A Line Between the Policy and the Procedure According to the Law - Research Paper Example

 The agreement signed by the stakeholders to perform specific /general task is termed as contract. This has binding on one or more partners of the project to abide by the terms and conditions of the contract in its true spirit. The contract can be classified into two categories a) written or b) oral. The remedy available for the executors of a contract is to claim damages or money in compensation through arbitrator / legal process. The arbitrator appoints with the mutual consent of the parties, decides the case by assessing the quantum of losses. It also fixes the responsibility of persons at fault and under whose action / instructions, the individual or the company suffered losses (Barnett 2003). The contractual law in fact based on a Latin principal agreements to be intact or in a broader spectrum pact to be materialized. It is a form of economic order across the globe, hence, different rules and regulations in different location of the world applies. This encompasses Islamic law, social and legal systems; customs of the area that are in practice or local laws in force from country to country (Barnett 2003). The salient feature of the contract is that one party makes an offer and the other one accept the terms and conditions of offer that contains therein. The important factor of a contract is mutual consent of both the parties to initiate and to finish the project as defined in the contract. The reason being no one, except the signatories of the contract can judge the intention of the contractors. In Smith v. Hughes, it was held by Richard Austen that an objective is necessary to comply with the terms offering and accepting of a contract (Barnett 2003). Here we may cite the example of one-sided contract in the case of Carlill v Carbolic Smoke Ball Company. Responsibilities can only be determined provided one party of a contract offers the terms and the other accept the terms of a contract. In the American legal system in case of non-performance / ill intention of the acceptor, the aggrieved may call the acceptor to fulfill contractual / legal obligations by performing their duties as enshrined in the contract (Barnett 2003). Monetary compensation is the only option available to the acceptor in lieu of losses incurred individually or collectively. The court of competent jurisdiction or the appointed arbitrator by the court of law determines the losses occurred to the company and the value of monetary compensation offered there against (McKendrick 2005). Compensation is a two pronged strategy which comprised of legal consequences for the wrong doers and to provide option of bargain if need be. Legal detriment refrain acceptor to do something which is against the law / amounts to breach of contract. In the mentioned scenario the affecters may invoke the jurisdiction of competent court of law for compensation in lieu of damages. A legal detriment is a promise to do something where the law permits to do so or to refrain from doing something where the law does not permit to do so. The two aspects i.e. legal detriment and bargain which are closer to each other, establish relationship who offers contract and the one who accepts contract to abide by the terms of contract or to face the consequences of breach of contract. However, in case of ambiguous clause or clauses in the contract, courts of competent jurisdiction, deals with the issue under the provision of common law in order to ensure enforceability of contract in letter and in spirit (McKendrick 2005). Let us view the English law where contract is considered as binding and legally enforceable. In case of losses or breach of any provision of the contract may attract compensation which can be in shape of money, item or service. It is an effective tool to keep intact the mutual promises made by the executors of the contract. Insertion of one sided beneficial clause or clauses cannot be considered a valid contract. A valid contract must clearly define the relationship and the responsibilities of each and every executor. It contains the rights and obligations alike (Baker 1986). Let us look at the case of Trenton v. Bennet (1859) wherein the company assigned the task to construct school building against deferred installments subject to completion of school building in phases. During the course of construction, it was fell down by the winds. Later on it was come down to surface due to defective construction. After the second set back, Construction Company refused to re-build it. Resultantly the owner of the school file a suit against the construction of the company to recover the amount of USD 1600 already paid to the company with interest. In the mentioned perspective, the stake holders have to bear the taste or distaste as per the terms mutually agreed (Roger 2011). Now the question arises whether the construction company was liable for the losses incurred due to razing the construction to the ground in view the defective construction / defective soil. The court was of the view that where a party, by his or her own will, creates an obligation, he or she is bound to get it done well because he or she has obliged to make it good (Roger 2011). Since the contract contained no clause or clauses that explicitly assigned the risk of defects that attributes to the fall of under constructive building, the owner of the building cannot charge the construction company (Roger 2011). Fundamentals of contract, as per English Law, were assessed by the Court of Appeal in the case of Suisse Atlantique . It was decided in the cited case that if fundamental defects found in the contract it can be treated as void for all practical purposes. The breach of contract can be judged