Consideration and International Law - Assignment Example

Question In order for Marina to successfully sue Daniel for damages for breach of contract she will have to establish that the agreement between them was legally binding and that Daniel reneged upon his part of the agreement. . First and foremost the parties would have had to have agreed to the bargain and its terms. The validity of the bargain is determined on the basis of offer and acceptance.1 Generally speaking, an offer must contain a definitive promise providing the other party with an unambiguous option to accept or decline the offer.2 Consideration is also an essential element of the contract creation and enforceability. Once offer and acceptance are found to exist, the courts will then look to determine whether or not there is consideration. Consideration was defined by Lush LJ in the following terms: “…some right, interest, profit or benefit accruing to one party, or some forebearance, detriment, loss or responsibility given, suffered or undertaken by the other.”3 This is the background against which Marina’s legal issues will be resolved against Daniel for breach of contract. While Daniel offered to sell his guitar to Marina for the sum of 500 pounds, Marina did not accept the offer outright. Her offer was no more than a conditional acceptance, in that she would purchase the guitar if she could raise the sum offered. It is commonly felt that in order for the acceptance of an order to be legally binding it must follow the essential substance of the offer made.4 By saying what she could only purchase the guitar if she could raise the funds, Marina was no accepting the offer but merely indicating that she would if and when she had the necessary consideration. Therefore the offer and acceptance would not have been completed until such time as Marina communicated to Daniel a firm intention to purchase the guitar. Since this never happened there was no binding agreement between them. The fact that Daniel sold the guitar to a third party on Wednesday despite having promised Marina that he would not sell the guitar before Friday is of no consequence. There is nothing preventing Daniel withdrawing his offer at anytime before the prescribed period which was stated to Friday. Either party is at liberty to change their minds before the agreement is complete.5 In any event, Marina has a more onerous task establishing that the offer and acceptance goes beyond a mere gratuitous exchange of promises. These kinds of promises, in the absence of an executed deed of contract and/or consideration will not be enforced by the courts. In order to substantiate an effective claim against Anthea for breach of contract, Marina will have to show that there was some consideration.6 Consideration is defined by Patterson J as: “…something which is of some value in the eye of the law, moving from the plaintiff; it may be some detriment to the plaintiff or some benefit to the defendant”. 7 Since Marina did not suffer a detriment pursuant to the offer made and withdrawn by Daniel for the purchase of his guitar there was no consideration. There was nothing binding Daniel to this kind of gratuitous exchange of promises to hold onto his guitar on a mere hope that Marina might or might no raise the necessary funds to purchase his guitar by Friday. Therefore Marina is not in a position to sue Daniel for breach of contract when there is no legal basis for holding that a legally binding agreement was made between them. Question 2 Traditionally parties to legal disputes resolve their differences via litigation. However, there are steps that parties can take to resolve their differences out of court and these steps are collectively referred to as alternative dispute resolution. Alternative dispute resolution refers to a series of negotiations via assistance with a view to circumventing litigation. In the United Kingdom there are a number of private alternative dispute resolution centers designed to assist parties with out of court settlements. In a typical case disputants agree to use alternative dispute resolution as a means of resolving their differences and decide whether or not to opt for conciliation, mediation or arbitration.8 At the conciliation stage disputants meet with an alternative dispute resolution representative and discuss their respective issues and the case in general. The representative makes suggestions as to how each of the parties might improve their arguments and makes projections about the likely outcome of the case. The representative does not make any decisions as to final settlement.9 Mediation is similar to conciliation but differs only in that the mediator makes a settlement decision but it is not mandatory.10Arbitration takes the form of a mini-trial and the disputants can be represented by legal counsel.11 Although disputants can select one of the three methods for alternative dispute resolution they are at liberty to take them in succession commencing with conciliation. The Arbitration Acts 1950, 1970 and 1979 provides guidelines for the arbitration process and makes provisions for the findings to be binding on the parties subject to the court’s appellate process.12 One of the greatest benefits of alternative dispute resolution is the lower costs of resolving disputes. Obviously disputants save money with court filing fees and legal costs in general. Obviously disputants are in a position to save time with out of court settlements in the sense that they forego the formalities involved with pre-trial proceedings, adjournments and having to wait for the court to clear its already inundated calendar. Adam Theirer notes that: “With the public court system caught in a quagmire of red tape, prospective litigants have turned to ADR as a more efficient means of settling their disputes.”13 Alternative dispute resolution also offers confidentiality in respect of its disputants. Compared to litigation via the