New Zealand Constitution, Contract Consideration - Coursework Example

Law of Business Name Institution Laws of Business New Zealand Constitution New Zealand is one of the few countries in the world that do not have a written constitution. The laws and rules governing the country are not found in one document but in different individual documents. New Zealand adopted the unwritten constitution from the UK and signed a treaty of Waitangi as the main governing document. Over the years, the country has used this constitution with much efficiency in the governance. However, there is a growing interest among the public in the country to adopt a written constitution (Robson, 2011). Should New Zealand adopt a written constitution? One of the major legal documents in New Zealand is the Treaty of Waitangi. The treaty was signed in 1840s between the British and the Maori Chiefs. The treaty gave the British Crown the sovereignty of the country while the country was to be ruled by a governor on the behalf of the crown. In 1970s, the parliament modified the treaty to fit in their current situation. In order to adopt a written constitution, New Zealand needs to incorporate the treaty of Waitangi in the new constitution. This will involve revaluating the clauses of the treaty and adopting the relevant ones. However, this process is likely to generate heated debate as not all parties are likely to agree on the modification (Robson, 2011). One of the major problems with the current unwritten constitution is lack of any higher form of law to guarantee human rights and rights of the minority. The government has centralized power which can be easily misused by leaders to oppress minorities or individuals in the society. The constitution does not protect the individual rights by curtailing the power of the government. Therefore, the absence of high form of laws to protect individual rights and the rights of the minority is seen as reason to support written constitution. Written constitutions have high form of law that protect the right of the minority from the executive arm of the government (LeVert, 2003). The lack of written constitution has made it possible for the parliament and the other legal bodies to alter the unwritten constitution to meet their selfish agendas. Unwritten constitution is associated with the flexibility and can be easily amended. However, the flexibility has been misused by selfish leaders to achieve their ill motives. New Zealand is advocating for written constitution that clearly states the procedure to be followed in case of the constitution amendment. Written constitution is not prone to alteration hence protecting the country. The new written constitution in the country should stipulate how the amendment should be done in order to ensure that the constitution is protected from individual interests (LeVert, 2003). The last reason why the New Zealand needs to adopt written constitution is to abolish the monarch. New Zealand is ruled by the Crown of the British. This means that the country does not have its sovereignty. In the past one decade, most of the countries in the world have been fighting to have their sovereignty recognized and respected by the other countries in the world. New Zealand feels that they need to abolish the monarch. This can only be achieved by having a new written constitution that equip various institutions in the country and gave the government of the country the sovereignty (LeVert, 2003). Contract Consideration Consideration is one of the three things which are needed to make a contract enforceable. A consideration refers to the exchange an individual received in return for the services or promise of other party. A legal consideration does not have either profit or loss to the involved parties. According to the law, a contract become legally binding if it is supported by presence of consideration. Kreitner (2007) writes that consideration is an essential element of a legal binding agreement. Apparently, the requirement of a consideration is an essential element of any contract. The absence of a sufficient consideration can render a contract not legally binding. First, the statement that consideration as an essential element of all simple contracts to be unsatisfactory is not true. In 1842, a case of Thomas V Thomas explained the situation in which a consideration is acknowledged by the court and hence become legal binding. The court stated that a consideration should be sufficient to the form of contract. In addition, a consideration should give the timeframe for the agreement. If these two requirements among others are achieved, the consideration become abiding and is an essential element of the contract to be satisfied (Taylor, 2013). However, there are some situations in which a consideration may not be essential for the contract as it cannot be considered as legal. The first situation is a contract when the consideration does not meet the legal requirement. An example is a situation where a consideration is not sufficient for the promises or service. The second situation is when the business involve is illegal to the countries laws. For instance, a consideration that is made in regard to selling and buying of drug will not be accepted in the US as their constitution does not allow this form of business. The consideration made in this case is not legally binding and may not be accepted in a court of law. Therefore, consideration is essential element of contract but it must meet the basic legal requirements (Taylor, 2013). The second statement that considerations do not provide a good evidence of intention to be bound is false. A consideration that is legally binding provides evidence that a legal bound was made. It can be used in the court of law as evidence of the intention to engage in a legal agreement binding between the involved parties. Apparently, the argument that contract considerations enable parties to escape obligations in an unfair way is not true. Legal parties ensure that all parties do not make profit or loss. Therefore, there is no way any party can use the consideration to escape obligations in an unfair manner (Taylor, 2013). In the case where the parties use the consideration to escape some obligations, the court of law cannot accept such considerations as legally binding and hence are not legal contract considerations. Tort Laws The tort laws have come to play a major role in today’s business world. The tort laws were formulated to offer remedies to individual called plaintiff harmed by another person referred to a defendant. Although these rules were initially focused on the injuries, the laws have become important in