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Hope, L. (2020). The Law on Penalties - A Wasted Opportunity?* Lord David Hope. Journal Of Contract Law, 97-100.
In this study, the author attempts to identify whether the number of remedial measures provided because of the breach of the contract is excessive or unreasonable when the legitimate interest of the innocent victim in the execution of the contract is adequately considered. The case study is the English contract law proceedings related to the legitimacy of penalty clauses and the enforcement of unequal conditions of consumer contracts(Cavendish Square Holding BV v Talal El Makdessi) of 2015.
The study uses case law analysis methodology to show that the majority of parties who used the terms liquidated damages in their contract could be based on the first impression intended what they claimed. In the overall findings, the study stresses that the court will decide whether the amount determined is to be represented. This is done keeping in mind that the nature of the fine is the amount of money stipulated in the offender's comminatory and that the nature of the liquidated damage in a real pre-estimation of the damages.
The study demonstrates that all contracts contain certain binding power. Any other purpose is found when one party is at a loss, other than to compel; it is considered irrational, and therefore cannot be enforced. The study finds that, rather than pursuing a strategy of binding the parties to the number of damages that can be awarded under common law or creating a statutory rule on liability for claimants trying to impose a default provision, the courts should allow the parties more leniency to decide the conditions of their own contract.
The study suggests that the right to contract is one of the fundamental concepts of the common law. It is the basis for the approach business people operate with each other. The judgment would set a precedent for how the rule of penalties is enforced around the world on common law, particularly in this widely respected jurisdiction, which, in several aspects, is leading the world to bring and hold the law up to date. The paper will be useful in my research since it demonstrates how the Courts regulate the enforcement of penalty clauses in modern times.
Gummow, W. (2018). What is in a word? 'Legitimate' interests and expectations as common law criteria The Hon William Gummow AC. Australian Bar Review, 26-35.
The article explains the principle of legitimate expectations in public law and the conditions, which can give rise to legitimate expectations. The period of the research was 2018, Gummow set out the court issues that take into consideration when determining whether a public entity has abused its role by violating the legal standards of the claimant. The article explains the varying usage of case law as a condition for the acknowledgment of the concepts of which it is applied.
The study uses theoretical analysis to explore the main problem. The author theoretically reviews three categories where the doctrine was adapted from the 20th century. The article discusses different case study to get a better understanding of the term' legitimate interest' to answer the question of its content.
The research shows that considering the state of the evidence, the defendant is viewed as unable to carry the responsibility of refusing the plaintiff's reasonable interest in further proceedings. It is evident that the larger the value, the greater the probability of activity complexity in evaluating remuneration and thus tighter the context for Relief from the penalty clause. The court established the principle that obligations that are caused by a violation of primary obligations are capable of penalties.
The study is important because it helps understand court decisions based on legitimate interest from different case studies. The Courts will determine what, if any, legitimate business purpose is represented and covered by the law, and then decide if the regulation is proportionate to that value.
The study's findings are important to help understand Legitimate interests in modern times, and the background material included an in-depth review of the Courts regulate the enforcement of penalty clauses in modern times. The report contains arguments on the legitimate expectations and interests of different parties. The report may serve as a good source for students studying a related topic.
Peden, E. (2020). Penalties after Paciocco - the Enigma of 'Legitimate Interests'? 272-277.
The purpose of this study is to outline the current law and critically examine the existing law, considering the performance interests that are the object of the discussion under the current legislation and how they are decided to give some examples from recent cases. The author examines recent decisions of Paciocco v ANZ in the Australian High Court case study. The period of research was 2019, Peden examines the term legitimate interest that can be safeguarded by a contract and how this can be structured.
The paper uses a historical research approach to investigate whether the quantity or methodology selected was a genuine pre-estimation of the loss rather than whether the negotiated figure differed too far from the reasonable interpretation of the rules of common law for damages. The analysis finds that, when the courts have addressed the building phase in the context of penalties through the good faith prism, the validity of any provision may be created and easier to evaluate.