court process, alternative dispute resolution is fairly private and informal. The parties are therefore more relaxed and more prone to lay their hands bare allowing for a more informed and fair conclusion. It is also important to note that the very nature of the alternative dispute resolution permits the parties to maintain some measure of control over their proceedings whereas in court they are by and large mere bystanders at the mercy of the judge and the attorneys. In alternative dispute resolution proceedings the parties have some input as to how, where and when the proceedings will be navigated. Alternative dispute resolution also provides some relief and benefits for the courts as well. Each case that is resolved by virtue of alternative dispute resolution helps to relive the courts of overcrowding. As a consequence other members of the public will have improved chances of utilizing the courts. In order for alternative dispute resolution to work the parties have to be amenable to it and the issues have to be clearly defined. That is clearly one of the greatest disadvantages to alternative dispute resolution. It will only be effective in limited circumstances. In cases where there are inequality of bargaining position the alternative dispute resolution is not an adequate option as the stronger party may be unfairly disadvantaged. The privacy issue is also a matter of concern since decisions arrived at in arbitration compromise the established system of gathering and storing rulings as precedents.14 Despite its disadvantages, the advantages of alternative dispute resolution far outweighs any of its set backs. At the end of the day litigation should always be the very last resort. Question 3 International law arises in two contexts. They are public international law which can arise in situations where multinational agreements or treaties stand to be interpreted and applied. Public international law can also arise in the context of criminal law and civil liberties under the Geneva Conventions and the United Nations’ charters.15 In this sense there is such a thing as international law since there is a set of substantive and procedural laws capable of binding all nations that are members to the treaties, conventions and the United Nations. The Treaty of Rome, for instance is binding on all member states of the European Union and trumps any claims to individual sovereignty.16 Private International Law however is an entirely different matter. Private International Law arises in scenarios where more than one country has jurisdiction over a matter and conflict between national laws will complicate the issues. Unlike Public International law more than one legal framework is capable of assuming jurisdiction over the matter.17 Applying one national law over another is not always a satisfactory approach and as a result the Hague Convention established a treaty called The Hague Conference on Private International Law calculated to organize a uniform system for the application of law in Private International Law scenarios. In this context, attempts such as the one made by the Hague Convention dispense with the argument that there is no such thing as international law and that instead there are only national laws. There are several attempts by international treaties which are designed to harmonize national laws for the purpose of solving jurisdictional challenges. These attempts do no more than make provisions for national laws to modify their laws so as to achieve comity of nations. The end result is a system of national laws that primarily mirror each other and stand together as a unitary system of international law. Some treaties have gone further than providing guidelines of some uniform code and have provided a singly law applicable to all member states. For instance the Vienna Convention on the International Sale of Goods provides substantive and procedural laws applicable for all contracts involving two or more nations.18 The Rome Convention on the Law Applicable to Contractual Obligations, while less uniform than the Vienna Convention on the International Sale of Goods makes similar provisions for the implementation of international standards.19 Outside of commercial transactions the role of private international law is less intrusive and there is merit to the argument that rather than having international laws we have what is best described as a system of national laws. In scenarios outside of commercial law, cross-border legal issues are at the mercy of the forum over which the matter is adjudicated. It is essentially this forum that determines the applicable law and the most convenient forum for hearing the cause.20 Even in instances where the court adjudicating over a matter opts to apply foreign law, the procedural law of the trial court will apply and this gives more weight to the argument that there is no real basis for the presumption there is an international law. The application of the substantive law of one nation with the application of the procedural laws of another is a manifestation of the fact that there is merely a system of national laws. International law would assume a unitary compass for both substantive and procedural laws. Works Cited Briggs, Adrian. (2002) The Conflict of Laws. Oxford: Oxford University Press. Currie v Misa (1875) LR 10 Exch 153 Furmston, M.P., Cheshire, G.G. and Fifoot, C.H.S(2001) Cheshire, Fifoot and Furmstons Law of Contract. Butterworths. Offord v Davies [1862] 12 CBNS 748 Reed, Alan.(2003) Anglo-American Perspectives on Private International Law. New York: Mellon Press Rome Convention on the Law Applicable to Contractual Obligations Shaw, Malcolm. (2003) International Law. Cambridge: Cambridge University Press. Thierer, Adam. (1992) “Judgment Day: The Case for Alternative Dispute Resolution.” ASI (Research) Ltd. .pp 5-30 Thomas v Thomas (1842) 2 QB 851 Vienna Convention on the International Sale of Goods Read More