Law Tort, Bushels Case of the 1670 - Essay Example

?Law Table of Contents 2 1a) 3 Discussing ment 3 Discussing ment 2 6 1b) 8 Case Overview 8 Evaluation and Advice 9 Conclusion 12 References 13 1a) Discussing Statement 1 Considering the fact that each case presents a different scenario and deontological ethics may not seem to be effective in all cases, judges are allowed to make independent decisions in particular cases, which include unrecognized law and overrule case judgments. It is in this context that the parliament makes laws in order to govern the citizens of a country suitably, which are recognized as statue laws. The parliament comprises elected representatives entrusted with the responsibility of making laws in order to ensure that the states and the societies are governed effectively in such cases (Brassil & Brassil, 2000). Nevertheless, such courtroom practices have also been alleged of raising various ethical issues concerning the application of the enacted regulations and the various facets of the particular event being scrutinized. These arguments and skepticisms demand for a more organized and cautious judgment in cases, so that ethical conflicts can be avoided when ruling a particular case. The statement, “Judges should be cautious (in terms of making law or following precedent) not because the principles adopted by the Parliament are more satisfactory or more enlightened, but because it is unacceptable constitutionally that there should be two independent sources of law-making at work at the same time” postulates a similar notion, which will be critically discussed henceforth, with reference to relevant case laws. Factually, common laws are formed with the sole intention to direct or steer the decisions made by judges are to be followed in future identical cases presented before the court. Case laws are identified as the main sources of common law, whilst the prior formulated laws are still considered important in the present day context. There are two important sources that assist in the overall development of common law, which include the ‘doctrine of precedent’ and the parliament. The doctrine of precedent is an important source of law in accordance with which, judges can make their decisions in present cases based on the decisions delivered in previous instances. The doctrine of precedent usually implies the deontological belief that lower courts are required to make their decisions in presented cases on the basis of decisions that are delivered in landmark cases presenting similar legal conflicts and issues. Contextually, the judges are assigned with the tasks of having a better understanding of the facts as well as information in relation to certain cases. Moreover, the judges are also required ensure that the decisions made can be applicable to later cases ascertaining that on the identification of similar facts as well as information, the judges are able to make their decisions effective, based on the decisions made in previous cases. In this context, the doctrine of precedent can be regarded as an important source of common law assisting judges in taking appropriate decisions ensuring the omission of mentionable ethical conflicts (Pearson Education Ltd, 2014). For an example, the decisions made in the case Shaw v DPP [1962] AC 220 have been used by the judges in the case of Knuller v DPP [1973] AC 435 following the Parliamentary norms (e-lawresources, n.d.). On the other hand, there were cases like Jackson and others v. Her Majesty's Attorney General [2005] UKHL 56 (House of Lords, 2006) and British Railways Board v Pickin [1974] UKHL 1 (United Kingdom House of Lords Decisions, 1974) where judges ruled with the application of the purposive methods, delivering dissenting judgments to the propounded norms by the Parliament. This further raises a noteworthy question and a degree of perplexity regarding the applicable laws and the independency of judges in ruling any particular case. Worth mentioning, the parliament is entrusted with the responsibility of making laws on the basis of which, people are to be governed. In this regard, the judges are not entrusted to make laws but to apply the most applicable law with the identified facts and information. Nevertheless, in different instances, as exhibited in the cases like Tulk v Moxhay (1848) 41 ER 1143 41 ER 1143 (Casebriefs LLC, 2014) and Associated Provincial Picture Houses v Wednesbury Corporation (OxCHEPS, n.d.), the judges are observed to make law in certain specific situations. From a generalized perspective, it can be argued that the judges can make law in cases where no decisions have been made in earlier cases. In this respect, the judges develop new laws in accordance with the values as well as opinions of the people of the present society as in the case example of R v R [1991] 4 All ER 481 (Tufal, n.d.). Contextually, although the