Should All Business Regulation Be the Subject of Legislation - Assignment Example

Question -1“Do common law, the courts and the doctrine of precedent continue to serve a useful function in the regulation of business conduct and the resolution of business disputes? Alternately should all business regulation be the subject of legislation?” Law is defined as rules made for the proper regulation of society or for correct conduct in life. The term law denotes rules and regulations, which are either statutorily imposed or self-imposed by the society to control and regulate the people’s behavior in order to maintain a just and peaceful society. With the growth of civilization peoples social and economic behavior has become multi faceted which has lead to the emergence of several branches of law such as International Law, Constitutional Law, Criminal Law, Civil Law, Commercial or Business Law etc. While some countries practice Common Law, others use legislative law to govern the activities of its society. Origins of Common Law can be traced to England and currently practices in many of the Commonwealth countries where British influence was present. The definition of Common law in simple is the precedent set up through the decisions of court commonly known as “stare decisis”. Unless circumstances have changed the principle of old cases are applied. Here the judiciary decisions receive a high priority (Tetley 1999). In contrast, Legislative law covers all eventualities and laws are codified and written. No regard to previous cases given and it facilitates progress of law as judges are not bound by a framework or judicial precedence. Legislation is thus defined as “authoritative statement of main legal rules in the form of Codes.” In such a scenario, judges are not vested with the power of creating law. Parliament or legislature have the power to intact new laws or nullify a judgment of Supreme Court (Ponzetto, & Fernandez, 2007). The main characteristics of common law comprises of; Non codified variety of sources; The judge takes notice of the decided cases and follows the binding precedent that is relevant to the particular case; Doctrine of binding precedent (stare decisis) The remedy available in specific cases is emphasized. Accusatorial system. The bench comprises of several judges who will have their own ideas. Cannot go away from the earlier principals without adducing the reason. The decisions emanate from those who are legally trained. In contrast, the key characteristics of legislation comprises of; Authoritative statement of main legal rules in the form of codes; The judge only can apply the principal provided in the code to the facts of the case; No strong system of precedent; The legislature can be either abolished or amended without citing reasons; Greater concern with abstract principal. Inquisitorial. The decisions are collegiate in establishing legislation. In the world of business, especially with the trends of globalization taking business transactions to international level, the practice of common law to regulate business operations become increasingly ineffective. For example, with most countries adopting legislature and enacting Companies Act or Business Act, the operations of business establishments are regulated by legislature, giving uniformity to application of law. It also facilitate a wide spread understanding of the law as it’s codified in terms which can be referred to by general public. However, some businesses use the mode of precedent if the trade is based on the traditions and customs. On the other hand some businesses need to be regulated and therefore business regulation has to be subject to legislation. Example for precedent: The import and export business is done through CIF or FOB contracts for centuries; hence common law and the precedent could be applied. But to safeguard all involved, the application of legislature is advisable so that all parties are aware of stipulated codes of law without any ambiguities. When governing laws are codified and applied, it is much easier and effective in being applied irrespective of country of business and number of different parties involved from different countries. Thus, in the case of dispute resolution, it is highly recommended that all businesses be covered by legislature. Question 2 – Contract Law Contract Law forms an important part of the business law and governs voluntary agreement by two or more parties, For a valuable consideration and entered in to with and Intention to create a legal relationship where Law presumes that there is a legal relationship for every commercial dealing ( McKendrick 2005). Different Types of contracts exists and are recognized by law as Simple contracts, consisting of Oral, Partially oral and partially in writing and In Writing. Contract by deed are required to be written such as the case of land transfers etc. For contacts to be valid, they need to be entered in to by parties that have capacity to entering in to contracts. Following are recognized as lacking