Essential Labour Law - Essay Example

Part A Though it originates in England, the English legal system is widely used in many countries across the whole globe. This essay seeks to distinguish the role of criminal law and civil law in relation to the English legal system. According to the online HG.org worldwide directories (http://www.hg.org/crime.html), “criminal law which is often called penal law, involves prosecution by the government of a person for an act that has been classified as a crime.” On the other hand, a crime is further defined as, “any act or (commission of an act) in violation of a public law forbidding it.” Thus, criminal law forms part of public law. 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 (Kleyn & Viljoen 2002). A good example of a criminal offence is theft which is unlawful taking of something that does not belong to you. The sole purpose of theft law in this case is to prevent interference with property rights. As far as criminal law is concerned, the state is part of the proceedings against the accused person. Criminal law is seen as an effective way of dealing with certain conducts which are deemed wrongful and violate the prescribed norms in society. In the case of the United States Court of Appeals Tenth Circuit (2007), the defendant Juan Carlos Elizade has been convicted as an “aggravated felony” for joyriding and was subsequently sentenced to a one year suspended sentence. Thus, cases with the intent of temporarily depriving the owner of his property rights constitute a criminal offense. On the other hand, civil law is different from criminal law in that it constitutes private law which specifically deals with legal relationships between subjects (Kleyn & Viljoen 2002). The subjects in civil proceedings are relatively on the same footing with each other and the state only acts as an arbiter. Civil cases often involve family law, tort or contract laws. In a civil case, it is the plaintiff versus the defendant while in a criminal case it is the state versus the accused. The parties to a civil case decide whether they want to initiate proceedings while in a criminal case, the state initiates prosecution. The definite difference between a criminal and civil case is that the aim of criminal law is to punish the subjects threatening order and harmony in society while in contrast, the aim of civil law is to grant remedies that can be used on a disputed legal position (Kleyn & Viljoen 2002). Options such as compensation can be opted for in a civil case. 2. Common law which is also known as case law which is the law developed case by case in the courts (Du Plessis 1999). Thus, this law is laid down by the courts and refers more specifically to the origin of the law as compared to the other forms of laws. 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. Of paramount importance in this case is the fact that common law is developed by the outcome of certain cases. It is developed by the judges and is adopted as law that can be used in similar cases. It can be noted that a closer analysis of the meaning of common law shows that it is more authentic since it is based on the outcome of court cases and is something agreed and written by the judges. Common law is commonly regarded as a legal norm. Common law and legislation have a role within the English legal system is to play. To a larger extent, 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). Common law in this regard is an important source of law where the legislation can be used to formalise some sections of the law which may not be very clear. For instance, in some countries which use the English legal system, acts to formalise the protection of natural resources were only put into legislative law after it was discovered that they formed an important component of the natural wealth of the country. 3. Koffman & McDonald (2007:1) define a contract as, “a legally enforceable agreement giving rise to obligations for parties involved.” This entails that whenever two different parties enter into an agreement which becomes the contract, there would be binding terms of the contract that would make them keep their obligation to meet the agreed terms and conditions. Simply put, if you promise that you will do something for another person and in return, that person agrees to pay you something, then you and that person have made a contract. However, not every agreement is therefore a contract. In order to be binding in law, the agreement must comply with a number of essentials and if one of the essentials is absent, then the contract is null and void (Gibson 1988). A court will refuse to enforce such an agreement whether or not the point is taken by one of the parties. First and foremost, the agreement must be lawful unless they are prohibited by the statute or common law. An agreement to contract entered into between an adult and minor is null and void. The law does not allow minors to enter into agreements whereby they will be expected to fulfil certain contractual obligations by virtue of their limited capacity to fully make meaningful decisions on their own. The agreement made between parties must be within their limits of contractual capacity. In certain instances, people may agree on something that is beyond their limit and this agreement cannot be treated as a serious contract. It must also be clear from the onset that the parties are seriously intending to contract. Where there is lack of seriousness on behalf of the other, it may be difficult to take the matter to the court which is the final arbiter of disputes that may emerge from certain contracts. As long as it cannot be easily ascertained that both parties were seriously concerned about contracting, then the agreement is treated as null and void. Whilst written contracts