Ambiguity of a Written Contract in Australia

Ambiguity of a Written Contract in Australia Do you think that a written contract must be ambiguous before an Australian court may hear surrounding circumstances evidence? In order to answer the question, I think it fit to discuss the principles for interpreting written commercial contracts. Principles of Interpretation Interpretation of a written contract involves establishing the parties bargain. This involves an understanding of express and unexpressed terms in contracts and is of the utmost importance as these interpretations will impact a partys legal rights and obligations. An objective approach must always be used in the interpretation of a commercial contract and the meaning of terms determined by what a reasonable businessperson would have understood those terms to mean if it was in the position of the parties at the time the contract was made.[1] The process of interpretation may require an investigation of the text, the context and the purpose of the transaction in order to establish the bargain between parties.[2] In the event that a contract is unambiguous, the process of interpretation may be concluded by an investigation of the text alone; however, this is not always possible or indeed the case, and the process of interpretation requires an understanding of the context, commercial purpose and object of the transaction.[3] As to the question of text, the exact meaning of the words used and their legal effect on the parties must be established. The contract must be given its natural and ordinary meaning unless that meaning would create an absurdity or inconsistency[4]. The interpretation of text may involve a review of the contract itself, the language used, including definitions and grammar, and maxims or cannons of interpretation which, amongst others, include interpreting the contract document as a whole, giving effect to all parts of the contract, and precedence of special and terms and conditions over general provisions. An investigation of the context of a transaction has been described as the matrix of fact[5] and it requires an understanding of the transactions genesis, background facts and ultimate purpose. I will discuss below the admissibility of evidence of surrounding circumstances external to the contract. The Debate and Uncertainty There has been considerable debate in Australian courts regarding the extent to which recourse may be had to evidence of surrounding circumstances in construing contracts, in light of Mason Js true rule in Codelfa. Much controversy exists in Australian courts in relation to the decision in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (Codelfa)[6] and recent Australian High Court decisions, namely Electricity Generation Corporation v Woodside Energy (Woodside)[7] and Mount Bruce Mining Pty Ltd v Wright Prospecting (Mount Bruce)[8] in respect of the extent to which a court may hear evidence of surrounding circumstances evidence without there being ambiguity. Perhaps as a consequence of the conflict raised in respect of Mason Js judgement in Codelfa, it is also arguable whether the judgment advocates a literal (the text being dominant) or contextual (requires background against which words are used) approach to contract interpretation. Codelfa Construction Pty Ltd v State Rail Authority of New South Wales Is evidence of surrounding circumstances admissible in the interpretation of a contract without there being any ambiguity in the language of the contract? A logical starting point for any inquiry as to the above question and the role of ambiguity as a possible threshold or gateway should start with that said by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (Codelfa):[9] The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. At first glance, Mason Js true rule appears to affirm a common view and often cited reason by the judiciary that any use of evidence of surrounding circumstances to assist in the interpretation of a contract is strictly banned unless ambiguity can be shown in the language of the contract. This view supports the proposition of an ambiguity gateway[10], that gateway existing to condition the admissibility of evidence of surrounding circumstances where there is ambiguity. Codelfa an alternative interpretation An alternative interpretation lies in the suggestion that what in fact Mason J stated as the true rule at page 352 of Codelfa is in fact in unison with the rest of his analysis. A careful review of Mason Js judgement (with whom Stephen and Wilson JJ agreed), specifically at pages 347 to 352 reveals that in the preceding paragraphs to the deliberation of the true rule, Mason J endorses and accepts the admissibility of evidence of surrounding circumstances to aid in the proper construction of a contract, as words are rarely ever isolated from the context in which they were set.