Approaches that Judges May Take When Interpreting an Act of Parliament - Coursework Example

BUSINESS AND COMPANY LAW Student’s Name: Institution: Date: Approaches that judges may take when interpreting an Act of Parliament There are two main approaches that judges utilize when interpreting an Act of Parliament. These include literal and purposive approach. In literal approach, the judge relies on words used in the legislation and interprets them by their literal meaning (Gifford, & Salter, 2012 pg.97). In this case, the judge restricts his or her ruling in exact words used in the Act and does not use any other source when making the interpretation. In this case, the judge does not bother looking beyond the legislation with an intention of getting clarification of the Act. He assumes that the legislation means as it is written. When using this approach, judges apply the literal rule of interpretation, which seeks to consider what the law says and not its probable meaning. Even when the ruling outcome seems to have negative impact, the judge makes express reading of the Act and directs the prosecution to do exactly what the law says. In the case of Inland Revenue Commissioner versus Hinchy in 1960, the ruling relied on section 25 (3) of Income Tax Act of 1952. The legislation had provided a fixed amount as penalty against individuals not completing tax returns. In addition, this particular Act stated that the defaulter should also pay “triple the amount payable” in excess of the fixed amount stated. While delivering the ruling, the house of lords used literal approach and directed the defaulter to pay triple the original tax amount regardless whether he had paid certain percentage of it or not. In purposive approach, the judge may look beyond the words used in the Act in pursuit of understanding deeper meaning of the law. He does not therefore restrict himself to the literal meaning of the legislation as in the previous case. The purposive approach suggests that the judge should first seek to get the actual reason behind enactment of the Act (Bobek, 2014 pg.212). The approach is common determination of civil matters where legislators enact general principles and leave judges to fill the finer details. Judges look at the wider meaning of the Act in respect to legislators’ intention at the time of enactment. Mischief rule therefore comes to play when interpreting the Act of parliament using purposive approach. For example, judges determined the case of Corkery versus Carpenter of 1950 where the court found defendant guilty and ruled he was drunk in charge of a carriage even though the fact is that he was in charge of a bicycle. Extrinsic and Intrinsic aids to statutory interpretation Intrinsic aid to statutory interpretation refers to items that appear in the statute purposely to help the judge to interpret the act of parliament. These items include explanatory notes, other sections of the Act, definition clauses, and presumptions among others. These items play a crucial role in determining accuracy of the ruling in reference to particular legislation (Bell, 2013 pg.252). In the event intrinsic aids are not sufficient to help the judge make the most accurate interpretation, then he or she relies on extrinsic aids. These are sources that do not appear in the Act but are relevant materials for legal interpretation. They include legal dictionaries, case laws from other courts of equal or higher jurisdiction, and academic writings among other sources (Solan, 2007 pg.142). They help judges to get the accurate interpretation of the Act of Parliament hence facilitating relevant application. Explain why judges are limited in the use of extrinsic aids to statutory interpretation. Extrinsic aids become an option when the statute lacks sufficient explanatory materials. Although they are acceptable aids, the law limits judges in using external sources when interpreting the statute. Some of these sources may have subjective view based on individual opinion. Such element is common in materials such as law reports and legal dictionary where authors express their personal understanding of certain statute (Volcansek, 2014 pg.132). Over reliance on such materials affects the accuracy of interpretation hence causing misleading judgment. To avoid such events, judges are selective when it comes to using extrinsic aids. Another ground for judges’ limitation in using extrinsic aids when interpreting statutes is existence of erroneous rulings and interpretations in case laws. The court may interpret the Act wrongly and deliver erroneous judgment hence misleading future rulings that would rely on that particular interpretation (Dharmananda, 2014 pg.64). To avoid the chain of misinterpretation, judges are cautious when using case law in interpreting the statute. In most cases, they prefer using case laws from courts of higher jurisdiction. In addition, those case laws must not have attracted any dispute from any party to the case. Due to such incidents, judges do not just pick any case law when seeking correct interpretation of Act of parliament. The judge may also feel the reference material such as Legal dictionary addresses obsolete matters. Note that laws changes with time due to constant changes in the society. It may be improper to rely on old dictionary to interpret recent statutes. In such case, the judge restricts himself to intrinsic aids such as assumptions and explanatory notes. It ensures that the interpretation is correct and relevant to the case before hand hence delivering the accurate judgment. In case of any amendment to the Act of Parliament, the judge cannot rely on previous ruling of any other court regardless of the jurisdiction. Section Two Question 1 When Simsim advertised the laptop in their website and in the national newspaper; it meant that it was a win- win scenario contract. Additionally, when Alistair visited Simsim’s website and requested for the two laptops via online buying method, and they deducted delivery charges it indicated that they had engaged in a contract. The type of the negotiations between Alistair and Simsim was integrative negotiations. It implied that both had entered into a contractual offer and acceptance. Since both had cooperated and joined forces to achieve something together, and there was a high degree of trust, this is the reason termed as integrative negotiations. It is imperative that the process is twofold since both parties have to walk away with something after the advertisement (Jeong, 2003, P26). In the negotiation process, mutual problem-solving technique has to be applied so that both parties can come to a concession. Both parties have to gain in one way or another if cooperation approach is used so that long term relationship between the supplier and the customer can be