Subsidiarity of Unjust Enrichment †Free Samples to Students

Question: Discuss about the Subsidiarity of Unjust Enrichment. Answer: Introduction: Unconscionability can mean many things and may arise from a number of circumstances. In the present essay, an attempt has been made to explain and comment on these issues. The law has always been trying to find the ways in which protection Management can be provided to the rising number of consumers. Such provisions are present in the sister-in-law and also in the common law. The need for providing protection to consumers has been rising as a result of the large number of consumers who want to face disadvantage in their transactions due to the unfair practices adopted by businesses. In this way, the present essay also looks at the changes that have occured in the statutory law and also in common law (Carlin, 2002). A major decision given by the court in this regard was that of Commercial Bank of Australia Ltd. v Amadio (1983). This decision had a lot of impact on the doctrine of unconscionability. As a result, in the present essay, an attempt has been made to examine the effect of un conscionability on the contracts. At this point, it is worth mentioning that the decision given in Amadio's case was the first such a decision where the court relied upon the doctrine of unconscionability and as a result, this case can be described as the driving force behind the amendment of unconscionability that took place in the law of contract. Similarly, there has been a rising number of consumer protection laws that were introduced for the purpose of providing justice to the consumers and also to enforce the "unconscionable conduct" laws that may be present in the contracts concluded between the parties. Generally, the trader has the ownership of the business transactions and as a result, it is also the responsibility of the trader to ensure that the transaction created between the parties can be described as fair and reasonable. In this way, unconscionability can be described as a doctrine of contract law that has been initially introduced for the purpose of maintaining fair play and equity. As a result, the term unconscionable conduct can be described as being associated with the behavior as a result of which the court may be required to provide relief to the other party. This doctrine was used by the High Court in Blomley v Ryan (1956). But the application of unconscionability in contract law, received significant strength when this doctrine was used by the court in the decision given in Amadio's case. Consequently, it will be helpful to briefly describe the effects of this case. Mr. and Mrs. Amadio were an elderly migrant couple from Italy. They had provided guaranteed for the loan taken by their son. In this case, the loan was taken by their son's company from Commercial Bank of Australia. The bank manager had close relations with their son. At the same time, the manager of the bank was also well aware of the business realities. He also knew very well that perhaps their son, Vincenzo Amadio had made a misrepresentation to his parents for the purpose of obtaining the guarantee of his parents for the loan that he was going to take from the bank. After the loan was taken, the construction business of their son failed. The bank tried to enforce the guarantee that had been provided by Mr. and Mrs. Amadio and mortgaged their building with the bank. Under these circumstances, the issue that needed to be decided was if Mr. and Mrs. Amadio can be held to be bound by this transaction. Similarly if the contract of guarantee was enforceable against the elderly couple, particularly in view of the circumstances under which the contract was signed by them. It also needs to be mentioned that Mr. and Mrs. Amadio were in there advanced years of age. They also had little comprehension of English. Similarly, no professional and independent advice was provided to Mr. and Mrs. Amadio in relation with the contract. The court also noted the fact that even if the bank manager. Mr. Virgo, knew very well regarding the business situation of the company of Vincenzo but he also referred to keep quite instead of advising the elderly couple that they should seek independent advice regarding the contract. In this way the court noted the fact that at the time of the execution of the mortgage by Mr. and Mrs. Amadio, the bank was aware of the unstable financial position of the company of their son. The bank also knew the perhaps Mr. and Mrs. Amadio did not knew this fact and they were under the impression that the business of their son was going on well. Another important fact noted by the court was that while the elderly couple believed that their liability under the contract was limited to $50,000, the bank did not inform them that in fact, there liability as the guarantors for the loan, was unlimited. Under these circumstances, while delivering the decision, the court held that the bank manager knew very well that the elderly couple was facing a special disability. Still, the bank decided not to take any steps to make sure that Mr. and Mrs. Amadio were fully aware of the transaction. Consequently Management, the court stated that an advantage has been taken by the bank regarding the o pportunity that was available to it and this was unconscientious. According to the court, the doctrine of unconscionability relied on this underlying basis. After the decision given in this case, the concept of unconscionability became a part of contract law. Similarly, changes also took place in the statutory law as a result of this decision. The term unconscionability can be distinguished in two ways. First of all, there is the procedural unconscionability (Beatson and Virgo, 2002). It is related with the disadvantage suffered by the weaker party, while the negotiations are going on. In such a case, the stronger party has taken in one page of the fact that either the consumer does not have sufficient knowledge or understanding concerning the contract or an independent decision cannot be made by the consumer concerning the transaction (Paterson, Robertson and Duke, 2009). The law provides that if in such a case the trader