judges are facilitated with the provision of making law, the doctrine of precedent is identified as a subordinate of statute law formulated by the Parliament that limits the law making independency of the judges (Martin, 2013). In this regard, Bushel’s Case of the 1670 can be referred, which clearly distinguishes between the independency of the jury, the judge and the Parliament in law making. In the referred case, the jury members were convicted for returning a verdict that was contrary to that of the judge, and therefore was also not satisfactory to the Parliamentary rule in the case of William Penn and William Mead. Following their willful rejection to pay the charged fine, the jury members of the case urged to review the freedom of the judges to deliver judgments and in the aftermath, it was proclaimed in the court that no jury could be convicted on the basis of the verdict returned and its conditional alignment with the Parliament (Law Reform, 2010). This particular instance indicates that judges can enjoy a certain degree of independence while delivering judgments, but certainly they need to be cautious to deliver judgments that are apt and thus, take due note of the doctrine of precedent, following the common law norms and disregarding any external pressure or unethical biases (Huxley-Binns & Martin, 2013; Brassil & Brassil, 2000). From the above discussion, it can be comprehended that the Parliament is not essentially appropriate or adequate on ethical terms. Taking these aspects into account, the judges are observed to make their judgments based on the decisions delivered in earlier identical cases, on the grounds of the doctrine of precedent developing a new law in every instance. It is in this context that because their delivered judgments can have serious implications on the later cases, judges need to be cautious when applying or disregarding the Parliament when returning their verdict on a particular offence. Hence, the statement assessed above can be justified that it should be owing to the significance of the verdict being delivered and not because the principles enacted by the Parliament are more satisfactory that judges need to be cautious in their role of law-making. Discussing Statement 2 There are certain conditions of the Tort Law, where one party gives advice or conveys any information to the other party, further accompanying with circumstances where the other party conducts his/her activities based on the information or the advice of the first party. However, if the information or the advice of the first party is negligently misstated, owing to which the second party becomes unfavorably affected, the first party is deemed to be liable for compensating any loss or damage caused (Department of Industry, n.d.). In common terms, negligent misstatement is considered among the approach where people are deemed to conduct breach towards the legal obligations of duty of care, which again falls under the tort law. It refers to a particular legal obligation where people are imposed with certain standards that they must follow with regard to ensure that their conduct does not harm the wellbeing of others. Negligent misstatement is one of the approaches of people, which are deemed to harm the wellbeing of others through providing misstated advices or information that eventually results in loss or damages of some kind for others. This can be comprehensively understood from the case of Hedley Byrne & Co Ltd v Heller & Partners Ltd (Baili, 1963). Similarly, in legal terms, misrepresentation depicts a false statement of facts or any other information that is used to persuade people into a contract. Misrepresentation is defined as an untrue statement of information and facts that are presented by one party in front of the other party(s), in order to convince the same to draw into a contract with the former. However, there are also particular instances, where misrepresentation is committed due to negligence from the parties involved and are treated as negligible misrepresentation. Under s.2 (1) of the Misrepresentation Act 1967, ‘negligible misrepresentation’ is made with reasonable grounds to depict something as true. As per the contract law, a contract that is made with involving a negligible misrepresentation is further deemed to be void under law. This aspect can be seen in the cases of Bisset v Wilkinson [1927] AC 177 and Smith v Land & House Property Corp. (1884) 28 Ch D 7 (Weitzenbock, 2012; Law Teacher, n.d.). It is apparent from the above discussion that there are certain similarities between negligent misstatement in Tort Law and negligent misrepresentation in Contract Law since both involve misstating or conveying certain information or advice that might harm others in the later stages. However, this aspect does not mean that both Contract Law and Tort Law are similar to each other. Arguably, a