Mercantile Law Act 1935

Mercantile Law Act 1935

An Act to consolidate and amend certain Statutes relating to trade and commerce and the limitation of actions

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1.   Short title

This Act may be cited as the Mercantile Law Act 1935 .

2.   

3.   

4.   

5.   

6.   Certain parol promises and agreements not actionable

[Section 6 Amended by 25 Geo. V No. 78 ]No action shall be brought whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate; or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person; or to charge any person upon any agreement made upon consideration of marriage; or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them; or upon any agreement that is not to be performed within the space of one year from the making thereof; unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.

7.   

8.   

9.   

10.   

11.   Representations of character to intent that credit be given, actionable only if in writing

No action shall be brought whereby to charge any person upon or by reason of any representation or assurance made or given concerning or relating to the character, conduct, credit, ability, trade, or dealings of any other person, to the intent or purpose that such other person may thereby obtain credit, money, or goods, unless such representation or assurance be made in writing, signed by the party to be charged therewith.

12.   Consideration for guarantee need not appear in writing

No special promise to be made by any person to answer for the debt, default, or miscarriage of another person, being in writing, and signed by the party to be charged therewith or some other person by him thereunto lawfully authorized, shall be deemed invalid to support an action, suit, or other proceeding to charge the person by whom such promise shall have been made, by reason only that the consideration for such promise does not appear in writing, or by necessary inference from a written document.

13.   Surety discharging the liability to be entitled to assignment of all securities held by, and to stand in the place of, the creditor

(1)  Every person who, being surety for the debt or duty of another, or being liable with another for any debt or duty, shall pay such debt or perform such duty, shall be entitled to have assigned to him, or to a trustee for him, every judgment, specialty, or other security which shall be held by the creditor in respect of such debt or duty, whether such judgment, specialty, or other security shall or shall not be deemed at law to have been satisfied by the payment of the debt or performance of the duty.

(2)  Such person shall be entitled to stand in the place of the creditor, and to use all the remedies, and if need be, and upon a proper indemnity, to use the name of the creditor in any action or other proceeding in order to obtain from the principal debtor, or any co-surety, co-contractor, or co-debtor, as the case may be, indemnification for the advances made and loss sustained by the person who shall have so paid such debt or performed such duty.

(3)  Such payment or performance so made by such surety shall not be pleadable in bar of any such action or other proceeding by him.

(4)  No co-surety, co-contractor, or co-debtor shall be entitled to recover from any other co-surety, co-contractor, or co-debtor, in manner aforesaid, more than the just proportion to which, as between those parties themselves, such last-mentioned person shall be justly liable.

14.   After judgment or non-suit in quare clausum fregit plaintiff barred

In all actions of trespass quare clausum fregit wherein the defendant shall disclaim in his plea to make any title or claim to the land in which the trespass is by the declaration supposed to be done, and the trespass be by negligence or involuntary, the defendant shall be admitted to plead a disclaimer, and that the trespass was by negligence or involuntary, and a tender or offer of sufficient amends for such trespass before the action brought, whereupon, or upon some of them, the plaintiff shall be enforced to join issue; and, if the said issue be found for the defendant, or the plaintiff be non-suited, the plaintiff shall be barred from the action and all other proceedings concerning the same.

15.   Interpretation of "action"

For the purposes of this Act action shall include any form of proceeding appropriate to the matter in relation to which the term is used.

SCHEDULE 1 - Repeals

Section 2