Business Law and the Natural Law Theory - Essay Example

Q1) legal theories in gedion v wainright, 372 us 335(1963) Positivistic legal theory Advocates of this theory arguethat the law is what it is and not what it ought to be. They argue that the law as it is written should be applied and other amorphous values should not be used to affect the working of the law. The Concurring Opinion of Justice Clarke is informed by the positivistic theory of law. Clarke J argues that from the wording of the sixth amendment, the phrase ‘all criminal prosecutions’ is clear and encompasses both capital and non-capital offences. He argues that since the same court declined to differentiate capital and non-capital offenses in respect of court martial trials in Kinsella v United States ex rel. Singelton, 361 US 234, it would be unacceptable to differentiate these cases in the case of legal representation. a) The Natural Law Theory The natural law theory is based on the principles of nature and natural laws. It is described by most philosophers as what informs the power of reasoning. This theory is one of the most common theories of law applied in legal academia and jurisprudence. The opinion of the Court delivered by Justice H. Black espouses natural law theory reasoning. The court was tasked to consider whether an indigent accused person was entitled to legal representation during the criminal trial. According to the Sixth Amendment, in every criminal prosecution, the accused person is entitled to assistance of counsel in conducting his defense. The court applied this positivistic approach to hold that indigent accused persons were entitled to court appointed legal officers. The court considered the harm which would be occasioned on the accused had he been denied court appointed counsel to conduct his case. The court was of the view that denying him legal representation was a violation of his right to a fair trial and contrary to the US constitution. Justice Harlan too uses tha naturalistic reasoning. He interrogates the validity of the special circumstances rule and notes that it is not practical and viable in the United States society. He notes that the rule could not be sustained in capital offences and now cannot be accepted in non-capital offenses like the one which Earl George had been charged with. b) Ethical Implications Of The George V Wainright Case The decision of the case brought equality between offenders of capital offences and those of non-capital offences. The US Supreme court in the Betts case had decided that court appointed counsel be available to capital offenders only. It was overruled by the George v Wainwrights’ case. c) Agree With The Outcome Of The Case In my view, the case is quite agreeable as it looks into the interests of justice and the fair trial on non-capital offenders. The non-capital offenders were being discriated and denied court appointed legal counsel under the Brett’s case. Q 2 Contracts are conduits in which business is conducted and the corresponding promises performed and when breached, enforced. The contract espoused in the relations between Joe and Amy is a contract to enter into negotiations. Generally, contracts to enter into negotiations were frowned upon by US courts but they have realized that contracts may be concluded after series of lengthy negotiations. The in Court of Appeal in Copeland v Baskin Robbins 96 Cal.App.4th 1251(Cal.App 2nd Dist. 2002) appreciated that contracts to negotiate a contract can be enforced. The learned judges held that in a contract to negotiate, there exists a covenant of good faith and fair dealing just like it exists in any other contract. Therefore, if one party breaches that contract to negotiate, they can be sued. In Siga Technologies Inc. vPharmaArtheneInc Case No. 314 of 2012, the Supreme Court of Delaware emphasized that agreements to negotiate in good faith create enforceable obligations recognized by law. In the Siga Technologies case, the contract had a caption to the effect that included both Binding and non-binding terms. The court nonetheless held that it was enforceable. The case between Amy and Joel is not so different. It is a contract to negotiate and both parties are bound to negotiate in good faith. Had the contract not been entered, neither party would be bound to negotiate. In addition, the phrase ‘Binding Terms’ indicates that the Joel and Amy intended to be bound by the agreement to negotiate the sale of the land. Q3 Answer 3a Jane will win the breach of contract suit but might not win the consumer protection suit. The offer which Macy placed in the newspaper is intended to capture the attention of the whole world. Such an offer is known as a unilateral offer and involves a promise that is made by one party only. This advertisement amounts to an offer and is not an invitation to treat and therefore enforceable. Such an offer cannot be revoked once performance has commenced or has been completed by the offeree. The court in Roth v Moeller 61 Cal. Dec. 444 (1962) raised a dictum to the effect that where the offeree had performed