[11] Mason J quotes from various passages of previous judgments, repeatedly emphasising the admissibility of whilst confirming that evidence of surrounding circumstances cannot be used for ascertaining a partys subjective intentions. The true rule could therefore be interpreted as simply confirming Mason Js view that evidence of surrounding circumstances can in fact be admitted to: Identify the meaning of a descriptive term;[12] Clarify the genesis and purpose of the transaction;[13] and Aid in clarifying ambiguous language in the contract[14] so long as the surrounding circumstances are not used to contradict and change the plain meaning of the contract language used. In summary and based on the above, the true rule is better interpreted as meaning that evidence of surrounding circumstances is admissible when the language is ambiguous. Electricity Generation Corporation v Woodside Energy Ltd The case involved an obligation by one of the parties to use reasonable endeavours and the High Court confirmed that reasonable endeavours are not absolute or unconditional in nature and stated that some contracts expressing an obligation to use reasonable endeavours contain their own internal standard of what is reasonable, by some express reference relevant to the business interestsà ¢Ã¢â€š ¬Ã‚ ¦[15] This meant that Woodside recognised the fluid nature of reasonable endeavours which would inherently require an investigation of all background facts and thereby allowing or even requiring the inclusion of evidence of surrounding circumstances. Whilst the High Court did not directly address the controversy surrounding the true rule it has recognised the objective approach to contract interpretation and affirmed the mandatory[16] nature of the requirement to consider the text used and the surrounding information, as well as the context and genesis of the transaction, including the market conditions in which the parties are operating.[17] Construing a commercial contract so as to avoid it making commercial nonsense andintended for the contract to produce a commercial result.[18] I interpret this statement as confirming that all relevant information is admissible, will require consideration and therefore does not rule out evidence of surrounding circumstances to either resolve or establish an ambiguity. Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd The most recent authority of the High Court dealing with admissibility of evidence, delivered in 2015. It was common ground that the contract was ambiguous and the judgment did not directly tackle or resolve the ambiguity gateway question.[19] Instead, it reiterated previously agreed contract interpretation approaches that include reference to objective background information, setting and context in order to interpret a commercial contract so as to avoid it making commercial nonsense or working commercial inconvenience.[20] Judgments made confirm that the commercial purpose of a transaction is a primary consideration of contract interpretation. It reveals that whilst, the ambiguity gateway question was not directly resolved, it nevertheless reaffirms that resolution of ambiguity may be achieved by reference to all background surrounding circumstances. The judges affirmed that nothing in their deliberation was intended to state any departure from the law as set out in Codelfa and Woodside.[21] Conclusion Codelfa made an authoritative statement which, properly construed, illustrates a contextual interpretation of contracts in which, beyond the simple grammatical interpretation of words devoid of context, the interpretation of the contract is informed by evidence of surrounding circumstances and an interrogation of the context and relevant background to find the objective purpose of the transaction. I regard Woodside and Mount Bruce decisions as being consistent with Mason Js true rule and overall judgment in Codelfa (with whom Stephen and Wilson JJ agreed) as well as Brennan Js views and judgment[22] in the same case. The supposed requirement in Codelfa which prevents the admission of evidence of surrounding circumstances unless there is ambiguity, the so called ambiguity gateway has not been confirmed by the High Court. An alternative interpretation of Codelfa also reconciles with the decisions in Woodside and Mount Bruce. Mason Ls comments in Codelfa where he stated that a distinction between reliance on surrounding circumstances to raise or resolve an ambiguity is perhaps more apparent than real[23] may shed light in respect of where Australian law is or should be heading in respect of admission of evidence of surrounding circumstances. Finally, until the High Court affirms its position it will no doubt lead to continuing controversy. Word count 1520 [1] Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at 35 [2] Ibid [3] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37 at 47 [4] Sir Kim Lewison David Hughes, The Interpretation of Contracts in Australia, Thomson Reuters, 2012, 5 [5] See Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37 at 108 and Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 351 [6] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 [7] Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 [8] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37 [9] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352 [10] Daniel Reynolds, Construction of Contracts after Mount Bruce Mining v Wright Prospecting (2016) 90 Australian Law Journal 190 [11] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 347-352 [12] Ibid at 351 [13] Ibid [14] Ibid 352 refer to Mason Js true rule statement [15] Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at 41-43 [16] See mandatory requirement it will require considerationà ¢Ã¢â€š ¬Ã‚ ¦ in Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at 35 [17] Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at 35 [18] Ibid [19] See Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37, at 52, 113 and 118 [20] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37 at 50-51 [21] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37 at 52 [22] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 401 [23] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 350

Do Gays and Lesbians Threaten the System of Male Dominance? Essay

