Is the System of Common Law in the UK still Relevant in the Context of the Modern Business Environment - Coursework Example

Comparative Business Law "Is the system of common law as practiced in the UK still relevant in the context of the modern business environment" Introduction Before discussing the relevancy of common law in the context of modern business environment a clear understanding of common law its origin and development is very much important. There was no distinction between torts and crime's in the earlier common law. The liability in business is mostly of tortuous. The first case of the tort was in the form of writs in the royal courts appeared during 1250. These writs were on trespass. During the 13th century these writs were classified into nominated torts and specific torts. In the 19th Century industrial development paid a way for qualifying the liability for requiring fault as a criteria for liability in torts. The law of torts in England was affected by the Industrial revolution. Negligence act was recognized as the cause of action in law of torts, the first effected was the Railways, causing injuries to the passengers by the negligence. The negligence was recognized in the famous case Donoghue v Stevenson1. [Peter De Cruz, Comparative law]a Donoghue v Stevenson1 It is illustrious case law on tort of negligence; this case is also called as "the snail in the bottle case". Though this case originates from Scots the House of Lords declares that the principle applied in this case apply to the world in common law jurisdiction. This case is fountainhead of the tortious principles say duty to care, breach of duty and causation of loss which are to be established for claiming liability of negligence. In this case the Session court rejected the appeal of the plaintiff on two grounds a) there is no privity of contract between the plaintiff and the manufacturer defendant; b) the product was not a dangerous product and there is no fraudulent misrepresentation from the defendant. It was appealed to the House of Lords by the plaintiff, arguing on the principle of privity of contract. The plaintiff counsel arguing for the removal of the protection provided for the manufacturers under the privity of contract under common law. The defendant side argued on wisdom of the Scottish judges in the mouse case, to prevail. Lord Atkin applies the 'Neighbourhood Principle', which says that a person will owe a duty of care not to injure a person or persons that can be foreseen reasonably which would be affected by the acts or omissions, in case where an established duty of care does not exist. The object of this principle is to provide the remedy against the suppliers of consumer products for tort, where there is no privity of contract. Lords MacMillan and Thankerton supported the opinion. Lords Tomlin and Buckmaster opposed this opining that it would be difficult to carry on the trade it becomes the law since they say that the principle of wide proposition. Remedies in Common Law The basic remedy that the common law provides is the damages. Damages such as liquidated damages, which is a predetermined or estimated value for breach of a contract; Compensatory damages, these damages awarded by the courts where any loss is caused due to a breach of contract or due to an action of a person, it is awarded to put the aggrieved party in the same position had there been no breach of contract or such action; Non Compensatory damages, the courts in certain cases awards non compensatory damages, when it do not aim to compensate the plaintiff, such damages are exemplary, contemptuous and nominal. [Benjamin Andoh and Stephen Marsh]d The remedies in Common law such as damages suffer with certain limitations. The common law puts some limitations and the entitlement of the plaintiff over the damages such as remoteness of damage, causation, duty to litigate, contributory negligence and impecuniosities. [Benjamin Andoh and Stephen Marsh]e Remoteness of damage: Damages will not be avoided where the loss is too remote (Re Polemis and Furness Withy & Co. Ltd.) and which is not foreseeable (Overseas Tankship (U.K.) Ltd. v Morts Dock and Eng. Co. Ltd.) by the dependent in tort. Economic Tort: Interference with the subsisting contract leads to the liability under the economic tort. If one is interfering with the subsisting contract that adversely effect the interest of the beneficiary and incurs monitory loss to the beneficiary then he will be held liable for economic tort, which aims at making good of the economic loss incurred by the complaint. The common law does not look into the conduct of the parties what is required is the claim has to be proved. Once the claim is proved the damages are awarded. The common remedy in common law is awarding of damages. In Common law the courts have limited discretionary functions. [Terence Ingman, The English Legal Process]f Tortious liabilities: Modern business is more exposed to tortious liability either due to the negligence of the master or his servant for loss or damage of goods or services provided to the customers or for the failure to ensure the safety to premises including the premises of the neighbours. Tortious liabilities arise generally out of contractual relations; sometimes the business activities are subject to tortious liability without a contractual relation, which is called liability without privity of contract, that is recognized by law. Tortious liability arises due to negligence, trespass, defamation, nuisance etc. Remedies for torts are provided both in common law of tort as well the law of equity. [ Keenan & Riches, Business law ]g In the common law the tortuous liability was on nuisance, conversion and trespass. Now the House of Lords has expanded the scope of liability