The Opinion of Government Noninterference - Essay Example

CONTRACT LAW WORK Inserts Grade Inserts 25th April, PART A Laissez-faire was of theview of allowing people to act as they reason best deprived of the interference or minimal interference by the government allowing the societies to function freely.1 His conviction is that order occurs where it is uninterrupted by principles to attain maximum welfare of the community. The French physiocrats disapproved taxation of goods and merchandise in the colonial periods, trade monopolies and regulations were a significant burden to the rising class in that period with the introduction of this philosophy. The opinion of government noninterference was overruled during the 20th century whereby the state was regularly called upon to reserve freedom of competition where it appeared to be in danger of disappearing, unfair competition arose when the businesses combined with competitors to control prices and encouraged monopoly. Critics of laissez-faire point out of the least concern for the underprivileged in the general public by the idea that it rather offers aid to the well off in the society and oppresses the poor. Dickens’s (1812–1870). Others, though, like Frank Knight (1885-1972) stayed of the opinion that its intended for a freedom of choice on trades by restraining the government engagements to only defense against foreign intrusion, upholding justice from cruelty within the society and sustaining of vital establishments in the society. The critic’s reason that it claims individual quest of self-interest and freedom of choice using absolutely zero governance rather than the restricted extent, advocates, on the other hand, argue how benevolent social order can result from individual freedom of choice. Adam Smith and laissez fair claim that government involvement should arise only when a person’s freedom of choice will hinder with public well-being and when administration officials would be in a state of knowing better that which is in a man’s interest than he would be himself. Smith drew the line on self-interest and freedom of choice, freedom of choice assist an individual to evaluate the best option of action for himself. Self-regard, on the other hand, is someone’s disregard of others in his pursuit of his welfares. The law of contracts is a branch of civil law, the parties’ mental state in the form of information and intention is assessed; the question arises whether the agreement involved was legally binding.2 Philosophy of laissez-faire in the setting of contract law lets a person go into whatever contract with his or her choice unhindered and subject to limited exceptions such as contracts offensive to rule and ethics. Men of competent understanding and full age shall possess full freedom of contracting and enforceable by courts of justice. Thus, limitations to freedom of contract were unlawful or offensive to public policy. Private property rights were freedom of contract (also called liberty of contract). This was a private law concept imported into constitutional jurisprudence in the heyday of substantive due process. This destined that asociations entering into a contract and offering their decision to its relations should not to be restricted by the state but save to protect the welfare, health, and ethics of the community or to sojourn criminal acticivites. Other judges assimilated this doctrine into the Constitution by basically interpretation the Fifth and Fourteenth Amendment bars upon denial of liberty and property deprived of due process. This reading involved trusting individual with a constitutional right called “freedom of contract,” which, like all other constitutional rights protected by the Amendments, allowed them freedom from government intrusion. Any party could, therefore, invoke the due process clause and probe a court to estimate the practical effect of any economic rule intrusive of her contractual freedom Laissez-faire constitutionalism remained greatly influenced by the classical paradigm. During those decades the Supreme Court, having directed over the lower courts, used the practice clauses that are present in the Fifth and Fourteenth Amendments to the Constitution of the United States, so as to hold unconstitutional various national and federal laws that reduced the freedom of contract. Subject to these restrictions, however, individuals in the contract have appreciated the overall freedom of contract undue judicial engagement. The Lochner era, having been branded as a time when American courts, were driven by the wish to further the comforts of the capitalist class, deprived the initial significance of the due process. Clauses in the Constitution supported the laissez-faire belief, in that it was a genuine reading of legal principles relating to the economic rights of American citizens and therefore it relates to present laws of contract by permitting freedom of choice. Laissez-faire ideas are treasured in American constitutional values, especially in the rule of the contract through freedom of choice. First are the presence and effective working in the free markets of a financial mechanism leading market prices to resolve at their acceptable level. As a result of this idea, classical economists claimed that when normal prices prevail as a result of being under a form of comprehensive market freedom the benefits to society are the greatest social and wellbeing is maximized without the influences of the government or minimal influence. Second is the idea of competition as the universal law of economic dealings in a free society while monopoly, when not sustained by government privilege, is only a brief phenomenon. This is a form of freedom of choice in a free culture and, therefore, underpins law of contract by allowing the people to engage in contracts without an external influence but by someone’s free will. Third is the natural law footing of the ideas of freedom and individualism. It is immediate to recognize the classical origin of all three as a way of supporting the law of contract through freedom of choice. Therefore laissez-faire