Month: June 2017
Whiplash Claims in the UK
What, if anything, should the Government do about whiplash claims in this country? The need for our government to take action in regards to whiplash claims would depend on whether there is a problem in the first place. The problem in this respect can take on many forms, namely with either procedure, access to justice, other methods of resolving dispute (ADR[1]), policy, legislation, social dynamics and/or economical climate of the whole country. It is therefore vital to identify the problem and where it stems from, before searching for appropriate solutions. For the purposes of this essay I will be focusing on the past policy changes in regards to personal injury, such as the introduction of legal aid system and the Legal Aid Board, Lord Woolf’s review of the Civil Procedure Rules and Access to Justice Report
[2] and Lord Jackson Reforms. I will aim to demonstrate that there are considerable claims in regards to “compensation culture”
[3] and “whiplash epidemic,”
[4] but those assertions are largely unfounded and seem to serve as an excuse for political and economical goals.
Nonetheless, the current changes are both reactive and proactive, and can be seen as necessary in our current economical climate. The problem in this case is subjective, everyone involved would take a different view depending which interests they represent and the end goal they are trying to achieve. It is difficult to determine whether there has been a major increase in RTA over the years as unfortunately there is no reliable, year by year, statistical data to prove the case either way.
[5] Nonetheless, when it comes to whiplash injury, Jack Straw quoted that it is as high as 80% of all the RTAs
[6] leading to Britain being branded the “whiplash capital of Europe.”
[7] Lord Jackson’s review of PI claims found that claimants had too many benefits, making smaller claims, namely whiplash claims, an easy target for fraudsters. Unsurprisingly ABI
[8] was strongly in support of the reforms that followed and APIL
[9] were strongly against. What is plainly evident is that the two sides reflect the interests of their industries. Fault based liability seems to be turning into cost based liability. Lord Dyson suggests that claimants have “lost all sense of personal responsibility”[10] blaming the media for creating a false belief that litigation is a quick financial boost rather than a genuine solution to a problem “[t]he compensation culture is a myth; but the cost of this belief is very real.”[11] Nonetheless, Dyson diverts the blame from the system “compensation culture is not about what goes on in court, but rather about what happens outside the court room”[12] and rejecting claims that UK has developed the US style litigation culture.[13] Some of the biggest changes to affect whiplash claims have been made first through the Lord Woolf’s review which focused on the disproportion caused by the legal aid system and just recently by Jackson Reforms, which were introduced to target the imbalance generated by the Access to Justice Act 1999 between claimants and defendants. The Jackson Reforms introduced a shift between the claimant and the defendant especially in regards to the small claims track. The new model of Conditional Fee Arrangements that abolish the recoverability of success fees and API premiums mean that the claimant will be covering some of the costs through the awarded damages.[14] These reforms can be seen to not only continue maintaining access to justice through CFA, but also significantly reducing costs and disproportionate fees.[15] These reforms alter the traditional model of full compensation.
Cane draws on Lord Denning criticism of the old model in Lim Poh Choo v. Camden Health Authority[16] “it would be unfair and unreasonable to award damages for loss of earnings if the claimant was in no position to benefit from them.”[17] The new reforms do not target so much how the damages are calculated, but more how much the claimant is actually left with. The courts often find themselves in a difficult position having to calculate a value in financial terms on the injuries and possible future losses which, through their subjective judicial activism, this can result in considerably varied applications of awards. “There seems no reason why a young person should be maintained for the rest of their life by an award of damages (paid by society in one way or another) simply because their spouse or partner was killed through someone’s fault. It is surely not right that the law should reward idleness and discourage gainful activity in this way.”[18] Although Cane was talking about fatal accidents, damaged in whiplash claims are often also difficult to calculate[19] and disproportionate claims[20] can arise when calculating future losses in regards to whiplash personal injury claims, sometimes depending on the length of the claimed pain not severity.[21] The claimants must take reasonable steps to mitigate their loss, but it is difficult to prove whether or not a claimant has done all that is reasonably expected of them to reduce their costs and again it is left up to the courts to decide what is reasonable.
