Introduction
Common law in England and other English speaking nations like Canada and Brunei constitute the foundations of civil conflicts resolutions. The nations where common law is applicable are principally those that were British colonies. One can trace the origin of common law from three courts in UK: King’s Bench, court of common plea and exchequer (Maitland 1901, p.30). The motive behind the establishment of this branch of law, which has proved so crucial in the modern law, was to come up with a law system, which exceeded judgments arrived at by local courts (Radin 1928, p.415). Common law acquired significance in the applications of civil law. In this respect, the rationale behind its employment was for it to act as a mechanism of compensating those affected by unlawful acts-what is ‘torts’ in the common law (Jokinen 2009, Para.3). Interpretation of common law requires a methodology of reasoning referred to as casuistry. The methodology is strict in its form.
Common law deploys certain principles to unveil the circumstances of the cases and subsequently, determine the appropriate law, which the jury deems as most applicable depending on the nature of the case under scrutiny. In common law, the accumulated decisions arrived at by jury in similar past cases are vital but not necessarily binding. Rather, they form the basis for differentiation of the matter at hand from all other cases of a similar nature encountered in the past. These past cases, in the application of common law, are ‘paradigms’ (Wise Geek 2003, Para.5). Although, the decisions of the judges in the past (stare Decisis) need not form competitive bargaining perspectives to prompt the judges to make exactly same decisions in the cases at hand. The similarity strengths of such similar cases are essential in straightening casuistry. Common law deals with each everyday situation. Given the dynamics of the modern social settings and advents of technological discoveries, judges do not inherently follow the guidelines of Stare Decisis, but rather looks outside the previous cases’ decisions (Strauss 2003, p.1720). In UK, Perhaps most importantly, crucial to note is that, application of common law is universal in the sense that, even the most powerful government officials are not immune to its forces.
Scenario 1
Background
Helen, 17, recently purchased a used automobile for $20,000 from a friend. Helen’s automobile piques Ben’s curiosity as well. “If you were to sell your car, what is your lowest price?” he wrote to her.
Helen responded by writing that if she were to sell the car, the least she would accept is a flat sum payment of $30,000 for it.
Ben has now responded, stating that he will accept Helen’s offer and purchase the automobile from her in three installments for $30,000 total.
Helen tells Ben that she does not want to sell the automobile right now because her father has advised her against it.
Helen has really sold the automobile to Rick for $40,000, Ben learns through a friend. Ben tells Helen right away that she must sell the automobile to him because they have made a contract.
Advise Ben as to whether he has any claims against Helen.
Solution
One of the laws under the common law is the law of contracts. Jokinen (2009) defines a contract as “a legally binding agreement involving two or more people or businesses (called parties) and sets out what the parties will or will not do” (Para.2). The law of contract presumes that the parties involved in the legal deals have the capacity for fair bargaining in an attempt to arrive at a fair deal until found otherwise. In the conflicts involving breach of law of contract, a judge or jury has an interest in the existing differences in the powers of the parties to arrive at an agreement that is fair to both parties, failure of which may pose risks of unfairness to the weaker party (Peterson 2008, p.289). It is thus within the interests of the court, not only to consider the procedural fairness in contracts, but also the capacities and the abilities of the parties involved for the purposes of fair contracting.
Even if a contract is an agreement, not all agreements amount to contracts. Common law clearly identifies the necessary elements that must be evident in an agreement for the agreement to amount to legally binding legal relationships. Agreements that amount to contracts must have offers and acceptance. In addition, the parties must possess the intent to make legally binding relationships, have certainties with regard to the agreements, and some exchange of benefit (consideration) must be evident (Peterson 2008, p.290). The common law also requires the parties to have the capacity to enter into contracts since it limits the capacity of minors, person of unsound mind and corporations to contract. Only those legal relationships entered to with minors relating to the provision of necessities are legally binding. However, such relationships are subject to the facts of the case at hand (Pound 1999, p.87). All other contracts entered with minors issues such as repayment of monies borrowed, accounts stated and contract of supply of goods other than necessities are invalid. The object clause in the memorandum of association limits the capacity of corporations. All contracts entered to with persons of unsound mind are invalid. However, this applies only to people who were not well psychologically when they entered into the contract (Maloney 2003, p.420). However, such a person must pay a price regarded as reasonable by the court of law.
An offer entangles the willingness to contract, as expressed in a contract, with the intention to enter into legally binding relationships. The expression of the willingness to contract must emanate from the offeror to the offeree (Greener 2010, p.140). An offer can be in the form of writings, verbal or implicitly implied, based on the way the people present themselves. The offer can also be to an individual, group of persons, or even to the entire world (Greener 2010, p.140). There is a distinction of offers from invitation to treats or invitation for offers. all Invitation for tenders, display of goods in shelves, or even adverts posted in newspapers, amongst others, amount to the invitation for offers.
