Business Law in Action - Case Study Example

BUSINESS LAW by Student’s Name Code + Course Name Professor University City/State Date QUESTION 1 Issue The literal, golden and mischief rule will be used to determine whether the Jane (a youth worker), Tony (an antique dealer), and Fola committed an offence by handling a flick knife. The three rules will be applied to produce a result or verdict that satisfies the sense of justice. Justification will be given for the use of the three interpretive techniques in the three cases and indication will be given of the circumstances of when each rule is employed. Rules The pertinent rule related to the three cases is s1(1) of the Restriction of Offensive Weapons Act 1959. This statute forbids people to sell, hire or offer for sale, or hire or give to another person any knife with a blade that open automatically after hand pressure is applied to the spring, button or other devices attached or in the knife’s handle. This paper will determine whether Jane, Tony, and Fola actions contravened this statute. Application In the first case, Jane, the youth worker was not guilty of holding the flick knife; her act cannot be logically described as an act of manufacturing, selling, hiring, lending, or offering the flick knife for sale. In case the literal rule is applied, Jane would be guilty of the offence as she gave the supervisor a flick knife. Nonetheless, this clearly was not the intent or purpose of her act and hence following the golden rule she is not guilt. The literal rule takes the words as stated in the act and applies their plain meaning. The rule offers a degree of certainty, hence the verdict is known before it is given. The golden rule is important in this case as a literal interpretation of the words of the statute leads to an absurdity or to an inconsistency or repugnance with the rest of the statute (Wilson, Mitchell, Storey & Wortley 2011). Applying the literal rule would result in absurd outcomes as Jane actually helped by confiscating the knife from the youth member and giving it to the supervisor; it is part of her job to assist the youth members and her act was meant to help the youth. Tony, the antique dealer, was not guilty for displaying the flick knife with a price ticket attached to it. Although the flick knife was an offensive weapon, displaying an item in a shop window with a price tag attached is not an “offer for sale” but a pre-offer (an invite to treat). Considering the literal legal connotation of ‘offer’, Tony did not make an “offer to sell” and hence was not guilty of holding the flick knife. In Fisher v Bell [1961], Bell, a Bristol shopkeeper had displayed a type of flick knife on his shop window; the court did not convict him of the offence because, taking into consideration a strong literal meaning of the word in the statute, he did not offer the flick knife for sale. The law of contract stipulates that displaying an item in a shop window does not mean that it is an “offer for sale”; it is only an invite to other people to pace offers, through displaying items in their shop window (Fisher v Bell [1961]). The customer makes an offer whereas the shopkeeper offers money for items being sold. In Fisher v Bell, the judge upheld the literal meaning of ‘offer’, hence ruled that Bell did not make an “offer to sell” the knife, and hence was not convicted for the offence. Tony’s case is the same as Fisher v Bell hence following its precedent it cannot be contrary to the statute. This precedent would bind the court. Nonetheless, the use of the literal rule results to an evidently absurd ruling. If the judge applied the golden rule to expand the literal language of the act to cover the act committed, Tony would be guilty of displaying the flick knife in his shop window as he had the intention to sell the knife to interested customers, which the statute prohibits. Under the literal rule, he would not be guilty, however under the golden and mischief rule; Tony would be guilty as he had the intention to sell the flick knife. The literal rule can create loopholes in laws; this is evident in Fisher v Bell and Whiteley v Chappell case. In Whiteley v Chappell, a statute on electoral malpractices made it an offence to impersonate ‘any person entitled to vote’ at an election. The defendant had committed the offence of impersonating a dead person. The defendant was acquitted because dead persons were not eligible to vote according to the literal rule of the statute. Under the literal rule, the judge takes into consideration what the legislation essentially says, instead of considering what it may imply. To facilitate realization of this end, the judge gives the words in legislation their literal implication; specifically, their ordinary, plain, everyday denotation, even though