Currently a claimant can include private medical treatment[22] in their damages even if it is available through the NHS “(in more than a third of cases), in order to have an examination necessary for the claim.”[23] This seems to go strongly against the mitigation principle “[i]t is not at all obvious why, sixty years after the beginning of the NHS, we should continue to subsidize those who seek private treatment in the way that the tort system does.”[24] This is something the Government can potentially address in regards to whiplash injury, as these claimants are unlikely to require treatments the NHS does not already provide. Current proposals for medical whiplash panels have been accepted by the Ministry of Justice and are likely to be implemented.[25] The Civil Justice Council has indicated the need for independent panels with an accreditation model to provide skilled advice, but indicated the need for heavy regulation “are assessed and authorised on the basis of their expertise, and not organisations that can then hire or instruct individual doctors who are not then subject to any independent scrutiny or authorisation.”[26] This model looks promising and aims to be “i) flexible; ii) transparent; iii) independent.”[27] Nonetheless, with whiplash injuries being so difficult to prove, medical panels, no matter how independent, are unlikely to spot fraudsters. Their reports would produce largely subjective results. Motor Investigation Unit has been researching more modern solutions through social media and technical equipment like on board CCTV.[28] In Golden v. Dempsley[29] the courts accept the MIU[30] take a different approach to evidence, with more focus on the claimant’s credibility. In reference to Kearsley v Klarfeld[31] and Casey v Cartwright[32] the district judge also notes the need for early access to the car for inspection and medical records, but also stresses that those should not be the main focus. The recent reforms were heavily criticised by the Law Society and APIL who are disadvantaged by the new changes, “propaganda which is generated by insurers on the pretext that insurance premiums will be reduced and that this will in turn assist the country’s economic recovery.”[33] Claire McIvor takes an individualistic approach arguing that the new reforms significantly reduce claimant’s access to justice and impede on their Human Rights, primarily Article 6 “access to justice is, after all, a fundamental human right…under the terms of art.6, it is unqualified in terms of cost considerations.”[34] However, too much access to justice can create chaos, Friedman refers to this as an “Orwellian nightmare,” where access to justice is so open, that anyone can claim for anything with ease, and in effect we end up regulating each other, “we cannot have a system that provides unlimited access to justice; the pyramid must remain a pyramid.”[35] Individuals are likely to fight for their own interests with disregard of how it might affect someone in the future through policies, allowing the pyramid to lose its shape would likely result in a dysfunctional welfare state “not justice but economical inefficiency and waste.”[36] McIvor takes a normative approach, but disregards economical efficiency completely “minimum costs will consist solely of those costs which are necessary …regardless of whether they can be described economically efficient.”[37] This is a good theoretical model, but one that does not work in practice, it is quite an unrealistic model considering economy is the driving force and is what allows UK to compete on an international level pedestal with other leading economies. If we disregard economy with such ease in every area of governance and politics then we are likely to be in constant recession. McIvor states that “substantive aspect of the process should take priority over the procedural.”[38] However, Friedman argues that “[c]heapness and convenience, while obviously important, are hollow and meaningless without a working system of relevant rights.”[39] A working system is one that can continue functioning, that can sustain itself. The reforms[40] represent a give and take scenario, with the abolition of success fees and ATE premiums on the one hand and the 10% increase in general damages[41], 25% cap on success fees from damages and qualified one way cost shifting on the other. It is an attempt to distribute costs between all parties, the claimants, defendants and even the claimant’s lawyers.
Although the claimant is viewed by some as “the little guy in the face of giant corporations”[42] he is also the “one-time litigant”[43] so unlike the defendant, likely an insurance company, in the event the claimant loses their case they will only bear the costs once, if at all.[44] The costs do balance out between the parties that way, just because insurance companies have more assets at an individualistic level, does not mean that they should carry the cost burden so significantly, this would not work with every case. Many claimants do not realise that personal injury civil litigation is not funded through the state, legal aid has been cut significantly and now it is publicly funded, so the costs come back round on us in a vicious circle through insurance premiums. The Jackson Reforms have deep political roots. We have been experiencing difficult economical times and are just emerging from the deepest recession of 2008-2009s since the war time of the 1920s.[45] We cannot look at the recent changes in whiplash claims policy in isolation from the economical and political climate that evoked those changes. It is possible that the “compensation culture” is an excuse, but the problem remains and that is excessive litigation in the whiplash area of civil litigation. There are very little changes that I would advise our Government to make in relation to whiplash claims in this country. I would advise an introduction of a whiplash NHS care package to speedily deal with medical reports of claimants, this is, however, likely to be introduced together with the medical panels and the accreditation scheme. Through past history of the legal aid introduction, then the Access to Justice Act 1999, and now the Jackson Reforms, what is evident is this constant emerging imbalance between the two sides, justice and morality often lies on the side of the claimant and economical prosperity on the defendant’s side, usually a corporation. The way this imbalance is targeted is by restricting the side that is causing an imbalance, it is something that will continue to be done. Social tendencies dictate that whichever party gets better provisions, will take advantage of it and in some cases even abuse it, such as the fraudulent whiplash claims. That is not to say the system we have at the moment is the optimal, best suited system, but it is one that seems to be reflecting the current economical conditions.
