Law and Some Questions - Essay Example

Question 1 Employment Law Law can be defined as a system or rules that are usually enforced through social institutions, for example, the government, and they help to govern behavior. There are a number of ways to make laws, and these includes through legislations and statutes of parliament. Additionally they can be made by an executive and in such a case leads to regulations or decrees or by the effect of judges in court, hence, being referred to as common law in its own jurisdiction. Laws can also be created through contracts and this may include arbitration contracts which may serve as alternative arbitrations in the normal court of law (Holland & Burnett, 2012). An example of a contractual case law that was used to create a law determining consequential damages is the 1854 case of Hadley v Baxendale. Under this case, the courts made a ruling that a party that breaches a contract, is under an obligation to pay the other party damages arising out of the breach of the given contract. Any law that is formed, must be influenced by the constitution whether it’s tacit or written. Thus, laws influence politics, historical events, economics, and the society in general in very many peculiar ways, hence serves as a good mediator between people as they interact with each other. It is possible to distinguish between the principles of common and civil law. Civil law here in referees to the laws through which civil bodies constitute themselves, a good example is the socialist law and the catholic canonical laws (Cooper, 2013). However, when it comes to common law, things are different, in it, there is a judge based precedence hence abiding the law. Historically, a lot of religious laws played a very major role I the solving and settling of a lot of social conflicts. Let it be acknowledged that in modern religious communities and most particularly the Jewish community and the Islamic community in relation to the Sharia law are the common religious laws in use. Adjudication of laws is usually mainly divided into two sections these are criminal law and civil law. Criminal law in this particular case deals with activities that are considered harmful or disrupt the existing social order, hence, those found guilty might be imprisoned or receive other forms of punishment (Cooke, 2007). There is no need of confusing the elements of a civil law, with that of a criminal law. However, it is under the principles of civil law that a special kind of law exists. Law has its own legal theories, many of which exist due to philosophical works. The philosophical work of law is referred to as jurisprudence (Lewis & Sargeant, 2013). This is also referred to as political philosophy and it is from it that law bore its roots into existence and has slowly developed over the years to a complex body that regulates and gives light to many conflicting ideas among people and nations by shedding light on how to interact with each other in what is the right thing to do or not to do. Contract law In the field of law, a contract is generally consider as an agreement which is lawful and participants enter in it voluntarily (Barnard, 2012). Each of the parties involved have the intentions of creating legal obligations between them. It is important to note the elements of a contract which are offer and acceptance. This offer and acceptance is done by competent people i.e. having the legal capacity to interact and fulfill what is there in the contract. In Carlill versus Smoke Ball, the courts were of the opinion that a contract cannot exist if there is no offer and acceptance. For a court to enforce the elements of a contract, the parties to it must prove the existence of these concepts of acceptance and offer. Furthermore, in case, the court made a distinction between an invitation to treat, and offer. These two are different. The proof of all the above mentioned elements can either be noted down in writing, however, some contracts are made either orally or through conduct. Contracts are kept in line by a remedy referred to as damages. This remedy is a response to breach of contract and can take the form of money, or special injunctions demanding a specific action be done by the party that has breached the contract. Contracts are legally enforceable promises to that state that something shall or shall not occur. Note, this concept of the promise, is a legal term in the formulation of the contract. However, it is advised to use precaution as a promise shall not hold the true bearing of a contract (Cornford, 2013). Contract law changes and portrays different characteristics from one institution to another. These are the principles depicted in the Latin phrase pact asuntservanda, meaning that it’s important and a must that agreements be kept or pacts must be honored. Contract laws are classified in the wider category of civil laws, not forgetting to mention that they form the general law of obligations and this goes along with tort laws, restitutions, and unjust enrichment. Contract law is said to have originated from a tort action that was based on reliance commonly referred to as writ assumpsit. Contract law varies from jurisdiction to jurisdiction especially. Take for example in England and Wales. The laws in the country requires a high degree of freedom while entering into the contract. There are other legal systems for example the Islamic law, socialist systems and so on and so forth that have their own variations when it comes to freedom in contract law (Williams & Scott, 2013). However, it is important to denote that not all agreements have a contractual obligation. This is because some of the contracts do not fulfill the provision that is set up by the law. An example of such a provision is the intention to be legally bound by the elements of the contract. Therefore, if a contract cannot be enforced by the law, then it is not a contract. It qualifies as an agreement (Barnard, 2012). Capacity is an important element of a contract; others include consideration, assent, and lastly legality. However, it’s important to note that in particular countries the element of consideration can be substituted as long as it gets a validated substitute. The possible remedies for breaching a contractual agreement that constitute the broader term damages includes general damages, consequential damages, reliance damages and lastly performance. It is the case law of Hadley v Baxendale that established these principles. However, this does not happen all the time, especially if there is lack of evidence for example, the Humber Ferryman’s case, where the ferry man dropped a horse he was supposed to transport across river Humber, but damages could