dealing with negligence and fraud investment advice. The laws require the defendant to carry the reliability for their misinterpretation and negligence. The first case of the negligence to reach the court was the Glazer and Shepard. In the case, the judge argued that professional negligence is synonym to fraud. Therefore, defendant should be financial reliable for their advice (Geistfeld, 2008). The judge ruled that the plaintiff should be compensated for the loss while the defendant must pay this loss. In the case of the Brian and Peter, Peter is the defendant while Brain is the plaintiff. Brain seeks advice from Peter who is a professional in accounting. The defendant acts in a negligence manner when he failed to provide the plaintiff about the personal debtor which the company owned to an individual. Brain follows the advice and invests his money in the business unknowing of the debtor, leading to the loss of all his investment (Weinrib, 2011). This is form of negligence in the professional services which can be interpreted as fraud. Therefore, the defendant should carry the reality for their mistake. Brain has the right to be compensated for the loss of the all the money he losses after investing in the Cocoon Ltd. In 1970s, the Restatement of Torts was promulgated which enhanced the execution of the professionals who offer misleading information to their client. According to the restatement, any individual in their professional areas supplies false information for the guidance of other in their business deal is subject to liability for the financial loss by their justifiable reliance upon the information. Apparently, Peter has supplied information that is false to the client which the client uses as reliable information. Brain has the right to be refunded his money by Peter due to the negligence caused (Weinrib, 2011). In Rankow v First Chicago Corp case, two shareholders were provided with false information which they used to invest in the Chicago Corp. The information result to the loss of the some share capital for the two shareholders. In the court, the judge rules that the defendant should be reliable for the loss. The judge stated that a defendant is reliable for the loss if the loss can be quantified to monitory value (Weinrib, 2011). This statement has been used in other cases as a guide of making judgement. If the loss incurred for wrong advice or misinterpretation, the plaintiff should be compensated by the defendant. The loss in the Brian case has a monitory value and hence the Peter is reliable for loss. Brain losses all the money he invest in the Cocoon Ltd and Peter should compensate the money to Brain. This is in accordance with the rules which have been made since the Chicago Corp tort laws (Geistfeld, 2008). Postal Rule The Postal Rule is a contract rule that is an exceptional to the general rule. The rule was formulated at time when the most common means of communication was postal communication. According to the rule, a contract is formed when the offeree communicate or post a letter of acceptance to the person offering the contract. The rule is used when it is reasonable to post a letter of acceptance to the person offering the post. The contract become abiding when the letter is posted and cannot be revoked. The Postal Rule in relations to acceptance takes effect once the offeree communicate or post the letter to the person offering the contract. The communication of the acceptance takes place when the letter is post and the contract is formed and cannot be revoked. Although the letter may be delayed, the contract become abiding once the offeree posts the letter. This decision was made in the year 1818 in the case of Adams v. Lindsell. In this case, the judge ruled that a contract would become abiding the moment the offeree posts the acceptance letter (Davis, 2008). The extent of the Postal Rule has expanded over time as more means of communication have been adopted in the business environment. It has extended to include telegrams, telephone, facsimiles and telexes. Today, the rule has been included in the email communications as more people continue to use emails for business purpose. The Postal Rule will apply in certain situations and not all situations. First, the rule applies when the person offering the contract does not rule out postal as means of communication. In this case, the offeree chooses the postal to send the communication about the acceptance of the contract. Second, the rule applies when the post is a reasonable means of communication. Sometimes, use of postal may not be reasonable way of communication hence the rules will not apply letter (Davis, 2008). However, in situation where the post is reasonable, the Postal Rule applies ones the offeree post the communication. The Postal acceptance is treated differently from other methods of acceptance due to the fact that the acceptance takes place once the offeree post the letter and before the letter reaches to the person offering the contract. Although the communication may delay before reaching the offeror, the contract is formed the very moment the offeree post the acceptance letter. This acceptance differs from other acceptances which are made then the person offering the contract receives the acceptance from the offeree (Davis, 2008). Technology has improved over the years. Today, business people depend on the modern means of communication such as email and other internet means of comminution. Most of these means of communication allow face to face or direct communication between the offeree and offeror. Therefore, the acceptance is done directly. However, most of the contracts are done through email which does not connect the offeree one on one with the offeror. Therefore, the Postal Rule is necessary in the case of the email (Taylor, 2013). Apparently, the rule is still necessary to date and should continue. References Chen-Wishart, M. (2008). Contract law. Oxford: Oxford University Press. Davis, L. M. (2008). The role of the United States Postal Service in public safety and security: Implications of relaxing the mailbox monopoly. Santa Monica: RAND Corp. Geistfeld, M. (2008). Tort law. Austin: Wolters Kluwer Law & Business. Kreitner, R. (2007). Calculating promises: The emergence of modern American contract doctrine. Stanford, CA: Stanford University Press. LeVert, S. (2003). The Constitution. New York: Benchmark Books. Robson, J. L. (2011). New Zealand: The development of its laws and Constitution. London: Stevens. Taylor, R. D. (2013). Contract law: Directions. Oxford: Oxford University Press. Weinrib, E. J. (2011). Tort law. New York, NY: New York University Press. Read More