capacity to enter in to contracts: Legal entities scope, Minors, Enemy nation, Lunatics, under intoxication and women in some countries. It should also be noted that a contract is not enforceable if signed under duress and it is not valid and legally upheld. Same is applicable if fraudulent or undisclosed information is involved. If the contract is against public policy or illegal, this too will make the contract null and void. Thus, the main elements of a contract can be summarized as Intention to be legally bound, Offer and acceptance, Form or consideration, Capacity, Reality of consent and the Legality of Object. In the case of Mad Fish and Luke, there is an offer and an acceptance. Therefore it can be assumed that a contract has been formed. The issue here is whether the contract is an avoidable contract, in view of the miscommunication of the second set of contractual term amendments which were communicated by Mad Fish to Luke but not acknowledged by him. Taking some of the previous case precedence, following issues will be raised in this dispute scenario: As decided in the case of Raffles v Wichelhause (1864) 2 H&C 906, “Where both parties make a different mistake so they may be at cross purposes. If the mistakes go to the essence of the contract, demonstrating that there has been no meeting of minds, the contract may be void”. If one party to a contact, by its behavior, leads the other party to the contract to believe a certain state of affairs exists between them, the court will support that state of affairs rather than the terms of the contract. Therefore, the fact that Mad Fish e-mail to Luke will allow the contract to be viodable. Silence cannot amount to acceptance. Felthouse v Bindley(1862) 142 ER 1037, Carlill v Carbolic Smoke Ball Co, McMahon’s (Transport) Pty Ltd v Ebbage 1 Qd R 185. In this case, Luke did not communicate, therefore Mad Fish may take up the position that he was still under obligation to perform the contract. The answer would differ if Mad Fish has sent no e-mail but deliver the fish late; This would amount to a breach of contract since the performance is not what is expected. If the shipment was destroyed in the fire; There will be no obligation for Mad Fish since the said act was beyond the control of Mad Fish. Question 3 – Contractual Law While contacts may be entered in to through written and verbal contracts, some forms of contracts are displayed by one party and it is considered that acceptance of terms are offered when the other party performs a certain action. “Contracts are mainly governed by state statutory and common (judge-made) law and private law. Private law principally includes the terms of the agreement between the parties who are exchanging promises. This private law may override many of the rules otherwise established by state law” (Contracts 2005) At the time of entering the car park a contract was formed, consideration was passed. Therefore, Harry and Sally are bound by the terms and conditions (what ever they may be) of the regulations at the car park. Therefore, Harry and Sally cannot claim for any damages from the car park since they have agreed to the condition that the Hotel takes no liability to the car park. On the other hand with regard to the artifacts being stolen, there are two matters of contention: The list of the liability of the hotel and basically says that the hotel will not be responsible for any loss, damage or injury whatsoever, no matter what the circumstances were in the room, i.e. after Sarry and Sally entered into the contract. Therefore Harry and Sally could argue that the said terms and conditions are not binding on them and claim damages from the hotel for the stolen artifacts. The answer would be different if the hotel employees were responsible for stealing the artifacts since: There will be no grey areas with regard to the liability of the hotel. No matter what the terms and conditions are, the hotel has vicarious liability through all its employees once Harry and Sally enter into a contract with the hotel. If the hotel has given the key card to another guest who stole the artifacts, Harry and Sally will still have a claim against the hotel since the said damage was caused to Harry and Sally due to the negligence of the hotel staff, which is also a breach of contract since the hotel staff is bound to act with due diligence under the terms of the contract. References: “Contracts” 2005 The Legal Information Institute (LII) Cornnel University of Law School http://www.law.cornell.edu/wex/index.php/Contracts McKendrick, E. (2005) Contract Law - Text, Cases and Materials. Oxford University Press. Tetley, W. (1999) “Mixed jurisdictions : common law vs. civil law (codified and un codified)” Retrieved on 23.02.2008 from: http://www.unidroit.org/english/publications/review/articles/1999-3.htm Ponzetto, A.G.M. & Fernandez, P.A. ( 2007) Case Law Vs Statute Law: An Evolutionary Comparison. Harvard University. Retrieved on 24.02.2008 from http://www.people.fas.harvard.edu/~ponzetto/PF.pdf Read More