Construction and Business Law - Essay Example

Construction and Business Law Answer One: Formal source of law constitutes legislation, sentencing guidelines and judicial decisions. Sometimes worksof some renowned lawyer may also be considered as the formal source of law. All law books are also formal sources of law. For instance in case of UK the formal source of law is the Commission, the Council of Ministers and the Parliament. (Ashworth, 2005, p. 31). The informal sources of law include judicial decisions, precedents and the opinion of the jury. The informal sources of law have no written documentation. It also includes the existing customs of a country and opinions of some institutional writers. Rather it can be said that the informal sources of law does not have a strong legal validity. In case of a conflict between the common law and the formal source of law always the formal source of law gains primacy. Courts which hear civil issues like issues related to debt, contract related matters and also property related issues. It also includes succession, real estate and custody related issues. The structure of the civil courts is as follows in the base lies the sheriff court, above it the Court of Session and above everything is the House of Lords. The Criminal Courts are those which deal with the criminal cases like rape, murder, theft, forgery and adultery. The structure of the Criminal Court is different from that of the Civil Court in the sense that at the base lays the District Court, then the Sheriff Court and above all the High Court of Judiciary. A real obligation always creates a debt and in the process becomes a principal obligation. In the English law there are two types of real obligation, they are namely land and rent. On the other hand the payment which is due against the land becomes a personal obligation. On the other hand it can be said that personal obligation and the real obligation are related to each other. One produces the other. For instance if land is the real obligation then in that case the fruits and flowers produced from that piece of land becomes the personal obligation. (Langdell, 2009, p. 199). The Inner House of the Court of Session is actually the appeal court. This court is divided into the First and the Second Divisions and each of the divisions have been given equal authority. The Divisions are presided by the Lord President and the Lord Justice Clerk respectively. The Inner House hears cases from the Outer House and some other Sheriff Court and Tribunals. The Outer House on the other hand hears cases at the first instance. They generally hear commercial cases, case related to contract and also judicial review. The judges of the Outer House also hear on the Intellectual Property Rights. Thus it can be said that the Inner House of Courts has more compared to the Outer House of Courts. (Court of Session - Introduction, n.d). The European Court of Justice is the highest Court of law in the European Law and it deals with all the laws of the European Union. This Court refers to the law of the community and it deals with all kinds of cases. The European Court of Human Rights on the other hand is the highest International Court. It deals with case related to the violation of the European Convention of Human Rights. Individuals can directly apply to the European Court of Human Rights. The main aim of the Court is to protect the human rights of the individuals or the states. Thus it can be said that the major difference between the two is that the European Court of Justice deal with all kinds of law and the European Court of Human Rights only deals with human rights related issues. Question 2: A courier company promises a 24 hour delivery service.' Its customer,a web-based travel agency, orders the couriers to deliver an essential computer component from the suppliers to their premises. En route, the couriers lose the package and end up taking 72 hours to deliver a replacement. The travel agency wishes to sue the courier company for the losses it has incurred as a result of the delay in delivery of the vital component. Unfortunately for the couriers, there is no clause in the contract stipulating any financial limits on claims or any exclusions of liability.The couriers do not deny being at fault, but are alarmed at the level of damages the customer is seeking from them which includes inconvenience, staff wages' and loss of business for the period their computer was out of action due to the delay. EXPLAIN FULLY, the concepts of 'foreseeabilty, 'normal' and 'special' damages, and the duty to mitigate one's losses, in the context of the above scenario. Ans. As the company and the courier service providers have come under an agreement of mutual contract, thus, failure of the courier company to keep its promise will be considered as a breach of contract. At the same time the damaged company is at legal discretion to ask for compensation. In this context if we see at the term "foreseeabilty", we will understand that courier service Company has failed in that context because the company did not understand its capacity of performance or the kind of quality that is required for fulfillment of the contact terms. ''''''This is an evidence of special damage as the courier cannot be litigated in terms of breach of contract. The only way to ask for compensation would be to make an attempt that would prove that the courier company is not just a service provider but a company which has the capacity of fulfilling contractual liability. Question 3: a. Explain fully, using examples or citing cases as appropriate, the 'neighbourhood' principle in the law of delict. b. Explain fully the importance of the case of Hedley Byrne & Co v Heller and Partners [1964] AC 465 as regards liability for negligent misstatements.''''''''''''''''''''''''''''''''''''''''' Ans. (a) According to the legal conventions it is said that delict specifies over the area by which the injured person can ask for compensation from another person, who has caused harm to him/her through certain deliberate acts or other forms of acts of negligence. In this context "negligence is not merely carelessness but is a legal term denoting situations where the law imposes a legal responsibility to make reparation to the person harmed." It has also been specified under legal principles that, "Harm that is actionable under delict can take the form of physical injury or damage to property, but can also include harm to one's reputation (defamation) and more recently pure financial loss (without any attendant physical harm or property damage) in certain situations involving negligent advice." (Study Guide) ''''''In the legal context of England and Scotland the term "neighborhood principle" applies only to the context of when the suffered person has to ask compensation for any physical damage caused to him/her. The landmark case of Donoghue v. Stevenson is one of the classic examples of such cases where this principle has been applied. We can refer to the example that Reinhard Zimmermann have Simon Whittaker elucidated to explain the functional legality of the "neighborhood principle" as "There would seem to be no problem in establishing that a doctor owes his or her patients a duty of care. The duty is imposed by law when the doctor undertakes the task of providing advice, diagnosis or treatment." (Zimmermann, Whittaker, 2007, 451) Ans. (b) The Hedley Byrne & Co v Heller and Partners [1964] AC 465 is a landmark decision making case that provided the common people with the option that in case of bank misstatement they can claim for compensation if they have suffered any kind of economic loss. The House of Lords held that the plaintiff, in this case an advertising agency depended over the information provided by the bank. The bank on the other hand cannot deny their liability because people commonly consider the information provided by a bank to be authentic. As in this the situation was different, the bank cannot put a cover over their liability and due to this reason they are liable for compensating the aggrieved party. 