its conditions and incurred some expenses, it could not be revoked. Similarly, in Veivers v Cordingley (1989) 2 Qd R 278, the supreme court of Queensland noted that acceptance of a unilateral offer takes place when performance of the offer has commenced. No doubt Jane performed what the offer demanded. She drove from her home or city to Macy’s and may have spent some money on travelling and other incidental costs. For the breach of contract action, Jane will have proven that she complied with the offer as expressed in the advertisement, in this case going to the Macy’s to get the sweater. In addition, she may seek the guidance of the market practices. For instance, if business closes at four in that area, she cannot enforce the offer if she arrived at five. For the action under consumer protection law, it must fail. This is due to the fact that offerors under the Consumer Protection Act are allowed to limit the offers they make. An example of such a case is $5-09 of The New York Consumer Protection Rules that require that an offeror to clearly state the limits applicable to their offers and if made in written advertisements, the limitations must at least occupy a third of the said document. The Macy’s will raise a defense that the offer applied up to certain times such as five pm and so on. Q 4 4d Kate will lose because she rejected Rick’s offer Rick was the first to send an offer. Kate instead of accepting the said offer, responded with a counter offer. A counter offer amounts to a rejection of the initial offer and proposal of a new offer. Therefore, Kates’sresponse of was a replacement of the initial offer and had to be refused or accepted by Rick. Both Rick and Kate did not have a consensus ad idem as required in contract law. It was noted in Hyde v Wrench that once a counter offer has been made, one cannot force the other party to perform the initial offer. Secondly, silence does not indicate acceptance of an offer. Acceptance of an offer is expected to be clear and is shown by actions or by express statements of the offeree. In the Rich and Kate case, Kate made a counter offer to Rich. Rich had a choice to accept or reject it. By keeping quiet and selling it off, shows that there was no evidence to show that the counter offer was accepted. A counter offer, as in this case, is not an inquiry. The court in Stevenson Jacques & Co v McClean (1880) 5 QBD 345 noted that an inquiry into the item in question could not be construed as a counter offer. Kate’s case is not an inquiry. She rejected Ricks offer and made another one. Her words therefore cannot be construed to be an inquiry. Q5 Franchises are usually made by written contracts. These contracts have been referred to as disclosure contracts in The Uniform Franchises act and The Franchises Act of Ontario. In this case, the issue is whether the statements given to Mike by John. BMW may argue that by dint of Section 5 of The Uniform Franchises Act, a disclosure document is required. In this case, the statements to acquire the BMW cars cannot amount to a disclosure document. Mike therefore cannot rely on an oral agreement to enforce the franchise as it is in contravention of The Uniform Franchises Act. The agreement should disclose certain agreed terms such as franchise fees, locality in which the agreement applies, provisions for renewal and remedies available to the parties in case of breach. In the case Mike and John, these provisions have not been set down in their franchise arrangement thus it will be a valid franchise contract. Q 6 Mr. Inspector’s request for summary judgment has to fail since Amy has a cause of action against Mr. Inspector. However, Amy has to prove that there was a duty of care which she owed Mr. Inspector, that Mr. Inspector breached the duty of care and suffered consequences. Mr. Inspector, like any other estate valuer, had a critical role in the sale of the property. Valuers like Mr. Inspector play a great role in the assessment, valuation and informing their clients for them to make sound decisions as to what property to buy. Therefore, Mr. Inspector had to conduct his assessment in cognizance of this fact. Amy has a claim against Mr. Inspector. She can sue him for professional negligence since by preparing those reports, Mr. Inspector owes the potential buyers of those houses who rely on his reportsa duty of reasonable degree of care and skill. This degree of care and skill is assessed on the basis of a reasonable expert like Mr. Inspector is in assessment of buildings and making of reports. There has been an injury occasioned on Amy since her house has faulty parts such as the chronic roof that leaks. It is not disputed that Mr. Inspector who prepared the report and is therefore liable. In addition, Amy can argue that she based her judgment to but the said apartment on the information given by Mr. Inspector. Therefore, if the information was misleading, Mr. Inspector will be liable as the loss which Amy has incurred is reasonably proximate to the information given by the valuer. However, Mr. Nspector would not be liable if he