For instance, in pharmaceutical society of great Britain v. Boots cash chemicals limited, the display of the goods in shelves does not amount to offers, as proved by the court. It is rather an invitation for treats. When the purchaser picks goods and takes them to the shelves, he is making an offer (Stinson 2010, p.83). Once made, it is then capable of acceptance until such times when it ends. Common law recognizes that offers may end if subjected to the conditions of revocation, rejection and or in case of counter offers, death of one of the parties or lapse of time. In Hyde v. wrench, ‘A’ offered to sale his parcel of land to ‘B’ at £ 1000. B offered to buy the piece of land at £950. However, A rejected prompting B to accept to purchase the parcel at £ 1000. The court held that, the first expression of the intention to create legally binding relations by A amounted to an offer. However, the B’s expression to buy the same parcel at £950 amounted to a counter offer. Even if, B sues A for breach of the contract, he cannot win the case since the contract lost its validity at the instance when he received a counter offer.
For legally recognition of acceptance of an offer, common law makes certain provisions. The law requires that the offeree to be fully aware and that he or she must have the intention to do what he or she alleges as acceptance (Margherita 2010, p.113). This was the principle to be determined in crown v. Clark case. The offeror must also communicate to the offeror as portrayed in Felt house v. Bindley case. In this case, the court held that, for acceptance, the offeree must communicate the acceptance to the offeror within such times when the offer is still valid. In addition, that jolly person and not any other person on behalf of the person receiving the offer (Dolores 2009, p.265) can only accept an offer made to a given person. For acceptance, to be valid, the common law demands that it should be unconditional. Based on the rules of acceptance as dictated by common law, the contract is complete at the place where the offeror encounters offeree’s notification of acceptance.
The principle beside, the Ben’s concerns came into existence in Harvey v. Facey: a lawsuit that involved the sale of Bamper hall pen. From Ben’s perspective point of view, his first writing was merely an inquiry. The Helens response that the least she would accept for it would be a lump sum of $30,000, as previously discussed is distinctively not an offer but rather an invitation for treat. Even if, Ben initiates legal processing and sues Helen for breach of contract, the case can not be granted since what he might allege as acceptance is legally non existent. Invitations for treat are not offers (Stinson 2010, p.85). Ben cannot allege to accept an offer, which was not there legally. It is clear also that Helen did not have the intent to make a contract at the time she responded to Ben. Therefore, even if she sold the car to a different party, it needs not to bother Ben since his contract with Helen ended at some point upon the issuing of an invitation for treat.
Scenario 2
Background
Mike parks his car in Risky Car Park, a valet parking lot near a restaurant where he and his buddies are having supper. Mike gets a ticket from a machine when he enters the parking lot. While the time of his entry is plainly indicated on the ticket, there are some additional statements in small print on the back. The following are the words:
For parking conditions, see the notice posted outside Shroffs’ office near the car park exit.
Mike notices that the ticket has words on it, but he does not read them. He then hands the attendant his car keys and slips the ticket into his pocket. Mike hands over the automobile key to the attendant, who says he will store it until Mike comes for his vehicle.
When Mike arrives home after dinner, he discovers that his automobile has been severely damaged. The vehicle has been relocated. The on-duty vehicle park attendant denies knowing how the damage occurred. Mike’s attention is drawn to the text on the back of the ticket by the manager of Risky Car Park. Mike then proceeds to investigate the notice posted outside Shroffs’ office near the car park exit. The following is the text of the notice:
Parking Regulations
In no event will the Risky Car Park, its Agents, or Employees be held liable for any loss or damage to a car, or for the death or injury of any person, however caused, while the car or person is in Risky Car Park.
Assist Mike in determining if the fundamental components of a contract are present in these circumstances and whether he has any legal grounds for recourse against the corporation, its agents, or its workers, particularly in light of the notice posted near the car park exit.
Solution
For a case filed with quest for compensation as a result of commitment of tort of negligence to stand, the complainant must prove that the plaintiffs, in the most reasonable contemplation, was aware that his acts could cause harm on his or her part. The plaintiff must prove that the defendant owed him / her duty of care and that the defendant breached this duty of care and consequently he/she suffered damage (Maloney 2003, p.407). In the Mikes case, the plaintiff suffered damage, but whose responsibility was it to take care of the car? It is clear that the second party exempted itself from liability via the liability clause in its premises. This clause states “…Employees shall not in any circumstances have the responsibility for, nor accept any liability whatsoever in respect of, any loss or damage to any car or for death or injury of any person, regardless of what caused such loss, damage, death or injury, whilst the car or the person is in Risky Car Park” (Caenegam 1988, p.19). This liability clause exempts the agent and its employees from owing any duty of care, which Mike must prove, if he were to sue the agent (who according to laws of torts is the party strictly supposed to take responsibility of the torts committed by his employees).
