Business and Company Law
Magda is a highly acclaimed professional photographer focussing on celebrities in the fashion, entertainment and sports industries.
Magda advertises and sells prints of her works via her website: www.madgaportraits.com.au, but she also sells directly to the public from her home studio.
The website sets out various categories of works including one entitled ‘Elite Sports’ where she has thumbnail photos of limited edition,framed,photographic portraits that she has taken, showing prices(including postage and handling).
There is also a notice on the website indicating that these portraits are numbered and signed by Magda, and are printed on archive quality, acid-free paper.
Avinash visits her website and admires a photographic portrait of an Australian Olympic champion, Paris Stilton. The advertised sale price is $2,000 and it is described as ‘a limited edition of only 3 prints’. According to the website only one of these portraits remains unsold.
As described below, a number of exchanges take place between Magda and Avinash.
Sunday 19 February:
Using the supplied email address from the website, Avinash emails Magda saying, ‘l’ll buy the Paris Stilton portrait for $1,600’.
Within minutes, Magda emails him back saying that she ‘cannot accept less than $1,800’.
An hour later, Avinash replies, indicating that $1,800 sounds like a fair price but asks her to ‘hold theportrait so he and his wife can discuss the matter’. Avinash points out that as his wife is overseas, the earliest his wife could do so would be the following Tuesday, 21 February.
Magda responds immediately by email agreeing to this and attaches the following scanned document:
I, Magda Kingsbury, hereby offer to sell AvinashKapoor one framed print of Olympian champion, Paris Stilton, for $1,800 cash. This offer shall remain open until 11.59 pm on Tuesday 21 February.
Signed: Magda Kingsbury
Monday 20 February:
Avinash emails Magda at 9 am stating he had been able to consult with his wife earlier than expected and he was willing to pay $1,800 for the portraiton the condition that she provided a certificate of authenticity that verified the portrait’s origin and status as a limited edition work.
Magda emails him back at 9.30 am saying that she could do so. She adds, “If you want to go ahead you must confirm with me by 4pm today”. Avinash hesitates and decides to think it over and does not reply that day believing he has until Tuesday 21 February to decide.
At 11 am, Elton, a sports enthusiast, who had visited Magda’s website and seen the portrait of Paris Stilton, decides to pay a visit to her studio to see it on display. Without haggling over the price he purchases the painting for $2,000 cash and takes it away with him.
At 11.30 am, Magda emails Avinash informing him that the portrait had been sold.
The next day, Tuesday 21 February:
At 9.45 am, without having actually read Magda’s most recent email ( in 8 above), Avinash telephonesher informingher that he will buy the painting for $1,800. Magda informs him he has missed out.
Advise Magda and Avinash whetherthey had formed a binding contract with one another.
You will need to address all the essential elements of a contract as well as analyse the legal status (if any) of each step or event that occurred, including information on the website. Refer to relevant case law and provide definitions of legal terms. In this part, do not discuss the impact, if any, of consumer protection laws.
You may, but are not obliged to use the IRAC format for this part, given that each step or event needs to be analysed separately.
Recommended maximum: 600 words
(b) Assume Elton discovered that the portrait he had purchased had only been printed on low quality photographic paper and was therefore susceptible to colour degradation (already occurring) which would not happen had high quality archive quality paper been used. Furthermore ,he has discovered that recently, Magda had sold ten of the so-called limited edition prints of Paris Stilton to other buyers.
Advise Elton of his rights under the Australian Consumer Law (‘ACL’).
By reference to the ACL, explain whether
Elton qualifies as a consumer
Magda has breached any terms
Magda has made any misstatements
Refer to specific sections of the ACL and any relevant cases
For your information, ‘limited edition’ most commonly refers to the publication of an edition of a book, or reproduction of a print or object, limited to a specific number of copies.
Use IRAC format. Recommended maximum: 600 words
In contrast to express terms found in a contract, implied terms can arise in a variety of ways and are beneficial to at least one of the parties to the contract. Some contracts may contain both express and implied terms, but the ways in which these two types of terms operate are significantly different from one another’.
