The Concepts of Case Laws and Statutes - Research Paper Example

Introduction There are many varieties of business laws all over the world and they interrelate in various and diverse ways. For instance, some business dealings are mergers, contracts, leasing, and acquisitions, among many other cases but the way these transactions are made is administered by Business Law and in addition, how the businesses are created and carried out is the bulky part of Business law. Nonetheless, this division of law is very extensive, even though it transacts principally with defining the responsibilities and rights of businesses, instead of implementing these laws. Since it has an widespread range, Business law has generated a huge number of legal procedure part subcategories, which comprise of Banking, Sales and Secured Transactions, Landlord-Tenant, Real Estate Transactions, Mortgages, Debtor and Creditor, Consumer Credit, Bankruptcy, Contracts, and Negotiable Instruments. 1 Kelly & Holmes (2011, pg. 123) says a good example of how the business law works is for in Joined Cases 6/90 & 9/90 Francovich and ors v Italian Republic, where the ECJ extended the force of the law concerning directives by stating that ‘Community law lays down a principle according to which a Member State is liable to make good damage to individuals caused by a breach of Community law for which it is responsible’. This was a historical ruling which in many ways changed the precedent of future rulings in the European business law. 2 Community law body The European Union law which is also termed as the European Community law is an organization of legislation and treaties, for instance Directives and Regulations, which have indirect or direct effect on the laws of the European Union member countries. The three foundations of the European Union law are basic law, supplementary laws, and secondary laws. The chief foundations of primary or basic law are the Treaties establishing the European Union, while the secondary foundations comprise the directives and regulations which are founded on the Treaties. However, the legislature of the EU is predominantly composed of the Council of the European Union and the EU Parliament which under the Treaties can set up secondary law to follow the purposes which are stipulated in the Treaties. The EU law is practiced by the courts of where a member countries for less important rights may be imposed by the courts of member countries , for instance the Directives, European Commission may take actions against the member country under the European Commission Treaty. The Court of Justice of the EU is the most supreme and is competent to interpret te European Union law. 3 The supplementary foundations law consists of case law by the Court of Justice, the general doctrines of the European Union law and the international law. The supplementary bases of the European law are unrecorded bases consisting of the Court of Justice of the European Union case law, general principles and international laws. The supplementary foundations are normally of judicial derivation and are applied by the Court of Justice of the EU in cases where the secondary and/or primary legislation may or can not resolve the matter amicably. From during the 1970s, fundamental rights which are acknowledged as the general principles of the European Union law have been incorporated into the principal legislation in the EU. The EU and its member countries are compelled to abide to the international law, as well as its customary law and treaties, and this fact by itself has particular made it to manipulate the growth of the universal principles of the EU. Nevertheless, the Court of Justice of the EU may reject some particular principles of the international law that it regards as contrary with the composition of the EU, for instance the principle of reciprocity in the achievement of state requirements. The Court of Justice of the EU is founded through Article 19 of the Maastricht Treaty and comprises of specialized courts, General Court and Court of Justice. The duty of the court is to ensure that in the application and interpretation of the Treaties the law is strictly observed. 4 The Court of Justice comprises of one judge from each EU member country, and the General Court at least one judge from each member country. The judges are appointed for a six year renewable term and the role of the Court of Justice is to rule, in according to the stipulation of the Treaties, on cases which are brought to it by a member nation, a legal person or European Union organization. The Court of Justice may at the same time issue preliminary rulings, at the behest of a member nation’s tribunals or courts, on the validity of the acts by EU organizations or the interpretation of EU law but nevertheless, the Court of Justice may rule in other cases if they stipulated in the Treaties. 5 Legal system of the EU Wyatt (2011, p. 234) says that ‘the European Union law is made use of by the courts of member nations and if the laws of member nations advocates for rights which are less than EU law, the European Union law are superior and may be enforced by the courts of member nations’. In case of European Union law which should have been transposed into the laws of member nations, such as the European Commission or Directives, may prosecute the case against the member nation under the EU Treaty. However, it is imperative to note that the Court of Justice of the EU is the highest court competent to interpret European Union law but the European Union law which may be directly enforced by courts in member states is said to have direct effect. Simon Hix argues that direct effect and the supremacy doctrine have since transformed the European Union from an international institution to a quasi-federal polity. 