Compliance in Lieu of the Sources of Law - Essay Example

Assignment on application of law of contract, negligence and sales College Lecturer Word count = 2494 Qs Compliance in lieu of the Sources of law To begin with, the most important source of law comes from the proceedings of the legislature in the creation of new rules of law as reiterated by Alexander (2009, P.37). This type of law is referred to as the legislation. In its entirety, legislation revolves around the creation of new laws and amendment of existing ones in order to accommodate emerging issues that the old rule of law did not address. In so doing, the legislature endeavours to make life easy and accommodative in the best way possible in accordance with the constitution. When such new rules or amendments are passed into law, the community expects every member of that society to abide by these set of rules in every sphere of their operations. The second source of law relates to judicial decision made by the courts of law in ruling a given case before the jury. Ideally, this type of law is said to be judge-made because it emanates from the judicial resolution of the court in its bit to serve justice and restore order (Chalmers et al 2010, p.21). When preceding over a case of similar a nature, the jury is bound to abide by the decision of his predecessor. The application of judicial precedence relies on the basis of similarity inherent in the case in question with respect to a previous case that was decided by the court of law. Otherwise, the jury must differentiate the case so as to make a unique ruling. In that matter, court decisions serve as the second source of law that govern the precepts of justice in future case of similar nature (Alexander 2009, 44). The third source of law relates to miscellaneous amendments. These may come in the form of regulations of the local authorities, ministerial directives or legislative resolutions made to govern the society at times of national emergencies such as war or national disaster (Davis 2007). Every person in the affected locality must therefore comply with such miscellaneous rule of law for the time being. The European Union law is also another important source of law. This rule of law governs the operations and business undertakings pursued by all member states of the European Union. In application of the EU Law seeks to secure harmony and unification of legal systems operational in the member states. Thus, any acts of incompliance with the state law would be deemed to be inconsistent with the European Union Law (Chalmers et al 2010, p.86). Qs 2: Liability in Negligence Ideally, there are three basic principles that govern the law of tort with respect to negligence. Primarily, there must be some duty of care that the defendant owed the plaintiff. Moreover, the plaintiff must prove that the defendant breached such duty for which the plaintiff sustained injury. These three elements must prevail for the case of negligence to hold, otherwise the defendants can prove that the absence of any of these factors to escape liability in negligence as held in Caparo v Dickman [1990] 2 AC 605 (Ramsey 2007, p.579). In examining the facts to this case, it is evident that the erection of toe boards in accordance with the building code would prevent falling objects or tools during construction works. Besides, it was foreseeable that falling objects or tools during construction could cause injury to other persons within the vicinity of the construction site including workers and passersby. These arguments substantiate the proximity of risk for which the contractor ought to have taken reasonable precaution to prevent injury to other persons as aforementioned. In Heaven v Pender [1881–1885] All ER Rep 35, Lord Esther observed that if the carelessness of the defendant would directly result in foreseeable injury to other persons, then such proximity is sufficient proof of the duty of care (Magnus et al 2004, p.92). In the case above, the court ruled in favour of the plaintiff. In same manner, Careless Contractors Ltd owed its workers and passersby the duty of care. The second factor of consideration in the case herein revolves around the breached of duty. Whereas Careless Contractors Ltd owed its workers the duty of care, it failed to take reasonable measures to prevent the occurrence of injury to other persons. An average contractor would have erected the toe boards in line with the building code so as to prevent foreseeable occurrence of injury to persons within the proximity of the construction site. Therefore, Careless Contractors Ltd will be held liable in negligence as in Paris v Stepney BC [1951] HL. The court held that the employer, Stepney BC was liable because it failed to taken reasonable precaution to protect the plaintiff from the risk of foreseeable injury (Conaghan & Mansell 1999, p.73). The third component of this case is that the plaintiff suffered physical injury to his head which in essence serves as prima face evidence (Patten 2012, p.35). Up to this point, it apparently appears to me that the defendant owed Bert the duty of care and it breached that duty by carelessly failing to put up the required toe boards for which the plaintiff sustained injuries from a falling