Do Gays and Lesbians Threaten the System of Male Dominance? "In short, by not complying with their assigned gender roles, gays and lesbians threaten the system of male dominance (Calhoun 157)" A debate is raging in America about who people have a right to marry. In response to lesbians and gays asking for the right to marry, many legislators are writing laws to ban same-sex marriage in their respective states. Even President Bush supports a Constitutional amendment that would ban same-sex marriage (prez.bush.marriage/). Opponents of such legislation do not want discrimination passed into law and are protesting at every opportunity. One must understand the reasons that people want to ban same-sex marriage before he or she can effectively argue about the subject. Many advocates of same-sex marriage bans say that allowing gays and lesbians to marry would degrade the institution of marriage because marriage is only supposed to exist between a man and woman. In addition, allowing same-sex marriage would cause problems for society (Issues and Controversies on File). One theory why opponents may fight against same-sex marriages is that heterosexual marriages have long reinfo rced traditional gender roles within marriage and that allowing same-sex marriages would cause males to lose their authority to subordinate females as heterosexual couples begin to model same-sex marriage gender equality (Calhoun 157). The traditional argument against same-sex marriage states that marriage is defined as the emotional and spiritual union of a man and a woman. According to that definition, a pair of men or women cannot marry. Opponents of same-sex marriage bans, however, argue that marriage is a basic personal and social right and a social contract that is devoid of gender consideration. Cheshire Calhoun states, "the dominant goal of marriage is and should be unitive, the spiritual and personal union of the committed couple" (151). The sexual orientation or gender of the partners does not lessen the importance placed upon entering such a union and need not be used to restrict who can enter into such a union. Heterosexuals have enjoyed the right to marry throughout recorded history, though there have been restrictions placed over who could marry that have been overc... ...at sodomy is immoral or that same-sex unions are immoral, but nevertheless think the state should adopt a neutral position, refraining from criminalizing sodomy and offering legal protection for same-sex unions under domestic partnership laws" (Calhoun 168). Bibliography LOVING ET UX. v. VIRGINIA. http://web.lexis-nexis.com/universe/document? _m=5fc1bb0239c8912aa97d779528e9d62b& _docnum=2&wchp=dGLbVlb-zSkVb&_md5=60c85af0cd3ade6c85561f31ba41bdc7 http://www.cnn.com/2004/ALLPOLITICS/02/24/elec04.prez.bush.marriage/ Calhoun, Cheshire. Feminism, the Family, and the Politics of the Closet: Lesbian and Gay Displacement. Oxford University Press: New York, 2000. Corvino, John. Why Shouldn't Tommy and Jim Have Sex? A Defense of Homosexuality. Rowman & Littlefield: New York, 1997. Issues and Controversies on File. Same-Sex Marriage. Facts on File News Services: New York, 1996. Levin, Michael E. Sexual Orientation and Human rights. Rowman & Littlefield: New York, 1999. B.A. Robinson. â€Å"CONSERVATIVE RELIGIOUS OPPOSITION TO SAME-SEX MARRIAGES†. http://www.religioustolerance.org/hom_marj_c.htm. Sullivan, Andrew. Virtually Normal. Alfred A. Knopf Inc: New York, 1995.

Pandora Case Analysis Essay

Abstract Pandora provides personalized Internet radio stations to its customers. Pandora provides this customized radio free of charge to its users. In combination with other business models, Pandora has successfully implemented the freemium business model in which 99% of its users receive a free service and 1% of the users pay for premium services. This business model is not appropriate for every type of business but can be profitable for some types of businesses with a planned implementation process and a clear understanding of customer values. Analyzing the success of Pandora provides information on the necessary requirements in order for business to earn a profit using the freemium business model. Pandora Case Analysis Pandora offers an Internet radio service, which tailors the music played, based on user preference. Pandora began as a free service to its consumers, while they found a way to earn a profit. Pandora utilized several different business models before implementing the freemium model. The freemium business model provides free services to 99% of the customers and expects 1% of the customers to pay a fee for premium services (Laudon & Traver, 2011). This business model can be very effective and profitable for certain types of business when managed correctly. Analyzing Pandora’s successful use of the model provides insight on which conditions need to be present in order for the freemium business model to be effective and profitable. The freemium business model is appropriate to use when the product or service is widely available and there are low variable costs in providing the product or service to each customer. It is also important that the business takes into consideration the timing of implementation and understands their customer’s values. History of Pandora The foundation of Pandora began with the creation of the Music Genome Project in 2000 and the service officially launched in 2005 (Westegren, 2009). Pandora’s founder Tim Westegren set out to create an on-line radio  station that categorizes music based on 400 different attributes such as melody, rhythm, instrumentation and harmony (Westegren, 2009). In order to accomplish this task, Westegren hired musical analysts who listened to music and created a database which links songs together