpected events in daily life had a large impact on the plan. Therefore, I had to develop a more adequate schedule to take these variables into account.

Moreover, I established confidence and courage by handling the biggest challenge in my life until now. I comprehended that the essential part of success has never been based on its probability, but the willingness, endeavor and methods that we contributed in the process. So if something is necessary to be done, I learned to ignore the possibility to success and take the first-step ahead. Actually, I found many things that seemed impossible would proceed smoothly once applied with the proper approach.

Furthermore, the constant work awarded me with improvement on both my skills and strengths. In the last period of time, I reviewed four subjects that are crucial for my incoming study at the university. The microeconomics plus macroeconomics expanded my view on the world economy, so I was able to think rationally from an economist’s approach and comprehend the economical factors behind some global events. The corporation law provided the basic introduction on Australian’s law system, which is combined with statute and common/course law.The account for decision making assisted me to remember the particular structure of double-ledger-accounting, as well as the detailed entry process in different situations. My language skills were also promoted by consistency study. For instance, I finished the course on speaking pal application, increased my vocabulary stock by another 1000 new words, and continuously wrote 53 essays until today. On the other hand, I started to create my own strengths such as the ability on investment. I studied the material from e-trade Australia to prepare myself for entering the stock market. I wanted to train myself in this area, hence I will show more competence as my advantage in future career. A healthy body is crucial for my further effort, thus I participated in a training course twice a week with my personal trainer. Besides that, I persisted to exercise at the gym five times a week. I felt vigorous than before and decided to stick to this plan. 

In conclusion, I believe that I organized my time pretty well in the last 53 days and reached my predicted outcome. Although there are still some adjustments needed to be taken, like detailed time allocation, other practical skills’ study in MYOB and excel, my overall performance could be marked with eight out of ten. Where the two points loss is due to the efficiency can still be improved. This summary made me to appraise my performance at the end of the period, hence I would continue to do so in the future.

Day 53 Commercial Law Summary Chapter 8-14

Commercial Law

Summary Chapter 8-14

Chapter 8

The sale of goods legislation adequately protects counsumers.THus, where there is a sale of goods, it is necessary to determine whether the Trade Practice Act governs the contract(consumer contracts), or it is governed by the state sale of goods legislation( non-consumer contract). The TPA covers not only a sale of goods but also the lease or hire of goods. It provides some protection to consumer by implying into consumer contracts for the supply of goods certain conditions, which cannot be excluded. By the way, the sale must be made in the course of business instead of at auction. The good cannot be bought as merchandise, which on the purpose to resale. There are several terms are implied by the TPA, such as, the seller has a right to sell, the buyer shall have and enjoy quiet possession, and the goods should be free from encumbrance not disclosed before the contract was made, which means the good is mont mortgaged or changed in any way. In addition, the goods should correspond with the description, have merchantable quality, and fit for a particular purpose. If there is a breach of these implied terms, a remedy may be applicable. This includes calculation of damages and returning the goods. Although the seller can use reasonable limitation clauses to restrict the obligations, the implied terms can not be excluded. On the other hand, the TPA dose not apply to non-consumer contracts. Therefore the sale of goods legislation takes place. Similarity, it consists implied terms same with the TPA. Sale of goods legislation has provisioned covering price, delivery and payment, acceptance, passing of property and risk. In all cases, the parties are free to decide their own terms.

Chapter 9 

A contract may be terminated or discharged in a variety of ways. To illustrate, it can be discharged when the parties wholly or substantially perform their obligations in the contract; it can be discharged where both parties have reached an agreement; the contract can be conditional corresponding to specific terms, and if that term is terminated, the contract will automatically discharged an intervening event, not contemplated by the contract nor the fault of either party, makes performance of the contract impossible or radically different to that originally contemplated, the contract is discharged for frustration. In addition, the contract will be terminated for breach of a condition in it. Some intermediate terms may be treated as either a condition or a warranty, depending on the seriousness of the consequences flowing from the breach.Hence serious breach of an intermediate term will give the innocent party the same rights as if a condition was breached. It is due to the breach will substantially deprive the innocent party of the whole benefit for which he or she entered into the contract in the first place. Furthermore, repudiation occurs where on party to the contract indicated that he or she will not perform the contractual obligations. It can be either the party is unwilling to perform or unable to perform. Moreover, the anticipatory breach may occur where one party indicates to the other party before the due time for performing the contract, that they will not be able to perform their side of the contract. If the innocent party elected to terminate the contract, they must do so without doing anything that can be regarded as affirming the contract. The election to terminate must be unequivocal and generally speaking must be communicated to the other party. Once the election is made, the contract is ended.