tool. However, it is important to bear in mind that the injuries so sustained were made worse due to the plaintiff’s own failure to use the hard hats issued to him for that sole purpose. With that in mind, this case becomes a matter of contributory negligence. In Commissioner of Railways v Ruprecht (1979) 142 CLR 563, the court held that the petitioner could not escape liability since he ought to have taken reasonable measures to prevent the occurrence of such injury in the first place (Magnus et al 2004, p.138). Likewise, Careless Contractors Ltd would be liable in negligence up to the point of causation of injury for failure to put up toe boars that would have prevented the tool from falling and causing injury to Bert the Builder. Conversely, the Bert will be liable in contributory negligence since the damage was severed as a result of his own assumption of the risk associated with failure to wear hard hats within the construction site. Qs 3a: Obligations in the Sale of Property Unless otherwise stated in the sales contract, Mr. Careless only sold the house and not necessarily with the fixtures as part of the bargain. For that reason, he was free to take a way any accessories that he considered not to be part of the property he offered for sale. Notwithstanding the maxim caveat emptor, the law of sales requires the seller to declare the terms and conditions of the sales in an open and easily understood manner (Todd 2003, p.158). Secondly, the sale of property requires the exercise of utmost good faith. In making an the offer for sale of his house, Mr. Careless made the buyer to believe that the fixtures, rolled grass turf and shrubs in the compound were part of the deal. If the seller intended to carry with him these fixtures, he could have either removed them before the sales or articulated their nature in the terms of sales. However, Mr. Careless failed to do either of these pertinent facts in question. With that in mind, it is reasonably arguable that the buyer made his decision to purchase the house based on the information provided by the seller and the physical condition of the house including the presence of fixtures, turf grass and favourite shrubs. Perhaps the buyer’s decision could have been different had he known that the curtains, carpets, the American-style fridges and other landscaping attributes were not part of the sales bargain. He had no means of determining such details and he confided in the extent of truth presented to him by the buyer. While the burden of proof lies on the plaintiff, the court will not allow Mr. Careless to remove the fixtures on grounds of failure to disclose vital information that would have influenced the buyer’s decision. Such failures amount to breach of utmost good faith and the plaintiff would success in suit for damages (Craig & Búrca 2011, p.164) Qs 3b: Freehold and Leasehold Estates The proponents of Careless Contractors Ltd are looking for new offices for which they are seeking professional opinion on the differences between the two types of tenure. With that in mind, it is worth noting that the main distinction between freehold and leasehold estate relates to the nature of ownership. In freehold, the occupier owns the property as well as the land on which such property is constructed. The occupier reserves all the rights to undertake repairs and other responsibilities inherent in the practical maintenance of the property (McKenzie et al 2011, p.58). Though expensive, freehold property offers the occupier exclusive freedom to execute any maintenance and alteration works deemed necessary for the desired objectives of occupation. Besides, the property becomes part of the permanent assets of the buyer. It also allows autonomy of usage as shall be deemed fit by that occupier without undue external influence expect for municipal planning or other practicable legal regulations (Hovenkamp & Kurtz 2005, p.31). Freehold property is easily transferable without any need for state approval. In addition, no rent or land rates are payable on freehold property. These make freehold property more desirable than other forms of tenure. Leasehold property on the other hand does not fully belong to the occupier. The property is leased to the prospective occupant for a predetermined period of time as stipulated in the lease agreement. The occupier does not have any rights to alter the property or change its usage without the express approval of the leaser (McKenzie et al 2011, p.62). Secondly, the ownership of the property is reserved by the leaser and the occupier may only extent his stay until the expiry of the agreed term of tenure. In most cases, the land on which a leasehold property is constructed belongs to the leaseholder. Thus, occupation of leasehold property attracts land rates, rent or both depending on the nature of the lease agreement. This type of tenure is limiting and often associated with lost of bureaucracies with regard to maintenance, usage and rental obligations. It is however cheaper than freehold especially for shorter periods of tenure as observed by Hovenkamp and Kurtz (2005, p.79). Qs 4: Elements of Contract and Breach There are three specific elements that must prevail for any contract to be deemed valid. These