The English Legal System: Contracts of Employment - Assignment Example

The English Legal System: Contracts of Employment 1. The English legal system is the source of law in many countries regardless of it originating from England. Therefore, this essay seeks to distinguish the role of criminal law and civil law in relation to the English legal system. According to Kleyn & Viljoen (2002), “Every citizen of a state has certain duties towards the state and in the interest of the society as a whole, the state prescribes certain norms of conduct that bind all members of the state upon which it has a jurisdiction to punish a person who transgresses against these.” Criminal law forms part of public law hence any act that violates this law constitutes a crime. Criminal law is based on public law and the state is part of the proceedings against the accused person. Criminal law comes into operation when an offence has been committed and the state initiates a prosecution against the accused. Thus, it is the state’s case against the accused and criminal law in relation to English law is seen as an effective way of dealing with certain conducts which are seen as wrong and violate the prescribed norms in society. The purpose of this law is to punish the accused if found guilty for the sake of protecting the interests of the citizens as well as the society. On the other hand, the major notable difference between criminal law and civil law is that civil law falls under private law which specifically deals with legal relationships between subjects (Kleyn & Viljoen 2002). These subjects in civil proceedings are relatively on the same footing ground with each other and the role of the state is just to facilitate the delivery of justice. Civil cases often involve family law, tort or contract laws which do not warrantee punishment upon conviction but compensation is preferred as a way of granting remedies that can be used on a disputed legal position (Kleyn & Viljoen 2002). In a civil case, it is the plaintiff versus the defendant contrary to criminal case as explained above and the parties involved in a civil case decide whether they want to initiate proceedings while in a criminal case, the state initiates prosecution. 2. Common law which is also known as case law which is law that has been developed case by case in the courts (Du Plessis 1999). The English legal system is a common law at its best and is a living law that that was developed in the court decisions and adapted to practical purposes. The role of common law in the English legal system is that it is used as reference point to particular cases on the basis of outcome of similar court cases. The judges developed this law on the basis of outcome of certain cases that have been co-opted into the legal system. Common law is often regarded as a legal norm and to a greater extent, it plays a significant role in validating the authenticity of the law given that it was born out of actual cases and agreed as well as been written by the judges. Times change and the modern societies have certainly changed and certain forms of human conduct become unacceptable as the time goes by (Kleyn & Viljoen 2002). In these instances, the legislature creates new offences and these crimes are referred to as statutory offences. In this regard, it can be noted that both common law and legislation have a role to play within the English legal system. It has been seen that common law is an important source of law but it does not cover all aspects especially those obtaining on the ground during the contemporary period. The legislation then comes into play to check for these areas so as to formalise them into law. Thus, English law is uncodified common law and the legislation primarily regulates matters of a more modern technical nature or else it amends, systematises, consolidates or supplements common law in areas where it is inadequate or ambiguous or where renewal is necessary (Du Plessis 1999). For instance, environmental laws were only incorporated after the realisation of the significance of the environment to the economy of the country of which the common law overlooked such aspects. 3. Gibson (1988) defines a contract as, “an agreement between two persons in terms of which a right and corresponding duty to performance comes into existence.” This agreement is legally enforceable. In simple terms, when two parties enter into an agreement, there would be binding terms of the contract that would make them keep their duties as agreed in the terms and conditions of a contract. When two people agree to do something for each other in return for something, then they have made a contract which is legally binding. However, not every agreement is therefore a contract. According to Gibson (1998), in order for the contact to be binding, the agreement entered into must comply with a number of essential factors and if some of these are missing, then the contract becomes null and void. It becomes a bit challenging and almost impossible for the court to enforce an agreement that is characterised by missing essentials that make the contract valid. In order for a contract to come into being, there must be mutual understanding between the two parties involved and the agreement must be lawful. Each party must be aware of his duty to play and the contract must be clear right from the onset. These are among the basic tenets of contract formation as going to be discussed in detail below. Gibson (1998) suggests some of the essentials discussed below that must be fulfilled in order for the contract to be valid. It is very important for the contracting parties to have appropriate legal capacity to enter into a binding agreement given that the contract will be legally enforceable. Justice delivery is meant to ensure that fairness prevails between the parties involved such that there will b no one who will feel disadvantaged at the end of the day. In this particular case, people who do not have the legal power to enter into a contract are minors and these are young people below the age of 18 years. Any person below this age who enters into a contract without the consent of the parents cannot by law keep that contract. Therefore, any contract made between an adult and a minor is null and void since this is against the