had failed to mention to the consumer that certain avenues are available to the consumer for getting help him clearly understanding the terms of the contract, it is a lapse on part of the trader. Hence it can be conclu ded in such a case that the trader had tried to take advantage of the lack of understanding of the consumer and achieve a benefit for himself (Grantham and Rickett, 2001). The second case is of a substantive unconscionability. It deals with the unfairness of the terms of the contract or the outcome of the contract. It may also reveal that a party to the contract has to suffer undue influence or coercion while entering into the contract. Therefore in such a case, an independent decision cannot be made by the consumer as a result of the undue influence. While the general position is that the courts do not go into the question if a good bargain or bad bargain has been received by a party to the contract. However, this question will be explored by the court while it is deciding the issue if a chance was available to the party to decide if it was in their best interest to enter the contract or not (Kremer, 2001). In view of the fact that generally been unconscionable if he is alleged, a difference is present in the bargaining power of the parties, it is easy for individuals or small companies to allege unconscionability against large corporations. Hence, the introduction of the doctrine of unconscionability plays for the purpose of ensuring that the stronger party is aware of the fact that the other party is suffering from a special disadvantage (Kakavas v Crown Melbourne Ltd., 2013). As a result of the decision of the court in Amadio case, it is required from the stronger party to establish in the court that the contract created between the parties was fair, just and reasonable. Several developments have taken place in this field of law after the decision delivered by the court in Amadio's case. These changes included the amendments made in the earlier Trade Practices Act, 1974. At the same time, changes were also introduced in the Corporations Act, 2001 and ASIC Act, 2001. Similarly, some changes are also made in the various codes of conducts of the industry. For instance, reforms took place in the financial services sector after this decision. The effect of these changes was that now the main responsibilities of the ASIC to handle the issues related with consumer protection in financial field. The decision regarding the application of the unconscionable conduct provisions to the contracts dealing with financial services has to be made keeping in view the particular exclusion clauses and also the definitions that have been mentioned in the ASIC Act Management. The apex body in Victorian is the Financial and Consumer Rights Council for the financial counselors. Financial counselors are provided resources and support by the Council and it also promotes the needs of the consumers who have to deal with financial problems. Similarly, it is also the responsibility of the Council to provide information and advocacy to the consumers were facing problems in the financial sector. The Council works in tandem with the community sectors. At the same time, the services of the Council are provided for free to the consumers. Moreover, these services are independent and confidential. The main reason due to bridge these services are provided to the consumers is to advocate for the vulnerable consumers if they have to deal with financial difficulties. In order to fulfill this objective, the Council supports financial counselors. Similarly, the Council also helps through stakeholder relationships in order to create a systemic change. Similarly, the Council pr ovides support to the financial counseling sector through advocacy, law reform, case work, and through the adoption and maintenance of best practices. In the present context, consumer advocacy means to provide a voice to the affected consumers. When a review of the history of consumer advocates see in Australia is made, this view is further supported. Similarly, after considering the literature in which the term advocacy has been used and also after going through the mission statements of various organizations that are working as the consumer advocates, the same view appears to be present. At the same time, the view is also gaining support that further steps need to be taken if the voices of the consumers are not heard in Victoria (or if these voices are not sufficiently heard) as can be seen in other parts of Australia, and also in other countries. It is very significant that the consumer advocates should act as the voice of the consumers. At the same time, they should also act by considering the long-term interests of the consumers. The consumer organizations are required to be effective even if there are significant restraints present for them like the constraints of resources. As a result, generally, these organizations adopt the strategy of working smarter and harder as against the voices they are opposing. Similarly, these organizations also stretch the available resources beyond the natural constraints. Although it is difficult to claim that consumer advocacy has proved to be highly effective. As a result, it can be said that the present arrangements in Victoria related with consumer advocacy are still less effective than required. References Beatson J and Virgo, G J (2002) Contract, Unjust Enrichment and Unconscionability, 118 Law Quarterly Review 352 Carlin, T.M., (2002) The Rise (And Fall?) of Implied Duties of Good Faith in Contractual Performance in Australia, UNSWLawJl 4 Grantham R and Rickett, C (2001) On the Subsidiarity of Unjust Enrichment, 117 Law Quarterly Review 273 Kremer, B (2001) The Action for Money Had and Received, 17 Journal of Contract Law 93. Paterson, Robertson Duke, (2009) Contract: Cases and Materials, Lawbook Co, 11th ed. Paterson, Robertson Duke, (2009) Principles of Contract Law, Lawbook Co, 3rd ed. Blomley v Ryan (1956) 99 CLR 362 Commercial Bank of Australia v Amadio (1983) 151 CLR 447, 461 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Kakavas v Crown Melbourne Ltd [2013] HCA 25 Louth v Diprose (1992) 175 CLR 621