Discuss this statement by reference to cases and legislation, providing examples of each.
In addition, include as an example in your discussion, references to the types of terms indicated in the facts of question 1.
Answer in essay format. Recommended maximum: 800 words
Overview of the task
Task: Assignment consisting of two main questions. ( Question 1 has two sub-parts).
Total length of both questions: 2,000 words (not including footnotes (or other internal references) and bibliography)
Due Date: Week 9 of the semester: Friday 25 May 2018
How to submit
(1) You must submit a softcopyof your assignment through VU Collaborate drop box by the due
date. This allows for official receipt of the assignment, and Turnitin analysis.
(2) You must also submit a hardcopy at your class in Week 10. Thehardcopy must be the
same as the softcopy, and include a declaration form. It will be marked and returned to you
with a feedback sheet.
Details of the task
The assignment is to be completed individually and requires students to undertake their own research of academic materials including but not limited to their prescribed textbook. Other sources include legal journal articles, case summaries, and other texts.
Students must read and follow all instructions carefully and familiarise themselves with the VU Academic Integrity and Plagiarism policies.
Statements of law should be supported with appropriate references to Australian law (cases) and relevant textbooks/articles/journals.
Students should be wary of using internet sources that are not of acceptable academic standard. For example, wikipedia, or similar sources are not acceptable.
A bibliography is required.
Referencing style ( choose any type) : see https://www.vu.edu.au/library/get-help/referencing/referencing-guides
Scholarly writing, plagiarism and copyright
Part of what it means to be a ‘scholar’ is to engage with the work of others, for example, to extend or refine one’s own ideas, critique the work of others, or test and extend theories. Learning and assessment activities therefore often require you to gather information from a number of sources. This may include factual information, data or calculations, visual artefacts and written texts. Whenever you use the work of another person, you must acknowledge that source using the correct referencing system. Failure to acknowledge other people’s work appropriately may be regarded as plagiarism or academic misconduct. Use of one's own previous work in satisfaction of a new assessment requirement is also not be allowed unless it is an explicit requirement for the unit.
VU deals with plagiarism according to the Academic Integrity and Preventing Plagiarism Policy.
VU uses Turnitin for the review of written assessments. Turnitin checks submitted work against sources from across the world, and provides a report detailing the use of third party text and references. Written assessments are automatically submitted via Turnitin in the unit site. You may be provided access to submit assessments early and review the reports, to help you understand where referencing should occur.
All students and staff of Victoria University are also bound by the requirements of the Copyright Act (1968) and the University’s Copyright Material (the Use of) Policy when using third party copyright material in the course of their research and study. Please ensure that you familiarize yourself with this policy and the rules around use of materials produced or owned by others. For information on copyright entitlements and responsibilities for study and research please see vu.edu.au/library/referencing-copyright/copyright
Adjustment to assessment arrangements
If you are unable to undertake or complete an assessment due to adverse circumstances the following arrangements may apply:
Late submission of assessments - Short extension of time
If you are unable to submit an assessment item on time, due to circumstances outside your control, you may apply for a short extension of time of less than five (5) working days. The standard penalty for late submission without an approved short extension will be 5% of the total possible mark per working day. If submission is overdue by more than ten (10) working days, the work will not be assessed. Full details of the procedure for applying for a short extension are available here. You can download the form from the policy library or use the quick link here.
Students are expected to review the relevant topics (i.e., lecture materials and relevant chapters of prescribed textbook) as well as to conduct more in-depth research into the topic using a variety of reputable academic resources.
It is recommended that begin researching the assignment as early as possible. A marking rubric for this task will be made available in the Assessments module of this space.
Assessment Criteria and Submission
All assignments are to be submitted electronically via the Assessment Dropbox provided. Assignments will be submitted via Turnitin, where originality reports will be generated and can be viewed.
An assignment declaration form must be submitted with the assignment.
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