law. Mentally ill people or those who are excessively drunk have no legal power to enter into a contract with a sane or sober person (Gibson 1998). It is because of the reason that their state of mental capacity cannot be trusted to make informed decisions compared to the parties they will be dealing with as far as contract formation is concerned. For a normal person to enter into a contract with somebody who is mentally ill is seen as an invalid contract given that their reasoning capacities are totally different hence this agreement cannot be regarded as a contract. In this case, it can be noted that it is inappropriate to enter into a contract with someone who does not have the legal capacity since it is impossible to enforce such an agreement in the event of breach of contract. According to Watermeyer v Muray 1911AD 61 at 70, every contract consists of an offer made by one party and agreed by the other and the capacity of a mentally ill person may fall short of this requirement which makes the contract invalid. Another key element for the formation of a valid contract is its legality. A valid contract ought to conform to the norms and values of the society. For example, if a person promises to steal a bike in return for money, then that contract is null and void since it is against the law, societal norms and values. In certain circumstances, agreements may not be valid contracts if they are impliedly prohibited by the law (Gibson 1988). Selling liquor or other intoxicating substances without a license is prohibited by law hence any contract involving such kind of deal is null and void. In the event that something like a car that was being sold is stolen before the payments and delivery are made, then it becomes impossible to pursue with that contract given that the subject of the contract is no longer there. Another essential factor in the formation of the contract is that a contract must be within the limits of the contracting parties. The people intending to enter into a contract should show their seriousness and knowledge about something they are about to do of which failure to establish that in the first instance will render the contract null and void. It follows from this argument that contracting partners should not use vague terms such as “I may do this.” A genuine contract should be based on clear terms and conditions where there is mutual understanding between the two parties involved in order for the agreement to be legally binding. In the event that there is lack of common understanding on the contract to be made, the agreement reached may be null and void since it will not reflect the contractual obligations of the parties involved. A valid contract can be formed between people who share the same understanding and are aware of the implications of the contract they are entering into otherwise it will be null and void. Part B A close reading of the given case shows that Kingsley limited has encountered a problem where Paul acquires the wrong set of bricks for the houses that were built near the sea. They only realised after the completion of the houses that the bricks used in the front of the houses facing the sea were not the right ones. This discussion therefore seeks to advice Kingsley Ltd on the appropriate measures that can be taken against the supplier, Brick-for-All should there be any. The Conventional sale of International Goods (CISG) and sale of goods (Soga) provisions are going to be used as the basis upon which advice can be given with regards to their case involving buying wrong bricks. This emanates from the belief that everyone has the right to enter into a contract and is protected by the law of the land and can refer the case to the court should he or she feel betrayed. When people are entering into a contract related to buying and selling, the law is primarily there to protect both the buyer and the seller of the product offered. In the event of a dispute arising, the case can be taken to the court which is mainly responsible for solving such issues. CISG as a law is primarily concerned with dealing with contractual cases arising among member states where there has been a dispute in the contract between the parties involved. In the event that Brick-For-All is an international agency selling bricks from the other country, the provisions of this law can be applied to resolve this kind of dispute. This law can be used to assist Kingsley Ltd given that this organisation bought bricks from an international organisation which were discovered to be of poor quality after they were already used for constructing the houses. The main purpose of this provision is to set forth the rights and obligations of the buyers and sellers which are member states and the law can be applied given that there is an international company involved in this case. Kingsley is a local company but Brick-for-All is an international supplier of building materials. The charter is primarily concerned with protecting the interests of the contracting member states. Kingsley Ltd and Brick-for-All are two companies with different backgrounds hence their contractual obligations can be bound by the provisions of the CISG given that there is an element of international business taking place between the parties involved. The CISG has the jurisdiction to deal with international business issues involving companies operating in different geographical areas hence it is advisable to Kingsley Ltd to seek the intervention of this organisation to resolve this dispute that has arisen. It is not the problem of Kingsley Ltd to a greater extent given that it might have bought bricks that were substandard from an international company hence this dispute can be resolved through the efforts of CISG. CISG is mainly concerned with dealing with issues that involve organisations operating in different states. In a buying and selling contract, both the buyer and seller agree to exchange goods for a certain value of money and both of them are obliged to meet certain conditions of the contract. The duties of the buyer in this case are: to pay the price, to pay the seller’s necessary expenses in maintaining the goods or products sold until delivery and to accept delivery of the article sold when tendered to him (Gibson 1988). The seller on