The new changes introduced by way of Jackson Reforms are unlikely to stick around long enough to make a long lasting imprint in history, but it seems they are better suited for the current identified imbalance and will remain in place until the scales tip in the opposite direction. Bibliography: Lim Poh Choo v. Camden Health Authority [1980] AC 174. Motto and others v. Trafigura Ltd and another [2011] EWCA Civ 1150. Valentine v McGinty [2010] G.W.D. Langford v Hebran [2001] EWCA Civ 361. Fairley v Thomson [2004] Rep. L.R. 142. Golden v. Dempsley [2010] 9B106073. Kearsley v Klarfeld [2005] EWCA Civ 1510. Casey v Cartwright [2006] EWCA Civ 1280. Simmons v Castle [2012] EWCA Civ 1039. Access to Justice Act 1999. Legal Aid, Sentencing and Punishment of Offenders Act 2012 Law Reform (Personal Injuries) Act 1948. Conditional Fee Agreements Order 2013. C McIvor, ‘The Impact of the Jackson reforms on access to justice in personal injury litigation’ (2011) CJQ. LM Friedman ‘Access to Justice: Some Historical Comments’ 2009 37(1) Fordham Urb. LJ Article 4, 7 CFA covers legal fees; however additional costs such as medical reports and court fees might have to be covered by the claimant in the even they lose their case. Steve Hawkes , ‘Britain’s compensation culture is out of control, insurance chief warns’ (Telegraph, 4 August 2013). R. Lewis, A. Morris and K. Oliphant, ‘Tort personal injury claims statistics: is there a compensation culture in the United Kingdom?’ [2006] JPIL 103. Master of The Rolls Lord Dyson, Compensation Culture: Fact or Fantasy? (Holdsworth Club Lecture, 15 March 2013). P. Cane, Atiyah’s Accidents, Compensation and the Law (7th ed., Cambridge, 2006). Law Society, Reducing the number and costs of whiplash claims A consultation on arrangements concerning whiplash injuries in England and Wales (March 2013). Civil Justice Council, Reducing the Number & Costs of Whiplash Claims. <https://www.telegraph.co.uk/finance/newsbysector/banksandfinance/insurance/10221301/Britains-compensation-culture-is-out-of-control-insurance-chief-warns.html > Accessed 14/03/2014 to 20/03/2014 Chinwe Akomah, ‘ABI seeks ‘radical’ action to tackle whiplash epidemic’ (Post Online, 27 April 2012) <https://www.postonline.co.uk/post/news/2170911/abi-outlines-radical-plans-tackle-whiplash-epidemic> Accessed 14/03/2014 to 20/03/2014 ‘Jack Straw calls for reform of car insurance industry’ (BBC, 27 June 2011) <https://www.bbc.co.uk/news/uk-13922554 > Accessed 14/03/2014 to 20/03/2014 Ray Massey, ‘Europe’s whiplash capital: Compensation culture makes British twice as likely to claim, adding A£90 to premiums’ (Daily Mail, 20 April 2013) <https://www.dailymail.co.uk/news/article-2311979/Europes-whiplash-capital-Compensation-culture-makes-British-twice-likely-claim-adding-90-premiums.html> Accessed 14/03/2014 to 20/03/2014 John Hyde, ‘MoJ confirms plans for medical whiplash panels’ (Law Gazette, 16 January 2014) <https://www.lawgazette.co.uk/practice/moj-confirms-plans-for-medical-whiplash-panels/5039395.article > Accessed 14/03/2014 to 20/03/2014 ‘Fraud – December 2011’ (Weightmans, December 2011) <https://www.weightmans.com/library/newsletters/fraud_-_december_2011/lvi_-_a_fresh_approach.aspx > Accessed 14/03/2014 to 20/03/2014 Graham Hiscott, ‘Budget 2014: George Osborne’s recovery exposed as a con’ (Mirror, 19 March 2014) <https://www.mirror.co.uk/news/uk-news/budget-2014-george-osbornes-recovery-3258255 > Accessed 19/03/2014 to 20/03/2014
[1] Alternative Dispute Resolution.