attained. The win-win scenario is a mutual gain for the two parties and for this reason Simsim had to advertise it on their websites (Davis, 2006, P16). Integrative negotiation embraces sharing of information and understanding each one situation applying for both parties. For example, Simsim indicating that the offer is only limited to one household. In relation to that Alistair makes it clear that one of the laptops belongs to a girlfriend who they do not live together indicating that cooperation and understanding of contract need to be addressed. In the case if problems emerge it is important to have problem-solving techniques so that both parties can benefit. Question 2 In the context of contract law “consideration” implies that there are basics or essential elements that have to be engaged when a contract is being formed. For example in contract formation considerations like promising to deliver or perform a certain act or refrain from doing something that is legally entitled. Bilateral contract like in the case of Simsim and Alistair that involves both parties exchanging agreement that is mutual based indicates that the promise made is termed as an efficient consideration to the other. For example by providing credit card details and agreeing on delivery charges implies that an effective consideration was held. Additionally, Simsim indicating on the website that the offer is limited to one household is a consideration they had made that is legally entitled. Since Alistair’s had not indicated whether they were living with his girlfriend in one room, Simsim had to consider that the customers were living in one household. Unilateral contract implies that one party has made a promise to the other depending on the stated considerations when engaging on contract. Consideration needs to have a value that is objectively determined (Knapp and Crystal, 2007, p61). For instance in the case of Simsim and Alistair the contract has stipulated the offer is only varied for individuals who are not in the same household. It is a consideration that is subjective to the nature when the contract was being formed. A consideration has to be part and parcel of the contract whether individuals engage unilateral or bilateral contracts. Whenever a promise is exchanged, and the promise is deemed sufficient or agreed upon by both parties, it implies that there is sufficient consideration in it. Question 3 The significance of the advertisement continuing to appear on Simsim’s website on the morning of 26th January indicated that Alistair had not met the requirement of the contract. The reason for this was due to the agreement that was agreed upon was not attained by both parties. Though Alistair had confirmed an email confirming his order of $1,400 and a delivery charge of $30.00 the contract was terminated later. Alistair violated the contract agreement or promise since the offer was only limited to one per household. It was followed by the order being cancelled and refunding of $1430 to his credit card. It meant that breaching of the contract was made and the reason the advertisement continued to appear on Simsim website. The requirement to honor the agreement was not attained, and any further dialogue meant that one side could use problem-solving techniques (Mulcahy, 2008, P30). After the breach of the contract, it implies that another individual had to be given a chance to get the offer, and this is the reason it was to appear on the website. Even after engaging in a phone call, explaining the laptops did not belong to one household Simsim terminated the contract. This was a breach of contract since it was agreed upon and the fees to buy the laptops had already been sent to Simsim website. Question 4 Since Simsim may be in breach of contract remedies may be available to Alistair for the breach of contract. One of the remedies that can be applied is negotiations, for example, mediation, or arbitration can be used instead of filing a lawsuit. Considering a lawsuit can be expensive for both parties, and if possible it is recommended to review the contract requirements. Individuals tend to file a lawsuit whenever there is a breach of contract making it possible for the court to settle the dispute. It implies that a lot of capital will be used, while if mediation and arbitration are considered nominal fee will be used. Simsim can only pay just a slight amount of capital to the plaintiff if there is a damage that is caused. The second remedy for the breach of the contract between Simsim and Alistair is rescission (Beale, 2012, P56). The remedy is designed to make sure that the injured party is restored to the prior position when the contract was being formed. Rescission aim is to return any fund that was given during the contract formation. For example in the case of Simsim and Alistair $1430 was refunded to his credit card when the breach of the contract occurred (Andrews, 2011, P41). It is the best remedy if used since one does not have to pay any charges to the other rather one need to refund what was used during the contract formation. Filing lawsuit implies that time to settle the dispute will be taken and being expensive for both the parties. It is obvious that in case of breaching the contract, the proper mechanism to express the reason for breaching must be indicated. Failure to that implies that compensation for the wasted time and resources need to be considered. Rescission aim is not to compensate individuals but to refund the resources used when the contract was being formed. In this case, rescission ensures that no party suffers undue losses in the process of contract formation. References Andrews, N. 2011. Contract Law. Cambridge: Cambridge University Press Beale, H. 2012. Remedies for breach of contract. London: Sweet & Maxwell. Bell, E. 2013. Judicial perspectives on statutory interpretation. Commonwealth Law Bulletin, 39(2), 245-281. Bobek, M. 2014. Legal Reasoning of the Court of Justice of the EU. Davis, J. 2006. Contract: General principles of law. Pyrmont, N.S.W.: Thomson Lawbook. Dharmananda, J. 2014. Outside the text: Inside the use of extrinsic materials in statutory interpretation. Commonwealth Law Bulletin, 42(3), 57-123 Gifford, D. J., & Salter, J. 2012. Understanding Act of Parliament. Routledge. Jeong, Y. 2003. Effects of website context relevance on banner advertisement effectiveness. Knapp, C., & Crystal, N. 2007. Problems in contract law: Cases and materials. New York: Aspen /Wolters Kluwer Law & Business. Mulcahy, L. 2008. Contract law in perspective . London: Routledge-Cavendish. Solan, L. M. 2007. Statutory interpretation in the EU: the Augustinian approach. Brooklyn Law School, Legal Studies Paper, (78). Volcansek, M. L. (Ed.). 2014. Judicial politics and policy-making in Western Europe. Routledge. Read More