English Legal System, Contract Law, Business and Law - Assignment Example

1. It can be d that during the contemporary period, most of the law used does not only come from Parliament but from cases that were decided by the judges on the basis of previous decisions made which is known as case precedent. This is also called common law and it has a strong background to the English legal system which is also called the doctrine of precedent or “stare decisis.” However, the courts do not necessarily need to stick to their past decisions but need to adapt the inherent basic principles of common law in order to deal effectively with the complexities of modern organised society (Pearl Assurance Co v Union Government) 1934 AD 560 (Gibson, 1988). Changes can be made to the doctrine of precedence or codified into statutory type by the legislation or judicial to suit the situation on the ground. 2. Ratio decidendi posits to the effect that every court is bound to follow the decisions made by the court above it and this concept is more concerned with reasons for making the decision (Cross & Haris, 1991). In some cases, decisions made by the judge do not constitute a precedent though they may be tied to it. On the other hand, obiter dictum is an opinion given in the court that may not be reflective of stare decisis as is the case with ratio decidendi. A good example of ratio decidendi is the case of Bole v. Horton, Vaughan 360 at 382. A clear distinction between the two is that the judge can give his own opinion in obiter dictum which may not be tied to any precedent. 3. Negligence can be described as a civil wrong as a result of breach of duty care owed to the neighbour whereby a reasonable person will not be expected to do such action and the plaintiff must prove that the defendant owes a duty of care (Donoghue V. Stevenson 1932). In order to win the case, it is important for the plaintiff to prove that the defendant owed duty care and has been breached which may result in the subsequent injury of the neighbour. In order to establish the existence of day care duty in the courts, certain conditions should be proved. Under the case of Capiro Industries vs. Dickman (1990), the following conditions should prevail in order for the courts to prove that duty care existed and has been breached. These include the following: foreseeability, proximity as well as reasonability. The forth condition is that of causation whereby it can be proved that the action of the other person has resulted in the injury or loss of property by the other third party. In some cases, duty care may not exist. 4. In contrast to the normal test of tort, the duty care owed by professionals is more clear and distinct. It is the duty of the employer to take all the responsibility over the employees. For instance, a physician has more duty care for any patient under his or her custody. A dentist for instance will be liable for negligence behaviour if his actions result in the injury of the patient and can be liable to compensate the victim if the court can prove beyond any reasonable doubt that the doctor has been negligent in his conduct. The medical practitioners have a duty to ensure that they do not cause further harm to the patients under their custody given that they would have been vested with trust under their contractual obligations to owe the duty of care to all the patients. Lord McMillan in Bourhill v Young [1943] AC 92 (HL) also suggest that resultant shock from a particular action of the physician can be treated as breach of duty care. In the workplace, the employer must make sure that the working environment is safe. As such, the duty care owed by the professionals is very clear. 5. Once the plaintiff has proved that day of duty care owed to him has been breached, there will also be need for the courts to apply relevant tests to determine the issue of “causation” in negligence. The test involves two elements namely factual and legal causation. Factual causation can include the actual causes to damage or injury or a combination of different factors. For example, the case of McGhee v National Coal Board [1972] 3 All ER 1008, HL illustrates that the actions of the defendant increased the chances of the claimant of getting injured. The legal causation is the other test whereby the court needs to prove the remoteness of the damage or the injury in order to establish if the claim is not farfetched to warranty some damages 6. The maxim res ipsa loquitur means that certain causes of an accident will be glaring such that they can speak for themselves whereby the claimant can prove to the courts that the result of harm to be caused by an accident but may not have the knowledge about how that accident has happened. On the other hand, the claimant can prove that the accident has been caused by negligence especially on behalf of the employer. For instance, in this case of Byrne v. Boadle (1863), the maxim res ipsa loquitur is applicable given that bags of sugar usually cannot fall out of the windows of a warehouse unless there has been negligence on behalf of the responsible person. The cause of the accident has to be identified in order to apply this maxim to the case of negligence. 