Survey Of Property Theory And Tenure Types Essay

Question:

Discuss about the Survey of Property Theory and Tenure Types.

Answer:

Introduction:

An agreement enforceable in the court of law is termed as contract. A valid contract must have a valid offer, acceptance, legal intention, capacity, certainty and legal intention to perform the contract. An offer is the expression of willingness of a person to enter into a contract with another person or persons with the legal intention to become legally bound by the contract. An offer is said to be accepted when the acceptance is communicated to the offerror[2]. The term ‘expression’ include letter, fax, email or even a conduct so long the communication is related to the offer made by the offeror.

In Carlill v Carbolic Smoke Ball Management Company [1893], the court held that the parfty to a contract must have the legal intention to be bound by the contract and that performance of the contract amounts to acceptance if such were the terms of the offer. The general rules of acceptance states that the acceptance of any offer must be final and firm in nature. The acceptance of the offer must be communicated and the offer may be revoked prior to acceptance of the offer. However, after the acceptance is communicated the offeror cannot revoke the offer.

The general rule of acceptance that a valid acceptance must be communicated to the offeror has an exception known as the postal or the mailbox rule. Under this rule, the acceptance is said to be communicated when such acceptance has been posted rather than when it is received[3]. If the acceptance of offer is made by post, the contract is formed when the acceptance was posted. Such posting of the acceptance binds the offeror and when the acceptance comes in the knowledge of the offeror, the oferee becomes bound by the terms of contract[4]. The postal rule is applicable when the parties to the contract have impliedly decided post as a means of acceptance.

The instantaneous modes of communication include fax, email, telex does not fall under the postal rule. Therefore, acceptance of an offer by way of mails, telex, and fax shall be valid only when the acceptance message is received by the offeror. Therefore, acceptance made by the email is valid only when the offeror receives the email or when the offeror comes to the knowledge Management , in any method, about the acceptance of the offer. In case the acceptance is posted via mail, the acceptance is said to be communicated when the acceptance was posted. The significance of posting rule is that the risk of burden of the letter being delivered late or lost in the post and the acceptance is upon the offeror. If the offeror is unwilling to accept this risk, he may require the receipt as a condition before becoming legally bound by the offer as was held in Tallerman & Co Pty Ltd v Nathan's Merchandise (1957).

In this given case, Jimi, a builder , has been dealing with Rollingstone for years and was very satisfied with the services and products delivered by the company. When he rang the Sydney branch for assistance with the lighting and other electrical works, Bob was sent to him for advising him regarding the same. Bob was not a qualified employee , however, after his visit, Jimi filled up the order form without reading it as he had been doing business with the company for years and replied through email and sent a hard copy and deposit by post. Due to postal strike, the company received the mail after two weeks since it was posted.

According to the postal rule, an acceptance of an offer must be communicated to the offer, however, if such acceptance is communicated by post then it is deemed that such acceptance has been communicated at the time when it was posted. Such posting of the acceptance binds the offeror and when the acceptance comes in the knowledge of the offeror, the oferee becomes bound by the terms of contract. The postal rule is applicable when the parties to the contract have impliedly decided post as a means of acceptance. Here, since Jimi has been doing business with Rollingstone for years, the mode of communication of acceptance followed is postal rule; therefore, the mail shall amount to acceptance. Further, acceptance through mail shall become a valid acceptance if the company receives the message of acceptance.

Rollinstone has received the acceptance by post and when Jimi called , he was told about the problem relating to the offer. Jim’s acceptance or order was not sent to the supplier due to the delay in the acceptance, which was the result of postal strike. However, as stated in the Tallerman’s case, the significance of posting rule is that the risk of burden of the letter being delivered late or lost in the post and the acceptance is upon the offeror. Jimi has communicated his acceptance when he posted his deposit and hard copy of acceptance. Therefore, Rolling stone has committed breach of the contract by not performing its part of the contractual obligations.

Therefore, Jimi is entitled to rescind the contract or may claim damages for the breach committed by Rollingstone.

Property can be classified as personal property or real property. Personal Management property refers to movable property and is subject to ownership except land. Real property refers to immovable property and includes land and anything that is attached to the land. Personal property is include possession of anything that is movable and is neither attached nor related to land. The movable items are often termed as chattels and the laws regulating such chattels also include possession, lost property, gifts, abandoned property.

Real property relates to anything that is affixed to the land or anything that grows on the land and/or exists under the face of the land. It includes immovable property like crops, land, buildings, etc[5].

The Common law or the Old System of Title enables an individual to establish his title to the land for a period of 30 years. Most of the people hold the land under the Torrens Title, which refers to a system that is based on registration[6]. This implies that the owner of the land is registered at a state government registry. Once a person is registered his title cannot be challenged. It deals with real property or immovable property. On the other hand, PPSA regulates the security interest with respect to the personal property. The term’ personal Management property refers to all property except for land and the relevant Federal and State statutes have excluded certain statutory rights from being personal property. PPSA is not applicable to land or anything that is attached to land, it deals with personal or movable property.

Bibliography

Andrews, Neil. Contract law. Cambridge University Press, 2015.

Brewer, John, and Susan Staves. Early modern conceptions of property. Routledge, 2014.

Carlill v Carbolic Smoke Ball Company [1893].

McKendrick, Ewan. Contract law: text, cases, and materials. Oxford University Press (UK), 2014.

Poole, Jill. Textbook on contract law. Oxford University Press, 2016.

Rigsby, Bruce. "A survey of property theory and tenure types." Sydney University Press, 2014.

Tallerman & Co Pty Ltd v Nathan's Merchandise (1957) 98 CLR 93, 111-11.

Taylor, G. "The emergence of the Torrens System in Australia." (2016): 22-40.

Willmott, Lindy, et al. "Contract law." (2013).

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