Criminal and Civil Law - Essay Example

BUSINESS LAW By Due This essay answers the questions regarding Criminal and civil law, Common law and legislature, and Contract law. It also discusses the lines of separation between a contract and an agreement. It attempts to advise a house building company about their legal position in a sales contract that caused it a loss. Keywords: Criminal law, Civil law, Common law, Legislature, Contract, Agreement, Legal obligation, Sale of Goods Act, Convention on International Sale of Goods . Q.1 (a) Criminal Law and Civil Law Criminal law deals generally with crimes committed against the public policy e.g. Penal Code. State enforces this law and reforms it with time according to the newly experienced circumstances. For every crime, there is a victim who is a citizen and the dispute is not of a private nature. Examples of these crimes are murder, kidnapping, robbing etc. State acts as a prosecutor in criminal matters as it is the State who sets out the legal framework. There is, however, a right of undertaking private prosecution’ in which a citizen, ordinarily the victim, acts as a prosecutor (Gillespie, 2007, p.8). The penalties, in case of a breach of a criminal law, include fines, loss of liberty, execution and State supervision. A person penalized under criminal law for the first time initiates a ‘criminal record’ in which all the crimes committed in the future are to be incorporated. Civil law deals with anything that is not in the scope of criminal law (Gillespie, 2007, p.8), e.g. Contract Law. The primary source of this law is the legal code. It generally concerns with private matters of the parties but the State is involved in some matters too e.g. in a lawsuit brought against a public body. Therefore, civil law is a mix of public and private law. The citizens are mostly the prosecutors in matters arising under civil law. The penalties are not of a punishing nature. This law attempts to make the guilty party compensate the aggrieved party for the loss that it causes by way of allowing damages. A lawsuit brought under civil law is not due to a breach of a public duty and hence, are not punitive. The damages are classified according to the nature of the loss. However, nominal damages are allowed in some cases which serve the purpose of punishing a party. Common law and Legislation Common law recognizes the common principles and develops the statutory law which is passed by the Parliament. It develops the law by forming new precedents which are the judges’ decisions in any particular set of circumstances. Once a precedent is formed, the future judges are bound by it for the sake of consistency in adjudications unless there are new circumstances which force a judge to decide on the contrary. For instance, Donoghue v Stevenson (1932, duty of care) is a very important precedent in matters arising out of a tort of negligence. It has widened the scope of duty of care. The English Legal system is based on common law and significant amount of law exists without statutory definition. When there is a ‘gap’ in the law, the courts use their powers under the common and have discretion in making decisions which are in the best interest of the vulnerable party hence making new precedents (Gillespie, 2007, p.13),. Legislation is the making and promulgation of Statutory Law by the Parliament through legislature. It is the primary source of law. It contains law in statutes or in a codified form. It has two types i.e. primary and secondary legislation. Primary legislation is hard to pass and takes a lot of time in the process. Secondary legislation, on the other hand, is relatively easier to pass (Gillespie, 2007, pp.22-25). Therefore, in order to save time of and enable the Parliament to have control on the legislations, a lot of secondary legislations are passed. Everyone is bound to act according to the legislation. Whenever a matter is to be decided, it should be decided according to the legislation. If nothing can be found in the legislation, precedents must be followed. If the there is no precedent for a particular matter, it should be decided in the best interest of the vulnerable party. The decision thus made becomes a new precedent. A contract is an agreement but an agreement may not necessarily be a contract. We have to analyze the definitions of agreement and contract in order to get to a conclusion. Contract law (UK) defines agreement as, “Every promise and every set of promises, forming the consideration for each other, is an agreement." The main elements of an agreement are two or more persons, a proposal and acceptance of that proposal. Also there must be consensus-ad-idem i.e. both parties must agree to the same thing in the same sense. If there is any ambiguity on part of any of the parties, there is no agreement. There are agreements of social and domestic nature too. A contract is defined as an agreement enforceable by law (Contract Law, UK). It is obvious that agreement is the base of making a contract but it is not the only condition that must hold true. Agreements cannot by themselves become contracts unless certain requirements are fulfilled. For the formation of a contract, the parties to an agreement have to go beyond the agreement. The agreement just makes the parties agree to the same thing in the same sense. A contract, apart from being an agreement, requires the parties to be legally bound. “An agreement is a Contract if it contains the three basic elements of Intention to create Legal Relations, Offer & Acceptance, and Consideration; but what constitute these, how, and why, or not, are matters, mostly, of precedent.” (Legal-Catch, 2007). Some of these precedents are given below. Jones v Padavatton (1968) was about an agreement between a mother and daughter ~the mother had promised to support her daughter during her studies if she returned from USA to live in England. The daughter returned and after some time, the mother attempted to back out of the agreement. It was held that it had not been intended to be legally binding, so it was a domestic agreement. In Simpkins v Pays (1955), a landlady and her