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Published: Fri, 02 Feb 2018

There are two types of precedent

No, Mr. Justice Peter cannot decline to be bound by the decision. This is due to one of the elements in unwritten law which is judicial precedent/case law.

Judicial precedent is a system adopted by judges where decisions made by the court will be used as a source for future decision-making. Under judicial precedent, with similar set of facts, decisions made by judges previously are binding upon later cases, depending on the hierarchy of the court. Decisions of superior court are binding on the subsequent inferior court as in case of R v G&R [2003] [1] . This case is concerning recklessness. Two boys who aged 11 and 12 respectively were convicted of arson. The judge said that recklessness was based on risk obvious to a reasonable person who is an adult rather than a 12-year-old child. It was unfair for the children if they were held to the same standard as reasonable adults. The Court of Appeal was then dismissed the children’s appeal. This decision has been much critised, but it was made by the House of Lords and thus it was binding on the Court of Appeal.

There are also some courts bound by their own decisions. This system of binding precedent is known as stare decisis in English Law which means ‘to adhere to decided cases’. The idea is that by adopting precedents, uniformity and certainty will be provided. Precedents will remain binding once they are made until they are overruled by a higher court in future case.

There are two types of precedent which are original precedent and declaratory precedent. When there is no precedent to follow or no such decisions have been made before, whatever the judge decides will form new precedent which means judge is making new law for later cases to follow, this is known as original precedent. Declaratory precedent is the application of existing law by judges.

Under judicial precedent, it is only the ratio decidendi binding on later courts but not the whole case. Ratio decidendi is the rationale for a decision. It is the legal principle of the case which will provide precedents for judges to follow in future cases. The remaining judgement is known as obiter dictum. Obiter dictum is comment made by judges which does not form part of the reasoning and therefore not part of the precedent. It is not binding but persuasive only. An example for this is Donoghue v Stevenson [1932] [2] . On 9th April 1929, Ms. Donoghue sued David Stevenson, the manufacturer of bottled soft drinks, for causing her injuries through consuming ginger beer that manufactured by him. Ms. Donoghue and her friend went to a café in Paisley. Her friend ordered ice-cream and ginger beer. The owner of the café was then brought the order and poured part of the ginger beer which contained in an opaque bottle into a tumble which containing ice-cream. Ms. Donoghue drank some of the beer and then her friend poured the remaining contents in the bottle into her tumble. At the same time when her friend poured the remainder, she saw a partially decomposed snail dropped out from the bottle into her tumble. Ms. Donoghue claimed for damages for gastroenteritis and nervous shock which caused by the incident and finally she won the appeal. The ratio of this case is related to imposition of liability on manufacturer for defective goods which means that Stevenson owed a duty of care to Donoghue as he did not take reasonable care of his product to be free from any defects that would cause health problem. Lord’s Atkin’s neighbour principle was considered as obiter.

One of the cases that followed this precedent was Grant v Australian Knitting Mills Limited and Other [1936] [3] . Grant, the appellant, infected dermatitis as a result of wearing underpants which was the product of Australian Knitting Mills Limited. He brought an action against the retailer and manufacturer as the garment was in defective condition due to excessive sulphite when he purchased from the retailer and this caused contraction of the disease. The presence of noxious chemical in the garment was an unknown defect for Grant and he did wear it after he bought and caused dermatitis. Principle of Donoghue v Stevenson [1932] [4] was applied here. The Privy Council held that the manufacturer was liable to Grant as it did not take reasonable care of its product to be free of defect.

According to the case given, in year 2010, Mr. Justice Peter has to be bound by the decision made by the Court of Appeal in 2009 since the case that he handles has similar material facts to the one decided by the Court of Appeal and the Court of Appeal is located in higher position than high court in the hierarchy of court (Appendix 1).

In this case, declaratory precedent is applied since previous judgement has been made on similar material facts by Court of Appeal in 2009, Mr. Justice Peter just have to apply the judge or decision made by Court of Appeal on his case without setting any new precedents or laws.

Besides, Mr. Justice Peter needs not to follow the judgement made by Court of Appeal in 2009 absolutely, but only bind with ratio decidendi of the case. Obiter dictum of the previous case may be persuasive for Mr. Justice Peter towards certain view in the law and perhaps aid in better judgement.

In conclusion, Mr. Justice Peter is bound by the decision made by the Court of Appeal in 2009 since the law is already existed before his case and therefore he must adopt previous decision made by the Court of Appeal which has the similar material facts with his case.