the other hand is expected to ensure that he or she delivers the purchased product undamaged. In the given case, it can be seen that none of the contracting partners breaches the contract in terms of buying and supplying the bricks but the major problem that has been encountered is that the bricks provided are not the right ones. It is believed that the suppliers from different countries could have supplied bricks which do not meet the expected quality in this country given that they may have lacked the knowledge about the place. They can report this case to the CISG to resolve the dispute given that one international organisation may have failed to specify the required types of bricks that are suitable in this country whereby the blame can be labelled against them. Though Paul made the choice of the required bricks without undue pressure from the sellers, it can be assumed that he believed that this organisation has a good reputation of supplying quality bricks given that it is an international company. When a buyer pays for the product of his choice, he has fulfilled his obligation in a contract and it will be left for the seller to supply the product which meets the expected quality. To a greater extent, the blame can be labelled to the supplier given that the provisions of the CISG are mainly concerned with ensuring that both parties involved in a contract are satisfied by the agreement. It is the duty of the suppliers of the bricks to ensure that they provide satisfactory bricks and they should attempt to establish the quality of the products they supply before selling them to different customers who may not have knowledge about the bricks. Paul is not particularly concerned about bothering the suppliers about knowing the quality of the bricks given that this is an international organisation that specialises in supplying building materials to different customers internationally. This can be the problem of the seller given that the buyer dutifully fulfilled his contractual obligations through making the necessary payments of the bricks bought though he later discovered that these bricks were of poor quality hence cannot be used to construct houses that can be habitable. If the seller supplies wrong products to the buyer, he or she will be liable for the poor quality since it is his duty to ensure that the products sold conform to the expected standards within a particular country. To a greater extent, Brick-For-All is to blame because they supplied wrong bricks to an unsuspecting customer. This can amount to misrepresentation where by the seller can take people for a ride while they are not suspicious about the quality of the bricks supplied. On top of the application of the CISG to this case, it can be noted that the best known and most comprehensive set of statutory implied terms is that contained in the Sale of Goods Act 1979 as amended by the Sale and Supply of Goods Act 1994 (Murdoch, 1997). Under the SOGA, there are implied terms of the contract that can be effected by the courts on condition that the sellers binds himself to the agreement that he will supply goods that meet the expected quality so as to avoid a situation where the other party can gain an unfavourable advantage over the other through supplying goods that do not meet the expected quality standards. A close analysis of the case study shows that the contract shows that the parties involved have agreed to be bound by the terms of buying and supplying where the courts can take a leading role in resolving the disputes that are likely to be encountered as a result of the fact that the supplied bricks are substandard. What is mind boggling in this scenario is that the weaknesses of the purchased bricks are only witnessed after the completion of the house which still may be the responsibility of the supplier. According to Murdoch (1997), the following conditions should apply under the provisions of SOGA: Where the seller sells goods in the course of a business, there is an implied condition that the goods supplied under the contract are of satisfactory quality. For the purposes of this Act, goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory taking into consideration the description as well as the price paid. For the purposes of this Act, the quality of goods includes their state and condition with regards to their quality. A good example of another similar case can be draw from Arcos Ltd v E A Ronaasen & Son [1933] AC 470where P contracted to sell a quantity of timber staves ½" thick, which D wanted to use in making cement barrels. However, these were discovered that they did not meet the expected quality and D rejected the whole consignment (Murdoch, 1997). He was entitled to do so because the goods failed to correspond with their description which was regarded as a breach of section 13 of the Sale of Goods Act 1979, even though the staves were perfectly usable. Just like in this particular case, Kingsley Ltd have the right to contest the disputed quality of the bricks given that there are statutory provisions that are meant to protect the interests of the buyers such that they are not short changed by the suppliers of goods and services. From the above discussion, it can be noted that Kingsley Ltd is under protection of both CISG as well as SOGA provisions following a dispute in the quality of the bricks that were supplied by Brick-For-All. References Basson, AC 2002, Essential labour law, Centurion, Labour Law Publications. CISG (N.D), viewed 01 December, 2010, . Consumer law, ND, What is a contract? Viewed 01 December, 2010, . Contract cases ND viewed 01 December, 2010, . Criminal law-Penal law-Guide to criminal and Penal Law ND, viewed 01 December, 2010 . Duplessis, L 1999, An introduction to law, 3rd Edition, Juta, CT. Gibson, GTR 1988, Mercantile and Company Law JUTA & Co LTD, CT. Kleyn, D & Viljoen, F 2002,. Beginner’s guide for law students, 3rd Edition, JUTA, CT. McQuoid-Mason, D 1990, Street Law: Consumer Law, Pearson Education. Murdoch, J 1997, Law of contact, Prentice Hall. The English legal system: Why, how laws are made May 30 2007, viewed 01 December, 2010, . Todd, C 2001, What you must know about contracts of employment, SiberInk, CT. UN Conventional Sale of International goods, ND, viewed 01 December, 2010, Read More