Contract and Sources of Law

Business Law

Assignment in Business Law

Law 151

Michael Conneely

Contract and Sources of Law

Q.1: What are the sources of English Law? Which do you consider to be the most important?

Every legal system is based on the original sources from which authority is drawn. There are many examples in history, when these will go back only as far as some revolutionary overthrow of a previous social order. E.g. there cannot be much of Tsarist law which is of influence in Soviet society today. Contrary to this, other revolutions were less complicated. American law still has its roots in English law bearing in mind the Declaration of Independence as well as the law of England was not much changed during the Civil War of 1649.(1)

The main sources of English law that I am going to overview in my essays are as follows:

Legislation
Judicial precedent
Common Law

Legislation. In a sovereign state the fountain of law is a sovereign body which promulgates the laws which it imposes upon and enforces among citizens (1). In the UK this sovereign body is “the Queen in Parliament”, its announcements are called Acts of Parliament, or Statutes. Therefore the legislation is the main source of English law of nowadays. Legislation is a preventative of a will of the sovereign Parliament. Sovereignty of the Parliament implies that it can make or unmake any law, and no any person or other body can reject or discuss the accuracy of an Act of Parliament. Therefore “it means that there is no legal limit to the power of Parliament”(1). Because of its entitled power, as it often does, can delegate the Act to lower hierarchy bodies. Some of these “orders” are made in emergencies circumstances – like foot-and-mouth disease and involve more competence professionals in particular situation. These acts of delegating also can safe lots of time to the Parliament, who can remove these givens powers as simply as it gave.

Judicial precedent. Precedent is the basis of the common law, but even in non-legal groups the idea of precedent is strong, and many social groups apply informal rules based on the way things have always been done. A well-known example of precedent is the case between Donoghue v Stevenson [1932] AC 562. Where judges do not follow precedent, uncertainty within the law system is created, this can be seen in the case of Lewis v Averay [1971] 3 A11 ER 907, CA. The decisions made by court are highly respected by official representatives and general public all around the world and that gives a high power to “precedents”. That means that the decision made by a particular court must be followed in a future and to apply in similar case and circumstances. There are two main reasons to illustrate the advantage of using the “precedent” principle in the legal system. (1) Firstly, it is psychological. The one would prefer to base its own decision by referencing the previous case, rather than to take full responsibility of taking a new decision and prove the ground and necessity upon which it was taken. Secondly, it is a practical reason, which encourages using an individual attitude to every case in order to obtain the maximum of justice and accuracy.

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Moreover, one thing that is distinctive of the English system allows the English judge, though precedent, to its power in introducing new law, where his position is central. But because, the English system is “the doctrine of the binding case”, one should all of the time to bound it with the hierarchical authority of courts. In that situation, it means that the inferior court should follow the higher one.

(c) The Subsidiary Sources. Custom. In one sense we may say that the custom is the principal and original source of law since it was naturally cultivated in the ...

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(c) The Subsidiary Sources. Custom. In one sense we may say that the custom is the principal and original source of law since it was naturally cultivated in the ancient society and brought through the hundreds of years by people. Furthermore it reflects the peculiarities of the domestic culture and expresses the difference from others nations systems of law. The common law principles first where used by the Norman kings to replace ancient custom of the realm and introduce new system of law, what was a court of law in the past which travelled to each county of England and Wales. “Common law therefore means the law common to all areas of England and Wales”(1). Moreover the Norman nobility, who overruled the country, established “a time immemorial period”, which is under AD 1189. This year became known as the “limit of legal memory”. That can be illustrated with the case Mercer v Denne [1905].

Before the Norman Conquest in 1066 Saxon England was divided into various tribal area, in which of them laws were based on the original customs of it. A that time England had three distinct legal system applying to each different area: the “Dane law” in northern and northern-eastern England; “Mercian law” in the Midlands; and “Wessex law” in the south and west of England.

Nowadays we can not see the great influence of “ancient custom”, but it is still important in some areas of law, e.g. “common carrier of goods”.