7. The significance of the law relating to negligence of liability acts for pure economic loss and consequential economic loss is meant to deter, offer compensation as well as loss distribution in the event of damages as a result of negligent behaviour by the defendant. The economic loss or damage has to be legally recognised such that compensation can be given in the event that there has been an economic loss caused by certain actions of another person. Fire caused by someone to a shop for instance as a result of negligent behaviour of the defendant can result in consequent economic loss whereby compensation can be warranted. However, pure economic losses may not be recoverable It is also significant for the courts to establish the extent to which damages can be offered in the event of consequential economic loss to someone. Some losses may not be a direct result of negligent behaviour hence there ought to be recognisable law that protects the interests of different parties. 8. A promissory estoppel is a legal concept that is related to promises made between parties in the formation of contracts (Gibson, 1988). In most cases, these promises are not written down but they can still be effected in order for the other party to recover something promised by the other party. A promise can be made without serious consideration in some instances but this cannot stop the other party to recover something that has been promised. For instance, an employer can promise to pay the employees extra money for working overtime and the employees will still be liable to claim the money even if the employer reneges on this promise. 9. The phrase "intention to create legal relations" means that parties intending to enter into an agreement have to determine the limits within which they may bind themselves contractually with the formation of rules or terms agreed by the parties which provide remedies in the event that the other party has not lived to the conditions of the contract (Gibson, 1988). This is very important in relation to the formation of a contract given that this is a legally binding agreement that can be enforceable by the courts of law in the event that the other party has breached that agreement. As such, it can be noted that a contract ought to be legally recognisable by the law in order to protect the interests of the people involved. If the element of creation of legal relations is missing in the contract, it may be difficult to enforce that contract. 10. Repudiatory breach of the contract means that the other party has failed to fulfil his or her contractual obligations in an apparent breach of the terms and conditions of the agreement (Murdoch, 1997). If two people agree to enter into a contract of selling a car, then if the buyer does not fulfil his duties of paying the seller, it means that the seller has the right to terminate the contract or to claim for the damages if there is still an outstanding balance to be made. An innocent party may not immediately terminate the contract but can insist on recovering the balance to be paid to the other party. This can be illustrated in the case of RV Ward Ltd v Bignall [1967] 1 QB 534 whereby these two parties agreed to enter into a contract of selling a car. However, the buyer did not fulfil his duties which resulted in the seller selling the car to another person. This can be regarded as repudiation of the contract since the other party did not fulfil the contractual obligations. 11. The United Kingdom contains one legal system commonly known as the English Legal system which is the foundation of the common law in many countries. The United Kingdom as a whole forms part of the larger European legal structures given that its legal system is mainly a brainchild of the European law. The legal framework in the UK is characterised by various statutes that have their roots in the English Legal system which is widely seen as the source of law in many parts of the globe. The English legal system is mainly comprised of the following arms: the executive, judiciary and the legislature. These are responsible for formulating and implementing different laws in the country. 12. It is equally impossible for the other party to be excused from liability on the basis of claiming that he was mistaken about something when he entered in to that agreement. According to Gibson (1988), a contract is a lawful agreement with a serious intention of creating a legal obligation communicating such intention without vagueness with each of the parties being on the same understanding. The parties must show that they are serious to enter into an agreement and this must be communicated clearly whereby all the parties can have a mutual understanding of the agreement. Against this background, it becomes equally impossible for someone to be excused from liability given that the formation of any contract is based on mutual understanding where an agreement is reached after the intentions of the contract have been clearly communicated between the two parties. Various essentials are fulfilled before the contract is recognised as legally binding which means that there is no party which can be excused from liability. 13. In this particular case, Jerry Ltd has no legal right in this situation despite the fact that they submitted the lowest tender. They have not entered into the contract with Red Brick Ltd and this company is not legally bound by any agreement to offer tenders to those contractors with the lowest bid. Each party has the right to choose the person to enter into an agreement with and there should be no strings attached with regards to the person who will be ultimately awarded the tender. As long as an agreement that culminates into a contract has not been reached, there will be no contract formed yet which entails that the bidder has no legal right whatsoever. 