What Caused the Civil War an Example of the Topic History Essays by

What Caused the Civil War? There were many different causes which were the roots of the U.S. Civil War. Briefly, these causes included slavery, different moral systems, different economic systems, and different visions of America. The single most influential causes are inter- related. The issues of slavery and the different economic system which relied in large part on slave labor in the South were, in my opinion, the primary cause for the war. Certainly, the plantations (especially the cotton business) in the South were a major source of the stream of income upon which the South was vitally dependent. Need essay sample on "What Caused the Civil War?" topic? We will write a custom essay sample specifically for you Proceed The plantations were primarily Southern phenomenon and its existence created unfair trade competition for Northern businesses (Encarta:2007). While it may seem that the South was unjust in maintaining the slave trade, I believe that there hearts and minds were predicated on that industry were purely economic. Unfortunately, many sources of alleged discrimination were and are swayed by the almighty dollar. The South was so dependent on the slave-driven economy that their perspective and ideals surrounded the perpetuation of slavery for their livelihoods. Furthermore, the main debate just prior to the outbreak of the Civil War concerned whether slavery would be allowed in the newly-admitted Western States, which were acquired through the Mexican War, such as some parts of California, Utah, and New Mexico. Additionally, at that time, loyalty to ones state often took precedence over loyalty to ones county. The South feared that the election of Abraham Lincoln meant a stronger federal government and, in turn, was a threat to the entire slave industry (Encarta:2007). In conclusion, I believe that although the slave issue was a major cause of the Civil War, it was not the sole cause. Reference American Civil War. Encarta.

Proposing a Solution Essay Topics to Any Essay

Proposing a Solution Essay Topics to Any EssayProposing a solution essay topics to any essay or course will really help you on how to ace it. Even though the topics can be quite lengthy, if you approach them in the right way, you will be surprised to see how easy they will be.First, you need to decide what type of essay you are going to write. If you do not know, it is very important that you know the topic before you write the paper. The first thing that you should try to find out is what the student needs. There are two types of students - those who want to get good grades and those who just want to get good grades.So, if you are going to write your solution essay topics to a school paper or a college exam, then you need to consider what type of student you are dealing with. This is because there are some students who only want to get good grades.If you will be writing for a class, then you need to find out what the student wants. This can be found out by talking to the student. On ce you know what they want, then you can figure out what to write about.Another thing that you need to know when it comes to proposing solutions to essays is that you should really make sure that you think about the theme of the essay before you write the solutions. You should also try to find out what the main idea is. This will make sure that you have all the elements to answer all of the questions in the essay.When you propose solution essay topics to an exam, then you can consider what type of person you are dealing with. This can be found out by finding out who the student is and what he or she wants.You may be dealing with certain types of students like the homeroom student, the athlete, the introvert, the smart person and others. As long as you will be able to answer all of their questions, then you can be assured that you have tackled the most important problem in the essay.You also need to include an outline step. This is necessary because this will be used to plan out what to do after you have answered all of the questions. In addition, you should include some examples to give a brief account of your solution.