Chapter 10

Agency is a term used in commercial circles. An agency exists wherever the agent has the power to affect the legal rights and obligations of the principal. In determining whether a relationship is an agency, the court must have regard to all the circumstances, including the agent is more likely to pay the profit across to the principal, the agent is likely to be paid a commission, and the agent has an obligation to account for the principal for sales. The most common function of an agent is to bring about a contractual relationship between the principal and a third party. They also have authority pay/receive money and make/receive representations on behalf of the principal. The most important task of an agent is to make contracts on behalf of the principal. This is an exception to the rule of privity of contract. There are numerous varieties of special agents, such as mercantile agents, stock brokers and solicitors. The powers of the agent in each case will depend on the facts of the case. Realationship of principal and agent may be created by deed, by agreement in writing or orally, or by operation of law. Hence there are no formal requirements. In addition , an agency may be created through by express agreement, implied agreement or estoppel. A principal will be bound by the actions of his or her agent where the agent acts within actual authority( express and implied) or apparent or ostensible authority. However, if the agent acts outside these authority, the principal will not be liable unless the principal subsequently ratifies the agent’s actions. The principal can be only sued by third parties when the agent acted within actual or ostensible authority, plus the principal has ratified agent’s action. On the other hand, the principal may sue the third party when agents acted within actual authority or the action is ratified. Generally, the agent cannot sue or be sued unless the third party did not exist at the time of making the contract; the agent executed a deed or bill of exchange in his or her own name; customer or trade usage makes the agent liable; alternatively, the terms of the contract specified the agent is liable.

Chapter 11

Partnerships are not as important as they once were. Nevertheless, many small businesses are still owned in partnership, as are many professional businesses ought to have a working knowledge of partnerships. The partnership is not a separate legal entity. There is a Partnership Act in each state, but fortunately, the Acts are essentially the same. Unlike the creation of a company, the creation of a partnership requires no formalities whatsoever. It is the relation which subsists between persons carrying on business in common with a view of profit. So for a partnership to exist, the business must be carried on in common. Every partner acts as agent therefore they have mutual rights and obligations. It is not easy to determine whether a business is being carried on in common, thus it should regard to the prima facie evidence which receipt by a person of a share of the profits from a business makes him partner in the business. A partnership must aim to make a profit, this part of the definition emphasises that a partnership is a commercial relation ship and does not include non-profit associations and clubs. Although the definition of a partnership does not refer to contract, it is clear that the relationship is contractual. Contracting parties cannot avoid being partners just by agreeing not to be partners. The rights and liabilities of the partners with respect to each other are determined by three factors: the contract creating the partnership, the Partnership Act, and the law relating to fiduciary relationships. As a partnership is not a separate legal entity, individual partners are responsible for the debts and liabilities of the partnership. However, the limited partnerships can be used to against that. Thereby, in most partnership, every partner is liable jointly with other partners for all debts and obligations of the firm incurred while he or she is a partner. At last, last, the partnership can be terminated by the partners themselves, by operation of law, by supervening illegality or by the courts.

Chapter 12

Companies are popular business structures because it is an independent legal entity with rights and powers of its own. A company may be broadly classified as either a proprietary company or a public company, and the Corporations Acts provides for the registration of proprietary and public companies. Normally, there are four types of companies that may be registered. For instance, the companies limited by shares, companies limited by guarantee,unlimited companies and no liability companies.The company is created through the registration process, which lead to its incorporation. This process involves the lodgment of an Application to Register:s 117. The Corporations Act contains a series of replaceable rules that will apply unless the company’s members have voted to exclude or modify those rules in the company’s constitution. Furthermore, The Certificate of Registration operates as the birth certificate of an company. It also contains the company’s Australian Company Number(ACN), which serves as a unique identifier for the company. The management within a company is in the hands of the directors, who are elected according to the rules of the company or nominated in the constitution. When a company has shareholders, the shareholders will normally elect the directors. A company is liable in tort for the action of its employees where they are acting in the course of their employment. Nonetheless, the company is mainly concerned with a company’s contractual liabilities. Section 127 provides the manner in which a company may execute a document including a contract. It states a company may execute a document with or without the common seal if the document is signed/witnessed by two directors, a director and a company secretary or the sole director who is also a secretary.

