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M221 Business Law LLB

Published : 21-Sep,2021  |  Views : 10

Question:

1 (a) Macintyre says the distinction between civil and criminal law is fundamental to English law with reference to this statement discuss the various differences between the civil and criminal law , give an example of an everyday situation which could result in both civil and criminal consequences and
explain why it is easier to succeed in a civil claim than a criminal prosecution.
 
2 (1) On the 1st of June 2016 Arthur spoke to Jim, who was a member of the sales staff at Big Store ,and told him he needed buy glue to mend his broken wooden cricket bat. Jim told him to buy Superstick glue. Arthur bought Superstick glue and a new case for his laptop. When he returned home he discovered that Superstick glue cannot be used on wood and the laptop case had a broken zip .
With reference to case law and statute advise Arthur on his legal rights.
 
(2) With reference to case law discuss what is meant by the statement “all contracts are agreements however, not all agreements are contracts.
 
3 When considering liability in respect of giving advice, the courts consider the notions of special relationship duty of care and foreseeability between the party giving advice and the party receiving advice, to be very important. With reference to decided cases concerning negligent advice, explain how the courts have decided whether or not there has been liability for negligent misstatement.

Answer:

1 Generally, the non-lawyers do not appreciate the fact that there are two types of law, criminal law and civil law. The criminal law is the system of law that is used for punishing wrongdoing. Therefore, the federal law prescribes the things that are considered as unacceptable by the society and doing which will make a person liable for prosecution. On the other hand, civil law provides a complicated system of law that tries to set out the rules that can be used in all types of situations that may arise in life. Hence, the civil law provides for the disputes that have to be determined by a judge in case the parties are not in a position to settle the dispute themselves.

In this way, significant differences are present between the civil law and the criminal law. The first major difference is present between the parties on the persons who bring or defend a particular case. Under the civil law, a claim is initiated by the claimant against the defendant in a court of law. In such a case, any person who has the right to bring a case at law can become a party to the suit (Beale, 1935). Basically this means any person who is not mentally unsound, a vexatious litigant or under the age of 18 years. On the other hand, independent of days, a prosecution is brought against the defendant. Generally the defendants are living persons, however, it is also possible that a prosecution may be initiated against a limited company (Dicey and Morris 1993). Similarly, in a criminal case, generally the prosecution is brought by the Crown Prosecution Service on behalf of all the people, even if technically the case is brought under the name of the Queen. However, a prosecution may also be introduced by private organization; for example, a number of private prosecutions are initiated by the shops against the persons who are accused of shoplifting.

The second difference present between the two systems is related with courts. Generally the civil cases are initiated in the county court, and more complex cases all the cases in which higher limit of money is involved, may be initiated in the High Court (Slapper and Kelly, 2008). On the other hand, generally the Magistrates Courts or in case of the more serious crimes, they may be brought at the Crown Court. In both type of cases, an appeal may be made to the Court of Appeal and ultimately to the Supreme Court. However, the exact route may vary on the basis of the type of the case.

It also needs to be noted that there are certain specialist type of cases that can be brought before one or the other tribunal like the Lands Tribunal, Employment Tribunal etc. Mostly these are used, in case of civil claims.

The next difference present between the two types of cases is related with the standard and burden of proof. In both these cases, one party is required to prove the case, which is known as the burden of proof. However, the degree or the standard to which the case needs to be true is different in civil and criminal cases. In case of the civil courts, generally the claimant is required to prove its case. The standard of proof that is applied in such cases is the balance of probabilities (Hilaire, 2008). Therefore, it has to be established that the claimant is more likely to be right than not. In some cases, the burden of proof may be reversed and therefore the defendant will be required to prove something. However this does not happen generally or in cases where they have instituted a counter claim.  

In criminal courts, the burden of proof is on the prosecution and the standard is also higher. The prosecution is required to establish their case beyond a reasonable doubt. Perhaps this is the reason why it is easier for a victim of crime to win a civil claim against a person for damages even if such person has been equated by the criminal courts.

2 (a) In the present case, a remedy for breach of contract may be available to Arther. This remedy is provided by way of putting right something that has gone wrong while performing the contract and as a result of which, the other party may have to suffer a loss or damage. Better consumer enters into a contract for sale of goods or services, such consumer may claim remedies in case the other party has failed to fulfill its part of the contract. In case of such breach of contract, the business may be liable to provide appropriate remedies to the consumer. This may include compensation or even the termination of contract. The duties of a seller under the contract for sale of goods or services include the duty to deliver goods according to the terms of the contract. Similarly, it is also required that the goods or services are fit for purpose for which they have been purchased and similarly, they should be of satisfactory quality (Clarke and Clarke, 2016). Some of the examples of a breach include providing faulty goods, the goods which do not match the terms of the contract or the failure to provide goods on time. In such cases, the Consumer Rights Act, 2015 has to be applied which provides quite a remedies to the consumers than ever. Under these circumstances, it can be said that legal rights are provided to Arthur under the Consumer Rights Act, 2015.

