International Business Law - Assignment Example

?Part A This essay seeks to outline the major difference between criminal law and civil law with regard to the English legal system. Kleyn & Viljoen (2002), posit to the effect that “Every citizen of a state has certain duties towards the state and in the interest of the society as a whole, the state prescribes certain norms of conduct that bind all members of the state upon which it has a jurisdiction to punish a person who transgresses against these.” Thus, against to this notion, it can be noted that criminal law is part of public law which entails that actions that are against this law are classified as crime and they are punishable by the state. As noted, criminal law is mainly part of public law where the state has a case against the offenders who transgress against this law. When an offence is committed, it is the state’s case to prosecute the person who will have committed that crime. In the case of the United States Court of Appeals Tenth Circuit (2007), the defendant Juan Carlos Elizade was convicted as an “aggravated felony” for joyriding and was subsequently sentenced to a one year suspended sentence. Thus, cases with the intent of temporarily depriving the owner of his property rights constitute a criminal offense. According to the English legal system, this law is mainly used as an effective way of dealing with certain acts that are deemed to be against the prescribed norms in the society. The major objective is to punish those who are liable to such kind of crime. This is in line with the need to deter people from committing such crimes for the purpose of safeguarding peace and harmony in the society. According to Kleyn & Viljoen (2002), civil law is classified under private law which is one major difference between criminal law and civil law. Civil law mainly deals with legal relationships between parties involved. These subjects involved are more or less on the same position. Unlike in criminal law, the state is there to facilitate the delivery of justice in civil law. Common examples of cases involving civil law include tort law as well as family law whereby compensation is granted upon conviction of the offender unlike punishment in the case of criminal law (Kleyn & Viljoen 2002). This law is mainly used to settle disputes between subjects whereby it is the plaintiff against the defendant whereas it is the state that initiates prosecution against the defendant in a criminal case. 2. Common law in the English legal system was developed in the decisions that were made in other court cases and these were adopted as law in real terms (Du Plessis, 1999). This law is mainly used as reference to particular cases that may have a similar bearing on the case that will be tried in the court. Common law is the legal norm and plays a significant role in consolidating the validity of the law given that it was a result of cases that were tried in the courts of law and decisions were reached and agreed. With time, there are some kinds of behaviour by human beings which become unacceptable and in such instances, it becomes the role of the legislature to enact new offences that are considered as law (Kleyn & Viljoen 2002). In such an event, this kind of law is mainly regarded as statutory law whereby it can be noted that the legislature as well as the common law have greater roles to play in the English legal system. Though common law is the major source of law in the English legal system, it however, does not cover all the aspects of the law since there are new cases emerging by the day such as the environmental laws. It is the role of the legislature to make sure that all important aspects of this law are covered adequately. According to Du Plessis (1999), “English law is uncodified common law and the legislation primarily regulates matters of a more modern technical nature or else it amends, systematises, consolidates or supplements common law in areas where it is inadequate or ambiguous or where renewal is necessary,” (p. 36). From this argument, it can be observed that common law does not cover all aspects to be regulated by law. In such a case, the legislature has a role to enact the laws that will fill this gap. 3. An agreement can be loosely defined as consent while on the other hand, a contract is “an agreement between two persons in terms of which a right and corresponding duty to performance comes into existence,” (Gibson, 1988 p.18). A contract is based on agreement and to express this agreement there must be, among other things, an offer and an acceptance. Legal systems that follow the English require some form of consideration before the contract is binding which entails that an agreement may not necessarily be a contract. If two people agree to do something for each other in return for something, then it can be safely said that they have agreed to form a contract that is legally binding. In some instances, it can be noted that not all the agreements are valid contracts and Gibson (1988) concurs that that in order for the contact to be binding, the agreement entered into must comply with a number of essential factors and if some of these are missing, then the contract becomes null and void. Where an agreement is characterised by missing elements that constitute a valid contract, it may be challenging or impossible for the court to enforce the agreement in the event that there has been a breach of that contract. First and foremost, there must be mutual agreement between the contracting parties in order for the agreement to become lawful and binding. Each party must be aware of his role to play and the contract formed must be clear right from the beginning. As going to be critically discussed below, there are many factors that ought to be taken into consideration in order for the contract to be valid and binding. According to Gibson (1998), the factors discussed below are basic tenets that constitute the formation of a valid contract. The people intending to get into a