considerable degree of difference can be identified between the two concepts. Contextually, it would be crucial to mention that negligent misrepresentation of contract law is an action that can only be executed when two or more parties are involved in a particular contract. On the other hand, the action of negligent misstatement of tort law can be executed even when two parties are not involved in any relationship. Another difference between the two is that negligent misstatement is used to tort or conduct fraudulent activities with others while negligent misrepresentation is intended towards convincing others to move into any sort of contractual terms (Practical Law, 2013). Hence, owing to this considerable difference between misrepresentation and misstatement, a difference between tort law and contract law can indeed be supported. 1b) Case Overview Ali is a gym-owner in London and is intended to sell his car at a price of ?15,000. For this purpose, he firstly sent an offer to Cameron leaving a message for him in his answering machine. In the succeeding days, Cameron’s wife informed Ali via telephone about the absence of Cameron and the fact that he might take two weeks to return home. Ali assured that he would wait until Cameron’s return. However, Ali, going against his promise to wait for Cameron till he came back home, had sent another proposal for selling the same car to Derrick. Derrick accepted the offer, but simultaneously enquired about the color of the car. Owing to certain delay in the postal operations, his response did not reach Ali on time. Meanwhile, Cameron came back home earlier than expected and responded positively to the offer of Ali stating that he would buy the car at the price mentioned. After receiving the response, Ali confirmed through a letter to Cameron that the car would only be sold to him. Again due to certain problems in the fax machine of Ali, the letter was not delivered to Cameron within the expected time. During this instance, Ali being unaware of the scenario interpreted the non-arrival of any response from Cameron on his confirmation as his lack of interest and further promised his daughter Nurul to offer the car, on a conditional contract that she would need to leave her job outstation and come back to London. Nurul, accepting the offer resigned from her current job. By the meantime, when Ali received response from Cameron, he reversed his statement to Nurul about giving away the car as a joke. Evaluation and Advice It is evident form the case that Ali had drawn into contract with Cameron, Derrick and Nurul making the same promise to sell his car. However, as per the laws under contract act it is not possible or legal to have a contract of selling any particular asset to three different people (E-lawresources, n.d.). However, the contractual positions of these three parties can be observed as different, owing to which, their legitimacy in obtaining compensation for their damages also differs substantially in this case scenario. Advice to Cameron In the case of Cameron, Ali left the message for him in his answering machine but owing to his absence, his wife provided the assurance that she will inform Cameron about the offer. Ali promised Cameron’s wife that he will wait for Cameron till he comes back after two weeks. In this instance, Ali can be alleged to violate his promise to wait until Cameron’s return and offered to sell his car to Derrick, intending a separate contractual agreement. Meanwhile, Cameron receives the message from his wife after which, he accepted and conveyed Ali about the same through mail, way before the completion of two weeks, which was again received and confirmed by Ali. This implies a contractual agreement to be formed between Ali and Cameron, satisfying all the conditions of a legal contract. However, Ali rejects his liabilities to suffice the promise made to Cameron due to the non-arrival of any information from Cameron to prove his obtainment of the consent of Ali. In this case, it can be stated that as per the contract law of the UK, a contract is formed when two or more parties involved in a particular contract agree on the contents or the conditions of the same. Contextually, in the particular case of Cameron and Ali, both the parties involved accepted the conditions, which further show the formation of a contract (McGraw-Hill Education, 2013). Hence, this scenario can be evaluated under the legal regulation mentioned in the Contract Law of the UK. As apparent, the contract between Ali and Cameron was bound with contractual conditions imposing a time limit of two weeks, i.e. the maximum time Cameron shall take to return home and receive the offer made by Ali. In addition, the acceptance of the offer and the further confirmation of the obtainment of acceptance by Ali were made through electronic mail and fax. These various attributes depict that the