Q.2: Discuss the legal significance of an invitation to treat, past consideration and the postal rule for the acceptance of offer.

The contract is “a legally binding agreement made between two or more parties, by which rights are acquired by one or more to acts or forbearances on the part of the other, or others”(5) that how defines it Sir William Anson.

There are some essential elements, which will help to fulfil this definition:

Legally binding. It’s important that not all agreements are contracts and that not all agreements are legally binding. As an example of this there exist social agreements, domestic agreements and etc.
Two parties or more. There should be at least two parties for an agreement, because one cannot trade with oneself.
Rights are acquired. All of the parties should complete their promises in return to each other.
Forbearances. To be tolerant and to refrain from doing something that you could have done and keep the promise to do so.

An offer is a promise that the person making the offer (known as the offeror) is prepared to legally bound upon specified terms. It is susceptible to acceptance by the offeree at any time, unless it is revoked by the offeror (5). There are a number of situation which at first seemed to appear as an offer, but by the courts they were ruled as they are not “offers” e.g. invitation to treat, declarations of intent, the supply of information and etc. (3).

When the offer is made there an arising question, how long does it remain to be opened? Bearing in mind, that the primary purpose of an offer id some other should accept, the offer stops as soon as it was taken over by acceptance. Since an offer is made there are several situations, which may appear between “offer” and “acceptance”:

An offeror can withdraw his offer at any time before it was managed to be accepted. It should be done over the mail, at least, and should explain the reasons “why” was taken this kind of decision Byrne v Van Tienhoven (1880).
Once the rejection took place an offer is terminated and can offeree can return back on the earlier date and accept the offer.
An offer can lap through the time if the time is not stated and it is a reasonable time.
An offer which fails to complete any of conditions, which are made.
Death of the offeror. The offer cannot be accepted because there is no anyone, who can fulfil its promises.

An acceptance is an assent to all the terms of an offer (5). Moreover it is obligatory that the acceptance has to fit offers. The acceptance of the offer can be either oral or writing. Especially there is a general rule with regard to postal communications, with the help of which the acceptance is made. “Posted” means put into the control of the Post Office, or one of its employees authorised to receive letters (3). Posting does not take place as the time when a letter is handed to an employee of the Post Office, who supposes to deliver letters (Re London and Northern Bank (1900)).

There are some other aspects of Acceptance, which are fairly important. Firstly, the silence cannot be taken as a acceptance (Felthouse v Bindley (1862)). Secondly, the acceptance must usually be made in the same way as the offer (Eliason v Henshaw (1819)). And finally, the offeror can waive acceptance. Such a waiver may be express or may be inferred from the circumstances, e.g. Carlill v Carbolic Smoke Ball Co. (1983).

English law will not enforce a simple contract unless it is supported by a valuable consideration (3). What means that everything should be exchange for “anything of value”. The supply of goods; the performance of a service; exercising forbearance from the performance of an act.

An example of consideration can be: after A gave a promise to B to repair his roof in three days, B promised to A to pay £500 when the work will be completed. This act can be also called executory consideration.

Consideration can have two types.

Executory consideration is where two parties give promises to perform some acts with mutual advantage in future (cash on delivery).

Every consideration is governed by several rules, which have to be satisfied before taking place.

This law rule prevents one party from enforcing a contract unless he or she has contributed consideration. The person who has given himself a consideration can only bring a breach of the contact. Someone who is a stranger to a contact cannot take any advantage of a contact, even if it has been made for his benefit. This rule is very similar to the doctrine of the privacy of the contact Tweddle v Atkinson (1861).

Every consideration must be of material value, capable of assessment in financial terms. It is easier to find out financial value of the consideration in the situations where money, property, land of goods is involved. Every legal right has it financial value. Sometimes two parties make an agreement were they discuss the situation in which one side has to pay the compensation to the other one. Usually both sides agree the compensation and in such situations the consideration for the compensation is a promise not to take the case to the court.

Every consideration has the most important rule that it has to follow-consideration must not be past; past considerations are not promises at all.

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