The parties had to lay down the principle and facts of this case in a tort of negligence law suit: Donoghues v. Stevenson. Concerning this case, Caenegam (1988) categorically states, “the rule that you should love your neighbor” alters in law to “you must not injure your neighbor” (p.18). In this case, a neighbor stood out as that person by whom my actions will affect or rather that the person “…who I ought to have in the most reasonable contemplation when directing my mind to the actions or omissions in question” (Caenegam 1988, p.19). The proof of negligence visa, breach of duty for instance, is merely a question of facts. The standard used; with accordance to the requirements of the common law, in proof of breach of duty is objective (Dolores 2009, p.271). Breach of duty implies that a person acted unreasonably and carelessly in a way likely to be unfair to the other person. Common law, as a general procedure, requires the plaintiff to proof breach of duty of care. However, if the explanation of the facts is only possible based on the fact that there was negligence on the part of the defendant, then the principle of Res Ipsa liquidator applies. This rule changes the responsibility of validating to the suspect. The difficulty in this case is that Mike need to explain the causation of the damage and through facts attribute the so claimed suffered damages to the agents carelessness. The challenge is that the common law recognizes, exclusions liability clause as defense which the defendant might cite.
Mike might particularly face challenges in an attempt to proof negligence on the part of the agent based on the importance of meeting all the essential elements of a contract. In this case, the parties had given consideration as part of contractual terms (Herbert 1910, p.22). Mike had paid the parking charges, which the agent through its employees, promptly accepted. However, the front side of the ticket clearly indicates the time of entry but ignores highlighting the necessary terms of the contract. The words indicating such terms were small and printed at the back of the ticket, which obviously, the plaintiff might have missed a chance to have an immediate glance unless he had the attention with him. This implies negligence on the side of the plaintiff and the agent needed to have taken into account such a scenario in the design of the ticket.
According to the operation of the common law in respect to exclusion clauses, which contain a clause in unsigned document, (similar to the one issued to mike), the person seeking to rely on it must proof to the court that, the document was an integral part of the contract (Hudson 1996, p.83). Secondly, the party irritated by such a clause needs to be aware of it before entering into a contract. In addition, the common law holds the person affected by it, as bound by the exclusion clause. This case holds even if the document bears a signature that appeared before reading the document (Hudson 1996, p.83). In Mike’s case, the defendant must satisfy the requirements of the first criteria. The third requirement is not vital for consideration since the document did not bear any signature. Relying on the second requirement, if mike can proof that he did not know about the exclusion clause before executing the contract, then he needs to consider filling for a legal regress against the agent.
Scenario 3
Background
Peter works for Dictum’s Organic Foods distributors in a warehouse. The warehouse’s design is essentially flawed. The products and cartons have not been properly stored. Peter slips on the floor one day, and a big box falls on his head, injuring him.
In the crash, Peter sustains head injuries and is rushed to a local hospital for treatment. A massive blood transfusion is required for Peter. However, his blood type is quite uncommon. He suffers severe brain injury as a result of a blood type shortage at the hospital.
Advise Peter.
Solution
In the law of tort, two cases exist namely; general tutorials liability and the strict liability. In general liability, it is necessary for the claimant to show that the defendant, through his or her action was negligent or had the intention to commit a tort. In case of law suits involving manufacturers and consumers, the claimant must proof that the product was defective, as a consequence of defects an in the products injury and or damage ensued and finally show that the claimed damage was as a result of defects in the product. With regard to the common law, “a product is defective if its safety is not what people expect” (Pound 1999, p.60). Perfection of the product is not the key point; the key requirement is the product to have safety on the part of the end user.
Consumer protection act of 1987 is one of the acts that well exemplify a case of strict liability (Hudson 1996, p.53). This act “defines no faulty liability” (Hudson 1996, p.53). The proof of faultiness is not a requirement for strict liability case to hold. Another example of application of strict liability is in the nuisance law. Common law attempts to draw a balance between legal but conflicting interests of land owners (Greener 2010, p.140). The owner of the asset has the right to utilize it as he or she wishes but also, he or she must not interfere with his or her neighbor’s rightful use of his or her property. The person held by the law as liable for the tort of nuisance is the person who has created the nuisance, the one who has allowed continuation of the nuisance in his or her land without taking initiatives to stop it (Greener 2010, p.140). In the legal proceeding involving tort of nuisance, the defendant may cite statutory authority or the claimant’s authenticity as defense.