[2] Resulting in new legislation, Access to Justice Act 1999.
[3] Steve Hawkes , ‘Britain’s compensation culture is out of control, insurance chief warns’ (Telegraph, 4 August 2013) <https://www.telegraph.co.uk/finance/newsbysector/banksandfinance/insurance/10221301/Britains-compensation-culture-is-out-of-control-insurance-chief-warns.html >
[4] Chinwe Akomah, ‘ABI seeks ‘radical’ action to tackle whiplash epidemic’ (Post Online, 27 April 2012) <https://www.postonline.co.uk/post/news/2170911/abi-outlines-radical-plans-tackle-whiplash-epidemic>
[5] R. Lewis, A. Morris and K. Oliphant, ‘Tort personal injury claims statistics: is there a compensation culture in the United Kingdom?’ [2006] JPIL 103.
[6] ‘Jack Straw calls for reform of car insurance industry’ (BBC, 27 June 2011) <https://www.bbc.co.uk/news/uk-13922554 > [7]Ray Massey, ‘Europe’s whiplash capital: Compensation culture makes British twice as likely to claim, adding A£90 to premiums’ (Daily Mail, 20 April 2013) <https://www.dailymail.co.uk/news/article-2311979/Europes-whiplash-capital-Compensation-culture-makes-British-twice-likely-claim-adding-90-premiums.html>
[8] Association of British Insurers.
[9] Association of Personal Injury Lawyers. [10] Master of The Rolls Lord Dyson, Compensation Culture: Fact or Fantasy? (Holdsworth Club Lecture, 15 March 2013) 6. [11]Ibid, Lord Dyson quoting BRTF, 4. [12] Ibid 11. [13] Ibid 8. [14] Implemented through s44 and s46 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012; and Conditional Fee Agreements Order 2013. [15] Motto and others v. Trafigura Ltd and another [2011] EWCA Civ 1150. [16] [1980] AC 174. [17] Ibid. [18] P. Cane, Atiyah’s Accidents, Compensation and the Law (7th ed., Cambridge, 2006) 155. [19] Valentine v McGinty [2010] G.W.D. [20] Langford v Hebran [2001] EWCA Civ 361. [21] Fairley v Thomson [2004] Rep. L.R. 142. [22] Law Reform (Personal Injuries) Act 1948, s. 2(4). [23] Ibid (n 17) 155. [24] Ibid (n 17) 151. [25] John Hyde, ‘MoJ confirms plans for medical whiplash panels’ (Law Gazette, 16 January 2014) <https://www.lawgazette.co.uk/practice/moj-confirms-plans-for-medical-whiplash-panels/5039395.article > [26] Civil Justice Council, Reducing the Number & Costs of Whiplash Claims. [27] Ibid. [28] ‘Fraud – December 2011’ (Weightmans, December 2011) <https://www.weightmans.com/library/newsletters/fraud_-_december_2011/lvi_-_a_fresh_approach.aspx > [29][2010] 9B106073 [30] Motor Investigation Unit. [31] [2005] EWCA Civ 1510. [32] [2006] EWCA Civ 1280. [33] Law Society, Reducing the number and costs of whiplash claims A consultation on arrangements concerning whiplash injuries in England and Wales (March 2013) 2. [34] C McIvor, ‘The Impact of the Jackson reforms on access to justice in personal injury litigation’ (2011) CJQ. [35] LM Friedman ‘Access to Justice: Some Historical Comments’ 2009 37(1) Fordham Urb. LJ Article 4, 7. [36] Ibid 9. [37] Ibid (n 30). [38] Ibid (n 30). [39] Ibid (n 31) 4. [40] Lord Jackson Reforms 2013. [41] Introduced through Simmons v Castle [2012] EWCA Civ 1039. [42] Ibid (n 31) 6. [43] Ibid (n 30). [44] CFA covers legal fees; however additional costs such as medical reports and court fees might have to be covered by the claimant in the even they lose their case. [45] Graham Hiscott, ‘Budget 2014: George Osborne’s recovery exposed as a con’ (Mirror, 19 March 2014) <https://www.mirror.co.uk/news/uk-news/budget-2014-george-osbornes-recovery-3258255 >
Cite this page
Whiplash Claims in the UK. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
NATO Essay Online for Free
ILP CW3 336083 The use of force has been a long-debated topic within the scope of collective security and can be said to be linked directly to the sovereignty of states. Along the passing of time, unauthorized use of force or threats has been abolished and now, it has become a rule of law making such acts to be war crimes. Generally impermissible, however there will be certain situations where use of force can be deemed lawful such as for the purposes of self-defence, humanitarian intervention and pre-emptive power inter alia. In the following part of this essay, the discussion will be based largely on UN and NATO’s previous humanitarian operations, assessing the details of intervention of the said organizations. The United Nations Charter in article 2(4)[1] restricts the use of force by member of states to the UN. The charter explicitly prohibits members in their international relations to act against territorial or political independence of any state by threat of force or other acts inconsistent with the purposes of the United Nations.[2] This has been made law upon the ratification of all member states and is protected by the United Nations Charter 1945.
