Law of Contract, Difference between Civil and Criminal Law - Essay Example

LAW OF CONTRACT Student’s name Code+ course name Professor’s name University name City, State Date Law of contract To preserve cohesion and harmony between human beings, laws are formulated. The legal frameworks maintain the sanctity of the societal fabric ensuring that people live in peace. The doctrine of law is remarkably wide considering that it has to cover every element in society. The two broad categories of law fall under civil or criminal law (Furmston, Cheshire & Fifoot 2006). These are the two broad jurisdictions instituted by law. The major difference between civil and criminal law is the sentencing after the accused party is convicted. Under civil, the sentencing is lighter, and the aggrieved party is awarded damages. However, under criminal law, the accused suffers more severe sentencing if found guilty. The aggrieved party does not receive damages as the criminal law revolves around serving justice. However, there are other sub categories for example the business law, family law and many other sub categories governing human interactions. In the normal human society, people seek legal redress if they are in conflict or do not agree on certain terms. Business law seeks to ensure that all parties in a transaction do not conflict, and none of the parties exploits the other (Simpson 2007). Cases under business law may also need a category between civil and criminal law. Instances of fraud, malice tax evasion, for example, fall under criminal law, and the perpetrators fall under criminal law. On the other hand, employee-employer disagreements, late payments or conflicts within the work place fall under civil law. Business law provides regulations serving the entire business fraternity to ensure harmony and cohesion prevail (Pathak 2007). This paper seeks to address the law of contract as three parties might engage in a conflict. The intention of this discussion is to deduce the likely outcome of a case between John, Monica and Mark. John is the purported owner of a boutique he wishes to sell. John makes an offer to Monica who asks for a day before availing a conclusive decision. According to the law of contract, a sale is enforceable once it has a number of elements. One of the elements is an offer. For a contract to be deemed legal, it has to have an offer for sale. An offer can be expressed or implied. This means that an offer for sale can be expressed directly or indirectly. For instance, an advert to sell something is an express offer for sale. In other instances, the offer might be implied, and in the instance a potential buyer makes payment, the contract is binding. In addition, a binding contract needs to hence an acceptance from the potential buyer. An acceptance can be oral or in writing, and this is another vital element for a contract to be binding. According to the contract between John and Monica, there is no valid contract (Richards 2005). This is because; John made an offer for sale which is the first prerequisite for a binding contract. Once the seller makes the offer, the buyer has the legal mandate to make an acceptance or reject the whole bid all the same. Monica neither accepted nor rejected the offer. This implies that there is no contract between John and Monica before the acceptance has been made. On the other instance, Mark makes an offer to John which is higher than the initial offer made to Monica. However, Mark seeks legal redress to enquire whether the contract between John and Monica is binding. It is evident that there is no contract between Monica and John. Mark, on the other hand, makes an offer to John, but John neither rejects nor accepts the offer. There are a number of the likely outcomes which will all be legally binding. First, John would reject Marks offer and wait for Monica to accept the earlier offer. This would be a legally binding offer and Monica would have to pay the consideration (Busch 2002). On the other hand, if John accepts the offer made by Mark, the contract will also be legally binding, and Mark will have to pay up the consideration. If Monica seeks legal redress to challenge the decision made by the two parties, she will not get any fruitful results. This is because; the law of contract clearly states that a binding contract emanates from a contract that has all aspects required by law. Currently, none of the two situations display a binding contract. Until one of the parties makes an acceptance, the contract is still open. In the instance that Mark fails to make legal redress, it is apparent that no binding contract of sale exists between Monica and John. It is clear that currently, there is no contract of sale between both parties and whoever makes the first acceptance will have the contract binding on them. Mark and John are more likely to engage in a legal contract because; Marks makes a better offer. John is supposed to make this acceptance as Mark made the offer for sale. Signing of the memorandum, by both parties and payment of a considerable consideration will amount to a binding contract. A binding contract is enforceable by law and any breach will be forwarded to the court. Any breach of the contract will be enforced under civil jurisdiction and hence the aggrieved party in any case will be awarded damages by the courts (O'sullivan & Hilliard 2012). However, if Monica makes the acceptance before John signed the memorandum prepared