tenant had intended to be legally bound by jointly entering a competition and share any prize won, it was a contract. In Jones v Vernon Pools Ltd. (1938), and also in Appleson -v- Littlewoods Pools (1939), there was an intention to be bound legally, but it was one-sided; the other had not so intended it to be, for the football pool company showed that the coupon contained the words binding in honor only, and it was not enforceable. A Local Authority did not have to sell a house at the price applicable at time of application -which it was to consider; no offer existed to accept but an invitation to treat: Gibson v Manchester C. C. (1978). A reward-poster (if a product did not protect against influenza) was Intention to be legally bound, as Offer, and Acceptance too had Consideration -the essentials of a contract: Carlill v Carbolic Smoke Ball Co. (1893). (Legal-Catch, 2007) It can be seen that how important and how delicate is the case of legal obligation. It is very easy to get confused in certain cases and start to wonder whether there is any legal obligation. Precedents help us by making us able to differentiate between various sets of circumstances. Some matters are complicated and it becomes very hard to decide whether there is a contract or not. Such matters need close study in the light of statutes and precedents. There are some contracts which are void ab-initio i.e. from there very inception. This is because either at least one of the parties is not competent to contract or the consent is not obtained freely i.e. it is not free from coercion, undue influence, mistake, misrepresentation or fraud. Also, if the subject matter of the contract is unlawful or the performance of the promise is impossible, the contracts are void. As they are void ab-initio, they are also known as void agreements as they are not able to be transformed into a contract. They are not contracts, but they are agreements because mostly, they fulfill the conditions of an agreement. This is another example of an agreement not being a contract. There is another type of contracts which are called voidable contracts. These contracts lack in one of the essentials of a valid contract but there subject matter is legal. These contracts are voidable at the option of aggrieved party i.e. it is void if the aggrieved party nullifies the contract and valid if aggrieved party decides to proceed with the contract. For instance, A obtains the consent of B with coercion to buy the house of B. The contract is voidable at the option of B. It is void if B nullifies the contract and valid if he decides to sell his house to A for the same price under the same contract. A voidable contract when nullified becomes void and although it is not a contract, it is an agreement. An agreement is the first and an essential requirement for the formation of a contract. Agreement lays the foundation of a contract. The rest of the requirements need to be fulfilled afterwards. A contract needs to be an agreement first. An agreement, on the other hand, just needs an offer and it’s acceptance between two or more parties. They are not required to be legally binding on the parties. They can be of a social nature and are not enforceable by law unless they are transformed into a contract. Therefore, a contract is an agreement but an agreement may not necessarily be a contract. Q. 1 (b) In the given case, Kingsley Ltd purchased bricks with the brand name ‘Sparkling Bricks’ for using them in construction of houses on an exposed sea front site. The bricks were made of compressed paper and their reaction with sea-salt caused pores in them allowing the damp to go inside. Their manager, Paul did not mention the fact about the location to the seller, Brick-for-All. Kingsley Ltd would like to know whether they can claim any compensation from Brick-for-All. First of all, it is obvious that a chemical reaction of the kind mentioned in the given facts takes a long time to complete. The pores would have taken weeks in their making. Also, the damp would have taken quite some time to get in the houses and render them unsuitable for human habitation. During all this time, the bricks were in the ownership of Kingsley Ltd. Therefore, there is an onus on Kingsley Ltd to prove that the pores would not have been made if they had used bricks made of clay. Convention on International Sale of Goods (CISG) (Article 35(2)) states that, "Except where the parties have agreed otherwise, the goods do not conform with the contract unless they: (a) are fit for the purposes for which goods of the same description would ordinarily be used; (b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the sellers skill and judgment." In this case, Paul did rely on Brick-for-All’s judgment that ‘Sparkling Bricks’ were suitable for external usage. As the bricks, which did not come into contact with sea-salt, were fine. It means that the goods matched their description to the extent of seller’s information of their prospective use. He was not informed about the location which, under normal circumstances, is a remotely related fact. There is no question about the buyer’s status in relation to acting in the ordinary course of business in Sale of Goods Act, 1979 but The Convention on International Sale of Goods (Article 82 (2(c))) does mention the fact about a buyer consuming or transforming goods in the course of normal use. Kingsley Ltd is house builders and they did transform the bricks in the course of normal use and because of that, they would not be able to return the goods in their original condition. The same Article states that goods transformed in normal course do not make a buyer lose his right to declare the contract avoided. But the problem is that Paul never mentioned the special purpose completely for which the bricks were required. In the normal course of business, a brick-seller normally just needs to know whether they are required for internal or external use. The location of their use is not asked and normally buyers do not inform about the location because it is deemed as not important in usual cases. Sale of Goods Act, 1979, (Section 14(2C)) states