Academics translated this provision to be prohibiting the use of force as in “territorial integrity or political independence of states”; and exception to this would be instances such as self-defence and those listed under Chapter VIII by the UN Security Council. The general principle is to restrict the use of armed forces except in cases such as; there is collective action-pursued to maintain or to restore peace[3]; and Article 51 which provides that, “Nothing in the present Charter shall impair the inherent right to individual or collective self-defence if an armed attack occurs against a state."[4] Referring back to self-defence, On March 23rd, 1999, NATO began a three-month-long bombing campaign against the Federal Republic of Yugoslavia, allegedly to prevent the ethnic cleansing of Kosovar Albanians in the semi-autonomous region of Serbia by Slobodan MiloseviA„”¡’s authoritarian regime. Mr Robertson, Secretary of State for Defence at that time, expressed the Government’s stand regarding the multinational NATO intervention in Kosovo as: ‘We are in no doubt that NATO is acting within international law. Our legal justification rests upon the accepted principle that force may be used in extreme circumstances to avert a humanitarian catastrophe. Those circumstances clearly exist in Kosovo’[5]
The use of force in such circumstances can be justified as a peculiar measure parallel to the purposes laid down by the UN Security Council, but without the Council's express authorisation, when that is the only means to avert an immediate and overwhelming humanitarian catastrophe. UN Security Council resolution 1199 clearly calls on the Yugoslav authorities to take immediate steps to cease their repression of the Kosovar Albanians and to seek solution to the issue. During the NATO intervention in Kosovo in 1999, NATO’s decision to deploy armed forces did not acquire clear legal authorization as its governments might have desired. Despite these, a clear cut judgment could not be achieved as to its legality. The main legal arguments used to support the NATO action in Kosovo according to Adam Roberts (Roberts 1999) would concern the United Nations Resolutions. UN resolution 1199 of 23rd September 1998 demanded Yugoslavia to cease all action by the forces that are affecting the member of public. Upon this warning, it was explicitly stated that action would be taken should the demand not be followed. Resolution 1203 of 24th October 1998 required the Serbs to conform to a number of key provisions of the accords completed in Belgrade.
These resolutions also allowed the NATO Alliance to have a direct standing and interest in the affair of Kosovo. Having said these, if the UN Security Council couldn’t follow these resolutions into Kosovo with a specific authority to use force, the legal ground for NATO’s military action could be found in the resolution. On 26th March 1999, two days after the bombing started, Russia supported a draft UN resolution calling for an immediate termination of the use of force against the Federal Republic of Yugoslavia. Russia’s stand was supported by two non-member states, India and Belarus. Only three member states (Russia, China and Namibia) voted in favour and twelve against this draft resolution. Sovereignty of state could not be said to be an absolute good. According to John Simmons, a legal definition of a right that is dependent on the safeguard of citizens within such a state (Simmons 1999). If these citizens are treated with oppression, then there is a legal basis for external force or powers, under the authorization of the United Nations, to step in to intervene for humanitarian purposes.
