"The requirement of consideration is an unnecessary complication in the formation of contracts."
Elements of the law of contract Zone A examination paper Question 1 "The requirement of consideration is an unnecessary complication in the formation of contracts." Consideration is probably regarded as one of the most controversial issues in the law of contract. The traditional and/or orthodox doctrine is based on the principle of "reciprocity", which seems to suggest that a promise given should be exchanged for something in return. The requirement of Consideration was established since the sixteenth century in Common Law. The first mention of which had been in the form of quid pro quo, inter alia, a promise for a promise, and later, it was acceptable that even a detriment or forbearance like fulfilling the promise to marry such as in the case of Shadwell v Shadwell[1860] would be sufficient consideration. Consideration was first associated with debt such as in the Pinnel's case and had subsequently spread to other simple contracts. This has been criticized by Lord Mansfield in 1756, and was in view that it could only be treated as evidence of the parties' intention and held that a moral obligation should be sufficient consideration. It was only in the case of Eastwood v Kenyon[1840] that Lord Denman confirmed that the law required some factor additional to a defendant's promise, which is, consideration, whereby the promise becomes legally binding. So, if a
Is the current law on the non-fatal offences against the person satisfactory?
Reform of the Non-Fatal Offences Against the Person It has been recommended by many leading academic lawyers, including Professor Spencer, that the current legislation on non-fatal offences against the person be reformed to modernise and clarify the law. The Offences Against the Person Act 1861, under which the more serious offences of ABH, GBH and GBH with intent are charged, is one of the "workhorses" of the criminal law, and is responsible for approximately 80,000 cases a year; this strengthens the justification for improving the existing legislation through reform in order to make it more comprehensible. One of the main criticisms of the Act is that it is "outmoded" (Jack Straw), and much of the language is arcane and ambiguous. For example, before the case of Wilson v Pringle, it was unclear whether there was a requirement for hostility in the commission of a battery. Terms such as "occasioning" and "maliciously" are outdated and are in need of modernisation in order to make the law more accessible, particularly to laypeople. An additional complexity arises from the fact that the law is contained in a mixture of statute and case law. The Act itself was a consolidating statute that has been described as a "ragbag of offences" due to the lack of logical structure (for example, ABH is defined under section 47, whereas GBH and GBH with intent are defined under sections
European law
In order to explain and evaluate the role and jurisprudence of the European Court of Justice1 I shall discuss the provisions of the European Community2 Treaty, which clearly provide for individuals to enforce rights derived from European Community law that are limited in their scope. This will be followed by the role of ECJ and how it has developed a number of principles that widen this scope. These are the doctrines of supremacy and direct effect, which are established to give individuals rights to enforce the European Union3 law. On the other hand, criticising the fact that that it restricts individuals rights in respect of challenging their decision. The European Union is a unique partnership in which many countries work closely together for the benefit of their citizens. Currently there are 27 member states of the EU, who have agreed to work collectively on issues such as common interest. The central purpose for the EC is to achieve a deeper economic and political integration, ('The ever closer union'). The EU desires for individuals to rely on the EU law in order to enclose uniformity hence enabling everyone to integrate in a common market. The common market, aims to increase a balanced growth on an economic and social level in respect of each member state. ECJ is one of the official institutions of the Community Treaty and plays a major part in the development
LAW REPORT on Macgregor(TM)s case
Title: LAW REPORT on Macgregor's case The Problem Peter booked a room for a week at MacGregor's Hotel. At the reception desk, where he made the booking, was a notice in the form laid down by the hotel Proprietors Act 1956 limiting the hotel's liability for loss of, or damage to guest's property. Peter asked the receptionist to look after his expensive Olympus camera but she refused saying that there was no room in the hotel safe. On the second night of his stay he invited his friend Beatrice to dinner in the hotel's restaurant. At dinner, without consulting Beatrice, Peter ordered Helford oysters for both of them. The oysters that were served to them in fact came from Whitstable and several of them were bad. Later in the meal Beatrice, already beginning to feel the effects of the oysters, left table in search of a lavatory. On her way there, suddenly overcome by dizziness, she tripped on a piece of torn stair carpet and fell heavily, breaking her arm. The meal was abandoned and Peter returned to his room hungry and bad tempered only to discover that his Olympus camera had been stolen. Being the defence advice MacGregor about his legal liabilities. Introduction This brief advises MacGregor as to the legal liabilities he faces as a consequence of the incidents as detailed above. It is advised that if this matter proceeds to court, which is likely, then Beatrice's
Three forms of Delegated Legislation and Control over it.
Three forms of delegated legislation Delegated legislation is law made by a person or body that parliament has delegated law-making power to. The three types of delegated legislation are orders in council, statutory instruments and by-laws. Orders in council are drafted by the Government and given formal approval by the Queen and the Privy Council. Orders in Council are generally used where it would be inappropriate for the order to be made by a Minister, for example where the matter is of constitutional significance (such as transferring powers and functions from one Minister to another, or bringing into force emergency powers to be exercised by Ministers e.g. emergency powers Act 1920). Statutory instruments are laws made by a government minister under the authority of a parent/enabling Act within the area of their ministerial responsibility. Statutory instruments are often used to update law, for example to increase in the amount of the national minimum wage under the National minimum wage Act 1998. Law that is made to comply with directives from the European Union is usually made in the form of a statutory instrument e.g. the Sale and Supply of Goods to Consumer Regulations 2002 were made in order to comply with the Sale of Consumer Goods Directive 1999. By-laws are made by local authorities and public corporations or companies. They must be confirmed by the relevant
OCR Feb 10 Exam Paper Non-Fatal Offences Problem Case. The scenario states that Colin ran towards Sarah waving a knife. The actions by Colin caused Sarah to scream.