Chapter 13

The Corporate Social Responsibility(CSR) has been a hot topic both locally and internationally. It involves an ongoing commitment to transparent and ethical business behavior and to sustainable economic development. While at the same time improving the quality of life of the workforce, community and society generally. It is relied upon the decisions of directors. Directors and other officers ow certain duties to the company. These duties are owed to the company and not to the members as individuals. Sections 180-184 of the Corporations Act impose certain duties up on directors. To illustrate, section 180 sets of the duty of company directors and officers to exercise their powers and discharge their duties with a reasonable degree of care and diligence. In addition, a director ought to be capable of understanding the affairs of the company, at least to the extent of being able to reach a reasonably informed opinion of its financial capacity. Because of the rules and decisions with respect to insolvent trading, directors cannot expect to escape liability by staying away. Hence the director is expected to attend board meeting and take an active interest in the company’s affairs. Section 181 set out the duties of directors and officers to act in good faith an for the proper purpose. It means that directors must act honestly in the interests of the company as a whole. There are a number of possible consequences for a breach of statutory duty, some having civil consequences and others having criminal sanctions. The directors also owe further statutory obligations, which are arisen under the Corporations Act and other legislative provisions.

Chapter 14

A trust is essentially a relationship pursuant to which a person is obliged by the rules of equity to deal with certain property of other persons, or for a particular purpose. The courts of equity have recognized a strong fiduciary relationship between the trustee and the beneficiary. There are three crucial element of a trust: the trustee, the trust property and the beneficiary. All trust must have a trustee, and many trusts have two or more joint trustees. The law recognizes the trustee as the legal owner of the trust company. If the trustee becomes incapable or unwilling to carry through the trust, the trust will not fail, but a new trustee will be appointed under the terms of the trust. The trust property may be real property, personal property or intellectual property. Besides that, the trust property may also include business stock and goodwill. The person for whom benefit the trust was created is the beneficiary. The beneficiary can either be a specific person, a defined group of people or a charitable purpose. They can take action against the trustee to enforce the equitable obligation to properly administer the trust, and to properly use or apply the trust property. The power of a trustee may be divided into three categories: express powers, implied powers and statutory powers. However, there are also obligations associated with the power. A trustee has the duty of prudence, diligence and honesty. Moreover, without being a separate legal entity means that a trustee enters into contracts in his/her own name. Hence the trustee is personally liable for the business debts. Even through the trustee is unlimited with business debt, it doses have a right of indemnity for these debts out of the trust property where the transactions that give rise to the liabilities were authorised by the trust deed.

Day 52 Commercial Law Summary Chapter 1-7

Commercial Law

Summary Chapter 1-7

Chapter 1 

The business law allows us to understand how to deal with risk and uncertainty. The law provides a framework to protect business from systematic risks, which is the risk cannot be controlled by the business and could ultimately destroy the system. In Australia, the laws are from two different sources: the parliament and the courts. The parliament includes the Commonwealth parliament as well as the various state parliaments. They both share the power to make binding laws. However, if there is a conflict between a federal law and a state one, the federal law prevails. This term is determined by the Commonwealth Constitution Act 109. These powers are separated into three different parts, to illustrate, the parliament makes the law which is the legislative power. The government administers the law, which is the executive power; and at last the judicial power is presented as courts interpret the law. When the courts are interpreting a statute, the golden rule means the courts adopt an interpretation that avoids the absurdity and gives effect to the intention of the parliament which passed the state. On the other hand,  the judge-made law or the common law operates in Commonwealth countries. In contrast, other countries apply civil laws. The common law is defined as those legally enforceable rules that have been fashioned and adapted by the courts throughout the ages. So it is based on the actual case in the past, instead of ad-hoc rules made by the judges. It implements the stare decisis or doctrine of precedent in its progress, hence a decision of a higher court must be applied by lower courts. The law in commerce is comprised with contracts, tort or similar statutory obligations and agency, partnerships, companies and trusts.