The common law holds the premises or land occupiers liable to any injury on a person who occupies his or her premises or land. Common law defines an occupier as “any person who has a sufficient degree of control over premises” (Greener 2010, p.23). The owner of a premise/land is liable for any injury that takes place in his/her premises even if he/she does not necessarily occupy the premise/land. In the UK, the occupier’s liability act of 1957 provides that any person who lawfully authorizes a person to visit his/her land should bear the consequences any injuries brought to the visitor. Like in a tort of nuisance, the land or premises owner owes the occupiers duty of care.
In vicarious liability cases, employers are liable for the torts committed by their employees. The common law provides that, any person who acts through instructions from another, acts in the interests of that other (Duggan 2009, p.387). The reasoning behind holding employers responsible for torts committed by their employees stands on the idea that declares employers the most suitable to prevent the occurrence of torts. In master-servant relationship (Cantor 1997, p. 11), if an employee commits a tort, the employer should take up the liability since the employee is acting according to the directions of the master. The latter should have taken in the most reasonable contemplation the probabilities of occurrence of such situation likely to make the employee commit the tort (Potter 1958, p.32). Injuries on the employees that cause health damages while at the work place are attributable to the actions of the employer, and hence the employer is liable for corresponding torts.
In the case of Peter, he suffered the damages while working at the premises of Dictum’s Organic Foods. Although, the owner of the box, which injured peter, did not place it there carelessly, this stands out as a case of vicarious liability. Thus, the common law requires the owner of the premises to take up full liability. One would assume that, although, the employer never placed the box, his or her actions resulted to injury (fall and hemorrhage and subsequent brain damages). It is also within the provisions of regulations of 1999 act on health and safety for employers to carry out routine checks to identify risks to safety on employees and take protective and preventive measures coupled with control and monitoring of the safety hazards (Greener 2011, p.25). Since this case is provable, Peter should consider seeking legal regress by suing Dictum’s Organic Foods for damages and claim for compensation as a remedy.
Scenario 4
Background
Lam hired a cab to transport him to a local hospital when a bug got into his ear in the middle of the night. Ming, a lorry driver on his way home in a hurry, lost control of his lorry and collided into Lam’s taxi.
Lam was injured in the crash and was transferred to Queen Mary Hospital by ambulance. Because Lam’s long bone in his leg was fractured, doctors spent a long time to treat his injuries. The insect had already punched a hole within Lam’s ear drum by the time he was treated for his ear injuries, causing permanent hearing loss. If Lam had received therapy sooner, he might have been able to fully restore his hearing.
Assist Ming in defending himself against Lam’s negligence claim.
Solution
As previously discussed, tort of negligence lies on foundations of four essential components: “the obligation of caring, breach of the duty of care, causation and consequential damages” (Dolores 2009, p.271). Duty of care is a legal obligation on an organization or an individual to provide a reasonable standard protection while conducting other missions that have the capacity to injure others. In a law suit, duty of care stands on two grounds. One, the claimant and the defendant must have a peculiar relationship (Kellogg 2003, p.450). This is a question of determination of whether sufficient neighborhood existed so that the actions of the defendant could possibly harm the claimant. The court must also determine whether it is right to impose a legal liability. In addition, the harm should be reasonably avoidable by the defendant to get such a case since tort of negligence law suits seeks to establish that the defendant failed to stay within the requirements of the law in ensuring safety of his or her neighbor.
Among the relationships identified by various past cases involving tort of negligence, which can amount to commitment of torts against one’s neighbor, include driver and other drivers’ relationship, manufacturer and consumer, employer and employee relationship. In Donaghue v. Stevenson, the court granted the case since the producer of the beer, which had a snail, ought to have foreseen the injuries and then take substantive measures to avoid it in the most reasonable contemplation. However, it is vital to understand that the connection, which the applicant and the defendant have, does not require being so remote for a case of negligence to be granted.
In the case of Lam and Ming, it is a question of the law to determine the magnitude of the neighborhood so that actions of Ming could cause harm to lam. Ming ought to consider, in his most reasonable contemplation, that his acts could have resulted to an injury on other people plying the same road as he does and avoid over speeding. However, one needs to determine whether it is his actions (over speeding) or otherwise that caused the injury. Evidently, Lam could not have suffered permanent hearing loss if the doctors could treat him in time. However, the doctor had to attend to other injuries arising from Ming’s negligence). Legally, the insect never caused the loss of hearing. It is breach of duty of care of Ming toward Lam that caused it. Thus, Ming is liable for the Lam’s hearing loss. Therefore, Lam should proceed to sue for the tort of negligence.
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