apply to this particular case since there was no evidence. Contracts are promises that the law steps in to enforce, the contract laws provide remedies in case the promise is breached and this is mainly because it recognizes the performance or fulfillment of a promise as a duty (Wilcox & Youngsmith, 2014). Contracts mainly arise to safe guard each and every party in it that particular promises made particular parties shall be full filled and if not then a particular action in accordance to the law shall take effect (Brown, 2014). For the contracts to be legally binding, they must be passed by the parties for consideration, consideration here is very important, this is because particular promises that are not considered as contracts might be limited to being enforced on either on of the parties through contract laws. In Thomas versus Thomas 1842, the court denoted that consideration must be something of value. However, this is with the exemption of promises of love, gambling and betting. Take for example, the promise of receiving a gift may not pass the consideration phase as would a promise to complete a particular task by a particular time on to which does the receipt of the final payment gets awarded. It’s important to note that contracts are mainly regulate by private law and judge made law, private law mainly involves the terms of agreement put down by the parties involved in the contract. However, judge made laws also referred to statutory laws may require that the content of the contract be put down in writing as well as being executed in specific formalities. Conclusion It is important that each and every institution be well knowledge with information about laws. This involves civil laws, and criminal laws. This is mainly because they help individuals as well as organizations and institutions realize the jurisdictions from which they operate in. Question Two: Tort Laws Tort laws are common law jurisdictions, a tort on the other hand is an unfair act or a civil wrong. Torts mainly cause individuals to suffer a lot of losses or harm unfairly that in return results in legal liability for the person responsible of committing the tort act. This person is commonly referred to as the tort feasor (Twomey, 2012). It is true to admit that most crimes are usually torts, however, according to the course of legal action, tort are not necessarily regarded as crimes. This is mainly because the harm caused to an individual might be as a result of negligence, hence, does not at all amount to criminal negligence. The victim of a tort can recover their losses from a lawsuit. The plaintiff is the main lawsuit when it comes to torts and it must show and prove that the lack of action or action taken is the main cause of harm to the individual i.e. tort. It’s important to note that in civil law, the equivalent of a tort is a delict. Tort laws are valid, this is arguably because legal injuries are not only accounted for by physical injuries but also emotional pain, violations to an individual’s privacy, constitutional rights, property, and economic as well as reputational injuries sum up to legal injuries (Price & Nielsen, 2012) . Torts are broad in scope and they include such things as copyright infringement, false imprisonment, product liability, defamations, auto accidents, and environmental pollution and degradation. A lot of tort violations are mainly out of negligence, however, tort laws recognize intentional torts and in it aparticular individual has acted intentionally and his or her actions have caused harm to an individual (Bales, Hirsch & Secunda, 2013). It is very essential to note that tort law is very different from criminal law in that; Torts may result from a person’s negligenceor as due to an intentional or criminal action. Lawsuits in tort have alower burden of trying to prove Torts laws can trace their origins from Roman law which was the only law dating past the medieval period to contain provisions on torts which were in the form of delicts. They later influenced civil law jurisdictions in Europe. However, it is important to acknowledge the fact that a distinctive body in law was born in the common law word and it’s traced in the English tort laws. The term tort laws was used I the 1580s in the legal sense though it’s good to mention and admit that different words were used for it before then but held similar meaning. Modern developments of tort laws The English tort laws have influenced tort laws in a lot of jurisdictions. One of the jurisdiction influenced include the United States of America, hence, many states now seek to provide a form of redress for tort victims. I is important to note that also reception statutes were also adopted from the English law. However, over the years, the law of torts has developed an experienced a lot of changes in various jurisdictions (Krauss, 2012). A case study conducted in the United States of America indicates that there are several modern developments and some of them include the limitation of various immunities, liability for particular products, broader and more elaborated rules that govern the provision of evidence, increase damages for; toxic torts, emotional distress as well as class action lawsuits. However, despite all this changes, there have been several forms of reforms commonly referred to as tort reforms and in many cases have been stack and brought down violations to state constitutions in the United States of America (Lewis & Jefferson, 2014). There are things that affect modern torts and his include elements such as insurance and laws that regulate insurance i.e. insurance laws. This is mainly because they are usually settled through the adjustment of claims rather than by court trials. Additionally, it’s the task of insurance lawyers to act in their defense and not tort lawyers. Torts may be categorized in various ways, however, the main line between the distinctions of the two lies on whether the tort was intentional of solely due to negligence. Notably, there is the term Quasi-torts, which is mainly used in England and the United States of America tort laws to imply to a case similar to a tort but somewhat different from a tort (Wilson et al, 2012). In developed economies, he term collateral tort is also commonly used and its implications lied on emotional distress caused an intentional infliction and is mainly found in labor laws. However, despite all of these categories, the standard cause of action of a tort is negligence. Negligence creates a reason for action which later translates to relief or damages which serve to protect the legal rights of an individual including those of intangible economic interests such as in the case of Sarah, property, legal rights