0203 term 2 Q1 (with comments)

0203 term 2 Q1 (with comments) - 02-03 Term 2 Q1 Adrian...

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02-03 Term 2 Q1) Adrian would like to know of his legal rights against Best Photos (BP) with regards to them damaging his negative and photographs. We should first look at whether there as a contract between him and BP. We should see if there was sufficient consideration by both parties. The executed consideration given for Adrian’s payment would be the photo developing services provided by BP due on 20 April 2003. We can see that there was an intention to create legal relations as both parties involved were not related in anyway by blood ties and this was a simple daily routine transaction between customer and service provider. We can thus say that there was a genuine intention to contract. On the issue of privity, both Adrian and BP are parties to the contract. Now let us look at the terms of the contract. It is possible to say that one of the implied terms to this contract is as such, “that BP would take proper due care as a professional in this line of business when developing Adrian’s negatives”. This can be successfully implied by using the officious bystander test; if asked by a 3 rd party at the point of contract forming the term as a question, it is very obvious that both parties would agree without hesitation. This term is also very objective, without favoring any particular party. This implied term can be said to be an innominate term. This is because there is a range of breaches of this term. They could range from just a minor scratch at a corner of a photograph, to the photographs being unusable after development, to the photographs not being developed at all. Based on the facts of the case, 2 out of the 5 rolls of firm have been developed successfully, but the photographs are partially exposed. With regards to the 2 rolls of partially-developed photographs, it is an actual breach of an innominate term that would deprive Adrian substantially the whole of the benefit of the contract, taking the Hong Kong Fir approach. How is Adrian, as a professional whose livelihood depend on the photographs he take be able to publish photographs that have been overexposed, much less those that were not even developed? Nevertheless with regards to the other 3 films, it was plainly a breach of condition. In the contract between Adrian and BP, BP was to develop the films in return for $25. It had failed to perform this obligation.
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