contract should have the legal capacity to do so in order for that contract to be legally binding. There is need for fairness to prevail in as much as the formation of a contract is concerned. The aim of the contract is not to take other people for granted whereby the other contracting partner can feel disadvantaged at the end of the day. People who do not have the legal power to enter into a contract are minors and these are young people below the age of 18 years. In other words, an agreement between people without the legal capacity to contract is not necessarily a contract. Any person below this age who enters into a contract without the consent of the parents cannot by law keep that contract. Therefore, any contract made between an adult and a minor is null and void since this is against the law. An agreement mentally between ill people or those who are excessively drunk and sober people may not necessarily be a contract (Gibson, 1998). It is because of the reason that their state of mental capacity cannot be trusted to make informed decisions compared to the parties they will be dealing with as far as contract formation is concerned. According to Watermeyer v Muray 1911AD 61 at 70, every contract consists of an offer made by one party and agreed by the other. Thus, for a normal person to enter into an agreement with somebody who is mentally ill is seen as an invalid contract given that their reasoning capacities are different. Another essential factor in the formation of an agreement that makes a valid contract is that the people intending to enter into a contract should show that they are serious and they do have the knowledge about something they are about to do of which failure to establish that in the first instance will render the contract null and void. A genuine contract should be based on clear terms and conditions where there is mutual understanding between the two parties involved in order for the agreement to be legally binding and enforceable. Where there is lack of common understanding in a contract, the likely agreement to be reached can be treated as null and void. A valid contract can be formed between people who share the same understanding and are aware of the implications of the contract they are entering into. Another key element for the formation of a valid contract is that the agreement reached should be within the norms and values of the society. For example, if a person promises to steal something in return for money, then that agreement does not constitute a contract. In certain circumstances, agreements may not be valid contracts if they are impliedly prohibited by the law (Gibson, 1988). For instances, selling liquor or other intoxicating substances without a license is prohibited by law hence any contract involving such kind of a deal is null and void. The parties involved may reach an agreement but this may not be necessarily a valid contract. Part B This essay seeks to advice Kingsley Ltd on the appropriate measures that can be taken against the supplier, Brick-for-All after buying bricks that were later discovered to be unsuitable for building houses facing the sea. Thus, the Conventional sale of International Goods (CISG) and sale of goods (SOGA) provisions will be used as the basis for the discussion upon which advice can be given with regards to their case involving buying bricks that were not suitable for use in areas close to the sea. The problem encountered by Kingsley limited is that Paul buys unsuitable set of bricks for the houses that were built near the sea and they only realised that after completing building the houses that the bricks used in the front of the houses facing the sea were not the right ones. ‘Brick-for-All’ is a local building supplies firm and in this case, it is anticipated that the bricks come from an international source. In this given scenario, the CISG and SOGA can be applied to solve the dispute given that the houses constructed using the “Sparkling ricks” are unfit for human habitation and Kingsley has to demolish them. When a contract involves the sale of products outsourced from an international destination, the CISG can be applied to resolve the subsequent dispute that can be encountered as is the case in this scenario. “The CISG establishes a comprehensive code of legal rules governing the formation of contracts for the international sale of goods, the obligations of the buyer and seller, remedies for breach of contract and other aspects of the contract” (http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1980CISG.htm). This law is primarily concerned with dealing with cases arising from contracts that are entered into by the member states it also involves private organisations that are involved in conducting international business. In this case, Kingsley Ltd can infer the matter to the CISG given that the contract involves international business where “Brick-for-All” gets its supplies from other countries. The main purpose of this provision is to protect the interests of the member states which will have entered into a contract of buying and selling of goods. In this case, it can be noted that Kingsley Ltd is a local construction company while Brick-for-All is a local supplier of building material obtained from international sources. This implies that their issue can be dealt with at international level given that CISG applies to all international contracts for the sale of goods. The provision of this law is mainly concerned with protecting the interests of the contracting parties, whether private or public. Given that this is an international contract for the sale of goods, it is advisable to Kingsley Ltd to approach Brick-for-All which in turn can seek the intervention of CISG which has the power and authority to settle disputes between the contracting parties. Brick-for-All is liable given that it procures its building material from other countries which means that there is an element of international contract of sale of goods. On the other hand, the