Chapter 2

The manufacturer of products has obligations to consumers and users of its products. That is the liability of defective products, and it also called liability of negligence. The snail in the ginger beer bottle was the most famous case on this topic. The Hose of Lords decided that liability for negligence did not depend on the contract, but as a reasonably foreseeable responsibility to take care of the user. Consequently, the determination of the defendant liable appears when the defendant owes a duty of care to the plaintiff but failed to exercise it. In addition, the closed was caused by this negligence, and the defendant supplies no further defense for it. The law states people must take reasonable care to avoid acts or omissions which likely to injure their neighbor. The neighbor test is the persons who are so closely and directly affected by your act that you ought reasonably to have them in contemplation as being so affected. Therefore, the manufacturers must take reasonable care not to injure their neighbor, and compensate any injuries and losses suffered as a result of the negligence. It is also defined by the Statute Trade Practices Act Pt VA. IT imposes certain obligations on manufacturers, importers and own branders of goods.

Chapter 3

The law will not allow a person to get away with sharp practices such as misleading others by word or conduct or by engaging in grossly unfair conduct. There is certain right arises from misrepresentation. For example, at common law, action for damages for fraud and action for damages for negligence could be rose. Under statute, Action for damages for breach of TPA s 52, Breach of contract and right of recission may be applied. The defendants will be liable with fraud when they make a false representation of fact in order to induce the plaintiff to act in some way. And their dishonestly or recklessly activities lead a loss to the plaintiff. The negligent misrepresentation is part of tort of negligence, which follows the same identification steps. Therefore, if the losses of the plaintiff were caused by the misrepresentation which defendant failed to exercise the required standard of care, then the defendant is held responsible. In addition, the Trade Practices Act s 52 introduce that a corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive. It is also stated in the Fair Trading Act 1999 Vic s9 with the similar sentence. It is important the corporation has conduct in trade or commerce for this act to apply. However, the use of exclusion clauses or disclaimers to against contract terms, negligence and innocent misrepresentation are very common, Even there is no misrepresentation, a transaction may be considered as unconscionable. Which is unfair, unscrupulous or unjust transactions. It occurs when one of the parties to the transaction was especially vulnerable and other party took unfair advantage of that. Thus the dealer should advise that party to obtain independent advice for their disadvantage.

Chapter 4

A contract is essentially an agreement between two or more persons, which will be enforced by a court of law. It can be written or oral. The contract has four fundamental elements: firstly, an offer must be made and represented in distinct term. When the offer is properly communicated, it must be accepted. After this, both parties must be intended to make the contract, that means the agreement is intended to be legally enforceable. At last, both sides have to provide something of value in order to enforce the agreement, and it is called consideration. An offer exists only where a reasonable person would conclude from the facts that the person was willing to be bound in a court of law. It must be distinguished with an invitation to treat. An advertisement is the particular invitation to treat. Once the offer is accepted( when intention and consideration are Satisfied), it will be finalised hence cannot be revoked. On the contrary, it can withdraw any time prior to the acceptance. The revocation of the offer must be communicated to the offeree. Moreover, the offer may lapse due to the death of offeror/offeree, time, or failure of a condition precedent(conditional offer).

Chapter 5

As discussed in previous chapter, the intention and consideration are the fundamental elements of establishing the contract. In most circumstances, the parties will make no express reference to bind the agreement in the sense of being enforceable by the court. Thereby an objective test that determines whether a reasonable person would conclude that the parties had intended to contract must be applied by the court. If the agreement is of a domestic nature, the courts are generally prepared to presume that the parties did not intend to contract. Which can be interpreted the parties did not intend it to be legally binding. In contrast, if the agreement is of a commercial nature, the courts presume the parties intended their agreement to be legally enforceable. Any party not wishing a commercial agreement to be legally enforceable should state it clearly. Letters of comfort or support are provided where the provider does not wish to give a formal guarantee, therefore it has a problematic nature that one party wants it to be binding and the other doesn’t. The deeds do not require consideration, but the simple contract does. The consideration only exists when both parties have provided something of value. An offer turns to being a gratuitous or bare promise if on party has not provided consideration. When the promise is made by the promissory to two or more persons jointly, only one of those persons need to provide consideration. The consideration may be of nominal value and sufficient.