14. When one contracting party has been misrepresented by the other party, he may be liable for damages under the misrepresentation law. It is important for the innocent party to prove that a statement has been offered orally or in written form to be liable for the damages. In most cases, if the seller of something distorts information to gain an unfavourable advantage over the other partner, the disadvantage person can be liable of claiming for damages. A good example involves the case of (Gordon v Selico Co Ltd [1986] 1 EGLR 71) where a fraudulent misrepresentation was made to cover up for the rot that was in the flat before it was let out. There is need for the victim to prove that the statement offered by the other party has been deliberately distorted in order to gain an advantage over the unsuspecting party. 15. a) Under the Misrepresentation Act 1967, the statement by Pavel the car dealer to Henry who is the purchaser that “this car goes like a bomb” can be used as the statement fact in claiming for damages given that this is a misrepresentation since the car does not meet the description given in the sale agreement. Henry can use this statement to claim for remedies since this statement can be equated to fraud which is not advocated in the formation of contract related to selling of goods to the other party. b) In this case, it can be noted that Jasdeep has been honest and told Carly the truth that due to her illness the turnover of the business had dropped to £25 000 from £100 000 the previous month. There is no misrepresentation of facts here since Carly can take the business or live it because the owner has said the truth whereby she can make informed decisions about buying it or not. Carly may not be able to claim for remedies under misrepresentation law given that there is nothing misrepresented to her but was just told the truth about the situation obtaining on the ground. 16. The case of Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1 has changed our understanding of the doctrine of consideration. According to Gibson (1988), ‘consideration’ is a return or a quid pro quo, for every promise made and it is necessary for the validity of every simple contract. However, current law has departed from this doctrine as it is widely held that consideration is not essential to a binding contract. What is sufficient is that the agreement must be seriously and deliberately made with the intention of creating a binding contract. Both parties should make their reciprocal intentions clear to each other without necessarily focusing on the doctrine of consideration since the contract can still be binding without consideration. 17. Contributory negligence can be referred to as the injury or damage to property that is a result of indirect actions of the defendant. For instance, a speeding motorist can contribute to the injury of a pedestrian who will panic at the tremendous speed then can fall down resulting in injury of that particular person. However, this injury has been contributed by the motorist though he is not directly responsible for the injury. The plaintiff bears the burden of proving that the defendant has played a contributory role in the injury that will result from his action. The plaintiff must prove beyond any reasonable doubt that he has suffered from an injury as a result of the indirect action of the defendant. 18. Ex turpi causa non oritur action is a Latin term which means that from a dishonourable cause an action does not arise . As such, if the injury of somebody is a result of illegal action, that person cannot sue for damages or compensation. A good case can be drawn from the case of Ashton v Turner 1981 where the claimant was injured while in a get-away car that was being driven by the defendant after a burglary. In this particular case, there will be no compensation for the claimant given that he has already violated public policy. The law does not warrantee compensation to people who are injured while indulging in criminal activities. 19. Under the case of Capiro Industries vs. Dickman (1990), the court should establish the following factors in order to be positioned to establish the existence of duty care by the defendant in a negligence claim. These include the following: proximity as well as reasonability. There ought to exist between the parties involved to show the existence of duty care with regards to the situation that the court can consider fair, just and reasonable to impose this duty of care so as to be able to warranty remedies in the event of unprecedented injuries or loss of property as a result of the action of the other party. In some cases, the duty of care does not exist while in other cases, the proximity between the people involves entails that a duty care exists to ensure that one’s action is not harmful to the neighbor. 20. In the context of negligence law, the thin skull rule is mainly concerned with establishing validity of the claim in the event of any injury if the duty care exists. For the sake of fairness, the court may not be able to rule in favour of the plaintiff under the dictates of the thin skull rule where it may be difficult to prove that the duty care existed as well as that the injury to the other person would have been a result of the action of the other. If the plaintiff is not able to prove these factors, it may be difficult to get the remedies in compensation to the injury or loss of something as a result of negligent behaviour of the other person. 