the outcome of this ruling is to lead to what might be taken as an otherwise undesirable or unfair outcome. The golden rule helps to avoid an absurd outcome from the literal rule. In Grey v Pearson [1857], Lord Wensleydale noted the ordinary and grammatical sense of words should be followed except when it leads to some inconsistency, repugnance, or illogicality with the rest of the instrument and in such a case the ordinary and grammatical logic of the wording can be changed in order to prevent inconsistency and absurdity, but no farther. In Fola’s case, she would be guilty of an offence as she gave the flick knife to another person; taking into consideration the literal meaning of the words in the statute against holding or selling flick knives. Applying the literal rule would be absurd, as she did not know the contents of the box. Fola only bought the box from the car boot sale and donated the box to a charity shop without examining its content. It would thus be better to use a different rule, for instance, the golden, purposive or mischief as it would lead to a better outcome. Nonetheless, the literal rule is the basis of all cases; it does not provide any scope for the judges’ contribution, it respects parliamentary supremacy and upholds separation of power. However, it is inflexible and this can create injustices. The golden rule attempts to complement the literal rule as it allows judges to alter the meaning of laws to ensure justice is served. Nonetheless, it infringes the separation of powers. Jones notes “if the literal approach causes absurd or inconsistent results, the courts can use the golden rule which allows them to modify the literal meanings of the words in order to avoid the absurdity or inconsistency” (2013 p. 53). The golden rule thus allows courts to modify words of a statute when it is necessary to avoid a repugnant or absurd situation. This is evident in the case of Adler v George [1964] where the defendant was charged under the “Official Secrets Act 1920 “ with obstruction near a prohibited area; she argued that she was not guilty of the offence as she was actually in the prohibited rather than near it. The court used the golden rule in its interpretation of the statute stating that ‘vicinity’ included being inside the actual place. The mischief rule, on the other hand, takes the purposive approach to interpretation of statute (Jones 2013). It gives considerable discretion to judges and it is suitable for specific and ambiguous cases. It allows statutes to be developed and refined. Nonetheless, the increased role of the judges implies that their views and prejudices can influence the final judgment. In order to establish the general rationale behind the law, the court looks for parliament’s intention in the words of the Act and at extrinsic source material (Jones 2013). This law proffers the judge a rationalization to go behind the actual words of a particular law with the intention of considering the issue that the particular statute was meant to remedy (Slapper 2014). Applying the literal, golden and mischief rule in Fola’s case would lead to different outcomes. Under the literal ruling, she would be guilty of giving the flick knife to another person, however under the golden and mischief rule; she would not be guilty as she was not aware that there was a flick knife in box of kitchen utensils. Conclusion Following the literal rule of the statute, Jane committed an offence as she gave the supervisor a flick knife. However, this clearly was not the intent or purpose of her act and hence following the golden rule and mischief rule she is not guilt. Considering the literal legal connotation of ‘offer’, Tony did not make an “offer to sell” and hence was not guilty of holding the flick knife. However, under the golden and mischief rule; he is guilty as he had the intention to sell the flick knife. Under the literal rule, Fola is not guilty of giving the flick knife to another person, however under the golden and mischief rule; she would not be guilty as she was not aware that there was a flick knife in box of kitchen utensils. The literal, golden and mischief rules lead to different court outcomes; the literal rule applies the plain meaning of the words in the statute and this leads to unjust or unfair rulings or outcomes. The golden and mischief rules expand the literal language of the act to cover the act committed. QUESTION 2 Issue The stipulations in the tort of negligence will be used to determine whether Mr. Smith will succeed in suing the cricket club for negligence. This was after the plaintiff suffered a nasty head injury from a ball that was hit over the brick wall that surrounded the cricket ground. Rules The pertinent rule in this case is the ‘tort of negligence’. For Mr. Smith to succeed, he