Human interest should replace national interest as the driving force of human effort. State boundaries are merely social and political in nature that may vary according to beliefs, cultural or political agendas. Human interest is irreversible. Whatever moral good the entity of statehood is believed to have, it must prioritize the greater necessities of the rights of humanity. The United Nations Security-General (UNSG) introduced something they called ‘vision of collective security’ which appealed to UN member states. The vision outlines a holistic notion of human security, including a common peace-building mission, along with several new organizations that works towards the purpose of the UN.[6] Along time as liberalization is expected to lead to democratization, humanitarian efforts are expected to lead to peacekeeping, and democratization to peacebuilding. In simple words, it is expected that peacekeeping will lead to self-sustainable peace between, within and across states. Joensson in his article states that unfortunately, in theory and practice, it is suggested that collective security discourse is overestimating the stabilizing effects of negotiated peace agreements and UN multidimensional peacekeeping under the current collective security arrangement.[7]
Efforts to end and prevent conflict and implement processed of political and economic liberalization have called on forceful armed power intervention and intrusive protocols that are proven to be detrimental democratization and peace.[8] Joensson further commented that the UN on several occasions have been ‘forced to compromise its objectives to match the little success that has actually been achieved in practice.’ This suggests that instead of strengthening the post-conflict states from within, the multidimensional operations are conveying an international culture of dependency in which the internal stability of weak states become increasingly dependent on external assistance.[9] Having said this, there is a clash between short and long-term goals if multidimensional peacekeeping, and a gap between UN’s power to act, as well as between the collective security discourse and global world order.[10] A generally accepted example of the success of collective security would be the Gulf War that taken place in 1990. The Security Council passed resolutions calling for unconditional withdrawal including Article 41 for economic sanctions and Chapter VII for a US-led alliance of armed forces. After 6 weeks, operation ‘Desert Storm’ had totally broken the resistance of Iraqi troops. The key point to note here is the legitimating function of collective security by the UN.
Although it happens that powerful state may override the protocol of bypassing the legitimization process, examples such the 2003 Iraq invasion subsequently led to serious unease. Claude also makes this point naming the UN as an ‘agency of collective legitimization’. It is suggested that with the approval of the Security Council, use of force could be conceived as acceptable because of such endorsement. Despite the UN playing such a significant role in international relations, there is still doubt as to whether the UN is successful in achieving its purpose in collective security. The Cold War is one of the failures of the UN in achieving the so-called collective security, reason being the veto given by Article 27 Chapter3. Consequently, the operation was paralyzed because any threat to the interests of the US or the Soviet Union resulted in a veto preventing the UN from taking action. Efforts of collective security by the UN are hampered when there is superpower present among the parties. Although collective security is said to be ‘superior’ in the sense that the preponderant physical power’s ability to defer or defect potential breaches of peace and security and because the overall diffusion power is more stabilizing than shifts in the distribution of power.[11] This operates in contrary when there is a single superpower that is stronger than the collective powers.
An example of this case is when America took a unilateral use of force when armed forces were deployed in Iraq on 2003 without the approval of the Security Council. Claude emphasized the failing system of collective security and linking this to the Korean War. He stated ‘it is neither feasible to carry out nor prudent to undertake collective security operations direct or indirectly opposing a major power.’ Another case that was brought forward to the Security Council is the Vietnam War where Adam Roberts and Benedict Kingsbury mentioned the term ‘selective security’ in light of the flawed system of collective security.[12] Acts of aggression were obvious here in this situation but when Laos went against Hanoi in 1959, and Cambodia against USA and Vietnam in 1964, no actions were taken to restore peace. Up till this point, can collective security be said to be an effective system to fulfil the humanitarian purpose of the UN? Critics highlighted NATO’s lack of action in defence of Kurdish or East Timorese human rights from abuse by the Turkish and Indonesian states simultaneous to Operation Allied Force[13], and reinforced this as the evidence of selective moral conscience of the West.
Questions were raised as to why NATO had acted only over Kosovo when there was no effort to restore peace and stop the Croatian government’s ethnic cleansing of Serbs from the Krajina in 1995[14] The success of collective security could be measure by the fact that a major conflict has not broken out since the previous second world war, despite the demoralizing acts of the Islamic State taking place currently. However, UN’s ‘multidimensional peacekeeping’ approach, whereby conflicts and humanitarian emergencies are regarded as threats to peace, arguably has represented a new dawn of interventionist collective security[15]. Since the end of the Cold War, the UN has looked into very much humanitarian issues and intra-state conflict, where former Secretary General Kofi Annan argued that states have a duty to protect its own citizens, but in the event of a failure, that responsibility must be borne by the broader international community[16]. Of course it can be argued that it would be possible to intervene in every case of human right abuses, Booth responds that this ‘merely says that on a particular occasion NATO acted in accordance with humanitarian objectives; not that as a matter of principle that NATO acts out of respect for them’[17] On the other hand, Coady argues that it is important to scrutinize responses to humanitarian crises, as from a classical utilitarianism perspective, total impartiality between targets of intervention is necessary to ensure the best is achieved[18].