21. An offer is a proposal which expresses the person’s willingness to become party to a contract according to the terms expressed and the acceptance by the other person that binds both of them to the contract (Gibson, 1988). In order to fulfill these requirements an offer must have the following attributes: must be consistent with all essentials of the contract and it must define all the terms and conditions of the contract. However, a contract can be terminated under the following conditions. If there is no acceptance from the other party, the offer can be terminated or revoked. An offer can also be terminated as a result of the death of one of the parties if an acceptance had not yet been reached. An offer can be terminated if it is rejected by the offeree. In other words, the intended buyer rejects the offer which means that a contract cannot be formed without offer and acceptance. 22. Consideration is mainly concerned with a return for every promise made to the other party. As such, it entails that there must be a return for something offered in the formation of a legally binding contract. According to Watermeryer v Murray 1911AD 61, every contract consists of an offer and an acceptance which can be equated as a return or consideration. In order for the contract to be valid, it must take place where it is clear to all the parties and they make each other aware of their reciprocal intentions whereby a return is promised for something offered. To a certain extent, it can be noted that consideration plays a pivotal role in the formation of a legally binding contract since this will entail that the parties involved are aware of their contractual obligations. 23. A contract terminated by breach is a result of the other party failing to honor his contractual obligations (Murdock, 1997). In other words, the other party repudiates on the duties that are assigned to him upon the formation of the contract. A breach of a contract can be a result of the other party especially the buyer failing to pay the agreed price of a particular product or the seller failing to deliver the product sold to the buyer after receiving the payment. This can lead to the termination of the contract. On the other hand, it can be noted that a contract terminated as a result of frustration is different from the one terminated by breach in that when a contract is frustrated, it will be a result of a situation in which the performance is rendered impossible after a removal of an important element to the contract (Murdock, 1997). This can be death of the other party or destruction of something sold before the contract has been fulfilled. A good example of case of contract frustration is of Taylor v Caldwell (1863) 3 B & S 826 where the whole is destroyed by the fire before holding the concert. 24. Jack has made a promise to the people that they will get a free gift for spending more than £10 during a particular period. However, withdrawing the offer without notifying the customers is tantamount to misrepresentation which leaves him liable to fulfil his obligations (Murdoch, 1997). Basically, if a person intends to do something and gives a contractual promise to the people that person is liable for misrepresentation as it seems that he is taking people for granted. This amount to extortion given that people will go out of their way and spend the money they had not planned to use in the hope that they will get free gifts. It can be proved that he made the promise but only to short change the customers during the course of the period he had promised to offer them free gifts. As such, Jack has an obligation to fulfil or else he could have communicated to the customers about his intention to reverse the promise so that they will know the true position. This can be attributed to the case of fraudulent misrepresentation (Alliance & Leicester Building Society v Edgestop Ltd [1994] 2. This amounts to fraud given that Jack did not rescind the offer on time. 25. Betty is not legally obliged to pay Andy money for petrol given that they did not enter into a legally enforceable contract in the first place. Andy was doing the favour to Betty out of his kindness and this cannot leave Betty liable to pay the money. Indeed, as a good gesture of reciprocating to the kindness shown by Andy, Betty can offer to pay him some money for petrol but this must not be a duty given that they did not initially agree on that particular contract. However, had Andy requested Betty to pay, then she can be obliged to fulfil her moral duties if they have agreed on that arrangement. According to Gibson (1988), a contract is an agreement that is legally enforceable by the law but there are certain essentials lacking in this type of agreement. 26. The claimant can establish if the defendant is in breach of his duty care if he suffers an injury or economic loss as a result of the actions of the defendant which could have been avoided if he had taken certain precautions to care for the neighbour. According to Caparo Industries plc v Dickman [1990] 1 All ER 568, a defendant owes duty of care to the neighbor where a relationship that is characterized by the law of proximity as well as neighborhood to ensure that the closeness that exist does not degenerate into injury of an innocent person. The court has a duty to consider the fairness as well as reasonability of the duty of care on the grounds of the given scope of the situation. If the defendant cause an injury to the next person, then he is liable for negligent behaviour by virtue of breaching the day of duty care owed to the plaintiff. 