by Mark, the contract will be binding between John and Monica. Since the offer was made orally to Monica, her acceptance in an oral form would be enforceable. Business law enforces only binding contracts (Koffman & Macdonald 2007). The eventualities of the forthcoming events will dictate whether upcoming events and hence, in an instance that both acceptances are made, there will be a legal conflict. According to previous precedence, an offer is the first principality in the law of contract. The second most prominent element is the acceptance followed by consideration. If a contact lacks one of the elements, it is notable that the contract will not be enforceable. The business law ensures that the right procedure is followed and identifies whether all the required stipulations are inculcated in the contract agreement. In the instance that one element is omitted, the contract is deemed as void ab Initio or from the start. Both the contracts are at their initial stages and hence it is essential for them to progress before any conclusion can be made. This is a first come first served basis, and hence the first party to make the acceptance will have the contract work in their favor. Mark clearly is aware of this fact that is why he hurriedly prepares the sale agreement and has it signed by both parties. If Mark gets the sale agreement signed before Monica accepts the sale deal, Monica will have to relinquish her desire to posses John’s boutique. Mark clearly is aware of this legal right and hence he is working expeditiously to have the memorandum signed. A signed memorandum is a binding contract at law and will provide as evidence in the eventuality that Monica will seek legal redress. In either way, the first acceptance to the pending offer wills legally binding and hence the other party will have to accept that delay even beats equity (Koffman & Macdonald 2007). The law of contract is quit wide since an offer need to be distinguished from an invitation to treat. An invitation to treat is not an offer and does not amount to a binding contract. An invitation to treat is merely an invitation to make an offer and hence is not legally binding at law. On the other hand, there are bilateral or unilateral cases. The principles of the contract are indicated by the case between Carlill and Carbolic Smoke Ball Company. This is because; the contract between the two parties was an example of a unilateral contract. This is because the offeree makes acceptance, not orally or in writing but by doing their part of the bargain. The bilateral contract, on the other hand, involves exchange of promises with the example of Woollen Mills Pty Ltd vs. The Commonwealth (Schaffer Agusti & Earle 2009). This case was before the Australian high court judge who clearly stated that, for a contract to be deemed unilateral; one party has to meet their end of the bargain by performing an act and not merely by exchanging promises. Through both of the cases, the courts clearly delineate the required elements for a contract to be legal. They include; the offer, the acceptance, consideration and the intention to create a legally binding agreement. In the instance that John accepts Mark’s offer, John can revoke Monica’s acceptance. John’s revocation is legally binding if he communicates his revocation to the other party beforehand. A revocation needs to be communicated in the same manner that the offer was made. For instance, in the Carilil’s case, the offer was made to the entire world hence the revocation should follow the same manner. In the instance that Monica makes the first acceptance, John has the responsibility to revoke the offer made by mark. On the other hand, if John accepts the offer, he will revoke Monica’s acceptance in an oral form similar to which the offer was made (Bhana, Bonthuys & Nortje 2009). Conclusion In conclusion the law of contract has a number of requirements that guide the business practitioners in their normal course of business operations. I t tends to guide the mode in which business people interact since every transaction involves a contract. It is notable that the law of contract is broad and has a number of requirements. In the instance that one of the requirements is not met, the contract is void and hence unenforceable at law. It is vital for the business fraternity to adhere to these stipulations as this will guarantee cohesion and harmony reducing the number of conflicts References Bhana, D, Bonthuys, E, & Nortje, M, 2009, Student's guide to the law of contract, Juta, Cape Town. Busch, D, 2002, The principles of european contract law and dutch law: a commentary, Ars Aequi Libri, Nijmegen. Furmston, M, Cheshire, G, & Fifoot, C, 2006, Cheshire, Fifoot and Furmston's law of contract, Oxford University Press, Oxford, N.Y. Koffman, L, & Macdonald, E, 2007, The law of contract, Oxford University Press, Oxford. Koffman, L, & Macdonald, E, 2007, The law of contract, Oxford University Press, Oxford. O'sullivan, J, & Hilliard, J, 2012, The law of contract. Oxford, Oxford University Press. Pathak, A, 2007, Legal aspects of business, Tata McGraw-Hill, New Delhi. Richards, P, 2005, Law of contract, Pearson Longman, Harlow, England. Schaffer, R, Agusti, F, & Earle, B, 2009, International business law and its environment, South-Western Cengage Learning, Mason, OH. Simpson, A, 2007, A history of the common law of contract: the rise of the action of assumpsit, Clarendon Press, Oxford. Read More