The People Of The Kalahari Desert Essays - San People, Ergs

The People Of The Kalahari Desert Essays - San People, Ergs The People of the Kalahari Desert Part One Introduction, Location and Environment The people of the Kalahari desert are extraordinary people. For centuries their hunting and food gathering techniques have enabled them to survive in the difficult environment of the dry, hot and barren Kalahari desert. They are known as the Bushmen. Or the Kung or the Gikwe since Bushmen is rather discriminating because the "Bushmen" live among shrubs and trees and sand and such. The people of Kalahari Desert live in a dry bush desert in South-West Africa and western Bechuanaland, bordered in the North by Lake Ngami and the Okovngo River in the South by the Orange river and west by the Damera Hills. The Kalahari is there all low with sand dunes and great plains. A hostile country of thirst and heat. A country with scorpions, thorny bushes and of course sand as far as the eye can see and perpetual dust. In the hot months it the temperature goes up to 120 degrees Fahrenheit. In the months of winter, which are June and July, the winds from the Antarctic cold blow at night. But during the day it eventually rises up to around 80 degrees Fahrenheit and drops down in the evening. There are only three months of winter and these begin in December and in March the drought season starts and by August all the water holes that were made during the rainy season are dried up. It is not dead, the desert. There are boabab trees that give pear shaped fruits, flowers, and blossoms resembling gardenias. There are tall grasses. There are bushes flowering either red, white or violet flowers, tsama melons which very much look like watermelons and are the size of a small cantaloupe. There are also mogongo nuts that are very high in protein. When in season one person can eat as many as 400 nuts. These people who inhabit the dry, barren Kalahari have a hard life, so it seems... But, really, do they? Part two Food Resources and Technology Living in the hot sandy Kalahari might seem very difficult, even impossible. But if one knows the secrets of the desert. The desert will give you a living. The people of the Kalahari know these secrets. No fancy machinery necessary. No modern technology needed. Only simple handmade tools and weapons such as digging sticks, little axes, bows and arrows, small traps or snares, knives. Not to mention their senses and their wits. They poison the arrows so the game will die faster when hit. The poison is extracted from a certain grub. Great hunters know where the best place to shoot an animal so the poison will work best. Great hunters also know how to make the finest arrows. They also know all the habits of all the animals from the mice to the antelopes, they know what time of day that is best for hunting, too. There are quite a few food resources such as tsama melons, mongongo nuts, roots, berries, wildebeests, kudu, gemsbok, antelopes, steenbok, porcupines, elands, small animals like the mongoose and the chicken fowl, birds- even babies-, wild boars as well as honey from the bees. And of course there are a couple of temporary and permanent water holes around. They use digging sticks to dig up roots, they gather tsama melons, mongongo nuts, and berries. They hunt game with bows and arrows and spears on foot. They cook mongongo nuts in hot ashes, eat the entire animal from the hide-which they work into leather sometimes- to the marrow inside the bones. Of course this might seem like a lot a meat since the game is plentiful but really 80 percent of their diet is vegetables. Sometimes when cooking meat they cook it in the rind of the tsama melon with the liquid still inside and it makes a stew. The people are smart and know their land very well. Therefore as long as they know the secrets the hot desert holds, the desert will give them a living and they'll never go hungry. Part three Social System and Leisure The size of the groups vary from 20 to 100 people or even 200 people per group. The groups have to

Confucianism (Analects) Essay Example | Topics and Well Written Essays - 750 words - 1