27. In as far as aspects of causation and remoteness are concerned with negligence, there is need for the plaintiff to prove that the defendant owed him day of duty care which could have been breached as a result of unprecedented actions by falling below the expected standards of behaviour which may result in injury or economic loss. In this regard, the defendant will suffer physical harm or economic loss (causation) while in some cases, this harm can be reasonably foreseeable (remoteness), (Hofman, 1997). Thus causing harm to someone will leave the defendant liable for damages given that the resultant injury could have been avoided if the defendant had acted within reasonable limits. 28. The area of nervous shock or psychiatric illness is seen as something that is still new in the area of laws pertaining to negligence. However, certain circumstances can be can be considered for compensation if they result in nervous shock given that the plaintiff will not be anticipating to be involved in that particular situation. A good example can be drawn from the case of Lord McMillan in Bourhill v Young [1943] AC 92 (HL) which states that the law should not only take account physical injury to the person but should also seek to encompass injury by shock. For instance, if a patient has been traumatised under the custody of the doctor, he or she will be liable for compensation since that trauma will be a result of the negligent behaviour of the doctor. The victim can claim for damages given that the doctor will be responsible for the unpredicted situation. Nervous shock can be in the form of primary victim whereby the person will be terrified by imminent terror to his own life or secondary terror where the person is traumatised by the predicament situation a close relative will be involved in. A parent can sue for nervous shock if she sees the child involved in a terrifying accident that could be a result of negligent behaviour of the other person. 29. The law regarding negligent misstatements is used by courts in most common law countries whereby they have realised that broad principle of liability of misstatements (Hofman, 1997). The principle is derived from professional negligent cases involving professional advisors such as lawyers, doctors, accountants as well as stockbrokers. The advice given to the third party must not result in economic loss as this will result in lack of trust between the adviser and the party involved. A good case can be drawn from the case of McKenzie Patten v British Olivettii 1984 48 MLR 344 (QBD). A salesman representing Olivetti approached a firm of solicitors and advised them that they will immensely benefit from computerisation of their business but that was not the case. Olivetti was found liable for misstatements that proved to be incorrect. 30. Having paid the deposit of £2000 for the venue for the wedding, unfortunately the wedding failed to take place as Dave’s fiancé is killed in a motorbike accident. It can be noted that there has been no breach of contract in this particular case given that the wedding could not take place as a result of the death of one person who was wedding. As such, Murdock (1997) suggests that where a contract provides for an advance payment which is described as a deposit, there is no question of it being forfeited in the event that circumstances beyond the control of the parties involved have impacted negatively on the discharge of the contract. This money can be recovered given that there has been no direct breach of the contract but death has lead to this situation. The parties involved can agree to reverse the agreement given that there is no one who is directly responsible for the situation. 31. In this particular case, it can be noted that Mrs Mills is right to insist that there is a contract guaranteed by the lease when she agreed to rent the property which was let by Mr Thomas. The law states that a lease runs for a particular period agreed and it is between the tenant and the landlord to renew the contract if there has been a breach of contract. In this case, there is no breach of contract though the sons of Mr Thomas are of the view that the money charge is far less than commercial value of the property after the death of the owner. With reference to the rules of consideration in Thomas v Thomas (1842), and Chapple v Nestle (1959) it is advisable to the parties involved that there is a legally enforceable contract which is still running for the agreed period. The best approach they can take is that they can give notice in advance to Mrs Mills about their intentions while the lease period is still valid so as to ascertain if she will be interested in the new agreement otherwise forceful eviction during this period will be in violation of the contract. References Cross, R & Haris, JW (1991), Precedent in English law, http://books.google.co.za/books?id=jCyJohC1NvYC&dq=What+is+meant+by+ratio+decidendi+and+obiter+dicta&source=gbs_navlinks_s Donoghue v. Stevenson [1932] All ER Rep 1; [1932] AC 562; House of Lords. Viewed 25 April, 2011, . Gibson, JTR 1988, Mercantile and Company law, 6th Edition, Juta, CT. Hofman, J 1997, Cyberlaw, Ampersand Press, Juta, CT. McBride, N & Bagshaw, R 2008, Tort law, Longmans, London . Mudorch, J 1997, Law of contract Negligence: duty of care and breach of duty, viewed 25 April, 2011, Paris v Stepney Borough Council [1951] AC 367 13 December 1950, viewed 25 April, 2011, January 2011, From: Terry, A & Giugni, D 2009, Business and the law, 5th Edition, Cengage Learning, Sydney. US Legal.com, 2011, Ex turpi causa non oritur ctio, viewed 25 April, 2011, Read More