Although the previously mentioned critics are in agreement that Kosovar Albanians suffered immensely under the Yugoslav regime, they bought up that the primary motive for an action will have influence on the methods used, and that for humanitarian interventions, the absence of humanitarianism at the core of the made decision could cause the lives of civilians. Adding on, the basis when NATO has made moral judgments to intervene or not adds to the suspicion that humanitarianism may not be the primary motive for deployment of force in Kosovo. In conclusion, collective security may have served as a very important solution to restoring and sustaining world peace but as to its effectiveness, some setbacks are evident through the examples elaborated above. From selective security to superpower states, collective security could not be said with confidence that it exist for the sole purpose of world peace. The intervention in Kosovo may have been necessary, but the motivation behind external armed force intervention is clouded and was not solely for humanitarian purpose. The system of collective security is inconsistent, hence having said all these, the question of effectiveness in practice could not be answered in the positive- The flawed part is not the system as a whole but rather the methods chosen by external forces were highly flawed since there was lack of priority for humanitarianism. Bibligraphy
Primary Sources
United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: https://www.refworld.org/docid/3ae6b3930.html [accessed 20 March 2015]
Secondary Sources
Adam Roberts and Benedict Kingsbury, (1993), The UN’s Roles in International Society, United Nations, Divided World: The UN’s Roles in International Relations, 2nd Edition, United States, Oxford University Press, New York Booth, K. ‘Ten Flaws of Just Wars’ in the Kosovo Tragedy: The Human Rights Dimensions edited by Ken Booth (London, FrankKass, 2001) Barrie Watts,’ The Role of the United Nations’, Black Rabbit Books, 2004, New York Charles A. Kupchan, Clifford A. Kupchan, ‘Concerts, “collective security”, and the Future of Europe, International Security’ , Vol. 16, No. 1 (2001) Charles A. Kupchan, Clifford A. Kupchan, ‘The promise of “collective security”, International Security, The MIT press (1995) Coady, C.A.J. ‘War for humanity: a critique’ in Ethics and Foreign Intervention (Cambridge, Cambridge University Press, 2003 Florian Beiber, ‘Constitutional reform in Bosnia and Herzegovina: preparing for EU accession, Policy Brief, (European Policy Center Brussels, April 2010) Immanuel Kant, ‘Perpetual peace: a philosophical essay.’ (G. Allen & Unwin Ltd 1915)
London Inis L Claude Jr., ‘Swords into ploughshares the problems and progress of International Organization’, 4th Edition, Random House (New York 1964) Joensson, ‘Understanding Collective Security in the 21st century: A critical Study of UN Peacekeeping in the former Yugoslavia’ (European University Institute, September 2010) Jackson and Sorensen, ‘Introduction to International Relations: Theories and approaches, (Oxford University Press, 2007) Natalia Ruiz, ‘Exploring the Limites of International Law relating to the Use of Force in Self-Defence’, EJIL 3 (2005) P. ThielbArger, “The Status and Future of International Law after the Libya Intervention”, 1 GJIL 4 (2012) UN, ‘In Larger Freedom: towards development, security and human rights for all, adopted by the UN General Assembly on 21 March 2005 (A/59/2005) pp. 74-86 Vaughan Lowe, ‘International Legal Issues Arising in the Kosovo crisis’, (Select Committee on Foreign Affairs Minutes of Evidence, 11 May 2000) <https://www.parliament.the-stationery-office.co.uk/pa/cm199900/cmselect/cmfaff/28/0020805.htm> accessed 20 March 2015> 336083
References
- United Nations, Charter of the United Nations, Article 2(4), 24 October 1945, 1 UNTS XVI, available at: https://www.refworld.org/docid/3ae6b3930.html [accessed 20 March 2015] [2] ibid [3] ibid [4] United Nations, Charter of the United Nations, Article 51, 24 October 1945, 1 UNTS XVI, available at: https://www.refworld.org/docid/3ae6b3930.html [accessed 20 March 2015] [5] Vaughan Lowe, ‘International Legal Issues Arising in the Kosovo crisis’, (Select Committee on Foreign Affairs Minutes of Evidence, 11 May 2000) <https://www.parliament.the-stationery-office.co.uk/pa/cm199900/cmselect/cmfaff/28/0020805.htm> accessed 20 March 2015> [6]