(b) There is an old statement according to which all contracts are agreements but all agreements are not contracts. The meaning of this statement is that there is a difference between an agreement and a contract. Without the knowledge of respect, people keep on entering into hundreds of agreements everyday which may or may not find them legally. The difference between acting and the contract is that the agreement that legally binds the parties is known as the contract, while the others are agreements. Therefore, it can be said that an agreement that can be enforced in a court of law can be described as a contract (Khoury and Yamouni, 2010).

In this context, an agreement can be described as a situation where a person makes an offer of something to some other person and this proposal is accepted by the other person. This commitment on the part of the parties is known as an agreement (one). Therefore, when two or more persons agree between themselves regarding the same thing, or in other words, there is a consensus between the parties, this is known as an agreement. Therefore it cannot be said that a contract, which cannot be enforced by the law is known as an agreement (Balfour V Balfour, 1919). On the other hand, any agreement that can be enforced by the law is called a contract. There are certain elements that are essential for this purpose. Therefore, if the essential elements are not present, the agreement cannot be described as a contract. A contract can be made orally or in writing. The elements that are essential for creating a valid contract include offer and acceptance, consideration, free consent of the parties, legal capacity of the parties, certainty, lawful objective, capacity of the parties as well as the intention of the parties to enter legal relations (Merritt v Merritt, 1970). At the same time, it is also necessary that the agreement should not be declared as void by the law.

3 It can be said that a negligent misstatement has been made when one party has misled the other party, for instance, when due to an inaccurate employment reference, a former employee has cost a job somewhere else. It was always the case that when due to the negligent actions of a person, loss has been caused to the other person, it was possible for such person to claim compensation. However, in the past, it was necessary to establish that a pre-existing contractual relationship was present between the parties. However, all this changed with the decision given and Donohue v Stevenson (1932). It was held in this case that under appropriate circumstances, a duty is present on part of the defendant that loss or harm should not be caused to the other person where it is reasonably foreseeable that such harm may be caused. However in the past, the courts were less willing to give a ruling that compensation can also be claimed when someone has given advised negligently and as a result, damage has been caused to the other party. In part, this position was the result of the fact that most of the people were careless with their words, and generally did not think before speaking. Therefore, allowing the other party to sue every time someone has talked regarding a topic regarding which they had very little knowledge may result in chaos.

However, the situation changed significantly with the decision given by the court in Hedley Byrne v. Heller (1963). This was the first case in which a high-ranking court was ready to consider if it will be possible for a person to be held liable for the damage that has been caused as a result of negligent misstatement.

He was held by the court that in such cases, a false statement of fact, should have been made by the other party honestly but carelessly. The law provides that even a statement of opinion may be considered as a statement of fact if there is an implication present in the statement according to which the person making the statement has reasonable grounds to support the opinion. The law also provides that a negligent misstatement will be actionable under tort only if a breach of the duty to take care has occurred while making the statement and as a result of this breach, the other party had to suffer some damage. It needs to be noted that while making statements, there is no general duty of care, particularly regarding the statements related with financial matters. The liability of a party for negligent misstatement may arise only if such a statement has been made under circumstances due to which it can be said that it was reasonable for the other party to rely on the statement (Caparo Industries plc v Dickman, 1990). Similarly, if the other party has been induced as a result of the negligent misstatement, to enter into a contract, with the party making the statement, such statement can be actionable as a term of the contract and the law will consider that the parties had the intention of including it as a term of the contract or such situation may result in a right to claim damages or to rescind the contract in accordance with the provisions of Misrepresentation Act, 1967.

References:

Beale, J. H. (1935) A Treatise on the Conflict of Laws  

Clarke, P, and Clarke, J. 2016, Contract Law, Commentaries, Cases and Perspectives, 3rd Edition, Oxford University Press, Chapter 9

Dicey and Morris (1993) The Conflict of Laws 12th edition, London: Sweet & Maxwell Ltd.   

Hilaire B., (2008) Constitutional & Administrative Law, London: Routledge-Cavendish.  

Khoury, D and Yamouni, Y, 2010, Understanding Contract Law, 8th Edition, LexisNexis Butterworths

Slapper, G. and Kelly D (2008) The English Legal System, London: Routledge-Cavendish.   

Case Law

Balfour v Balfour [1919] 2 KB 571

Caparo Industries plc v Dickman [1990] 2 AC 605

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465

Jones v Padavatton [1969] 1 WLR 328

Merritt v Merritt [1970] 1 WLR 1211

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