If the oral assurance can be regarded as a term, is a court likely to regard it a condition or warranty?.
Rafia is an event manager with the University of the Sunshine Coast (USC). Recently she was organising a multicultural dance program to be staged on the USC campus. The event was to coincide with a visit from representatives of Savitribai Phule Pune University of Pune, India. USC management hoped to reach an agreement with the representatives from Pune for Indian students to attend USC on an exchange program.
Rafia had seen a website advertising Indian classical dance classes and performances called Shastriya Nritya. She was so impressed by the pictures on the website that she decided to approach the principal of the dance and performance school, Kalpana, to ask if she could provide the main act on the evening of the event.
Rafia met with Kalpana and explained how important it was that the event be a success given the potential contract between USC and the Indian University. Rafia went on to explain that if they could reach an agreement she wanted to advertise the Indian traditional dancers as the central event to help sell tickets and to impress the visitors from India.
“You do dance the traditional, classical Indian dance don’t you, Kalpana? I want to put on a genuine, culturally appropriate show for the Indian visitors”, said Rafia.
“Of course! We perform the most beautiful Indian dance! I guarantee it! I was born in India, you know, and I did my training there,” said Kalpana.
Impressed by Kalpana’s enthusiasm and guarantee, Rafia replied: “I was born here in Australia but I love the traditional dance that I’ve seen on youtube. I’m so glad that you and your dancers tare available. We have a deal!”
Rafia and Kalpana (on behalf of USC) both signed a written contract prepared by USC for a performance by Kalpana’s dancers at the USC multicultural event for a fee. The contract made no mention of the type of dance and did not contain Kalpana’s apparent assurance that the dance was ‘traditional, classical Indian dance’.
Rafia advertised the show extensively through the local newspapers and in Brisbane as featuring traditional, classical Indian dance. Pictures of the Indian dancers in traditional costumes figured prominently in the advertising and many tickets were sold in advance.
On the evening of the event Rafia was distressed by the performance, which was more like Bollywood than traditional Indian dancing. After the performance she spoke to one of the Indian visitors whose comment was:
“Interesting Australian dancers! They seem to like all that Bollywood dancing, which we find quite inappropriate for our students – too much romantic nonsense and not enough devotion in the dancing. ”
Other patrons were also not impressed and many who had bought tickets complained and demanded their money back.
USC has lost thousands of dollars in advertising and refunded tickets and refuses to pay Kalpana’s fee. Later Rafia discovers that the contract between USC and the Indian university did not go ahead. One of the Indian visitors was known to have said: “If they can’t distinguish classical Indian dance from Bollywood dancing, they won’t be able to look after our students.”
You are asked to advise USC according to the following questions.
(You can assume that Rafia was properly authorised to act for USC and you need not consider any issues in relation to agency).
Is the oral assurance, given by Kalpana to Rafia, a term of the contract or not? (30 marks)
If the oral assurance can be regarded as a term, is a court likely to regard it a condition or warranty? (30 marks)
What remedies are open to USC given the facts? (30 marks)
(10 marks are allocated for research and communication skills)