that, "The term implied by subsection (2) above does not extend to any matter making the quality of goods unsatisfactory— (a) which is specifically drawn to the buyer’s attention before the contract is made, (b) where the buyer examines the goods before the contract is made, which that examination ought to reveal, or (c) in the case of a contract for sale by sample, which would have been apparent on a reasonable examination of the sample." Convention on International Sale of Goods (Article 38(1)) states that, ‘The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances.” These provisions also support Brick-for-All as Paul examined the samples. Also, as he is in the business of house-building, he can be assumed to have known what kind of bricks must have been used while building houses open to the sea-side. He chose bricks which are not made of clay. Convention on International Sale of Goods (Article 35(3)) states that, “The seller is not liable under subparagraphs (a) to (d) of the preceding paragraph [subsection 2] for any lack of conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity.” There is another fact that Kingsley Ltd might wish to rise that the bricks delivered for construction were not in conformity to the sample examined by Paul. This is also going to be very hard for them to prove because the bricks delivered by Brick-for-All were perfectly fit for construction in normal areas. It is evident from the fact that the pores were made by a chemical reaction by sea-salts only into the bricks which were facing the sea. The rest of the bricks did not allow damp into the house which means that if the construction was at any other normal location, they would have been fine. Therefore, Kingsley Ltd cannot claim damages from Brick-for-All. If Paul had described the usage completely, it would have been a condition (Kirk-Robinson, 2010). A breach of that condition would have given Kingsley Ltd a right to repudiate the contract. The only condition that exists in the current case is that the bricks should have been fit for the purpose of external usage. This condition is fulfilled and Brick-for-All has no liability. On the other hand, it is not very clear from the given facts whether Paul’s examination must have revealed that ‘Sparkling Bricks’ are not made of clay. Bricks are usually made of clay and bricks made of compressed paper are rare. Paul mentioned that bricks were required for external use and Brick-for-All showed the brick types that were fit for external use normally. Paul withheld a very crucial detail and the court may not hold Brick-for-All responsible because of Caveat Emptor (Property Law, let the buyer beware). Paul works in a house-building company and he should have known about the bricks. He chose ‘Sparkling Bricks’ at his own risk. A fair amount of houses are built on exposed sea locations. It does not matter whether it was the front side or any other side because the damp would have entered the house from any side which was exposed to sea salt and made of ‘Sparkling Bricks’. If it is assumed that Brick-for-All knew that bricks made of compressed paper are not suitable for use on such sites, there is a liability on their part due to their breach of duty. Godley v Perry (1960) would be applied in this case because just like the defected catapult, the bricks were unfit for use. But it will not be adjudicated unless the court finds some important facts in respect of this case. The court would need to know the place of business of Brick-for-All and it is also important how often they deal with the type of customers who want to use bricks on exposed sea locations. The courts may decide that there is no liability on Brick-for-All because Paul only mentioned that bricks were required for external use and ‘Sparkling Bricks’ were fit for external use which is evident from the condition of unexposed bricks. Brick-for-all performed their duty as the bricks were adequate for the purpose mentioned by Paul. Therefore, in that case, Kingsley is advised not to sue Brick-for-All for damages because their claim will fail as it did in Griffiths v Conway Ltd (1939). Bibliography 1. Donoghue (or McAlister) v Stevenson, [1932] All ER Rep 1; [1932] AC 562; House of Lords. 2. Gillespie, Alisdair. (2007) Domestic Sources of Law: Parliamentary Material.. Oxford University Press Inc: New York, p.8. 3. Gillespie, Alisdair. (2007) Domestic Sources of Law: Parliamentary Material.. Oxford University Press Inc: New York, p.13. 4. Gillespie, Alisdair. (2007) Domestic Sources of Law: Parliamentary Material.. Oxford University Press Inc: New York, pp.22-45. 5. Contract Law, United Kingdom. 6. Attorneys, Lawyers. (2007) Contract Law Summarised; Explanations, Definitions, Cases [Online]. Legal-Catch. Available: http://legalcatch.wordpress.com/2007/09/11/contract-law-summarised-explanations-definitions-cases.html [Accessed 03 December 2010]. 7. Jones v Padavatton, [1968] EWCA Civ 4, [1969] 1 WLR 328; All ER 616. 8. Simpkins v Pays, [1955] 3 All ER, 10; [1955] 1 W.L.R 975. 9. Jones v Vernon Pools Ltd [1938] 2 All ER 626. 10. Appleson v H Littlewood Ltd [1939] 1 All ER 464. 11. Gibson v Manchester City Council - CA [1978] 1 WLR 520, Court Of Appeal. 12. Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256; Court of Appeal, 1892 Dec. 6,7, LINDLEY, BOWEN and A. L. SMITH, L.JJ. 13. United Nations Convention on Contracts for the International Sale of Goods, 1980. (Int) A 35 (2). 14. United Nations Convention on Contracts for the International Sale of Goods, 1980. (Int) A 82 (2(c)). 15. Sale of Goods Act, 1979. (UK) s 14 (2(c)) 16. United Nations Convention on Contracts for the International Sale of Goods, 1980. (Int) A 38(1). 17. United Nations Convention on Contracts for the International Sale of Goods, 1980. (Int) A 35 (3). 18. Kirk-Robinson, Zoe. (2010) Defective Product Law and the Sale of Goods Act [Online]. Suite101. Available: http://www.suite101.com/content/defective-product-law-and-the-sale-of-goods-act-a189070.html [Accessed 03 December 2010]. 19. Godley v Perry [1960] 1 WLR 9, [1960] 1 All ER 36. 20. Griffiths v Peter Conway Ltd [1939] 1 AER 685. Read More