Confucianism (Analects) - Essay Example The practices vary and the divergence of understanding increase (Jacobs, 2012). Confucianism named after the founder Confucius aimed at uniting the people of China. It got adopted as a rule to bring together the people of china. The exams set on Confucianism took only 24 to 72 hours and any male could sit for the exam. It existed from 600 to 1900 era. Under Confucianism, the humanists control the affair of the country and thus the lack of performance by the government becomes lack of performance of the Confucianism. Confucianism has helped revive businesses eventually leading to the evolution of several achievements and thus the need for its revival (Branigan, 2009). However, the idea to revive Confucianism has not gone quite well with some of the citizens in China and thus many of the Chinese have opted resisting the religion. The Christians do not see this form of religion as Godly. As such, many have decided to resist it no matter what it can offer. The various teachings of Confucianism adopted by the Chinese people reflect on superstitions because they believe in a sculpture carving in the museum with no significant importance. Thus, the Christians have opted resisting its revival in the country (Confucius & Slingerland, 2006). Lunyu explains the relationship that exist when people come together and live as one. The morale and desire to embrace the virtues of the society should make one feel comfortable and part of the family (Jones, 1996). The devotion one has towards the service of ensuring unity determines those whoncan act as good family mamebers and those who cannot. If one can keep the virtues of their leaders, when in their presence, and when not in their presence, that means the person can turn out as a good family member. The commitment exhibited by Confucianism members give equal the commitment by anyone serving the state. This means solidarity must persist forever whether during

Reflectiv Writing - The Impact of the Voice of Judgment as a Barrier Assignment

Reflectiv Writing - The Impact of the Voice of Judgment as a Barrier to Moving Through the U - Assignment Example As leaders move from the downward side of the U, they are connected to a world which is outside their institutional bubbles. The movement up the other side of the U brings forth a new experience to the world. In this journey, the bottom section bears a gate which requires a person to drop anything that is not essentially to leadership and their duties as leaders. This is a process of letting go of one’s ego and self and letting come the new future possibilities. The journey is however not an easy one as it experiences a lot of barriers. One of the common barriers is the voice of judgment. Journeying through the U requires seven leadership capacities with the second one being observation. This leadership capacity calls for an open mind. To be able to achieve this, the leader must suspend his voice of judgment. It is only through it that an individual and a leader will be able to move from projection to true observation. According to Kidder (2005), various leadership failures are as a result of the struggle between letting go and holding on. It, therefore, requires one to confront his or herself with very difficult yet purposeful choice of having an open mind. It takes a lot of courage for this to happen. When the line has been crossed, an individual enter into the sense of their true nature and are able to heed to the call of leadership. They then undergo the death/ rebirth and start a journey into restructuring of their egos to emerge as freer leaders (Bennis, Goleman, & O’Toole, 2008). This is a journey and a process that not only make them soulful but also creative and innovative. When the gate is crossed and the voice suspended the individual’s inner flame for creative change and ability to move forward is boosted. Bennis, Goleman & O’Toole (2008) state that majority of the leaders do not recognize the potential of what they are faced with because they excessively dwell on the past trend that they are used to. Working as a work shop

Anticoagulation Therapy for Stroke Prevention Case Study

Anticoagulation Therapy for Stroke Prevention - Case Study Example Most anticoagulants are associated with adverse drug reactions, concerns for their duration of action, bleeding risk, and the need to carry out monitoring while adjusting dosages during the treatment period. Therefore, selection of appropriate anticoagulant for preventing Atrial Fibrillation must ensure that the practitioner considers these factors. From a therapeutic perspective, reports show that Warfarin is the first line anticoagulant for patients with Atrial Fibrillation (Nice guideline 2012), especially when the condition is primary or severe because it curbs the development of stroke. Besides, reports show that oral administration has had long-term safety for the past 50 years (AABB, 2014). In addition to that, its effect can be reversed with vitamin k antidote in case of bleeding (AABB, 2014). Moreover, warfarin has reduced rates of major gastrointestinal bleeding and myocardial infarction comparing with the novel oral anticoagulants (NHS Information Centre, 2014). Despite it s complete absorption after oral administration, Warfarin is slow acting anticoagulant with a long half-life. Its two active enantiomers (R and S forms) have different therapeutic potency, metabolism, and clearance pathways (Hirsh, 2003). Besides, it has a delayed anticoagulant effect from two to 3 days while its duration of action continues for 2 to 5 days after a single dose administration. However, dosing of Warfarin can be described as complicated; this is due to its interaction with some foods containing vitamin K.