based on similarity of those attributes (Shelly, 2009). This database provides the foundation for users to log into Pandora and enter an artist or a song that they want to hear. The search is a â€Å"seed† and the database creates a station based on the features of the song entered on the search. The station contains artists and songs that are similar to the search, but does not actually play the exact song or artist entered (Shelly, 2009). Pandora is interactive as users provide feedb ack to the database by giving a song thumbs up, thumbs down, or skip the song entirely (Shelly, 2009). The more the user listens to Pandora, the better the system understands their preferences (Shelly, 2009). In other words, by frequently interacting with the database, users receive a more customized radio station. Pandora Business Models Pandora continues to explore different revenue building business models in order to maximize monetization. These models include monthly subscription fees, advertising, contracting with on-line retailers and the freemium business model. When Pandora launched in 2005, their first business model was to provide 10 hours of free music and then require users to pay a monthly fee of $36. Pandora found that users listened to their 10 hours of free music, but were not willing to pay the monthly subscription fee (Laudon & Traver, 2011). When this subscription model failed to produce a profit, Pandora modified the model and provided 40 hours of free music for a month and after those hours were used, customers could either pay $.99 per song, sign up for the premium service, or do neither of these and not hear any more music (Laudon & Traver, 2011). Even with this modification, Pandora struggled to earn a profit. Pandora continued to improve their business model by adding advertisements to the site and radio stations. At the time, Pandora had almost 100,000 users; so many companies were willing to pay for advertisements on the site (Laudon & Traver, 2011). While the advertisements helped Pandora financially, it was still not enough to make a profit. Pandora then started  contracting with Amazon and other on-line retailers and included an option for users to purchase songs. Users can click the â€Å"buy† button, which redirects them to the retailer’s website. Pandora receives a fee for providing business to the retailer (Laudon & Traver, 2011). In addition, Pandora began contracting with Apple allowing users to listen to music on their iPhones (Laudon & Traver, 2011). The current model of Pandora combines advertising, contracts with retailers and the freemium business model. It is common for established businesses to earn a smaller percentage of its revenue from the premium model (Hung, 2010); therefore combining multiple revenue models maximizes monetization. Pandora continues to earn revenue from businesses paying to advertise on the site and through contracts with Amazon and Apple when users purchase music. Pandora implemented the freemium model in which 99% of users receive the service free and 1% of users pay for additional services. Approximately 1% of Pandora users pay $36 per year for premium services, which includes no advertisements and higher quality content (Laudon & Traver, 2011). As Pandora is a popularly used site, that 1% amounts to approximately 500,000 customers paying $36 per year which equates to almost 17 million dollars in revenue. Business Requirements Pandora’s effective use of the freemium business model provides insight on which conditions need to be present in order for the freemium model to be successful including the type of business, timing of implementation, and understanding customer values. The freemium business model is not appropriate for all types of businesses. It is most effective when the business provides a product or service that is widely available, has a customer base of over one million, and the variable cost of providing the free product or service must be low or close to zero (Laudon, & Traver, 2011). Pandora meets both requirements of having a large customer base and low variable costs. Currently, Pandora has approximately 47 million users (Statista, 2012), which is a large audience and exceeds the preference of one million. The cost of Pandora providing the service to one person is close to the cost it takes to provide the service to 47 million people. The variable costs per user are relatively low, as the main cost come from  software to provide Internet radio and the database to create radio stations. Once the software and database are created, they can be used multiple times without adding additional costs. Timing of Implementation Businesses who meet the criteria of having a large enough customer base and low variable costs also need to consider the timing of implementing the freemium model. Customers become accustomed to receiving a free service and expect that services to remain free. Requiring customers to pay for the service may result in the customer no longer being interested in the service. Research shows that waiting at least a year after offering the free service and a month after growth of the free usage slows is the most effective time to move to a fee service (Pauwels & Weiss, 2008). The wait period allows the site to gain popularity and customers to realize the free service’s value (Pauwels & Weiss, 2008). When Pandora first became available, customers were not willing to pay the subscription fees, as they had not yet determined the value of the service. Users listened to their free music until it ran out, and then waited until the next month when the free service was available. As the website gained popularity