contract between Ali and Cameron was entirely legal, which makes Cameron eligible to obtain the sports car in return of the sum assured. This instance coincides with the case of Henthorn v Fraser [1892] 2 Ch 27 (Swarbrick, 2013) and the case of Adams v Lindsell [1818] EWHC KB J59 (Ellenborough, 1818). Hence, it can be affirmed that a breach of contract has taken place from the part of Ali where he contracted to sell his car to other party despite of having an existing contract based on the same promise to Cameron. Therefore, as per law, Cameron will be liable to get the car from Ali. Advice to Derrick When considering Derrick’s contractual position, it can be identified that Ali made an offer of selling his car to Derrick by a formal letter. In response, Derrick agreed to buy the car at the mentioned price in the offer letter by Ali. In his letter, Derrick also enquired about the color of the car on offer by Ali, which can be treated as a counter-offer and thus, Derrick’s confirmation may not be treated as entirely legitimate at this stage. However, the letter sent by Derrick in reply to the offer of Ali gets delayed owing to certain postal issues. The delay was interpreted by Ali as lack of interest of Derrick, which further influenced him to move into a contract of selling the car to another party, i.e. his daughter. This case also has resemblance with the scenario of Henthorn v Fraser [1892] 2 Ch 27 and Dunlop v Higgins (Swarbrick, 2013; Commonlii, n.d.). Referring to these cases, it can be stated that the contract is deemed to be formed between the two parties once the parties posted or mailed their responses to the other parties. However, in this particular case, the contract can be observed to be void as the offeree (i.e. Derrick) had made a counter offer to Ali, mailing his requisition to know the color of the sports car and not his consent to the offer [Hyde v Wrench [1840] EWHC Ch J90] (Baili, 1840). In precise, it is apparent that since Ali did not receive the response of Derrick on time, a firm consideration is entirely missing from the contract. This further influenced the validity of the contract and the legal norms associated with the same thereafter. Contextually, it will be advised to Derrick that owing to the absence of consideration and the fact that the contract is conducted entirely via postal means, which again shows incompleteness, the contract cannot be considered complete as per legal terms. This will unfavorably impact the legal contractual position of Derrick and eventually his liability of getting remedies for breach of contract. Advice to Nurul In this particular scenario, Nurul was promised by her father Ali to give away the car, which he was about to sell to Derrick and Cameron. The offer of Ali was accepted by Nurul under conditional terms that she would resettle in Birmingham from London. Accepting the offer, Nurul tendered a resignation letter to her employer. However, after receiving the responses of Derrick and Cameron in the later stages, Ali denied to give away his car to Nurul remarking his previous offer as just a joke. In this regard, it can be noted that a legal contract has been formed between Ali and Nurul with the presence of an offer, an acceptance and a consideration [Texaco vs. Pennzoil] (Marks, 2001). Since Ali entered into a contract with Nurul through offering her the car along with getting her acceptance, he will not be able to sell the same to any other party. Hence, a breach of contract can be said to be taken place, where Nurul had to suffer the loss of becoming unemployed. Thus, Nurul will be liable to get remedy from Ali owing to the breach of contract (Advice Guide, n.d.). Conclusion From the analysis of all the three scenarios, it can be summarized that in two of the cases, i.e. in the case of Cameron and Nurul, valid contracts have been formed. In the case of Derrick, lack completeness in the contract owing to the query made by the offeree, which further impacts the validity of the contract. Hence, it can be affirmed that while Cameron is liable to obtain the car as per the contractual terms and the promise made by Ali, his daughter, Nurul is also liable for obtaining compensation to her job loss, due to the contract made between her and Ali, based on their contractual positions. References Advice Guide, No Date. Consumer Contracts - Must The Contract Be In Writing? Home. [Online] Available at: http://www.adviceguide.org.uk/wales/consumer_w/consumer_protection_for_the_consumer_e/consumer_contracts_e/consumer_contracts_must_the_contract_be_in_writing.htm [Accessed January 01, 2014]. Brassil, B. & Brassil, D., 2000. Excel Preliminary Legal Studies. 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Home. [Online] Available at: http://www.uio.no/studier/emner/jus/jus/JUS5260/v12/undervisningsmateriale/Misrepresentation.pdf [Accessed January 01, 2014]. Read More