International Business Law - Assignment Example

a) Distinguish between the role of Criminal Law and Civil Law in relation to the English Legal System and analyse the purpose the law is attempting to serve in this area. In common law jurisdictions like England there are basically two types of law: Civil law and Criminal law. Civil law is concerned with the rights and duties of citizens in dealings with other citizens. Civil law covers the following activities: lending and borrowing, marriages, entering into contracts, disputes with neighbours, etcetera. Generally, the purpose of civil proceedings is to enable persons to enforce their rights or to recover their property for their own benefit. In civil proceedings the wronged party has the sole discretion to pursue his rights, make a compromise or, if he so wishes, fail to bring proceedings or even discontinue proceedings in the course of the trial of a case. The case of Donoghue v Stevenson which falls under the law of torts and is part of civil law is a good illustration that civil law is meant to uphold the rights of individuals. A friend of Mrs Donoghue ordered an opaque bottle of ginger beer (intended for the consumption of Mrs Donoghue) in a cafe in Paisley. Having consumed half of it, Mrs Donoghue poured the remainder into a tumbler. The decomposing remains of a snail floated out. She claimed to have suffered from shock, fell ill with gastroenteritis and sued the manufacturer for carelessly allowing the drink to be contaminated. The House of Lords decided that the manufacturer was liable for Mrs Donoghue's illness. Criminal proceedings, on the other hand, are meant to enforce law and order in the interests of the community (Brody et al 2000), generally by punishing the offender. Proceedings are usually undertaken by the Crown, although private prosecutions are possible but very rare, and once started can be discontinued only by the Attorney-General. On the face of it, a civil offence is a wrong against an individual, whereas a criminal offence is a wrong against the community, but such a line is difficult to draw. The intention of the criminal law is to ensure that every citizen knows the boundaries of acceptable conduct in the UK, for example it is clearly unacceptable conduct to steal from another individual – thereby it is necessary to have the criminal law of theft under the Theft Act 1968. This clearly applies to other criminal offences such as murder and rape. The wrong is against the society. A breach of the criminal laws imposed by society will be seen as a wrong against society as a whole. Therefore if the boundaries of acceptable conduct in the UK have been exceeded by an individual and that individual has been caught they will face prosecution by the state and will receive appropriate punishment such as a fine, imprisonment or a community sentence. References Brody, David C.; Acker, James R.; Logan, Wayne A. (2000). "Introduction to the Study of Criminal Law". Criminal Law. Jones & Bartlett Publishers. ISBN 0-8342-1083-5 Donoghue v Stevenson ([1932] A.C. 532, 1932 S.C. (H.L.) 31, [1932] All ER Rep 1 Evaluate the role of common law and legislation within the English Legal System Common law Common law is based largely on judge-made law (law developed through decisions by judges necessary to decide cases brought before them or case-law) The development of case-law still remains an important source of law. A statement of law made by a judge in a case can become binding on later judges and can in this way become the law for everyone to follow. Whether or not a particular pronouncement (technically called a precedent) by a judge sitting in court when deciding a case does become binding (according to the doctrine of "stare decisis" - stand by what has previously been decided) on later judges depends on two main factors: The pronouncement must be made by a court of sufficient seniority. Basically, judges at the lowest tiers of decision making (often called courts of first instance), are not allowed to issue binding precedents. The pronouncement must have formed the ratio decidendi of the case (this is Latin for the reasoning behind the decision). The reasoning must be a matter pertaining to the law rather than a factual decision. In addition, the pronouncement must not be obiter dictum - something said either about the law or the facts of the case which is "by the way", in other words, not strictly necessary for the legal basis for the decisions. Only the ratio decidendi will be binding. It will comprise the legal principles and rules which are necessary to solve the problem before the court. Obiter dicta are not binding, but they may be treated as of "persuasive authority" - later judges are entitled to read them and be influenced by them, but they are not obliged to follow these parts of judicial pronouncements. These rules can be summarized as the doctrine of precedent (or stare decisis). A later judge will have to determine (i) what pronouncements from earlier decisions are binding and (ii) whether any is relevant - the later judge may say that the case before the court is "distinguishable" from the earlier case (i.e. has materially different facts so as to fall within different areas of law). Precedent is very important in the common law. It ensures certainty and consistency and logical progression and development in the law. On the other hand precedent can be rigid and also complex - what is "the law" on a subject may be very obscure as it is spread across many cases. Legislation In the modern times legislation is the commonest source of new laws or of law reform. In modern times reference is made to sections in an Act of Parliament. For instance Statutes can be applied to all or any combination of jurisdictions within the United Kingdom, whereas the common law jurisdictions are more limited. Acts of Parliament which apply to everyone throughout one or more jurisdictions are called public general Acts. Acts may also be limited to geographical locations within a jurisdiction for example, the West Yorkshire Act 1980 and local bye-laws or to specific persons or companies. The most important legislation is Acts of Parliament (called primary legislation). This becomes valid through being approved (after debate) in the House of Commons and (with some exceptions under processes laid down by the Parliament Acts 1911-1949) the House of Lords; it then receives the Royal Assent from the Queen. (see The House of Commons within the UK Constitution; and The British Monarchy pages). Examples of statutes are: Education (Student Loans) Act 1998, Education (Schools) Act 1997,Protection from Harassment Act 1997, School Inspections Act 1996, and Disability Discrimination Act 1995. A greater volume of legislation is made under the authority of primary legislation by Government Ministers, and it does not have to be approved in advance by Parliament. This is called delegated or secondary legislation. Delegated legislation is issued (often by a government minister) under a specific power in the "parent" or "enabling" Act. Such legislation is issued in the form of statutory instruments (there are about three thousand per year) and may be titled "regulations" or "orders". Examples of delegated legislation are: The Jobseeker's Allowance (Amendment) Regulations 1998, The Education (Direct Grant Schools) (Revocation) Regulations 1998, The M42 Motorway (Dunton Diversion) Scheme 1998. Reasons for the use of delegated legislation are as follows: 1. to save time in Parliament 2. to allow for expert input into their design and technical language to be used in their wording 3. to allow flexibility in responding to events and representations There are also powers under the Local Government Act 1972 for local authorities to issue delegated legislation - these are called bye-laws. A contract is an agreement but an agreement may not necessarily be a contract. Critically discuss this statement The statement is very true. Basically A contract is a legally enforceable agreement between two or more parties with mutual obligations. In order for such an agreement to be reached there must be an offer made by one party which is accepted by the other. Moreover, to distinguish simple informal agreements from those which are enforced or recognised by law, the parties to the contract must intend to create legal relations between each other. (G.H Treitel 2003 p.8) Originally the courts determined whether or not an agreement had been reached between the parties by finding whether there had been a meeting of the minds. Currently the courts use an objective test as to the offeror’s intention. In terms of this test, if a reasonable person believed that the alleged offeror implied by his words or conduct that he intended to be bound then this may be sufficient for the offer actually to be valid in law, regardless of his actual state of mind. In the case of Moran v University College Salford a universitywhich made an unconditional offer of a place to an applicant in error was bound to honour the contract. From above it can be noted that intention to create legal relations is very crucial in a contract. In order to prevent the courts from being troubled by disputes concerning agreements which are not contracts, the courts have sought to distinguish agreements that should be legally enforceable and those which should not. They basically fall into the following categories: 1. Social and domestic agreements 2. Commercial agreements 3. Advertisements In social and domestic agreements there is a presumption that there is no intention to create legal relations. For example, agreements between husband and wife are presumed not to create legal relations unless the agreement itself states that it does. ( Balfour v Balfour) Domestic agreements between parents and children are presumed not to create legal relations (Jones v Padavatton) In commercial agreements it is presumed that there is an intention to create legal relations. This presumption can generally be rebutted by express provision in the contract. In Rose & Frank Co. v Crompton Bros Ltd it was held that a commercial agreement between a British manufacturer and their appointed distributor in the USA which expressly stated that it was ‘not subject to legal jurisdiction’ in either country was sufficient to rebut the presumption that it was intended to be a contract. So, in the above example it can be seen that there was an agreement but no contract in a commercial transaction. In advertisements sellers often make claims which are generally treated as a ‘mere puff’ and as such do not create legal relations. A statement will not be binding if the court considers that it was not seriously meant. (Weeks v. Tybald) In the above analysis examples have been given of agreements which are not necessarily contracts and these have been distinguished from agreements which are contracts and the criteria have been explained. So, it is true that where there is no intention to create legal obligations there is no contract even if there is an agreement of some sort. References G.H.Treitel, The Law of Contracts (Sweet & Maxwell, London, 2003) Weeksv. Tybald (1605) Noy 11 Jones v. Padavatton [1969] 1 WLR 328 Rose & Frank Co. v.Crompton Bros Ltd[1925] AC 445 Balfour v. Balfour [1919] 2 KB 571 1(b) From the facts outlined the issues are: whether Kingsley Ltd, a firm of house builders has remedies for breach of contract (assuming there was breach) by Brick-for-Al. Whether the sale was of an international character to warrant application of the Convention on International Sale of Goods (CISG). What remedies are there for the buyer, if any, in terms of the Sale of Goods Act 1979? The UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (1980) [CISG] does not seem to apply to the facts given. The CISG applies (1)… to contracts of sale of goods between parties whose places of business are in different States. On the given facts the parties appear to be from the same state and there is nothing to show that the transaction was international in nature. The bricks were bought from a local seller for construction on the sea front which means it was in the same country (State) The Sale of goods Act, 1979, however, applies. The Sale of Goods Act 1979 is the main piece of legislation helping buyers to obtain redress when their purchases 'go wrong'. It is in the interest of anyone who sells goods or services to understand the implications of the Act for them and the responsibilities they have under it. Essentially, the Act states that what a seller sells must fit its description, be fit for its purpose and be of satisfactory quality. If not, the supplier is obliged to sort out the problem. It's not just a question of complying with the requirements of the Act - sellers can also use their compliance positively to enhance their customer relationships. Whenever a seller sells goods to a customer they have certain responsibilities. They must make sure the goods 'conform to contract'. This means that they must be as the seller describes them - for instance, a car must be the exact model that they say it is, of the correct engine size and with the same number of previous owners as they tell the customer it has had. By law, all descriptions - whether verbal, written, implied or given in an illustration - must be accurate and not misleading. If a seller describes goods inaccurately, the customer may have a claim against them for breach of contract. Turning to the facts of the given problem did the bricks fit their description? Were they fit for their purpose and of satisfactory quality? The bricks sold were meant for external use and the sparkling bricks are fit for that purpose. The sparkling bricks were correctly described and there was no misrepresentation. The problem arises from the fact that the buyer intended to use them for a purpose unknown to the seller and the question is whether this unknown purpose is binding to the seller. The seller appears to have discharged his obligations under the Sale of Goods Act 1979 as he showed the buyer all kinds of bricks meant for external use. The buyer (Kingsley Ltd) does not have any remedy in the circumstances. There was no breach of contract by the seller (Brick-for-All) Read More