6 Some parallels to the architecture of the European Union may be found only in the internal constitutional order of federal states since the EU was developed after the two world wars as Europe moved towards super nationalism with a multi-level system of governance. The vertical federalization is mixed with horizontal separation of powers between the European Community institutions and therefore the EU does not conform to the structures of a conventional federal system. 7 Direct effect In Van Gend en Loos v Nederlandse Administratie der Belastingen the European Court of Justice (ECJ) ruled that the provisions of the then EEC treaty were capable of having direct effect before the national courts of EEC member states. The consequece was to create an alternative manner of enforcing the obligations undertook by member states in the treaties, to the more traditional method of state enforcement in the form of enforcement actions taken by the European Commission at a supranational level. Individuals could now use national courts to invoke EU treaty provisions against member state governments. The pre-conditions for direct effect are that the provisions on which an individual wishes to rely are sufficiently clear and unconditional, and that there is no scope for member nations to exercise discretion in implementation. Hence, a regulation that permits member nations to privatize roads would not have direct effect and could not be enforced in the courts, because it provides that nations may privatize roads, not must privatize roads. While direct effect was first developed in relation to treaty articles, the ECJ subsequently ruled that regulations and decisions can also have direct effect as well. In Marshall v Southampton and South West Area Health Authority (Teaching) (No 1), the ECJ ruled that while directives could also have direct effect, they could only do so in respect of public bodies. Nevertheless the ECJ has taken a broad view of what constitutes a public body and has found that a nation-owned gas company was a public body which was subject to direct effect. In contrast treaty articles, regulations and decisions can have direct effect against private entities. Recommendations and opinions were held to not have direct effect, as they were not intended to be binding, though they should be taken into consideration when interpreting the European Union law they supplement or the national law they implement. 8 Indirect effect Indirect effect is where a situation in the courts in member nations apply the European Union law to interpret national laws, as opposed to direct effect where the law is applied directly. The Treaty articles, Regulations and Decisions may all have direct effect except where they are unclear or conditional. In such cases they may have indirect effect, but are unlikely to be of much use for interpreting national laws. Recommendations and Opinions cannot have direct effect, but can have indirect effect, when interpreting the European Union law they supplement or national laws, as established in Grimaldi v Fonds des Maladies Professionnelles [1989] ECR 4407 Case C-322/88. Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891 Case 14/83 established that Directives can have indirect effect in where an individual takes action in a national court against another individual, where a Directive can never have direct effect, or where the provision of the directive is not sufficiently clear and unconditional to have direct effect. 9 The principles of European Union law are rules of law which have been developed by the ECJ that constitute unwritten rules which are not expressly provided for in the treaties but which effect how European Union law is interpreted and applies. In formulating these principles, the courts have drawn on a variety of sources, including: public international law and legal doctrines and principles present in the legal systems of European Union member states and in the jurisprudence of the European Court of Human Rights. Accepted general principles of European Union Law include fundamental rights, legal certainty, subsidiary, proportionality and equality before the law. Contract law Unlike the criminal law, Contract Law deals mostly with a majority of civil lawsuits especially where the claims arise in civil courts except the claims that involve any contractual disputes. The law of tort makes use of the concept of redressing a wrong which is committed to a person, by awarding monetary infringements or damages as compensation for the wrong done. The system of justice categorizes the law of tort into three categories namely, intentional torts, negligent torts, and strict liability. An intentional tort refers to damages which are executed intentionally through the willful misconduct by one person to another, for instance, fraud, assault, and theft. A negligent tort involves the harm committed when one fails to exercise a