The Formation of a Legally Binding Simple Contract - Essay Example

Running Head: Introduction to Law Introduction to Law The purpose of this paper is to answer certain questions regarding English Common Law on the topics of Contract Law, Political Law and the Legislative process, Tort and Negligence Law, and the English Legal System. Part 1 Outline what is required for the formation of a legally binding simple contract. By definition, simple contracts are those contracts which are not deeds. They are informal in nature and there is no prescribed or mandated form for their validity. They may be made orally, in writing, or they may be implied from the conduct of the person engaging in contract. Thus said, the same essential elements for a valid and legally binding contract also apply to simple contracts. The essential elements of a contract are: 1. Agreement - This is formed when one party accepts the offer of another and involves a "meeting of the minds". 2. Consideration - Basically mandates that both parties must promise to give or do something for the other. 3. Intention to create legal relations - The parties must have made the contract with the intention for it to have legal consequences. 4. Form - In some cases, formalities such as being reduced into writing is necessary. For simple contracts this is not a prerequisite for validity. 5. Capacity - At the time of contracting, both parties must have legal capability of entering into a contract. Thus minors and the insane would not have the proper capacity. 6. Consent - The parties must have entered into the agreement freely and of their own volition, absent any force or pressure to do so. Consent may be vitiated by duress or undue influence. 7. Legality - The purpose of the contract must not be illegal or contrary to public policy. Thus, if the above elements are found, then the contract which possesses all these requirements would be valid and legally enforceable. Should any element be absent, their effects vary, and the contract would be rendered either void, voidable or unenforceable, depending on the element missing. Part 2 Outline the main sources of English law. Then describe the process by which a Bill becomes an Act of parliament and distinguish between a public and a private Bill. The three main sources of English law are: Legislation Case/Common Law European Community Law Legislation Legislation includes the statutes and Acts of Parliament, which are laws that pass through the legislative process of both Houses in order to become law. Some significant statutes passed include the Education (Student Loans) Act of 1998, the Education (Schools) Act of 1997, the Protection from Harassment Act of 1997, the School Inspections Act of 1996, and the Disability Discrimination Act of 1995, among others. Case or Common Law This is the law made by judges. Although judges are not allowed to legislate, it is through hearing cases and rendering judgments before the courts that cases become a source of law. The basic concept of this is through the doctrine of stare decisis, which translates, "stand by what has previously been decided." Through stare decisis, a statement of law made by a judge in a case can become binding on subsequent cases and can become the law, by setting precedents for judges in later cases to follow when they find that the ruling of a case held earlier applies to a current case that has similar facts and legal issues. European Community Law This source is acquired through the UK's participation in the European Union. As an organisation of European States, it has a developed system of internal law directly affects laws of member states. Examples of European Community law are treaties, EU institution's regulations, directives, decisions and recommendations, legal decisions of the European Court of Justice, etc. Legislative Process Before it proceeds to become an Act of Parliament, a bill passes through many stages outlined below: First reading - formal presentation of the bill Second reading - start of debates on principles of the bill Committee stage - bill referred to a committee which analyses the bill clause-per-clause Report stage - committee reports its recommendations to the House Third reading - review in final form Passage through the other House - bill sent to other House for their scrutiny Royal Assent - traditionally where the Queen gives her approval after both Houses pass the bill Public Bills vs. Private Bills Bills or draft laws are pieces of proposed legislation that change or affect current law. The difference between a public and private bill lies mainly in their scope. Public Bills change the general law and are geared to affect the public at large, while Private Bills are affect the powers of certain bodies or a single person or group. An example of a public bill is one changes the pay structure of teachers within the U.K., while an example of a private bill is a decree of divorce of a person. Part 3 State the three elements that must be proved to establish a claim in the Tort of Negligence then go to explain in more detail how a lawyer would set about proving that a Defendant owed the Claimant a Duty of Care. By definition, a tort of negligence is stated as the breach of a legal duty to take care, resulting in damage to the claimant which was not desired by the defendant. Thus said, in order to establish a claim of tort of negligence, it is necessary that the following three elements be proved to have existed: The defendant owed the claimant a duty of care; That by negligent conduct the defendant broke that duty of care; That the defendant's negligent conduct caused damage to the claimant. Should all these three elements be successfully proved, then the claimant should be properly compensated as a result of the damages caused to him. As regards the process of proving that the defendant owed a duty of care, there are three concurrent tests that have been established that must be met to establish the existence of a duty of care. It would be necessary for the claimant's lawyer to successfully prove that the three key characteristics of a duty of care are proven in the defendant through the circumstances of the case. Test of Foresee ability This test answers the question of whether or not the consequences of the defendant's act were reasonably foreseeable. This is adjudged on a case per case basis, as in some cases, the damage or harm is found to have not been reasonably foreseeable. Test of Proximity This test answers the question of whether or not there is a relationship of proximity between the parties such as a legal relationship or physical closeness. This has been known as the neighbour principle which imposes the duty of care on persons who are in close proximity of each other, like neighbours. Test of Fairness This test answers the question of whether or not in all the circumstances present it would be fair, just and reasonable to impose a duty of care. If the three concurrent tests are met, then clearly the duty of care of the defendant was proven to have existed, and the next step of the lawyer of the claimant is to prove that the defendant, through negligent conduct, broke the duty of care which directly resulted in the harm or damage of the claimant. Part 4 Describe the role of Lay Magistrates in the English Legal system .Give your assessment of the advantages and disadvantages of having Lay Magistrates. Lay magistrates are formally titled justices of the peace who are ordinary citizens who are not legal professionals. They have had no legal training. Their appointment and role is to ensure that the local community is involved in the running of the legal system. Through their participation in making substantive decisions, such as deciding the guilt or innocence of an accused, they reflect local community values. Currently, there are as many as 30,000 lay magistrates in the UK. In court, they sit as a bench of three magistrates and their duties include presiding over criminal trials, deciding summary offences, issuing search and arrest warrants and deciding applications for bail, among others. Although they are not required to have formal legal training and qualifications, the basic requirements of a lay magistrate is that he must have good character, social awareness, sound judgment, maturity and sound temperament, commitment and reliability, and good understanding and communication. As can be imagined, having lay people act as the deciders in determining the guilt or innocence of an accused without having any formal legal education may seem daunting, and this concept has been criticised. However, this system has been in use for centuries. The advantages of the use of lay magistrates are that they promote local awareness, reduce cost of the judiciary system, provide some training to the lay people in the judicial system's processes, and allow a more interactive relation between society and the judiciary. On the opposite side, the disadvantages are that there have been quite a significant number of inconsistent decisions, bias and inefficiency has been evident in some magistrates, and a large burden is placed on the clerk accompanying the lay magistrates. Personally, I find that the lay magistrate is a role of value to the community, as it allows common people of good conduct and moral character to assist and directly participate in the judicial system. However, I am inclined to agree with the opposition of this system that a great concern lies in the inefficiencies, inconsistencies and bias that are sometimes evident in their decisions. Inefficiency and inconsistency are direct consequences of the fact that they are not legal professionals, and the bias is a major hindrance that undermines the integrity of a fair and equitable justice. In my opinion, the lay magistrate should be given some amount of training prior to actual practice to minimise the incidents of bias, inefficiency and inconsistency. Read More