then means freedom of contract, that is, the option for any grown-up individual to bargain deprived of any external constraint, first and foremost inhibitions arising from the state. This idea follows straight from the authorized protection of property rights and of the worth of possessions itself. Since worth is determined by the marketplace and shows up through contractual activity like exchanges, possessions are protected only when the individual is free to go into any contract he deems proper to earn the value of his property.3 Contracting is a vertical activity. It depicts laissez faire as freedom of contract means to put emphasis on vertical competition. This was the kind of struggle classical economists stressed the most that was the struggle between a buyer and a seller, each one trying to get the most of the bargain. The idea of laissez faire as contractual authority transcends economic theory and draws its attractiveness from higher values, such as the protection of a person’s independence, personal freedom and the possession over the fruits of one’s own labor. PART B Question b (i) Marcus is a builder and seeks legal assistance to recover the money that he believes is owed him by Elsie, Safina and Gary. When an individual consents to a job offer, they have engaged in a contract with their employer. Contractual agreements could be: In a written formor any other document similar to a written statement of employment, in collective agreements - negotiated agreements between employers and trade unions or staff associations and verbally agreed to form of statements and implied terms. Implied terms cover situations whereby there is no clear agreement between employee and employer about a particular issue, they are automatically part of a contract even if they are not written down, for example, employees dont steal from their employer. Compensation: If an employee wins a case about another issue, for example, unfair dismissal, the assigned tribunal may award compensation The Terms of Employment (Information) Acts 1994–2012 state that an employer is supposed to offer his or her employee a statement of terms of employment within the first 2 months of the start of employment, this should be in written form. However, such requirements are not strict to employees who have been employed for less than a month and as in our case short contractual jobs that the Plaintiff Marcus did for the three defendants. Marcus vs. Elsie Most employment contracts do not have to be in writing to be legally valid, but it is better if they are. A truly implied contract consists of the responsibilities arising from a mutual agreement and intent to promise.4 An offer is a promise that is, by its terms, conditional upon an act, forbearance, or return promise being agreed in exchange for the promise or its performance. In our case Elsie made a promise to Marcus, it is a demonstration of readiness to enter into an agreement, with this, made the other party is right in understanding that his or her agreement to the bargain is called and will conclude it. Any proposal must consist of a declaration of present intention to enter into a contract, a certain proposal that is certain in its terms; and communication of the offer to the identified, prospective person offered. When one of these elements is missing, then there is no offer to form the foundation of a contract. Exceptions to this rule requiring the terms of a contract to be definite and certain are contained in the second article of the Uniform Commercial Code (UCC), whereby it permits the courts to suggest reasonable the missing terms in the contract if the crucial terms definitely prove the mutual agreement of the parties. The agreed performance by the offer provides the necessary consideration and also works as an acceptance of the offer. Implied contracts are legally enforceable.5 Employers and employees are anticipated to abide by the terms of the implied or oral contract, and when the contract is broken or breached, parties can to earn a breach of contract case, one need to establish: the existence of a contract, break or breach of the contract, the proper party to sue is the defendant and the loss was incurred. As a plaintiff, for appropriate legal action, essentially it should be proven that: there is identity of the debtor. There is existence of a contract with the debtor, that you kept your promises under the deal (normally that you provided the goods, services, or loan) and that the debt that hasnt been paid. Marcus is to confirm damages he has incurred through financial difficulties experienced in his job as a result of the unpaid works. Damages resulting from a breach of contract are normally not difficult to prove. After showing that the contract existed and that the other party failed to meet its terms, Marcus should testify as to the dollar amount of damages you have suffered as a result. And when appropriate, evidence needs to be introduced in order to persuade the judge that you really did lose this amount. In our case Marcus business suffered dearly due to the depths of unpaid services. Marcus vs. Safina Payment and ownership of possessions do not establish acceptance of the property, and goods may be rejected even after payment and physical ownership of the goods have occurred, if the goods fail to conform to the contract in any respect. In our case the jewelry did not conform to the amount owed. The plaintiff Marcus should sue Safina for false advertising under Business and Professions code 17500, violation of the Consumer lawful remedies act, intentional misrepresentation by Safina’s, negligent misrepresentation by Safina’s, breach of implied warranty and express warranty, and concealment. Safina’s conduct and allegations of false advertising pertaining to fake jewelry that were given to Marcus as “real” or “natural” and were not.  