and customers realized the value of having a personally tailored radio station, they became more willing to subscribe to premium services. Pandora successfully implemented the freemium model almost six years of offering the free service. Customer Values One of Pandora’s strengths is the perceived value of its service to customers. Research shows that the perceived value of free content versus fee content determines if users will choose to pay for the service (Pauwels & Weiss, 2008). Pandora strives to provide each individual user a radio station that only plays their favorite songs. Most businesses fail to customize their products to each individual customer, so Pandora brings a personalized service to the customer (Westegren, 2009). An added benefit to the fee content is no advertising. Most other streaming radio stations and traditional radio stations play many commercials, which can result in listeners changing the station. Pandora’s premium services provide commercial free, advertising free, personalized radio for only $36 per year.  The benefit of the fee content encourages some users to pay the annual subscription. Pandora also allows users to connect with and recommend stations to their friends. This connection with friends through social media can be just as effective as receiving a review from a professional critic (Shelly, 2009). Most people have similar tastes in music as their friends and value their opinions. The personalized customization, no advertising and connection with friends increases customer value resulting in subscribers who are willing to pay for the service. Conclusion Analyzing Pandora’s successful implementation of the freemium business model provides insight on how other businesses can also benefit from this model. The freemium business model is not appropriate for all types of businesses. Two criteria that businesses must have are a large customer base, preferably in the millions, as well as low variable costs of providing a free service to customers (Laudon, & Traver, 2011). Businesses that meet these criteria must also take into consideration the timing of implementing the model and understand customer values. Pandora currently has well over a million active users and relatively low variable costs in providing the service. Reviewing Pandora’s history shows that timing plays an important role. Customers were not willing to pay for the service until they understood the value of the service. Pandora is aware that customers value individual customization and sharing their music with their friends. By offering a service that creates individual radio stations based on the user’s preferences and allowing them to share that music with their friends, has resulted in users who are willing to pay for premium services. Businesses interested in implementing the freemium business model can benefit from analyzing Pandora’s success in the model. References Hung, J. (2010). Economic essentials of online publishing with associated trends and patterns. Publishing Research Quarterly, 26(2), 79-95. doi:10.1007/s12109-010-9158-3. Laudon, K. C., & Traver, C. G. (2011). E-commerce: business, technology, society (8th ed.). Upper Saddle River, NJ: Pearson Education, Inc. Pauwels, K., & Weiss, A. (2008). Moving from free to fee: how online firms market to change their business model successfully. Journal of Marketing, 72(3), 14-31. doi:10.1509/jmkg.72.3.14 Shelley, A. (2009). Pandora. Notes, 66(1), 138-142. Statista. (2012). Pandora’s active users from 2009 to 2012 (in millions). Retrieved from http://www.statista.com/statistics/190989/active-users-of-music-streaming-service-pandora-since-2009/. Westegren, T. (2009). Tailor your product to 1 million customers. (cover story). Financial Executive, 25(8), 38.

The American Civil War Three Perspectives - 1629 Words

The American Civil War: Three Perspectives Jason M. Russell Reedley College History 11 Introduction The analysis of how the Southern States lost the Civil War is based on three articles, each with a different perspective. According to Died of Democracy by David Donald, the Confederates were defeated because of internal challenges facing the 11 Sothern States seeking independence. Some of the challenges facing the Confederate States of America included a predominantly agricultural economy and slave revolts. In Why the South Lost by Beringer et al., the authors argue that the Confederates lost because of their weak nationalism, which was constantly undermined by the feelings of guilt over slavery. Confederates’ nationalism had shallow foundations, which caused the Southern to lack the will to fight for their nation. In the Blue over Grey: Why the North Won George Frederickson articulates that the North prevailed over the South because the North’s social system was more adaptive to the changing present. From the accounts of the war, it is clear that Southern States had t he will to fight for their ideologies and social system. The Southern society was less innovate and adaptive; however, the internal challenges facing the Confederates states of America is the best explanation for why the South lost the Civil War. The American Civil War: Three Perspectives According to Died of Democracy by David Donald (1960), unlike the Northerners who were not facing internal challenges,Show MoreRelatedEssay about The American Civil War688 Words   |  3 PagesThe American Civil war was a series of transactions, or exchanges, between the North and the South. These transactions involved over 1 million Americans who put their lives at risk for the liberation of the country’s slaves. 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