4. Explain fully the meaning of each of the following terms used in employment law, using examples to illustrate your answers:- (a)''' constructive dismissals'''''''''''''''''''''''''''''''''''''''' (b)''' automatically unfair grounds of dismissal'''''''''''' (c)'''' wrongful dismissal''''''''''''''''''''''''''''''''''''''''''''''' (d)'''' a 'transfer of undertaking' '''''''''''''''''''''''''''''''''' (e)'''' unfair redundancy''''''''''''''''''''''''' Ans. '(a) Constructive Dismissal: The constructive dismissal shows a situation that there has been some kind of violation of rights of an employee by or on behalf of the employer that the employee righteously considers himself to be dismissed, or terminated from his job, though there has not been any act of dismissal by the employer to the employee. The Halsbury's Laws of England suggests, "An employee who terminates the contract of emplyment with or without notice may still claim to have been dismissed if the circumstances are such that he is entitled to terminate it without notice by reason of the employer's conduct. The employee must leave in response to the breach of contract." (Constructive Dismissal) c. Automatically unfair grounds of dismissal: There are several occasions upon which an employee fails to work and employers use these grounds to terminate an employee from jobs. However, there always exists some situations that need to judged over human grounds but termination of an employee over these grounds are known as automatically unfair grounds of dismissal. d. According to English legal jurisprudence situation of "wrongful dismissal" is constituted when "the employee alleges that the employer is in breach of the terms of the contract of employment. For example, if the contact states that the employee is entitled to four week's notice before dismissal, and the employer fails to comply, a wrongful dismissal claim would be available." (Davies, 2004, 163) e. A 'transfer of undertaking': The process of a "transfer of undertaking" has been provided by The Transfer of Undertakings (Protection of Employment) Regulations 2006. This act is mainly aimed at providing proper support and protection against arbitrary actions of an employer against an employee. According to the Act a transfer will be considered as relevant if it is "'of an undertaking, business or part of an undertaking or business situated immediately before the transfer in the United Kingdom to another person where there is a transfer of an economic entity which retains its identity; '" (The Transfer of Undertakings (Protection of Employment) Regulations 2006) It is required that employers will act according to the provisions as prescribed by the terms and condition as prescribed by the legal provision. f. Unfair redundancy: On several occasions we see that the employer acts in a biased manner and in case of selection of the candidate this attitude is reflected. In the context of business it is normal if an employer is making an employee redundant. However it amounts to unfair redundancy if the employer is stops acting reasonably, which means that such redundancy process is only completed if the employee has been made redundant without any justified cause or reason.''''''''' 5.' (a)Discuss the advantages that a limited liability company structure has over an enterprise set up as a partnership, as regards:- (i)' being a suitable vehicle to attract investment'''''''''''''''''''''''' (ii)' personal liability for business losses''''''''''''''''''''''''''''''''''''' (iii)' ability to sell the business on'''''''''''''''''''''''''''''''''''''''''''''''' (b) In insolvency law, explain what is meant by a 'trust deed for behoof of creditors'.''''''''''''' (c) In corporate insolvency, what is meant when a company goes 'into administration' Ans. In case of limited liability company as it is dependent over contribution of the partners thus, it becomes easy for it to attract the mass while starting its business. Investment is an essential requirement for starting up of a company but in case of an individual the investors are not much encouraged mainly due to the fact that it will be easy for an individual to breach the contract norms and misappropriate the capital. However, it case of a joint liability company it becomes more secured as it is easier to identify the people who are responsible for starting of the company or the business. ''''''If a company faces monetary loss it becomes tough for the owner to revive from such condition. However, in case of joint liability the onus is not rested over only a single person but it is shared equally among all the other members. Thus, it becomes easy for the company to revive in the business scenario. ''''''If the owner of a company is only an individual, it becomes easy for him to sell the company's share without any other's knowledge.' At the same time it becomes tough for investors to identify such action. In this context, it is an advantage of limited liability company that that if the company has joint shareholders, then unless one partner is taking consent of the others that whether to sell the company or not, it will not be possible for him to sell the shares of his part. ''''''According to the 'trust deed for behoof of creditors', "This is an informal and relatively inexpensive procedure used in amicable sequestrations whereby a C.A. or solicitor is chosen by the creditors to act for them and the debtor transfers all his property to the chosen trustee in trust for the creditors. ''''''As son as it is suggested that a company has gone "into administration", it means that "an insolvent company is rescued through sale of part of its assets or a restructuring of its operations, so that it may then continue on a sounder financial footing rather than be liquidated." ''''''''''''''''' Work Cited: 1. Ashworth, A., 2005, Sentencing and criminal justice, Cambridge: Cambridge University Press 2. Davies, A.C.L., 2004, Perspectives on labour law, Cambridge: Cambridge University Press 3. Constructive Dismissal, available at: http://www.duhaime.org/LegalDictionary/C/ConstructiveDismissal.aspx, retrieved on: 1st August, 2009 4. Transfer of Undertakings, available at: http://www.manches.com/downloads/briefings/TUPE_fv.pdf, retrieved on: 1st August, 2009 5. Whittaker, S., Zimmermann, R. 2000, Good faith in European contract law, Cambridge: Cambridge University Press Read More