Unfortunately, consumers like Marcus do not possess the knowledge or the expertise to know when they are given jewelry that is not real and should be protected under the consumer’s right. Safina on the other hand being a jeweler has sufficient knowledge on the value of the jewelry she gave Marcus. Marcus had the right to full disclosure from Safina on the real value of the jewelry. Also, his right to fair and honest dealing was violated the Consumer Protection Act, no. 68 of 2008 prohibits the creation of false or misleading impressions. This issue applies to their advertising and information provided. Marcus vs. Gary By law, an employer cannot make deductions to an employee’s salary only on the special occasions like government taxations or mutual agreement.6 Under the Employment Rights Act, an employee is entitled to full payment of your wages. A written grievance should assist Marcus to be able to take the matters further Breach of Contract Remedies When a contract is breached, the other party is entitled to a remedy or relief under the law. The main remedy in our case is damaged; it is most often used for a breach of contract and payment in one form, or another is made to the non-breaching party by the breaching party. There are many kinds of damages, and generally speaking damages can be very precise to the kind of breach that has occurred and therefore the judge should consider the amount of damage the plaintiff incurred. Compensatory damages try to put the plaintiff to the status that they had been if the breach had not occurred. . Question B (ii) In the case of Rosie, Anthony was under the law obliged to reveal relevant information unknown to the person with whom he transacts parties in a contract must divulge information to her counterpart, even in the lack of explicit misleading declarations. In our case the silence of Anthony can be seen as a misleading in the context of full disclosure by telling the whole truth, omission of the truth is still a lie in itself Act of Negligence that leads to Personal Injury Suppose someone is injured due to another persons negligence. In order to succeed in personal injury suit, the following elements need to be revealed:7 Duty - This element that the defendant owes a to the plaintiff to perform as per the terms of the contract, it arises in various forms that are approved by the law. For example, drivers on the roads have a responsibility to drive in a safe manner that does not put other drivers on the road in danger. in our situation, Anthony had a duty to inform Rosie on the health condition of Cassandra before selling to her; full disclosure. Victor has a duty not to have and hand out drugs that are untested and the side effects are not properly understood. Breach of Duty - After defining the duty, a decision must be made as to whether or not the defendant breached the obligation with respect to the plaintiff. In order to prove this element, one must indicate failure by the defendant to act as a reasonable person would do in achieving the duty owed to the plaintiff. Anthony breached this in the context of full disclosure. On the other hand Victor breached duty in the form of negligence in trading and advising his customers. Cause in Fact - Show that, but for the defendant’s actions, the accuser would not have been hurt, to fulfilled this element. For example, the second defenders Victor acted with negligence by not offering full information on the full side effects of the drug. Victor being of experience in veterinary should have refused to give the drug to Cassandra. Cause in fact is also applicable to the first defendant Anthony.. Were it not for his omission Rosie would never have bought the Cassandra and therefore would never have been injured. Proximate Cause: This relates to the proximity of the defendant’s actions to the harms that were caused. For example, the first defendant Anthony mislead Rosie into buying a sick dog which leads her to desperate measures of trying to cure the dog by resorting to new untested drugs with no clear side effects. Cassandra became extremely aggressive and attacked the plaintiff and injuring her, he may be outside the proximate cause of the defendant’s actions, but still his actions lead to injury. an air of "sfairness" around it, and often asks whether it is fair to attribute the injury to the defendant’s actions.8 Damages: Rosie must be able to prove damages. Through her personal injury, for example, damages often include medical bills as well as damages for pain and suffering caused by the injury. Emotional damages can also be included Question b (iii) Failure to Perform Sometimes, a breach of contract suit emerges not from a refusal to pay a bill, but because one party assertions that the author failed to carry out one or more of the terms of a contract. In our case Dj Charlz was contacted by Shabnam for installing a sound system for a concert and had also agreed on dates and payments. Break of Contract Instead of Dj. Charlz showing up on time, he shows up two days later not as agreed in the contract, Shabnam should sue as break of the contract has been done by Dj. Charlz. To show a breach of contract one should point out that: A valid contract existed - For someone to even start a breach of contract suit, there must be proof of the existence of a valid contract between the parties involved. A written contract oral agreement or some other handshake agreement can be proof of a contract, and in our case a valid contract existed between the defendant and plaintiff in which the plaintiff Shabnam had ordered the services of Dj Charlz and agreements on payment had already been completed. Performance - One must be able to show that his or her end of the bargain was accomplished under the terms of the contract. In this situation, Shabnam had performed her part in full to the contract, thus fulfilling your obligation in order to succeed in showing a breach of contract action. Breach - It seems pretty straightforward that in order to win a breach of contract suit, you must prove that the other party breached the contract, meaning that they did not do what they promised to do. Here, Dj.Charlz did not complete his end of the contract and therefore a breach of the contract. Damages - Here, the plaintiff should be able to prove economic damages incurred as a result of breach of