Question 1 (b)

First, we discuss the strengths of case law as a source of law.

One of the most important advantages of case law as a source of law is certainty. If the situation has been solved before, it is clear and certain how the law is applied in the case because the judges must follow previous decision made by the courts. Therefore, this may bring certain amount of confidence to the clients since their lawyers can advise on the probable results of their cases. For example, in the case of Grant v Australian Knitting Mills Limited and Other [1936] [5] , it adopted the principle of Donoghue v Stevenson [1932] [6] .

Time and costs saving is another strength of case law as a source of law. If judges adopt previous decisions made by the court, the case can be solved quickly as they do not need to spend time to look for evidences and carry out investigation on evidence which is extremely time-consuming. Besides of time saving, it is also a cost-saving practice as it avoids unnecessary litigation. Due to already existing solutions, people do not have to reargued for the results, thus have saved some legal costs. For example, P is convicted of larceny. Judge decides to imprison P. The same judgement will go to other people who commit similar offence where next time judge needs not to spend time to consider the penalty to be executed on next criminals.

Another pro claimed for case law as a source of law is personality of judges will bring no effect on the outcome a dispute. Since judges at lower courts are bound to follow previous decision made by a higher court, therefore no matter how the judges behave, it will not influence the result of a dispute. No bias can be practiced here and thus prevent injustice. For example, C is convicted larceny. He is nephew of judge A. In this case, judge A has to execute his responsibility fairly by adopting previous judgement to imprison C even though he knows C.

Next, we will discuss the weaknesses of case law as a source of law.

Rigidity is one of the cons of case law as a source of law. Judges just have to follow a binding precedent even if they think it is inappropriate. Once a precedent is created it is binding until it is overruled. It is inflexible and may cause hardship. Previous bad decision and injustice are perpetuated until a similar case gets to a higher court to overrule them.

Bulky and complexity is another weakness of case law as a source of law. As there are so many cases and decisions made by the courts previously that comprise many thousands page of law report and more added all the time, it takes long or impossible for judges to understand and learn all of them. Sometimes, judges may need even longer time to understand a complex case as the case might be very confusing and difficult to identify the ratio decidendi. Therefore, it is very hard to apply an appropriate and relevant precedent and judges may overlook some important rule.

Lastly, growth of this system is slow. Judicial precedent is a system which is dependent on litigation for new rules to emerge. However, litigation takes time and therefore it tends to be slow and it is expensive. This cause the body of case law cannot grow quick enough to meet modern demands and changes.

Question 2

This case is about offer and acceptance in Contracts Act. We will discuss in detail whether Tanny’s letter of acceptance is valid and whether there is a contract formed between the two parties.

On the 29th October 2010, Steven advertised in newspaper stated the details of the good that he wanted to sell and also his contact number. Advertisement is usually an invitation to treat, but sometimes it can also be an offer. Whether this advertisement is an offer or invitation to treat, it depends on the intention of the parties. Invitation to treat means inviting public to make an offer. An example for invitation to treat is the case of Partridge v Crittenden [1968] [7] . In this case, Partridge advertised in a magazine stating “Bramblefinch cocks and hens, 25s each”. He was charged by Anthony Ian Crittenden who represented RSPCA, for illegally offering sale of wild bird. However, the High Court said he must be acquitted. It was held that the advertisement is an invitation to treat but not an offer. With limited stock, it is unreasonable for the advertiser to be bound to sell to all people who might accept.

In Section 2(a) Contracts Act 1950, offer is defined as ‘when one person signifies to another his willingness to do or abstain from doing anything with a view to obtaining the assent of that other to the act or abstinence he is said to make a proposal’. Case that can illustrate how an advertisement could be an offer is Carlill v Carbolic Smoke Ball Co [1893] [8] . The Carbolic Smoke Ball placed an advertisement promising that they would offer to pay £100 to anyone who still infected influenza after consuming one of its smoke balls in a specified manner and specified period. The advertisement also stated that Carbolic Smoke Ball had deposited £1000 in a named bank in order to show their sincerity. Carlill, the plaintiff, bought its smoke ball and used it as directed. Yet, she still contracted influenza and she sued for the £100. The Court of Appeal said the advertisement in this case was an offer because the wording of the advertisement clearly showed that Carbolic Smoke Ball was intended to be bound to anyone accepting.

