English legal system is from four sources
The English legal system is from four main sources. The statutes or Acts of Parliament is made by Parliament. Delegated legislation is made by other people under the authority of Parliament. European Union law are from treaties, regulations, directives and decisions. Finally, there is the case law which consists of judge-made laws termed as the Common law. Common law originated in the days where parliament was not very important. Judges who travelled around the country picked up new ideas and apply them elsewhere. As a result the whole of the kingdom used the same law.
There exist in the English legal system, cases where a court may be bound to follow a previous decision of another court. This is termed as the doctrine of binding precedent. This legal reasoning leading to the judge’s decision is termed ratio decidendi. English courts exist in hierarchical relationship to each other. (CEM 2009, Page 14) as shown in Figure 1.
Figure 1 Hierarchy of courts
Source: CEM (2009) Page 15
At Common law, English courts are not bounded by the European Courts of Human Rights or the Judicial Committee of the Privy Council, but they must consider any decisions of that particular court. On the other hand, the Supreme Court (formerly House of Lords) and the Court of Appeal are bounded by their own previous decisions in all cases and in civil cases respectively they also bind all lower courts. It is to be noted that there are exceptional circumstances where Supreme Court and Court of Appeal may decide not to be bounded by their own previous decisions. When hearing appeals, High court is bounded by their own previous decisions and it also binds all courts below it. The doctrine of binding precedent is not applicable for cases heard in the courts below High Court.
The doctrine of binding precedent explained above, creates a constitutional problem. This is because it breaches the doctrine of separation of powers. The doctrine of separation of powers classifies powers exercised by state the following way:
Executive power – This is exercised by the government. It includes both local and central government
Legislative power – This is law-making power, exercised by parliaments in the form of statutes or Acts
Judicial power – It is power exercised by the courts in the form of deciding disputes, providing authoritative rulings as to what the law is
English court exercised jurisdictions at first instance and appellate jurisdiction. In the latter jurisdiction, the court has to find facts and try issues between parties. However, in the later jurisdiction, the court is not the first one who heard the case but the decision of the first court is being appealed.
Judges in the Crown Court are involved mainly with criminal and some civil cases. They exercise both jurisdiction at first instance and appellate jurisdictions. Country Court judges hears only civil cases. The court does both jurisdiction at first instances and appellate jurisdictions. The High Court judges hear both civil and criminal cases. They hear cases at first instance and also appellate jurisdictions. High Court has three divisions namely:-
Queen’s Division – Hears most cases involving contract and tort
Chancery Division – hears most cases involving property, trusts, insolvency and family law
Family Division – hears divorce and children and some family property matters
High Court hears appeals from Magistrate and Crown Court sitting without a jury. Court of Appeal consists of civil and criminal divisions. The civil division hears appeals from both County and the High Court. (CEM 2009, Page 19). The criminal division hears appeals from the Crown Court. The Supreme Court (formerly House of Lords) has entirely appellate jurisdictions. Appeals by prosecution or the defence from criminal division in the Court of Appeal and the High Court is heard by the Supreme Court. The Supreme Court also hears appeals from civil division in Court of Appeal but also those from High Court. In civil cases, there is a leapfrog procedure whereby cases from the High Court could progress to the House of Lord without passing through the Court of Appeal to save time and money.
The Judicial Committee of the Privy Council advises the Crown. The European Court of Justice containing both the European Court of Justice and the Court of First Instance deals with:
Disputes between the European Union and its member states
Disputes arising between member states and of the European Union
Requests for preliminary rulings on European Union law made by the courts of member states.
People apply to the European Court of Human Rights (ECtHR) to argue that a decision of a national court of a state (a party to the European Convention of Human Rights) has breached their rights under the ECHR).
It is clear from the doctrine of separation of powers that judges cannot make law. They can only interpret and apply law. The only body that can make law is the Parliament. However, considering the doctrine of binding precedent and the role of the Courts stated above it is obvious that the judges are indeed making law. So the doctrine of binding precedent breaches the doctrine of separation of powers.
QUESTION 2: Answer
In the English legal system, Parliament is legislatively supreme. This means that Parliament is the main and principal body in law making. The fact that Parliament has to limit itself to policy matters leaves little time for details matters. It is on this ground that Parliament has to delegate to other people the power to make law. This is what is known as delegated legislation.
It is to be noted that delegated legislation is only approved by Parliament. Since this is the case, it is not protected by the doctrine of the legislative supremacy of Parliament. This means that the courts can quash delegated legislation if the person who made this law has acted ultra vires.
There are different forms of delegated legislation namely statutory instruments, bye-laws and compulsory purchase orders. Statutory instruments are made according to standard procedures. Under these procedures, draft instruments are laid before Parliament after which they come into force either by affirmative resolution procedure or negative resolution procedure.
The fact that delegated legislation is not made by Parliament, gives rise to the question about its necessity in the English law. The procedure for a Bill passing through Parliament to become an Act is a very long one. A bill has to go through five stages in each of the two houses in order to be approved or rejected. By delegating the power to make law to other people, Parliament is limiting the amount of time spent on working out the details of a Bill.