further. In Hedley Byrne v Heller5 the liability was extended from physical to the economic loss, in this it was held that if economic loss is caused due the negligent misstatement by a person who owe a duty of care to the plaintiff, if he voluntarily assume responsibility. In 'Home Office v Dorset Yacht Co Ltd6.' The House of Lords added neighbor principle to the negligence and also held relationship of proximity or neighborhood as an essence to constitute the negligence liable under Common law. In "Anns v Merton7" the liability in tort was further expanded by holding that duty care should be assumed if the parties are proximate and duty dislodged. In "Junior books v Veitchi"8 recovery of economic loss was imposed as liability. And the elements for constituting negligence such as (a) A duty of care owed by the defendant to the plaintiff (b) A breach of that duty by the defendant (c) consequential damage suffered by the plaintiff (d) Such damages caused by the breach are formulated. [ Peter De Cruz, Comparative law]b Comparison of English Tort Law with French Tort Law: English Tort law is similar to that of other countries of common law such as French law. English tort law is compared with the French tort law in following terms: Codification of law: English tort law is derived from Roman law, which is based on specific heads of tortuous liability, and it is not a codified law. Where as the French tort law is codified and the tort liability is codified in Art.1382 and 1383 of the Civil Code. Classification of Torts: English torts are traditional and they are broadly classified into i) torts affecting the person, ii) torts affecting property, iii) torts affecting economic rights, iv) torts affecting reputation v) torts affecting rights generally. These torts arises due to a) trespass to person, b) trespass to land, c) nuisance, d) trespass to chattels, e) specific economic torts, f) fraud or deceit, g) inducing breach of contract, h) malicious falsehood, i) intimidation and j) conspiracy. French law tort law provides a wide range liability, which covers all damage without any exemption of protected rights. The provisions under Art.1382 and 1383 of the Civil Code liability for negligence and intentional acts are provided. Requisites of tortious liability: In English law the tort of negligence has been developed in 19the century. It provides that the liability in negligence requires a) duty of care is owed to the person claiming negligence, b) there is breach of such duty by the person who owed, c) due to such breach of duty damage is caused to the person to whom such duty is owed, d) such damage is not remote to the consequence of the breach. 'Mayor of Bradford v Pickles'2 and e) such damage is foreseeable. 'Scott v Shepherd'3. English law recognizes the breach of statutory duty also as tort of negligence and vicarious liability in which the master is liable for the wrongful acts of his servant. Hughes v Lord Advocate4. French tort law does not exclude any protected persons. The law does not require any specific duty of care to the person claiming the liability. What the law requires is that there shall be a) fault on the part of the defendant, b) a damage to the plaintiff due to such fault and c) an existence of casual link between the fault and the damage. These requirements are sufficient for claiming of liability of tort. With regard to the tortious liability of public authorities the French law provides for no-fault or no-risk liability. French law provides for full compensation for both material and no-material damages. The law extends the compensation to the third party liability and liability for false advice Conclusion On the critical view of the subject one can say that the common law as practiced in UK is quite relevant in the context of the modern business environment since it provides clear remedies for the tortious acts and the provisions are no way cause any hindrance to the business activities. If such tortious liability were not fixed the there would be lot of damage to the consumers who are attracted and induced by the modern technique of business promotions or the marketing techniques. To safe guard the interest of the consumers the tort law sufficiently provides the protection. With regard to the comparison of the English Tort Law with French Tort Law it is seen that there is no major differences except the way of drafting the provisions of providing the remedies. English Law provides the liability of tort specifically and elaborately, where as the French Law provides almost the similar liabilities and remedies with concise codified provisions. Footnote : 1. Donoghue v Stevenson ([1932] A.C. 532, 1932 S.C. (H.L.) 31, [1932] All ER Rep 2. Mayor of Bradford v Pickles (1895) AC 587 3. Scott v Shepherd (773) Wm. Bl.892 4. Hughes v Lord Advocate (1963) 1 All ER 705 5. Hedley Byrne v Heller (1964) AC 465 6. Home Office v Dorset Yacht Co Ltd (1970) AC 4004 7. Anns v Merton (1978) AC 728 8. Junior books v Veitchi (1983) 1 AC 520 en.wikipedia.org/wiki/Donoghue_v._Stevenson a. Peter De Cruz, Comparative law (1999, 2nd Ed., P. 303, 304) b. Peter De Cruz, Comparative law (1999, 2nd Ed., P. 320) c. Terence Ingman, The English Legal Process (9th edition, P. 442) d. Benjamin Andoh and Stephen Marsh, Civil Remedies (p. 51) e. Benjamin Andoh and Stephen Marsh, Civil Remedies (p.73) f. Terence Ingman, The English Legal Process (9th edition) g. Keenan & Riches, Business law (1998, 5th Ed, P. 8) Bibliography: I. Peter De Cruz, Comperative law (1999, 2nd Ed.) II. http://en.wikipedia.org/wiki/Donoghue_v._Stevenson (Accessed on 12.04.2006) III. Terence Ingman, The English Legal Process (9th edition) IV. Keenan & Riches, Business law (1998, 5th Ed ) V. www.jurawelt.com/studenten/skripten/eur/6891 Read More