Chapter 6

The terms that are expressly agreed by the parties in a contract are the express terms(clauses).The parol evidence presumption states that the courts will not permit one of the parties to subtract for, add to, vary or contradict the language of the written instrument. The courts will presume the written formal contracts to be a complete record of the agreements. Hence a party cannot be bound by additional terms made after the contract has been formed, unless fresh consideration provided. The Olley v Marlborough Court Ltd is a vivid example for the additional clause made after the contract. Generally,  people are bond by their signature. It applies even though they did not read the document. Consequently, a signature by a person is a strong evidence that support this person has agreed to be bound by the contract. However, the signature does not bind the person when the document did not appear to be contractual, there is a misrepresentation or condition precedents. Sometimes, a collateral contract exists corresponding to the main contract. It appears as a supplementary term which ordinary as an oral promise. It is a useful device for circumventing some of the difficulties associated with the inconsistent application of the parol evidence presumption. A collateral warrant must be promissory and consistent with the main contract. Which means the collateral contract cannot exist if it conflicts with the main contract. Furthermore, the reasonable person test is applied to determine the meaning of a term. When the contract is wholly in writing, the courts must judge the meaning of the document from the words of the document. Some terms are unenforceable because they are in contrast to the law itself. Exemption clauses are used to limit obligations, to illustrate: no warranty gives, no refund and no responsibility taken for lost goods are typical exemption clauses.

Chapter 7

Aside from express term stated in the contract, there are many implicit terms implied. These terms can be implied as a matter of law.  The common law is in the process of recognizing an implied duty of good faith. It applies both to the performance of obligations under the contract and to the exercise of contractual rights. For example, in contracts between professionals and their clients, the implicit term in that the professional person carries out his or her contractual duties with reasonable care and skills; In contracts for work and materials, the court will imply terms that the service be reasonably fit for the purpose for which it acquired; and for landlord and tenant agreements, the landlord impliedly warrants to give the tenant quiet enjoyment of the premises, which means he/she is not permitted to give access to any other persons or to make unscheduled inspections. In addition, terms can be implied by the courts as a matter of fact. Although courts are often reluctant to add to the express terms, sometimes both parties intend a term to bu included but failed to do so. That may because the term was too obvious that it was overlooked or each party assumed that it applied. The implied term, as a matter of fact, cannot be conflicted with the express term.  Another two form of implied terms are terms implied by the Trade Practice Act and  ASIC Act. Both of these are aiming to protect the customer from loss occurred due to the deficit goods or financial assets. The terms are justified on the basis of past dealings, customer or trade usage or to make the contract effective.

Day 51 Some thoughts from the Japanese hostage incident

Some thoughts from the Japanese hostage incident

Yesterday, another Japanese hostage Kenji Koto was beheaded by the jihadist terrorist group ISIS. This brave journalist was the second Nipponese hostage being slaughtered after their government refused to pay the ransom and release the prisoner of a suicide attack. Although the Japanese government condemns ISIS has performed a heinous and brutal crime, the ordinary Nipponese citizen did not seem to care much about their own people. Maybe due to their optimism, they even started a photo shop competition online around the released picture of two hostages holding by a masked terrorist. Personally, I think that is an inappropriate action when their own people is in danger. 

Some Japanese citizen seems to be indifferent on these two hostages, probably due to the ignorance in the modern society. The technology advancement innovated people’s social life, hence people are able to maintain their social relationship on the Internet. However, it draws people’s attention away from the vulnerable group as well as our neighbors. Therefore, people tend to be careless about the others and concentrate on their own business. I think the care of other people’s welfare can be interpreted as seeking potential relationships with those who share the same interest. The incentive for people to develop relationships within the society is based upon the requirement of communication. The social network resolve that needs, so people will avoid the extra effort cost to show love and care towards strangers. Obviously, a portion of Japannese people are affected by this pattern, thus they creat a strong demonstration effect. As we know, people are social animal, hence we act according to the community value. When people all around these Japanese citizens show indifference about this hostage event, they will not take it seriously as well. Consequently, they can perform their humor without incurring any cost such as guilt feeling on ethical norm. In addition, addition, the first hostage was an adventurer who is a mercenary in another term. Japanese people may consider his experience as taking the consequences of his own deeds. They treat this event as a news without having many actual feelings about it. However, this incident might expose some issue in Japan about the national identity. Despite these two hostages’ characteristic, they are Japannese citizen in the first place. 

At the end, I believe most of Japanese people are shock by this tragedy and willing to mourn for these two gentlemen. I wish people can show more love and care not only with their family and friends, but also around them. I hope all of us can be rational, and solve the conflict in a peaceful way, instead of murder and terrorism.