OCR Feb 10 Exam Paper - Non-Fatal Offences Sarah is walking home when Colin runs towards her waving a knife. Sarah Screams. Colin grabs Sarah's coat and then punches her in the face which breaks her nose and causes her to fall to the ground. Gregory, a passer-by, runs to help Sarah. Colin lunges wildly at Gregory with the knife and slashes Gregory's hand, causing severe bleeding. Colin takes aim and kicks Sarah in the stomach, causing serious internal injuries. [35] The scenario states that Colin ran towards Sarah "waving a knife". The actions by Colin caused Sarah to scream. The Actus Reus for assault is 'any act which causes the 'victim' (V) to fear immediate unlawful force'. The meaning of immediate was defined in the Smith (1983), a case where a man looked into the window of a women in her flat thus causing her to be terrified, as to meaning "imminent". The fact that Sarah screamed after seeing Colin running towards her illustrates she feared of action imminently. The Mens Rea for Assault is 'intention or recklessness to cause another to fear immediate unlawful force'. By referring to the definition set out in Smith, Richard waving the knife around, coupled with him heading towards Sarah, clearly shows that he was reckless as to make Sarah fear imminent unlawful force. Colin is therefore guilty of committing the Common Law offence of assault, and can be sentenced up to
the english legal system unit1 assignment4
(a) Describe the present organisation of the legal profession (Solicitors, Barristers and Judges). To what extent is this form of organisation capable of satisfying the legitimate expectations of those using or involved with the legal profession? In order to address this question I endeavour describing the present organization of the legal profession namely the roles of Solicitors, Barristers and Judges, and the ways in which they interlink with one another within the legal system. In turn I will assess whether the present organisation is capable of satisfying the legitimate expectations of those using or involved with the legal profession. There are many differences between the English Legal System which derives from the common law, and law operating in other countries. For example with that of Roman law which is the system adopted by the majority of countries in Europe. Primarily it is imperative to appreciate that the legal profession can be divided up under two main headings namely, Solicitors and Barristers. Each group has its own duties and functions and its own controlling body. The two professions are separate and distinct, different governing bodies control them, their qualification requirements are different and their traditions are different. One cannot be both a Solicitor and a Barrister. Out of the two, the Barrister is the 'senior' profession, although many
Contract Law - Acceptance.
Acceptance Acceptance of an offer means unconditional agreement to all the terms of that offer. Acceptance will often be oral or in writing, but in some cases an offeree may accept an offer by doing something, such as delivering goods in response to an offer to buy. The Courts will only interpret conduct as indicating acceptance if it seems reasonable to infer that the offeree acted with the intention of accepting the offer. CASE: Brogden v Metropolian Rail Co (1877) Remaining silent cannot amount to acceptance, unless it is absolutely clear that acceptance was intended. CASE: Felthouse v Bindley (1862) Re Selectmove Ltd (1995) - The Court of Appeal pointed out that an acceptance by silence could be sufficient if it was the offeree who suggested that their silence would be sufficient. Thus in Felthouse, if the nephew had been the one to say that if his uncle heard nothing more he could treat the offer as accepted, there would have been a contract. Unilateral contracts are usually accepted by conduct. If I offer £100 to anyone who finds my lost dog, finding the dog will be acceptance of the offer, making my promise binding - it is not necessary for anyone to contact me and say that they intend to take up my offer and find the dog. Acceptance must be unconditional An acceptance must accept the precise terms of an offer. CASE: Tim v Hoffman (1873) - one party
In general, the criminal law prohibits the doing of harm, but it does not impose a liability for failure to do good. Assess the truth of statement by reference to the situations persons may incur.
In general, the criminal law prohibits the doing of harm, but it does not impose a liability for failure to do good. Assess the truth of statement by reference to the situations persons may incur. For a person to commit a crime, he must have committed some kind of act. There are three ways in which a person can be tested on whether he has committed the crime. The first is that there must be a crime in the first place i.e. murder. The second is that he must have meant to cause it e.g. the result would not have happened if he had not caused it. The third is that he must have a duty of care. In English criminal law, a person is prohibited from causing any kind of harm to another individual. The criminal system does not impose any liability for not doing anything i.e. if a person is drowning in a pool you are not ordered by law to save that person. The only reason you would have to do this is if u were contracted to have that duty. Although in some statues like the Road traffic act (1988) make it an offence to fail to do something. Contractual duty, in R v Pitwood (1902), a signalman was convicted of manslaughter. He was employed by the railway company to look after a level crossing and to make sure that the gate was securely shut when there was a train due. He had left his post and this resulted in a person wondering onto the lines and being killed by an oncoming train. A
judges avoid following precedent
Outline how judges can avoid following precedent and discuss the advantages of their doing so. Judges can avoid following precedent is a number of ways. Distinguishing is one way, where the material facts of the case are different from a previous one and then the judge does not have to follow the earlier one. This is seen in Balfour v Balfour (1919), where the husband made a verbal agreement of giving his wife £30 a month, while he was away in Ceylon. However he stopped the payments and Mrs Balfour started legal action. It reached the Court of Appeal and they held that there was no enforceable agreement, as there was no evidence for a legally binding promise. So when the case of Merritt and Merritt (1970) came along, where Mr Merritt and Mrs Merritt signed an agreement that he would pay her a monthly sum. When the mortgage of the house was paid, Mr Merritt refused to hand over the house. The court accepted the case, as it was more than a domestic agreement as the agreement was signed after they had separated. This decision is from Balfour v Balfour (1919) as there was a signed contract with terms and conditions which both parties had signed. Therefore the judge was allowed to distinguish the case as the facts were different. Judges can also distinguish on a point of law and this is seen in the case R v Holley (2006), which overruled R v Smith (2000). In R v Smith