The above facts show that the advertisement placed by Steven is an invitation to treat as he did not make any promise in the advertisement. He is merely inviting people to make offer to him. Besides, with limited stock, he could not reasonably to be bound to sell to anyone who might accept.

On the 1st November 2010, Tanny after seeing the piano, offered RM10,000 to buy the piano. She is making an offer to Steven. Definition of offer is as above. An offer must be clear, definite and certain. The case that illustrates this statement would be Guthing v Lynn [1831] [9] . The buyer said that he would pay £5 to the seller if the horse brings luck to the buyer. ‘If the horse brings luck to the buyer’ is too obscure, not certain and not clear. Thus, this offer was not valid. However, for Tanny’s case, her offer is clear and certain where she knows that the good that she wants to buy is a piano and she is willing to purchase it at RM10, 000.

Besides, an offer must be communicated. Tanny did communicate to Steven that she wants to buy the piano. Therefore, the offer is effective since it is communicated according to Section 4 (1) Contracts Act 1950.

In this scenario, Tanny is offeror as Tanny makes an offer to Steven and Steven is offeree, the one who accept the offer. The offer is a bilateral offer as the offer was made particularly to Steven. One of the cases that related to bilateral offer is Boulton v Jones [1857] [10] . Jones, the defendant, sent a written order of goods to a shop owned by Brocklehust. Unknown to the defendant, Brocklehust had sold his business to Boulton earlier. Boulton was then fulfilled the order of Jones without informing him that he had taken over the business. Jones refused to pay when he received Boulton’s invoice because he claimed that he intended to deal with Brocklehust personally and he had no contractual relationship with Boulton. In this case, there was an offer to a specific person (Brocklehust) in which only can be accepted by him. For Tanny, she made an offer in which only Steven can accept or reject it.

With all the facts above, an offer is formed.

After Tanny made the offer, Steven replied that he will not sell it below RM14, 000 and he will not sell it to anyone else before 7th November 2010. When Steven said “I will not sell it below RM14,000″, Steven is making a counter offer. A counter offer is rejection of the original offer and it is not an acceptance. A good example of counter offer would be Hyde v Wrench (1840) [11] . In this case, the judge in the Rolls Court said there was no contract between P and D. This is because P rejected the offer made by D immediately and could not subsequently accept or revive it.

Here, Steven immediately responded to the offer price made by Tanny as Steven was not prepared to accept the lower offer and this brought an action for specific performance. Hence, there is no acceptance existed and therefore, no contract is formed between Steven and Tanny. However, a new offer is formed. In this case, both parties have switched their position where Tanny becomes offeree and Steven becomes offeror. “I will not sell it to anyone else before 7th November 2010″ indicates that there is a term made by Steven to Tanny.

When Tanny back to Malaysia from Australia on 7th November 2010, the offer is expired. On 8th November 2010, Tanny decided to post a letter of acceptance to buy the piano at RM 14,000. Acceptance, as defined in Section 2(b) of Contracts Act, states that “when the offeree signifies his assent to the offer, the offer is said to be accepted. The offer when accepted becomes a promise”. Acceptance must be absolute, unqualified and must correspond with all the terms of the offer. For example, in the case of Neale v Merett [1930] [12] , one party offered to sell property at £280. The other party accepted the offer but in the acceptance, he stated that he would pay £80 immediately and the remainder will be paid by installments. The court decided that this was not a valid acceptance because it did not accept the exact terms of the offer. The same thing applies here. Steven said that he will not sell the piano to anyone before 7th November 2010, this is the term of the offer. However, Tanny did not accept the exact terms of the offer as she posted the letter after 7th November 2010, despite she agreed to buy the piano at RM14000. Therefore, the acceptance is not valid. Besides, acceptance is only valid when you have informed the offeror that you accept and the offeror knows that you are interested and you have accepted the offer. In this case, Tanny did not communicate by post or instantaneous to inform Steven that she is accepting to purchase the piano before 7th November 2010.

According to postal rule, acceptance by post is deemed to be effective when the letter is placed in post box with correct address and has been stamped. Acceptance is said to be complete as soon as it is posted. It is only applied on acceptance but not offer. In this scenario, postal rule cannot be applied because there is no acceptance existed as the offer made by Steven has expired.

Tanny is actually making a new offer to Steven when she posts the letter.

On the 11th November 2010, Steven received the letter. It was on his own decision whether to accept or reject the offer.

In conclusion, Tanny’s letter of acceptance is not valid as the offer has expired and she is actually making a new offer. Her acceptance is no long existed.

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