include offer, acceptance and consideration all of which must be agreed by the parties to a given contract (Chadman 2009, p.12). Otherwise, the absence of one or more of these elements would render the perceived contract invalid. Where the parties have reached the prerequisite agreement for the performance of the contract obligations, failure to execute such obligations would amount to breach for which the injured party will have the right to seek legal redress. When making or tendering an offer, Careless Contractors Ltd must clearly articulate and communicate the offer to the other party or vice versa. Seek clarifications to ensure that each party has understood every bit of the subject matter including price, quality and terms of reference. It is also important to ascertain that the parties are not coerced or forced to entre into any contract under duress. Hawes (2007, p.22) argues that such approaches might be used in a court of law as defence for invalidating the contract. It should however be understood that an advertisement or price quotations are just be a form of invitation displayed to potential buyers to make an offer. Unless the buyer make necessary steps by implication or through agreed negotiation to buy the product or service at a given price and terms, such advertisements or quotations will not substantiate an offer. To that end, it is the buyer who will be tendering an offer to acquire the product or service at the agreed terms and condition. In any case, an offer would remain open to the interested parties until the end of a limited timeline or when a reasonable duration has elapsed (Chadman 2009, p.17). Having tendered an offer, the other party is at liberty to accept or reject the offer depending on the prevailing conditions with regard to the subject matter and price. Acceptance concludes an offer with the implication that bother parties to the contract are bound by the terms thereof (Bok & Micallef 1993, p.47). However, either party is under no obligation to accept a given offers if such offer does not meet their intended interest to the perceived contract in question. The last element of a valid contract relates to consideration. This refers to the reward or compensation received in return for the delivery of the specified goods or service. Consideration could be in the form of monetary value or an equivalent as agreed in the subject matter of the offer. Compensation can also be in kind where the recipient delivers a given quantity or value of service in return for the delivery of the subject matter. Failure to honour the obligation of compensation or delivering the subject matter agreed upon would be tantamount to breach of the contract. Delivering goods or services of different nature or subject matter contract to the ones agreed upon invalidates the original offer. The practice can also be interpreted as counteroffer for which the recipient has a right to reject or sue for damages in breach of the initial contract as held in Hyde v Wrench [1840]49 ER 132. The court differentiated this case be establishing that the defendant refusal to sale the land could not abide in law since the terms were different and thus amounting to counter offer. Breaching a given contract may also be remedied by means of specific performance of the contract in question. This refers to an action obliging the accused to perform his part of the obligation as per the original contract in cases where the court has determined that damages are not sufficient remedy for the injury, loss or inconvenience suffered by the plaintiff. In Sullivan v. Porter [2004]861 A.2D 625, it was held that the defendant was liable for specific performance in lieu of the breach in contract entered into with the Sullivan who suffered substantial loss resulting from defendant’s failure to perform his part of the obligation (Hawes 2007). The court may also award punitive or expectancy damages for breach of contract. This type of damages is rarely awarded. However, it serves as a warning to discourage intentional acts of breach or criminal intent endeared to frustrate the effort of innocent parties to a given contract. In Hawkins v McGee [1929]84 NH 114, the court awarded the plaintiff expectancy damages in compensation of the inconvenience suffered as a result of the defendant’s intentional failure to honour the contract at a time when the plaintiff had loss all other opportunities in favour of the contract in question (Bok & Micallef 1993, p.106). References Alexander, B 2009, Legal theory and the Sources of Law, IOS Press, Washington, DC. Bok, P & Micallef, S 1993, Introduction to the Law of Contract, Adelaide College of TAFE, Adelaide. Chadman, C 2009, Contracts and Partnership: Essential elements for a complete and binding contract, Bridge Publishing Company, Getzville, NY. Chalmers, D, Davies, GT & Monti, G 2010, European Union Law: Cases and materials, Cambridge University Press, Cambridge. 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Patten, B 2012, Negligence in Construction, Taylor & Francis, London. Ramsey, V 2007, Construction Law Handbook, Thomas Telford Publications, London. Todd, P 2003, Materials and Cases on International Trade Law, Sweet & Maxwell Publishing Group, London. Read More