BSP1702 Tutorial 5 (Contract Law, Terms of a contract)(Self) - 2015.doc - Tutorial 5(Contract Law Terms of a contract NOTE ARGUE FOR BOTH SIDES 1 Soh

BSP1702 Tutorial 5 (Contract Law, Terms of a contract)(Self) - 2015.doc

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Tutorial 5 (Contract Law, Terms of a contract) NOTE: ARGUE FOR BOTH SIDES!!!!! 1. Soh Nah Eve, a diploma holder enters into an employment contract with a company as an accounting assistant. The working hours are 8am to 9pm daily except for Sundays and Public Holidays. The pay is $2600 per month. The market rate for a similar job is $3700 and employees in similar jobs in other companies work generally only from 8 am to 6 pm. After working for two months Soh Nah Eve feels all this is very unfair and wants to challenge it. (a) Assuming there is no statute prohibiting this (which is indeed the case), can she challenge it? (b) Can she say that it is an implied term that a reasonable pay should be paid? (a) The issue here is whether she can challenge the contract as she thinks that it is unfair. Since she already agreed to the terms, she can no longer challenge it. In relation to contents of express terms, parties are basically free to agree to whatever they want to unless the terms are invalid due to some statutory provision (which in this case can be ignored) or are against some public policy. If not invalid due to some statutory provision or contrary to public policy, it generally does not matter whether particular terms are fair or reasonable. Even if they are unfair, they are perfectly binding as the parties have agreed to them. The court will not intervene to strike down the terms as being unfair or reasonable. This is an executed contract. The issue is whether the terms are unfair. She has already agreed to the express terms. She has no right to challenge it as expressed terms need to be fair and as the parties have already accepted it and she is bound. (b) If both parties signed a written contract, the terms are already express and it would be impossible to say that a reasonable pay is the implied term. If it is an orally agreed contract, she is able to challenge by using the Employment Act which could limit the maximum number of hours one should be working in a week. However, if it does not fall under the jurisdiction of any statute or law, the court will not imply terms which are contrary to the express terms of the contract, in this case the court will not imply a term that the Soh Nah Eve must nonetheless be paid a market rate. She could also challenge using the fact that it is a custom to be paid well. Implied terms by custom state that if the contract takes place in a context of a particular trade or industry and there is long-standing, well established and reasonable custom in that trade or industry, that custom may be implied into the contract. Unless she is able to prove that it is custom to be paid a minimum wage or to work less hours, she would not be able to challenge. In fact, it is almost a known fact that accounts or assistants have to work long hours and may be subject to low income for the first few years after graduation. This means that it is all the more impossible to use customs as a method to challenge for the terms to be considered as implied term.
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