contract. For instance, in this situation, it should be shown any a loss in profits in the damage calculation. The normal form of compensating parties for a breach of contract in the American arrangement is to grant a sum of damages that will put the injured party in the position that he would be if the promise was accomplished. Under the common law, this is done by awarding damages calculated by the value of the performance promised. Here the emphasis on damages is pecuniary or monetary. The opposite occurs with civil law systems that generally favor specific performance as a remedy for breach of contract instead of monetary damages. Professor E. Allan Farnsworth is off the stand that some interests are secure under the law; an example of this interest is the expectation that the injured party had when creating the contract. Expectation interest is when the Courts safeguard a person’s interest by having to put that individual in a respectable position they would have been in had the contract not been done. The reliance interest is when the court enacts a promise by protecting the plaintiff’s reliance instead of the plaintiff’s expectation. The court tries to restore the hurt individual back to the situation that the individual would have been had the contract not been undertaken. The purpose of all these here is to undo the damage that the plaintiff’s dependence on the defendant’s assurance has caused. However, a court can also identify a third interest, the restitution interest, by allowing compensation to the plaintiff, here, a court tries to place the individual back to the position that the party would have been had the contract not been made. The object here is the prevention of gain also known as unjust enrichment by the defaulting party at the expense of the promise. Shabnam’s claim of damages for loss of profits on the opening night is justifiable as it was included in the contract she had with Dj Charles in which they had both agreed. She should seek damages on the payments she had given and the interests that would have accrued with the opening of the discotheque. For example, any late supply is seen as a material breach in a contract for the trade of goods if it provides for a definite delivery date or states that time is paramount. She should file for General Damages. General damages cover the damage directly and necessarily incurred by the breach of contract. General damages are the most common type of damages given for breaches of contract, the usual form of compensating parties for a breach of contract with the American system is to award a sum of damages that will—to the level that money can—put the injured party in the position that he would have been had the promise been performed according to the common law, this is achieved primarily by awarding damages measured by the value of the promised performance.9 On her claim for loss of profits in the pre-opening private party Law of contract assigns damage to the initial terms. The Dj was not informed of any reopening party and therefore he is not liable for any losses that Shabnam incurred in that event. The Dj’s pay in the contract is not inclusive of services that are to be offered at the reopening party. If she is to seek damages here,she has to give careful consideration in line with principle of assessment and proof direct losses in this preconcert as a result of Dj Charlz of failure to perform in the concert. These are real damages produced by the breach, but not in an instant and direct way. She can proof that due to the public and open knowledge of the Dj’s failure to arrive lead losses as one event can affect another. Special damages cover any loss incurred by the breach of contract because of special circumstances or circumstances that are not normally predictable. To obtain compensation for this type of damage, the non-breaching party must prove that the breaching party knew of the special circumstances or requirements at the time the contract was made which in our case has not yet proven. She can claim for damages for the emotional distress she suffered, as a result of Dj. Charlz failure to perform the contract on time, causing mental anguish to the plaintiff. It is the burden or inconvenience that certain conduct creates the right to receive no pecuniary recovery to a person. This is a damage that is in the personal sphere of an individual and cannot translate into monetary terms. Most often this might be characterized as is suffering and emotional pain. Damages for emotional suffering may be given when a breach also triggered physical harm or even when the breach is such that serious emotional disruption was a very likely result. Acts is accompanying a breach of contract that are wanton, reckless, abusive, or willful also merit emotional suffering problem. An example is Kastely notes of the Supreme Court of Hawaii, plaintiffs had exhausted money and effort in belief on the promise of a lease for a restaurant in the Pearlridge Shopping Center by the defendant who acted irresponsibly and involved a third party and denied the plaintiff that which they had negotiated, thus allowing emotional distress damage to the plaintiff. This relates to our case in that emotional distress occurred to the plaintiff as a result of the defendants actions, she was not able to open the discotheque in time and considering the tickets that were already bought by her friend who were expecting a good time. Bibliography Secondary Sources Books Andrews N, Contract Law (Cambridge University Press 2011) Bogg A and others, The Autonomy Of Labour Law (Bloomsbury Publishing 2015) Epstein L and Walker T, Constitutional Law For A Changing America (Sage 2012) Epstein R, Contracts Small And Contracts Large (The Law School, the University of Chicago 1997) Richards P, Law Of Contract (Pearson Longman 2006) Taylor R and Taylor D, Contract Law (Oxford University Press 2009) Journal Articles Brömmelmeyer C, Principles Of European Insurance Contract Law (2011) 7 European Review of Contract Law Grundmann S, The Future Of Contract Law (2011) 7 European Review of Contract Law Read More