by going down the roots of the contract. This is attributable to the Rule of Law doctrine (Williams 1982). The House of Lords in Photo Productions Ltd. v. Securicor Transport Ltd., Lord Denning, the expert of Rule of Law doctrine extended the rule in the above mentioned case, applied all exemption clauses. However on appeal, the Court of Appeal, Lord Wilberforce, effectively turned down the Rule of Law doctrine. The Lord in question rather maintained strict Rule of Construction approach. He was of the opinion that on perusing the intention of the stakeholders the fundamentals of the breach of contract can be traced (Williams 1982). A thorough analysis of the case of Sweet Torque Limited manufacturer of wrenches, who intends to expand their factory to meet the urgent bulk stock orders of wrenches by the buyers since the existing factory in capacious to fulfill the required demands. To expand their factory to meet urgent requirement of the buyers they handed down the construction work of their new factory to Cementics Construction Company who had built Torque office suites five years ago. The contract was awarded in good faith, taking into account past performance and the lowest bids out of seven bids that had received by the inviters. The under mentioned clause speaks for itself with regard to securing the interest of job assigners. “The Contractor will have no liability to the Client, in contract or in tort, for any indirect or consequential loss incurred by the Client, including but not limited to loss of use or loss of profit. The sole responsibility of the Contractor will be to remedy defects for which it is responsible and which are notified to it within 12 months from the date of handover.” (Williams 1982). The above mentioned clause in the contract of Sweet Torque Limited and the Cementics Construction Company Limited indicates that the contract tactfully drafted in favor of the Cementics by their lawyers to absolve them from any major claim for compensation, if the company suffered losses at the hands of Cementics due to ill planned construction, delay in completion of factory and increased cost of project. The insertion of cited clause restricted Sweet Torque Limited to file a suit against the defendants to claim compensation in case of following problems: a) unilateral increase of cost of project b) delay in execution of construction and c) defective construction. The English Law does not entertain the unilateral contract which only secured the interest of one party leaving others to face the consequences of others misdeeds. Part-11 The foundation of English Common Law is dependable by the decisions of sitting judges of the courts. They apply their wisdom, knowledge and legal precedents to decide the matter presented before them. The rulings of Court of Appeal and the Supreme Court of UK are binding on all the subordinate judiciary to follow. There is no statutory law and no written Act of Parliament, which declares the murder as illegal. Further, it is unconstitutional as far as the power of the court is concerned and its early decision. Therefore, Common law either be amended or repealed by the sovereign Parliament. Today the punishment of murder is mandatory life sentence. Previously it was death penalty (Slapper & Kelly 2008). The England and Wales of the United Kingdom being part of European Union are bound to comply with the decisions and directions of the European Union Court of Justice. Therefore, Court of Appeals and the Supreme Court are subservient to the apex court. Further, in most of the European Union Countries, court is followed Civil Law system, which is operative in Britain (Slapper & Kelly 2008). The UK judicial system address civil matters under common law instead of civil law and the precedents sets earlier from the beginning of the year 1189. This credit goes to the Norman Conquerors who introduced a number of legal measures that transforms Norman Law into English Common Law. It was an old practice of justices of the superior courts and the judges of the subordinate courts to ensure its writ to cope with day-to-day situation by adopting precedents in the similar cases. Take the example of interim market courts. The role of Parliament is to enact / amend laws to meet present day requirement (Slapper & Kelly 2008). In the early centuries, English Judicial System faced many problems in view of its operational activities. To ensure writ of the judiciary at that time was the major issue because of incompetent people who acquired official status by virtue of their influential position in the society. With the passage of time, a set of standard procedure was introduced to ensure efficacy of judicial system (Slapper & Kelly 2008). Judicial system based on certain rules and regulations, which are enforceable by way of social institutions. Here we may find certain laws to deal with certain issues. A contract law deals from buying a train ticket to trading on domestic / international markets whereas Property law determines rights and obligations with regard to transfer of real property. Assets held against financial security falls under the Trust law. The law of tort has given the rights to an individual to claim compensation against the damages occurred at the hands of others. The criminal laws enacted to deal with the criminal cases. The state can chase and persecute the violators of criminal law (Kelly 1992). Constitutional law ensures protection of human rights and the Electoral College to elect people representatives. Administrative law provides an opportunity to review the decision of government functionaries. International law looks into the affairs of sovereignty of state, trade, environmental and military activities. According to the great Greek philosopher Aristotle “The rule of law is better than the rule of any individual." (Kelly 1992) There cannot be two opinions about that Legal systems define clearly rights and responsibilities in many ways. The distinctive line between the civil law and the common law is that in the common law the judges made the law, which is not consolidated. In many countries of the globe, religion is a dominant factor in making the law. The lawmakers must have in depth study of a) legal b) economic and c) social history. The typical issues are equality, fair play and justice. As per the version of Anatole France, "the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread." The democratic governments enact the laws and interpret the laws through judiciary. The main pillars of the government are a) executives b) legislature and c) judiciary (Kelly 1992). The law draws a line between the policy and the procedure. The Supreme Court may call in aid military to implement and enforce the law since the first and foremost responsibility of a civilian government is to ensure law and order in the country. Ensure provision of necessities to its public at large. The organs of a state if workable within their ambit the situation could be ideal (Slapper & Kelly 2008). All legal systems in and around the world are more or less is the same with regard to its interpretations and jurisdiction. However, legal implications of different laws are different in different location. All laws that mentioned above are the important ingredients of a legal system. Law of obligations comprised of contract and tort. International, constitutional, administrative, criminal, contract, tort, property and trust laws are traditional core subjects (Slapper & Kelly 2008). Shareholders are in fact are the major contributors towards formation of a company or a corporate entity. The capital so required to establish an entity comes through shareholders. Hence, they may be considered as an important element for raising funds for any business to start with. By way of share holdings, shareholders acquired status of the owner of the company as per their investment (Lowry & Dignam 2010). This gives them rights of governance as authorized by the constitution. However, technically they are not required to vote someone to elect and to represent in the Board of Directors. Because of additional mandatory rights, shareholders enjoy share friendly jurisdiction conferred on them under the Companies Act 2006. UK by all standards is a shareholder friendly jurisdiction to its European and American allies (Lowry & Dignam 2010). The constitution of the company can be changed by the shareholders provided they have the required majority. Meetings can be called by the shareholders to take important decision in terms of sale of large assets, amalgamation and winding up of companies (Lowry & Dignam 2010). The shareholders of London Stock Exchange frequently exercised their rights of governance. The institutional investors can participate in pension funds, mutual funds and insurance funds. The beneficiaries of mentioned funds are in millions who earns their livelihood from cited schemes (Lowry & Dignam 2010). The interesting thing is that an individual can vote and participate in general meetings whereas institutions cannot vote and participate in general meetings. However, institutional investors are in liaison with the management. Of course individual investor, invest small part of his or her investment. Institutional investors in fact are the users of others money. Hence, it is incumbent upon them to take care of the money that are invested in some other profitable ventures to make more and to fulfill monetary obligations under the law of trusts (Lowry & Dignam 2010). Litigation among those who are in association with the business of a company is restrictive as per UK Law. The attitude of the courts in this respect is not encouraging. It was held by Justice Lord Eldon in the case of Carlen v Drury that "This Court is not required on every Occasion to take the Management of every Play house and Brew house in the Kingdom." In case of disagreement between the directors and the share holders of the company with regard to a claim, can best be tackled by the internal management rather than to pursue the matter through legal process, which is expensive, and time consuming thus providing a path of distraction from doing business (Lowry & Dignam 2010). In accordance with UK Law, BOD has the right to file suit for damages. Take for granted, the case of Foss v Harbottle wherein the company itself was a claimant. By way of general rule the board directors can sue the company for a claim. This option is available not only to the company but to the individual as well to initiate legal course of action where deems fit and appropriate. However, as per general rule minority has no right to file suit in a competent court of law for damages unless the court is granted permission for so doing (Lowry & Dignam 2010). References Baker, JH 1986, 'Origins of the Doctrine of Consideration 1535-1585', The Legal Profession and the Common Law: Historical Essays, London. Barnett, Randy E 2003, Contracts, Aspen Publishers, New York. Kelly, J.M 1992, A Short History of Western Legal Theory, Oxford University Press, London. Lowry, J. & Dignam, A 2010, Company Law, 6th Ed, Oxford University Press, London. McKendrick, Ewan 2005, Contract Law - Text, Cases and Materials, Oxford University Press, London. Roger, Martin 2011, From the 'Lectric Law Library's Stacks Notable Court Cases Concerning Contracts, The Lectric Law Library, viewed 4 December 2011, Slapper, Gary & Kelly, David 2008, The English Legal System, Routledge-Cavendish, London. Williams, Glanville 1982, Learning the Law, 11th Ed, Sweet & Maxwell, London. Read More