sale of goods provision (SOGA) states that both buyer and seller agree to exchange goods for a certain value of money and both of them are obliged to meet certain terms of the agreement. The obligations of the buyer are: to pay the price, to pay the seller’s necessary expenses in maintaining the article sold until delivery and to accept delivery of the article sold when tendered to him (Gibson, 1988). The seller on the other hand is expected to ensure that he or she delivers the purchased product undamaged. In the given case, it can be seen that none of the contracting partners breaches the contract given that the bricks are supplied and are used. It can also be noted that Paul buys the bricks without any force or pressure. The only problem is that Kingsley Ltd has discovered that the bricks are not suitable for the houses after they have already used them. Brick-for-All have a duty to ensure that they sell standard bricks to their customers. Though Paul does not state the location where the bricks will be used, it is the duty of the sellers to sell products that meet the standard expectations as there is no substitute for quality. The seller is expected to fulfil the needs of the customers through providing satisfactory products. In actual fact, a consumer has a right to purchase what he wants but the seller must also be in a position to provide products that meet the standard expectations of the customers. When one discovers that he has bought an unsuitable product after it has already been used, the seller may be liable because he is the one who procures the product from outside the country where the CISG can be applied. In most cases, the seller must have the product knowledge about the goods sold so as to avoid a situation whereby he will sell substandard products to the customers. To a greater extent, it can be noted that Paul acted out of his own wishes and makes the choice of the bricks alone but the seller must be well informed about the products given that he is the one who has the knowledge about where the bricks come from. However, in as far as SOGA is concerned, Paul does not state the area where the houses were going to be built. In this case, the buyer always has the right to make a purchase of the product he or she desires freely. When a buyer pays for the product of his choice, he has fulfilled his obligation in a contract and it will be left for the seller to supply the product. In this case, Paul may not be that ignorant not to know the right bricks to be used when building houses near the sea. The seller has no duty to interrogate the buyer about a product he is purchasing given that it will be assumed that he knows what he wants to buy. In this given case, Brick-for-All did everything possible to keep its duty in the contract they entered with Kingsley Ltd. Given that the ordered bricks were supplied to the buyer who then used them, it can be seen that the contract was sealed since all the parties fulfilled their duties. It can be noted that in the given case, the buyer did not object the consignment of the bricks upon delivery which means that he was satisfied with the delivered items. In contracts of this nature, it can be noted that in most cases, a disagreement will only arise if the supplier fails to deliver the purchased products for some unknown reasons while he has received his payment. This is not the case here because we see the supplier delivering the bricks and the buyer accepting them and goes on to use them to build houses only to see that they were not the right ones after completing building the houses. However, though Built-for-All fulfilled their contractual obligation, they are still liable for supplying unsuitable bricks. The CISG can be inferred between Brick-for-All and their suppliers of the building materials. A close analysis of the case study shows that the contract formed is silent about the appropriate course of action that can be taken months or years after the bricks have been supplied to the buyer who accepts them and uses them without complaining. In view of the SOGA provisions, Paul made his own choice without any coercion which shows that he is satisfied with what he is buying. The other problem related to this case is that the contract is silent about the course of action that can be taken if the buyer realises that he has purchased the wrong product after it has already been used. If the buyer cannot be able to prove that there is agreement which shows that the supplier will be responsible for the products purchased long after their usage, then it may be difficult for the court to prove a case against the seller of the product. Under normal circumstances, once the supplier has delivered the goods and the buyer accepts them, then the deal is sealed. The only option is that Kingsley Ltd should take to task Brick-for-All which can in turn confront the suppliers of the building material sold. References CISG (N.D), Viewed 14 February, 2011, Consumer law- What is a contract? (N.D.), Viewed 14 February, 2011, http://www.paralegaladvice.org.za/docs/chap12/02.html Contract cases (N.D, Viewed 14 February, 2011, Duplessis, L 1999, An introduction to law, 3rd Edition, Juta. Gibson, GTR 1988, Mercantile and Company Law, CT. JUTA & Co LTD. CT. Kleyn, D & Viljoen, F 2002, Beginner’s guide for law students, 3rd Edition, JUTA, CT. Criminal law-Penal law-Guide to criminal and Penal Law (N.D), Viewed 14 February, 2011 < http://www.hg.org/crime.html> Ray Moses (2001), CCJA’s Guide to Federal and Texas Bill of Rights and other Individual Freedoms (ND), Viewed 14 February, 2011, McQuoid-Mason, D 1990, Street Law: Consumer Law, Pearson Education, CT. The English legal system: Why, how laws are made (May 30 2007), Viewed 14 February, 2011,< http://www.articlesbase.com/law-articles/the-english-legal-system-why-how-laws-are-made-155918.html> Todd ,C 2001, What you must know about contracts of employment, SiberInk, CT. UN Conventional Sale of International goods. (N.D), Viewed 14 February, 2011, Read More