The paper is important to our study because it provides court regulations that guide enforcement of penalty clauses in modern times. The document relates well to other articles on the same subject supported by expert proof that can be improved. The research finds that the Supreme Court has eliminated the contradiction between a true pre-estimation of failure and a penalty or disincentive and evaluated the test. With two significant objectives, firstly, it would be more challenging to contend that a provision is an unenforceable penalty; secondly, the economic concerns of the party, rather than the financial consequences of the breach, would become the subject of the inquiry into whether the provision is a punishment.
The study finds that, when the courts have treated the construction phase in the form of fines by means of the good faith prism, it would be possible and more comfortable to evaluate the legitimacy of any provision. If a party has good faith in the incorporation of the related regulation, it is something that the court should consider as non-penal.
Poncibo, C., & DiMatteo, L. (2019). Smart Contracts. The Cambridge Handbook Of Smart Contracts, Blockchain Technology And Digital Platforms, 118-140. https://doi.org/10.1017/9781108592239.007.
The chapter examines the importance of the smart contract and its ability to Self-performance, self-remediation, and the applicability of agreement and contract law. Smart contract is a concept used to define a programming code that automatically implements any or sections of a contract and is processed on a blockchain-based database. The code can be the primary expression of a contract between the parties or can support a standard text-based contract and implement such clauses, such as the transition of payments from one party to another. The chapter makes proposals concerning the role of remedies as perceives the argument that smart contracts are a self-reinforcing regulatory framework. Since the idea of breaching such a contract is minimal, contact remedies are not needed.
The study reviews the literature on smart contracts and shows the smart contract architecture of trust background. The main argument raised in the section is that there is no need for formal legal solutions standard in Smart Contracts. Continued adoption of self-help solutions can minimize the usage of Legitimate legislative mechanism, although not worthy of culturing the legal system or stopping the usage of the legal system for parties to seek contractual remedies. Contracts enable the parties to be obligated to take steps in the future. Implementable contracts are a legal mechanism that allows capitalist markets to develop and are the driving principle of capitalism. Without the protection of private property rights and the freedom to pass those rights by contracts, a free system becomes unlikely. Arrangements are helpful for solely trusting the other party to a bid with the contracts.
The study concludes that Smart contracts remain a subject to contract law, criminal principles such as misconduct, coercion, theft as well as implied concepts such as the obligation to justice trust and the commitment to render reasonable contributions in contracts. Smart contracts will inevitably conflict with real-world entities or organizations and might, through the design of our cultures, contribute to legal problems. The aim of highlighting smart contact is to provide a legal basis for this study. The integrity of the legal document is almost flawed and gives a clear reinforcement to how the Courts should regulate the enforcement of penalty clauses in modern times.
Carter, J., Courtney, W., Peden, E., Stewart, A., & Tolhurst, G. (2020). Contractual Penalties: Resurrecting the Equitable Jurisdiction, 12-15.
The author examines the high court of Australia's decision on contractual penalties, where the court held that the difference between liquidated claims and fines should refer to the commitments rendered. Pay compensation for whether or not it is related to a violation of the contract. According to the research, the court appears to have readjusted the entire law of penalties. The study questions the court's judgment, its interpretation of the fines, its approach, and from a broader viewpoint, how the court exercised its position as the definitive court of appeal in new contract disputes. Case analysis Andrews v Australia and New Zealand Banking Group Ltd.
Historical analysis forms the grounds upon which courts enforce the penalty clause. High Court mentioned the South Wales Court of Appeal was mistaken in Inters tar, so it would appear likely that the entire of Australian principle of restrictions should be equitable. The findings show that the judgment in Andrews provides the impression of following a particular doctrine focused on fair values, instead of a broad doctrine specific to clauses triggered by a violation of contracts and a related definition arising from equity concerned in certain circumstances.
The study finds that the report's quotation a detailed description of the condition encountered by the High Court of Australia in Andrews. Concerning contractual penalties not caused by a violation of an obligation, what had historically been the statute had ceased to be so long before the High Court had grasped the matter in Andrews. Decisions wherein capital may have tried to intervene on the grounds of penalty in that sense have never been formally withdrawn.
The article is significant because it shows contractual provisions and enforcement in real court cases. They specify that; payment owed in the case of a violation; should be disproportionate as contrasted to damage or reward that should have been suffered by the innocent party in the event of a breach and is thus not enforceable.
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