The power to make law is given to those persons having relevant expert knowledge. In practice, the power to make law is commonly given to Secretaries of State. A Secretary of State is sometimes given power to make delegated legislation on behalf of another person or body. (CEM 2009, Page 12).
In case of an emergency situation, delegated legislation is the fastest option. The fact that it does not have to wait for an Act to be passed makes it an ideal option to solve emergency issues. With delegated legislation it is easier to make changes to the law since there is no need for it to be passed as a new Act of Parliament. It is therefore a flexible source of law. Delegated legislation is necessary in the sense that it is able to accommodate the changing needs of society. It also covers situations that Parliament has not covered when they enacted the Act of Parliament.
On the other hand, delegated legislation is not without faults. The fact that power to make law is delegated to unelected people creates a lack of democracy. Secretaries of states are not elected by the people but are appointed by the Prime Minister so there is a lack of democracy when laws are created by them since they are in favour of the ruling party.
It is to be noted also that since delegated legislation is not made by Parliament, they lack control over it. This means that there is less scrutiny by Parliament on delegated legislation compared to primary legislation. This can lead to inconsistencies in laws.
When an Act of Parliament is made it is widely published. This is not the case with delegated legislation. This may be partly due to the fact that there is a large amount of delegated legislation made each year.
It is clear from points raised above that delegated legislation is a necessary source of law. The fact that it lessens the time spent on details by Parliament, gives Parliament the opportunity to concentrate on more pressing policy matters. Since it is flexible, to apply changes to these laws are relatively easy. On the other hand, the fact that delegated legislation lacks democracy and there is a lack of control over this type of law makes it faulty to some extents. These faults could however be rectified. As it is today, a lack of delegated legislation will make Parliament work under great pressure to be able to approve new Act fast enough to meet society’s demand. This makes these Acts liable to inconsistencies. Due to changes occurring every now and then in the bill, the Act will have to be amended several times. It is upon these reasoning that the conclusion is deducted that delegated legislation is indeed a necessary source of law.
QUESTION 3: Answer
The acceptance of an offer is an agreement to the terms of the offer between the offeror and the offeree. Acceptance is considered valid if the offeree knows the offeror, if the response of the offeree is made known to the offeror and if there is no discrepancy between the terms of offer and of response to offer. When an offeree accepts an offer, a legally binding contract is created provided that there is no discrepancy in the terms of offer as stated above.
In Tinn v Hoffman (1873) the offeror required acceptance by return of post. The court ruled that an acceptance by telegram or by verbal message would be an effective communication if the offeror learned of it not later than a letter by return of post. (CEM 2001, Page 12)
The fact that the Managing Director of Blankets plc had a telephone conversation with Cilla the secretary to confirm acceptance of the offer is not relevant. It was clearly stated on the letter that ‘a notice in writing’ must be received by the sales director. Furthermore, it is also clearly stated that the acceptance of the offer must be made directly to the sales director, the message confirming acceptance that was left with Cilla (even if she did not pass it on to her boss) is not relevant. It is to be noted that the notice in writing required by the offeror was a term of the offer.
In Adams v Lindsell (1818), an offer to sell wool was accepted by post. The acceptance was posted on time but delay occurred in receiving the acceptance by the offeror resulted in the contract being binding. In this case the offeror was in breach of contract since he sold the wool to a third party after the acceptance has been posted.
In Holwell Securities v Hughes (1974) the defendant granted the plaintiff an option to purchase certain property from the defendant. It was stated that the option to be exercised by notice in writing to the defendant within six months of the date of the offer. The letter was posted before the due date but reached the defendant after the stated date. It was held that the option had not been validly exercised since the offeror had made it clear that communication of the exercise of the option was required. (CEM 2001, Page 13)
In this particular case, Blankets plc has accepted the offer from Duvets plc. The fact that Blankets plc posted the notice in writing on 8 April is not relevant. The reason to this is that Duvets plc has clearly stated ‘that a notice in writing must be received by the sales director not later than 14 April’. Since the offeror requires a written notice of acceptance in the hands of the sales director on the 14 April latest, the general postal rule does not apply. There is therefore no legally binding contract on this ground since the letter has not been received by the stated date.
QUESTION 4: Answer
A contract is frustrated if subsequent to its formation it is impossible to perform it, is illegal to perform it and its performance would be radically different than anticipated. A frustrated contract is automatically discharged for the future.
The fact that the ticket bought by Paul from Sam was for the boat trip to see the fireworks display is an interesting concept. The fireworks display was cancelled, but it is clear that the ticket was for the boat trip. So even if the fireworks display has been cancelled, Paul can still go on the boat trip. In this case, Paul has nothing to loose, he still benefits for the boat trip. In Herne Bay Steam Boat v Hutton (1903) a contract was to charter a boat to see the King’s review of the naval fleet. Due to the illness of the King, the review did not take place. The Court of Appeal rejected the claim that the charter contract has been frustrated. In the event that Paul’s interest was only to see the fireworks display than the contract with Sam is frustrated. In Krell v Henry (1903) the cancellation of Edward VII’s coronation was held to frustrate a contract for the hiring out of a room from which to watch the procession.