are more authentic, verbal agreements are also treated as valid depending on the magnitude of understanding between the two parties involved in the contract. In certain circumstances, agreements may not be valid contracts if they are impliedly prohibited by the law (Gibson 1988). Agreeing to sell or buy intoxicating liquor without a licence is prohibited hence any attempt to evade the statute by performing the act indirectly is void. It becomes very difficult to claim money owed through such illegal contracts of selling prohibited products without a proper licence. A genuine agreement in a contract must not be vague. Terms such as “may,” may not be acceptable in as far as formation of a valid contract is concerned. An agreement must be clear and definite where all the parties are clear about the agreement they are entering. This also entails that there should be 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. Parties should make each other aware of their reciprocal intentions. A valid contract can be determined by people who are of the same understanding about the subject matter. If there is no common understanding about the subject, the agreement formed may be null and void since it may be difficult to prove to the court that there was a genuine agreement entered into by the two parties involved. Whilst the general rule states that every person can contract freely within the general limits of the law, there are certain persons of limited contractual capacity whose power to enter into binding agreement is limited (Gibson 1988). Mentally ill or drunk persons cannot enter into a valid contractual agreement. The level of their understanding is not similar to the people they are intending to get into an agreement with. When these persons purport to contract beyond the limits of their contractual capacity, the general rule is that this agreement is null and void. This also applies to insolvent persons or those who have been convicted of crime. Usually, it is difficult to enter into an agreement with a person who is known to be insolvent or a convict. He may not be able to meet the contractual obligation which makes the agreement void. According to Watermeyer v Muray 1911AD 61 at 70, every contract consists of an offer made by one party and agreed by the other. This forms a valid agreement otherwise the contract may be void if it does not follow this criterion. Part B In this given case, Kingsley limited is in a predicament where by Paul buys the wrong set of bricks for the houses built near the sea. Against this background, this analysis seeks to advice Kingsley Ltd on the measures they can take should there be any. The Conventional sale of International Goods (CISG) and sale of goods (Soga) provisions will be used in this case to advice the organisation in this particular dilemma. It is everyone’s right to refer a case to the court of law if he or she feels betrayed by the contract entered into. The contract laws are meant to protect the interests of both seller and buyer in the event that it pertains to selling and buying of goods. Likewise, a dispute may arise between the two parties involved and the court of law is the arbiter of such kind of issues. The CISG was adopted by a diplomatic conference on 11 April 1980 and it establishes a comprehensive code of legal rules governing the formation of contracts for the international sale of goods, the obligations of the buyer and seller, remedies for breach of contract and other aspects of the contract (http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1980CISG.htm). As far as this provision of the international law is concerned, there is little that can be offered to Kingsley Limited given that it primarily deals with issue that are related to two different states. The main purpose of this provision is to set forth the rights and obligations of the buyers and sellers. In this particular case, it can be noted that Brick-For-all that supplies bricks to Kingsley Limited is a local building supplies firm. It can be noted from the onset that the CISG charter has no jurisdiction to preside over such a case. This involves two parties within the same state and it is not possible to seek the intervention of international law to settle a dispute that may arise between the two. This charter is mainly applicable to two different states and the aim is to protect the interests of the contracting governments not the individuals. It is advisable to Kingsley Ltd to seek other local remedies instead of referring the case to the CISG as it has no autonomy to intervene in domestic issues pertaining to individual persons from another country. Such cases are normally referred to courts which are better positioned to deal with such kind of issues. In cases of state to state contracts, both seller and buyer agree on certain conditions to be made and it is the duty of each party to honor the agreement of which failure to do that may result in the case being referred to the CISG. Kingsley Ltd and Brick-for-All are two local companies hence their issue can only be dealt with by local courts which have the jurisdiction to preside over such issues. On the other hand, the sale of goods provision states that both buyer and seller agree to exchange goods for a certain value of money and both of them are obliged to meet certain terms of the agreement. The obligations of the buyer are: to pay the price, to pay the seller’s necessary expenses in maintaining the article sold until delivery and to accept delivery of the article sold when tendered to him (Gibson 1988). On the other hand, the seller is obliged to care for the subject matter of the sale pending delivery and to deliver the article to the buyer. A close analysis of the given case study shows that there has been no direct breach