also as in the case of Sarah and finally personal safety, for example the tort of negligent infliction of emotional distress found in laws of the United States of America. Negligent torts may include torts mainly in car accidents, a workers negligence, or the negligence of those in charge of a recruitment process. In product liability there are cases of negligence and this revolves around warranties issued to commodities as they are considered negligence actions, hence, Sarah’s case falls in this category, a tort as a result of negligence. The land mark case of Donoghue v Stevenson is a special example of a tort law on negligence, where madam Donoghue consumed a drink that had a dead snail in it, however she could not sue the shopkeeper for negligence mainly because the drink wasn’t bought by her friend and not her, so madam Donoghue had no option but to sue the manufacturer of the drink Mr. Stevenson. Intentional torts on the other hand may include such activities as torts arising from somebody’s deliberate occupation of land that does not belong to him or her i.e. land grabbing, in this particular category falls the tort of nuisance where maybe a particular neighbor with the other causing them a lot of emotional pain (Keane, Clarke & Chapman, 2012). It is true that not all intentional torts involve land issues, and this may include false imprisonment which causes emotional pain to individuals, as wellas cases of defamation where false information is published about aparticular person or institution thus tarnishing their name and reputation and this does not apply to Sarah’s case. As the human resource executive it is important to recognize the proximate cause of Sarah’s complaint when analyzing and considering the legal actions when it comes to the above identified case in this second question. Proximate cause meansthat incase Sarah sues Magley Custom Kitchen, there must be a clear link between her emotional pain and the tort being sued (Ozanne, 2015). Additionally, it is important to note that the as the defense it can be argued as well as proven that there might have been a superseding cause or prior cause to the tort but not necessarily did the final action taken result in the tort. Herein implying, that the rules of recruitment should have not insisted on age since this would lock out a lot of individuals, for example, Sarah, that despite her older age had worked for Magely Custom Kitchen though not on permanent basis had more experience in the field and again had acquired higher academic grading as compared to the younger alternative that received the job. It is also important to realize the tide might not followthe above assumption. If at all Sarah applies a tort sue it might not necessarily be based on negligence but might follow the line of an intentional tort (Piekarz, Jenkins & Mills, 2015). Intentional torts as described above are acts committed intentionally and without reasonabledoubtcause a lot of harm to individuals. It is clear that intentional torts are in various categories and this increases the probability of Sarah’s case falling into either one of them. These categories include; torts against a person, and property torts; Torts against a person Intentional torts that fall under this category include false imprisonment, fraud, economic tort, battery and intentional infliction of emotional pain. Property torts Property torts mainly involve intentional interference by an individual with an individual’s property, and this entails both physical and intellectual property. On physical property they include trespassing on land that, land grabbing, stealing of intellectual property, or unjust judgment passed of good intellectual property. These kinds of torts are based on some form of ill attempt and definitely causes harm to an individual. Hence, the case might take it as either one of these torts, since it can be seen that it was well clear that she had been trying to get full time employment in the company yet knowing that she was well educated and experienced for the job, they put an age restriction that locked both her and others of older age like her. A tort might also come in in the sense that her intellectual property, since she has been working for the company, not in a permanent based position for a long period time, her not being considered as a candidate to fill the position might appear as though the company applied the strategy in which it has used up her intellectual property designs when she was younger and now that she is olderit is seeking for younger fresher ideas and render hers as old and retrogressive. As the human resource manager, it is important to consider all the possible legal standpoints these turn of events might take. Hence, the last possible tort claim this case might take is the business tort. Also referred to as an economic tort, a business tort majorly involves commercial transactions. This might involve tortious interference with trade and work contracts, falsehood that injurious, fraud, negligent misinterpretation. Negligent misinterpretation torts are quite different from contractual torts. This torts might apply in the above case, however, it’s important to note that from the above definitions and descriptions of a contract in question one, Sarah’s case does not fall under the contractual tort category since there was no contract between Sarah and Magely Custom Kitchens. Negligent misinterpretation torts are different from other torts mainly because they involve pure economic loss and they are determined by applying the foreseeability doctrine. In Sarah’s case there is pure economic loss on her side and this qualifies it as an economic tort. Yet again, despite there being the setting that the company wants to expose the young designer image, proper considerations must have been put with regards to the standards of age. In addition, it is clear that Sarah noticed in the application that it required people of less than 40 years yet she decided to still apply and should have used this knowledge to foresee the outcome of her application. Conclusion Knowledge on civil laws is important especially ample knowledge of tort laws. This is because this law may guide the implementation of policies in the company, for example in the case presented in the second question, where age restriction should have been well considered. References Bales, R. A., Hirsch, J. M., & Secunda, P. M. (2013). Understanding Employment Law. LexisNexis. Barnard, C. (2012). EU Employment Law, 4 uppl. Barnard, C. (2012). EU employment law. Oxford University Press. Brown, D. (2014). Overview: Employment Law. Cambridge J. Int'l & Comp. L., 3, 272. Cornford, T. 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