given level of prudence or a reasonable standard of carefulness. A strict liability tort on the other hand applies to a certain extent in a different way from intentional and negligence torts. Put it another way, the negligence and the intentional torts, concerns the defendant’s culpability while strict liability torts concentrates on the act itself, not considering of whether the level of care or the intentions were exercised. To apply the law of tort, a range of sources may be consulted so as to uphold justice between the parties involved in a criminal case (Steiner 2009, pg 38).10 A few of these sources incorporate the concepts of Case laws and/or statutes. Statutes are instituted by the representative of the government, while Case laws looks at the precedence of other previously ruled cases which seem to have comparable line of argument and premise (Steiner 2009, pg 38).The Case law embraces the facts that the laws can be either orally stated or put in writing and it is imperative to note that oral statements must have witness who can attest that it actually happened. But written statements must be properly undersigned as these documents provide indisputable evidence in a competent court of law. Nevertheless, case law also judges the orally stated agreements, by interpreting laws or establishing new precedence in favor of the plaintiff. However, different common have unlike International business laws; for instance, Business laws that apply in the United Kingdom and some commonwealth countries are quite diverse from the ones applying in the United States of America (Steiner 2009, pg 38).11 Case Law and the available legal claims Two nations can enter into a contract for services, in a very unofficial way. The two nations can draft the contract’s fundamentals without adding an “integration clause” which would have act as the final draft in that only the written terms in that agreement would apply in case a dispute arose later. Notwithstanding the fact that the two did not incorporate the “integration clause,” Case law would still apply, because the court of law would consider the credibility of the drafted terms which are on the back of the menu. But notwithstanding the facts, the elements of the terms would still have to be elaborated by the plaintiff in court, so as to establish whether there is a reliable argument to move the case. 12 But if a nation and another one contributed money, then opened a business account, and started taking clients, the court may find it appropriate to learn about the financial institutions(s) which are involved in assisting the business’ transactions. In this case, the court would find it as paramount to know the ratio of capital contribution by the two parties (Steiner 2009, pg 38).13 Conclusion To apply the business, a range of sources may be consulted so as to uphold justice between the parties involved in a criminal case (Steiner 2009, pg 38). A few of these sources incorporate the concepts of Case laws and/or statutes. Statutes are instituted by the representative of the government, while Case laws looks at the precedence of other previously ruled cases which seem to have comparable line of argument and premise (Steiner 2009, pg 38). 14 The European Union courts which deal with the business law have managed to uphold the statutes and there have been few if any complaints from the member nations about how it deals and transacts and then interprets the European Union business laws that are brought to its attention by the member states of European Union. References Kelly & Holmes 2011, Business law, Cavendish Publishing. Wyatt, D 2011, European Union, A, Hart Publishing. Humphreys, M 2010, European Union law, Oxford University Press. Steiner, L 2009, EU law, Oxford University Press. Fairhurst, J 2010, Law of European Union, Pearson Longman. Weatherill, S 2010, Cases & Materials on EU law, Oxford University Press. Busby & Smith 2011, Core EU Legislation Palgrave Macmillan. Jacqueline Martin, Hodder A 2010, The English Lega System. K. Smith & D. Keenan, D 2006,Law for Business, Pearson Longman. Alix A 2010, Law for Business Students, Longman. MacIntyre, E 2010,Business Law, Pearson Longman. MacIntyre, E 2011, Essentials of Business Law, Pearson Longman. Peel, E & G. H. Treitel 2011. The law of contract, Sweet & Maxwell. McKendrick, E 2011, Contract law, Palgrave Macmillan Law Masters. Richards, P 2011, Law of Contract, Pearson Longman.. L, Jones 2011, Introduction to Business Law, OUP. Contract: Cases and Materials, H Beale, H 2008, OUP. Stephenson, 2011, Core Statutes on Contract, Tort and Restitution, Law Matters Publishing. Kelly & Holmes 2011, Business law, Cavendish Publishing. Wyatt, D 2011, European Union, A, Hart Publishing. Humphreys, M 2010, European Union law, Oxford University Press. Steiner, L 2009, EU law, Oxford University Press. Fairhurst, J 2010, Law of European Union, Pearson Longman. Weatherill, S 2010, Cases & Materials on EU law, Oxford University Press. Busby & Smith 2011, Core EU Legislation Palgrave Macmillan. Jacqueline Martin, Hodder A 2010, The English Lega System. K. Smith & D. Keenan, D 2006,Law for Business, Pearson Longman. Pg 124. 1 .Alix A 2010 2. MacIntyre, E 2010 3. MacIntyre, E 2011 4.Peel, E & G. H. Treitel 2011. 5.McKendrick, E 2011 6.Richards, P 2011 7.Jones, L 2011 8.H Beale 2008 9.Stephenson, 2011 Read More