excluded himself from liability under exclusion clauses in the contract through which Amy engaged Mr. Inspector as her property assessor. Q 7 The contract between Elizabeth Taylor and Hammerstein is a contract for delivery of service. Whether Elizabeth Taylor will select Winona Taylor as her substitute depends on the contract between them. The words used in the contract will show what the parties intended should be done in case of a breach. The contract may allow Elizabeth Taylor to pick a substitute to take up her role should she not be available. If the contract has this provision, them Elizabeth Taylor can nominate Winona Ryder to take her place. The contract could require that Hammerstein approve Elizabeth’s proposed substitutions, Elizabeth can only have Winona Ryder act on her behalf if Hammerstein approves her intended substitute. Otherwise, since Elizabeth Taylor has landed a hefty deal, she can choose to breach the contract and be ready to pay the damages for compensation for the loss which Hammerstein will have incurred. Should Hammerstein sue for breach, a court will not issue orders of specific performance against Elizabeth Taylor. This is because such an order will infringe on the will of the defendant as it was stated in Chappel v Times Newspapers (1975) 1 WLR 482. Secondly, such a contract of an actress will require constant supervision and overseeing for a period of time by film directors and other staff as the court in Co-op Insurance v Argyll Stores (1997) 3 All ER 297noted. Q 8 8(a) Parties to the agreement are Larry Straus and John Kasper 8(b) This is a written contract. Its contents have been reduced into writing and it is the written document. 8(c) It is a term agreement which will be in force for one year. It commences on 1st may, 2015 and ends in 30th April, 2016. 8(d) The agreement is legally binding. First, it has complied with all legal requirements of a tenancy agreement for instance it be in written form and set down the rights and liabilities of the parties. Secondly, it signed. An agreement creates a contract where parties intended to enter into a legal relationship through a contract. This is the case and is evidenced by the tenancy agreement. 8(e) The tenant is not allowed to bring a third party to reside in the apartment. Clause 1 is categorical that the apartment is to be used by the spouse and children of the tenant. Bringing his friend Bob, John Kasper breaches the agreement. 8(f) Under the contract, sub-leasing the said apartment is not allowed. This can be seen in clause 11 of the contract and sub-leasing the same amounts to a breach of contract. However, he can seek the consent of the landlord. 8(g) No, Bob is not a beneficiary to the tenancy agreement. He is a third party and not privy to it. 8(h) Whether the tenant will pay rent for the time that Bob has occupied the apartment depends on the case itself. If the tenant informed the landlord of his leaving, then by allowing Bob to continue to live in it means that he has consented to Bob living in it. The tenant can invoke estoppel to ward off the plaintiff’s suit. On the other hand, if Bob was brought by the tenant with the refusal of the landlord, the tenant is liable to pay the rent. 8(i) Land lord can sue Bob for trespass, recovery of rent for occupation of his land and recover money for repairs of any materials which Bob destroyed while using he apartment. 8(j) Both parties may pay costs if they are found liable jointly. If one of them is exonerated, the other will have to pay the landlord’s costs. Q9 Steve is not entitled to a commission. Firstly, the agreement between the client he introduced Corporate Reality Co. was not closed and therefore Candy Co. did not get any money. Payment is done when money has been earned. IN this money has not been earned as the contract between Candy Co. and Steve was for direct sales. In this case, no direct transaction can be identified and traced to Steve. Direct mean that something is straightforward and does not have a number of processes. Secondly, it was Corporate Reality Co. that introduced BB to Candy Co. Corporate Reality may have used the goodwill that the Candy Co. had earned in his favor with the managers and staff of Corporate Reality. Had Candy Co. not treated Corporate Reality Co. with respect and dignity deserving of businessmen, Corporate Reality could not have asked BB to Candy Co. Q10 Omega will not be liable for breach of contract. First, Mathew and his family are not privy to the contract which Omega and Union Pacific Railroad. Mathew and his family are strangers to the contract even though its contents will affect the safety of the employees including Matthew. However, Matthew may consider suing Omega under breach of the contract of employment between Matthew and Omega. Omega owed Matthew a duty to take reasonable steps to make him free from risks. Omega may then sue Union Pacific Railroad for breach of the contract that required Union Pacific Railroad to put up a gate. Omega may therefore introduce Union Pacific Railroad as a third party. Work Cited Read More