has to establish the four elements of tort of negligence: duty of care, breach of duty and causation and remoteness of damage. He has to prove that the cricket club owed him duty of care, that the duty of care was breached, and that the club breach of care is causally linked to the head injury he suffered. Application Mr. Smith will succeed under the tort of negligence. He can establish evidence that the cricket club owed him a ‘duty of care’; that the duty was breached; that he suffered a nasty injury on the head; and that the damage caused by the club negligence was within their scope of duty. These are the specific elements of tort of negligence, which the plaintiff has to establish for the claim to succeed. According to Kelly, Hammer and Hendy (2014), the burden of proof is one the claimant to show, on a balance of probabilities, that the defendant owed him or her duty of care, that the duty of care was breached, and that the defendant breach of care is causally linked to the claimant’s loss. These elements are referred to as duty of care, breach of duty and causation and remoteness of damage. A duty of care refers to a duty, recognized by the law, which requires compliance with a particular code of conduct that protects other people against unreasonable risks. A breach of the duty of care refers to the defendant failure to conform to the required standard of care (Steele 2010). Damage refers to the injury that results to the complainant, for instance, damage to property and personal injury. Remoteness of damage refers to a rationally proximate link between the conduct of the offender and the resulting damage. The cricket club owed Mr. Smith a duty of care and they were negligent in their action. It was not the first time that the ball had been hit over the wall and hence the owners knew that the brick wall that surrounded the cricket ground was not efficient in containing the ball within. The owners of the cricket club failed the ‘neighbor test’ as established in the ruling of Donoghue v Stevenson [1932]. In the case, it was said that people have to take reasonable care to escape omissions or acts that can be logically foreseen to be likely to harm one’s neighbor. Neighbors’ meant all people who are directly and closely affected by the action or its omission, “that the defendant ought reasonably to have thought of them as being affected when the defendant did, or did not do, the act in question” (Kelly, Hammer & Hendy 2014, p.225). There was enough association of proximity or neighborhood between the claimant and the cricket club, carelessness on the part of the club client was likely to cause damage to outsiders. In Caparo Industries plc v Dickman (1990, par. 1), a three step test or incremental approach was used to establish a ‘duty of care’; they determined “whether harm was reasonably foreseeable; whether there was a relationship of proximity between the defendant and the claimant and whether it was just, fair, and reasonable to impose duty of care”. This decision has since been followed in Marc Rich Co AG v Bishop Rock Marine Co Lts (1994). The cricket club breached the duty of care as they failed to put in place proper measures for ensuring that the balls did not go beyond the club to the nearby homes. The breach of duty of care led the plaintiff to suffer personal harm-he sustained a nasty injury on the head. The club could also have reasonably foreseen the damage that a ball hit over the wall could cause property damage or personal injury as it had been hit over the wall three times in the past. The plaintiff would succeed by establishing the four specific elements of tort of negligence. Conclusion Mr. Smith will succeed under the tort of negligence by giving evidence that the cricket club owed him a ‘duty of care’; that the duty was breached; that he suffered a nasty injury on the head as a result; and that the damage caused by the club negligence was within their scope of duty. These constitutes specific elements of tort of negligence, which the plaintiff has to establish for the claim to succeed. Reference List Adler v George [1964] 2 QB 7 Caparo Industries v Dickman, [1990] 1 All ER 568 Donoghue v Stevenson [1932] AC 562; (1932) All ER 1 Fisher v Bell [1961] 1 QB 394 Jones, L 2013, Introduction to business law, Oxford University Press, Oxford, UK. Kelly, D, Hammer, R & Hendy, J 2014, Business law, Routledge, New York, NY. Marc Rich & Co v Bishop Rock Marine [1994] 1 WLR 1071 Slapper, G 2014, How the law works, 3ed, Routledge, Abingdon, Oxon. Steele, J 2010, Tort law: text, cases, and materials, Oxford University Press, New York. Whiteley v. Chappell [1868-9] 4 LRQB 147 Wilson, S, Mitchell, R, Storey, A & Wortley, N 2011, English legal system directions, Oxford University Press Inc, New York. Read More