Max Power: Legal Advice - Case Study Example

Re: Max Power I understand that your wife of ten years, Penny, intends to take legal action against you, her husband, for defaulting on the agreementthat you had with her to the effect that you will be paying her 1500 per month. Preceding this agreement, the two of you were not happy within your union, but despite this, you are still legally married to her. Though the agreement between the two of you was verbal, you went ahead and paid her for a period of six months. You only defaulted after you met Stacey Floodgates, your new girlfriend, in Dubai. With this in mind, you should take this letter as a legal advice from a legal expert. The aim of this letter is to examine whether your wife has a chance of getting a favourable settlement in court if she decides to take legal action against you after all. Issue of Your Case The issue here is whether Penny's case will succeed if brought to court. In other words, will the case find you, Max Power, liable of paying Penny the money that you owe her for support for the past six months This is given the fact that the two of you are still legally married under the Irish Family Law Act 1995 and you having promised to support your wife who is unable to work because of the work place accident that she had five years ago. These are the questions I, as your legal adviser, will be trying to answer in this letter. Summary As to whether Penny's case will succeed if it comes before any Irish family court, I strongly believe that your wife stands a higher chance of convincing the judge to force you to clear the outstanding balance and to continue paying her the monthly allowances. This is if she accuses you on other grounds apart from the current grounds of ostensibly breaking a contract. However, since she has opted to sue you for breaking a contract, I believe that her case does not stand a chance in a court of law in England. This is because there is no legal document that exists showing that the two of you entered in any form of contract. As such, you have not broken any contract. Statement of Facts 1 You and Penny have been married, under the Irish Family Act 1995, for the past ten years 2 Despite the fact that you have not been happily married, you have not yet filed for divorce and you have been living under the same roof 3 In June 2008, you left for Dubai and left your wife alone at home 4 You verbally agreed to pay Penny support allowances of $1500 verbally and you did so for six months 5 In January 2009, you met Stacey Floodgates and soon took her in as your partner 6 Since January 2009, you defaulted on paying Penny her monthly allowances 7 Five years ago, Penny had an accident which left her unable to work, and so she had been relying on her husband's support payments for upkeep 8 The reason why Penny is suing you is because she believes that the contract between the two of you, though verbal, was binding Rule Statement and Rule Synthesis For a contract to be binding under the European code of conduct, there are some requirements that it has to meet. These are generally referred to as "the three c's" (Gordley, 2008). The first is the cause, whereby a reason should have emerged that required for the drafting of the contract (Gordley, 2008). The second is consideration. This is whereby the two parties must have identified the form of contract that is best to enter into to given their circumstances. The third and most important aspect of a contract in our case here is the consent (Gordley, 2008). This is an indication that the parties went through the contract and agreed to abide by the terms provided for there. This consent is indicated in form of a signature that is appended by both parties in the contract. Without a signature, leave alone without the written document, the contract is null and void, and nobody can be accused of breaching it. The only exception whereby an actual signature is not needed on the document is when the contract is done online (Orlando, 2009). But even these form of contracts, under the Irish law that governs electronic contracts, the identity address of the parties' acts as the electronic signature (Martinez, 2007). Another exception is whereby the plaintiff is able to convince the court that it was "morally impossible" to acquire the signed contract. Rule Proof A breach of contract arises from the fact that one of the parties has refused to adhere to the terms that were agreed upon between both parties. This must be proved to have happened when the offended party presents in a court of law the signed contract that was agreed upon by the two parties (Martinez, 2007). As I have indicated earlier, the contract must express cause, consideration and consent. The only way that these three elements can be proved in a court of law is when the plaintiff is able to present the judge with the written and signed contract. Irish courts have the tendency to uphold cases whereby the plaintiff is suing for the damages accrued after the defendant refused to deliver on a promise that he made to the plaintiff (Orlando, 2009). This is especially so when the court believes that the promise was binding because the plaintiff could not, for moral reasons, obtained a written and signed document from the defendant (Orlando, 2009). Penny cannot be accused of unjust enrichment under these statutes. This is negotiorum gestio because she was in urgent need of the help that you promised her, given her incapacitation (Gordley, 2008). The courts may also rule in favour of Penny because "it was a promise to fulfil a natural obligation" (Orlando, 2009). It is the obligation of the husband to provide for the well being and upkeep of his wife especially if the latter happens to be incapacitated. However, in this case, Penny will have a hard time to provide evidence that the promise between the two of you actually took place (Martinez, 2007). There is also "the officious bystander test" (Gordley, 2008). These are the obligations that are accepted and assumed by the two parties in absence of a contract. If a term is obvious, it goes without saying that "the bargain is subject to this un-stated term" (Orlando, 2008). The term will then be included in the document. In 1939, a court of appeal in England, presided by MacKinnon ruled to this effect (Orlando, 2008). The judge was quoted saying that "prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement they would testily suppress him with a common 'oh, of course'". This might have happened in this case whereby there was a tacit agreement between the two of you that you will continue providing for the upkeep of Penny for the rest of her life. It might be true that the period for which you were to provide this support was not stipulated explicitly in your verbal agreement. But it was obvious that you were to provide for her upkeep for as long as she was unable to work. This was at the back of both your minds when you were making that verbal promise. Kavanagh v Gilbert may make this point clear. This case was ruled under the "implied terms of contract law" in England (Martinez, 2007). The defendant was sued as a result of an agreement that was reached between the two parties whereby the auctioneer was to auction the complainant's land. The defendant did not come up with a "memorandum of understanding" and so there was no contract that was signed between the two parties (Orlando, 2009). But the defendant accepted the bid that was proposed by the owner of the land. The court ruled that the defendant was obligated to use his professionalism to conclude a "binding contract" (Orlando, 2009). It is important to note that would an officious bystander reminded the two parties that the defendant should come up with the memorandum, the two parties would have given the bystander a blank stare. It was obvious that the document should exist. But the law explicitly states that under the "statute of frauds", a contract that will exceed one year has to be written and signed by the two parties (Orlando, 2009). Since there are no writings between the two of you that there is such a contract that exists between you and her, the "contract" in this case is null and void. There is no proof that Penny found it morally impossible to acquire a written and signed contract between the two of you. As such, there is no contract that existed and therefore, one cannot break contract that never existed in the first place. Remember that Penny has to first prove that a contract existed between the two of you. Conclusion and Recommendations It is my opinion that Penny will find it impossible to have the courts rule against you. This is because as I have stated earlier, she needs to prove that a contract did really exist between the two of you. There is of course the issue of you having paid for the first six months. It is true that Penny might be having some documentation showing her receipt of those payments. However, these documentations prove only that a certain amount of money was transferred from you to her. The glaring weakness of those documentations, if at all they do exist, is that they do not prove that the money was paid as a result of a contract that was between the two of you. My legal advice is that you should let Penny proceed with her suit. Do not get intimidated into paying her anything because she will use that as prove that you recognise the existence of a contract that is binding between the two of you. References Gordley, F. D. (2008). Contract law as practiced in Europe. Cambridge: Cambridge University Press, 256-259. Martinez, Q. H. (2007). Irish family and common law. London: Routledge, 345-356. Orlando, F. L. (2009). Antitrust law in the international arena. Dublin: House of Books, 298-308. Read More