Considering that the hotel booking was for the period of stay in London, Paul can choose to do two things. If he is retaining the boat trip, he may use the hotel to stay in for the night. In the event that he is not considering going on the boat trip he may cancel the booking made to the hotel by notifying the hotel not less than two days in advance. In this case, if payment was made in advance to the hotel, Paul is liable for a full refund and not to pay anything to the hotel. Law Reform (Frustrated Contracts) Act 1943, (s1 (2)) states that expenses up to the amount already paid are recoverable and money payable ceases to be so. This means that Paul will not loose anything in terms of money regarding the hotel booking.
With regards to the car, the fact that the car will not be available changes the view of the whole issue. In this case an anticipatory breach has occurred. This is due to the fact that the hire company has renounced to his contractual obligations in advance. The company has informed Paul that they will not be able to issue him with a car.
On the whole, the fact that Paul is not getting the car hire, may lead him to cancel the trip. In the event that he still wishes to proceed on a holiday in London, he can use the hotel and the boat trip. In this case there will be no refunds for the cost of the boat trip. For the car hire option, he can contact another hire company and make provision for a car to be available to him on the required dates.
QUESTION 5: Answer
Mistakes at law may render a contract void. A void contract has no legal effect. The types of mistakes which may render a contract void are common fundamental mistakes, mutual and unilateral mistakes.
Common fundamental mistake occurs when both parties makes the same mistake. When an agreement is reached by the parties under this type of mistake, the contract may be void. Some fundamental mistakes that may render a contract void includes: -
Perishing of specific goods prior to a contract of sale. (s.6 Sale of Goods Act 1979).
Non existence of the subject matter of the contract. In the event that the subject matter of a contract ceases to exist or does not exist, the contract may be considered void. In Galloway v Galloway (1914) a purported separation deed was between parties who were in fact married. In Couturier v Hastie (1856) the court held that the contract was void after a buyer bought a cargo of corn which both parties believed to be at sea. In this case, the subject of matter ceases to exist.
Impossibility of performance can be either legal or physical. This happens where it is impossible to perform the obligations under the contract. In Cooper v Phibbs (1867) a person who was the owner of a piece of land unknowingly agreed to take a lease for the same land. The fact that the person was already the owner of the land in question was unknown by both contracting party.
Mistakes of quality have proved to be a controversial issue. In Bell v Lever Bros Ltd (1932), the mistake made by the parties was that the company could only terminate the service contract of its employee Bell, on payment of compensation. After a compensation payment amounting to £30,000, the company discovered it could have sacked Bell at no cost and therefore tried to claim that the payment was void for mistake as to the quality of the service contract. The House of Lords held the contract valid.
When both parties make a mistake but the mistake differs, it is termed mutual mistake. In Raffles v Wichelhaus (1864) an agreement was met by the parties upon the sale of a consignment of cotton on a ship called Peerless. There were two ships with that name, one sailing in October and the other in December. The buyer was held entitled to refuse to accept the cotton sent by the later ship. Have the two ships arrived at the same time, the position might have been different since it would not have been easy to treat the mistake as having induced the contract.
When one party makes a mistake and the other party is aware of the mistake made, it is termed as a unilateral mistake. In order for a contract to be considered void, a mistake relating to the identity of the other party must have occurred. A party who claims that he was mistaken as to the identity of the contracting party will rarely succeed.
In order for the party concerned to succeed he will have to show that he is confusing the other party with X. In Cundy v Lindsay (1878) a rogue, Blenkarn, ordered goods from his address, 37 Wood Street, which the plaintiffs supplied, believing they were dealing with Blenkiron & Co, a respectable firm of 123 Wood Street. Blenkarn acquired the goods, did not pay for them and sold them to the defendant, an entirely innocent person. (CEM 2002 Page 6) The House of Lords held the contract made with Blenkarn void on the grounds that the plaintiffs had shown that they intended to deal with Blenkiron & Co. The goods bought by the defendant had to be returned. In Phillips v Brooks (1919) a jeweller sold goods to someone who purported to be another person. The jeweller had intended to do business with that particular person even though he was not the person the jeweller though he was.
Another thing the party has to show is that a reasonable attempt was made to verify the identity of the other party. In Lewis v Averay (1972) the purchaser of a car represented to the seller that he was a well-known actor, Richard Greene. The seller perused a film studio’s pass produced by the purchaser in the name Richard Greene, but made no further check on identity. (CEM 2002, Page 6). The contact was considered not void in the Court of Appeal since the mistake was related to the creditworthiness of the purchaser.
Providing that a contract consist of mistake about the subject matter, the contract rendered void. In Hartog v Shields (1939) a seller offered to sell hare-skins at a given price per pound. He had intended to offer the skins at that price per piece (there being three pieces to the pound). The buyer accepted the offer. The contract was held void: all negotiations had specified a price per piece and this was standard in the trade, thus there had been a mistake as to terms.
In general, a situation where a mistake will be of legal significance is extremely narrowly defined by the law because of the serious consequences of making such a finding.
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