of the contract given that both parties are bound by the obligations they have to fulfil. A close analysis of the details of the case shows that Kingsley Ltd might have limited legal ground to fight its battle in the court given that the blame lies in its court to a greater extent. Indeed, the court has the final say but wise advice to this organisation is that their case may be difficult to be won in court hence the need not to go into extra expenses chasing legal battles. First and foremost, Paul the manager for Kingsley Ltd approached Bricks-for-All and made the choice of the particular type of bricks he wanted. He does not state the area where the houses will be built which may not been an issue given that the buyer at times has the freedom and liberty to make a personal choice as far as purchasing a product is concerned. Paul makes his choice under no jurisdiction and is not pressured into making that purchase of the bricks. He has fulfilled his obligation and according to the case details, it seems that he is quite satisfied with the purchase he has made. It is assumed that somebody in the construction industry in particular knows the right material that can be used to build houses given that it pertains the safety of the would be inhabitants. In other words, Kingsley Ltd has a duty to ensure that they know the standard material to use in construction such that they do not jeopardise the safety of the people who will live in the houses they build. The contract is silent about what will happen after the delivery has been made. Worse still, in this case, it has only been discovered that the bricks are not suitable when the houses have already been completed. Upon delivery of the goods bought, any defective material may be turned away if it does not meet the specific requirements of the buyer. However, it seems that silence is consent as they went on to construct houses using the same bricks without complaining. In other words, this means that the choice made by Paul is the right one. The main problem related to such a case is that the agreement is silent about what measures can be put in place once the product has already been supplied, moreover used to build completed houses already. Such kinds of contracts are a bit tricky given that the court of law might require the buyer to prove that they had agreed on some form of compensation in the future if the building material is not up to standard. Building a house is a process and usually contracts between buyers and sellers have specific time frames. Once the seller has delivered the goods to the buyer upon payment and the buyer accepts the delivery, then a contract is sealed. The buyer can complain if he notices something bad before using the supplied goods and it might be too late to complain after a long period after already used the goods. Buying a new different product will be a viable option in this case. One other weakness in Kingsley Limited’s case is that Paul does not seek advice when makes a purchase of the bricks. The dictates of the consumer law state that information about products on sale is available every time for free hence it was supposed to be Paul’s responsibility to seek advice before making a purchase if he was not very sure about the product he was about to purchase. If one does not ask for information, it cannot be the seller’s fault as it will be assumed that the buyer is aware of what he will be doing. In legal terms, ignorance is no defence hence Paul cannot go to court and claim that he did not know what he was buying. The answer is very simple: Did you ask? Any person who asks is likely to get the correct information before making a purchase and he will stand more chances of winning the legal battle should he discover later that he was duped. In this case, it can be noted that the blame can be laid in Paul’s hands since he does not seek for correct information before proceeding with making a purchase. It can also be noted that as far as the sellers obligations are concerned, Brick-for-All fulfilled its part. Assuming that they had agreed on the terms of payment, the company supplied the correct quantity of the bricks as required by the buyer. The buyer in turn accepts the delivery and he does not raise any issue upon delivery which shows that they are content with the material that has been supplied. At times it can be an issue if the supplier fails to deliver the products on time or if he delivers defective goods where the buyer will be entitled to get the correct product upon delivery. To say that the supplier breached the contract in this case will be an overstatement because the supplier simply fulfilled his contractual obligation. A purchase is made and he supplied the goods purchased. To a greater extent, it can be noted that the blame lies with the buyer who fails to seek the correct advice before making a purchase in the first place. Ignorance cannot be a defence in this case since the court would need to establish if this person ever attempted to ask for the correct information pertaining to the bricks he was buying. References Basson A.C. (2002). Essential labour law. Centurion. Labour Law Publications. CISG (N.D) http://www.cisg.law.pace.edu/cisg/text/treaty.html [Accessed on 09 November 2010]. Contract cases (N.D). Available at: http://www.garretwilson.com/education/institutions/usf/law/contracts/cases.html: [Accessed on 09 November 2010]. Duplessis L. (1999). An introduction to law. 3rd Edition. Juta Gibson G.T.R. (1988). South African mercantile and company law. Cape Town. JUTA & Co LTD. Koffman L & McDonald E. (2007), The Law of Contract, 6th Edition, Oxford University Press. E-BOOK. 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(N.D) http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1980CISG.html Read More