- In Larger Freedom: towards development, security and human rights for all, adopted by the UN General Assembly on 21 March 2005 (A/59/2005) pp. 74-86 [7] Joensson, ‘Understanding Collective Security in the 21st century: A critical Study of UN Peacekeeping in the former Yugoslavia’ (European University Institute, September 2010) <https://cadmus.eui.eu/bitstream/handle/1814/14711/2010_Joensson.pdf?sequence=2> assessed 19 November 2009 [8] Florian Beiber, ‘Constitutional reform in Bosnia and Herzegovina: preparing for EU accession, Policy Brief, (European Policy Center Brussels, April 2010) [9]
- Joensson, ‘Understanding Collective Security in the 21st century: A critical Study of UN Peacekeeping in the former Yugoslavia’ (European University Institute, September 2010) <https://cadmus.eui.eu/bitstream/handle/1814/14711/2010_Joensson.pdf?sequence=2> assessed 19 November 2009 [10] ibid [11] Fhorwich, ‘Collective Security: How is this principle articulated in the aims of the UN and has that organisation been successful in achieving those aims?’, (Scribd, 10 November 2009) <https://www.scribd.com/doc/22370484/Collective-Security-Essay-Define-collective-security-How-is-this-principle-articulated-in-the-aims-of-the-UN-and-has-that-organisation-been-succe#scribd> Assessed 10 March 2015 [12]
- Adam Roberts,’ The UN’s Roles in International Society, united Nations, Divided World: The UN’s Roles in International Relations, ( 2nd edition, United States, Oxford University Press 1993) [13] Chomsky, N. A New Generation Draws the Lone: Kosovo, East Timor and the Standards of the West (London verso,200) [14] Roberts, A. ‘NATO’s ‘Humanitarian War’ over Kosovo’, (Survival, 41 1999) 3 pp102-23 [15] Taylor and Curtis, ‘The Kosovo’, London, OUP 2001) 412 [16] Ibid 415 [17] Booth, K. ‘Ten Flaws of Just Wars’ in the Kosovo Tragedy: The Human Rights Dimensions edited by Ken Booth (London, FrankKass, 2001) pp. 314-324 [18] Coady, C.A.J. ‘War for humanity: a critique’ in Ethics and Foreign Intervention (Cambridge, Cambridge University Press, 2003 pp 274-295
Cite this page
NATO Essay Online For Free. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
What is Contract Law?
What is Contract Law?
The law of contract is a set of rules governing the relationship, content and validity of an agreement between two or more persons (individuals, companies or other institution) regarding the sale of goods, provision of services or exchange of interests or ownership. While this is a wide definition it does not cover the full ambit of situations in which contract law will apply. The reason for this is due to the vast number of examples in which contracts can arise in everyday life.
Contract law has been more formally defined as a promise or set of promises which the law will enforce. Another definition and a somewhat competing view, is that a contract is an agreement giving rise to obligations which are enforced or recognized by law. Either definition confirms the involvement of the law by way of enforcement, suggesting that should there be an infraction or breach of the terms of the agreement then the aggrieved party may seek recourse via the Courts. As is noted above, a contract can arise is a plethora of scenarios; from buying a loaf of bread in the corner shop, to the sale of a house. It is unsurprising therefore that certainty is needed before the Courts will intervene to enforce any agreement. The law of contract has confirmed the basic foundations of any contract, regardless of its complexity and substance, that it must contain to make the agreement enforceable in law.
There must be an offer and this must be accepted to make an agreement. While this would in the first instance appear to be self explanatory, it is important to distinguish between what the law says amounts to a valid offer. An offer can be made orally, in writing or by way of conduct. Regardless as to the manner of the offer, it is the willingness or intention of the person making the offer (the offeree) which is of importance, and that is clearly subjective. If a person says that I want to sell this orange for A£1.00 but then mistakenly advertises it for 1p, and that offer is accepted, then a valid agreement will be upheld. Simply because there was a mistake in the offer, it does not invalidate the contract. There was an intention to sell on the part of the offeree. It is important to distinguish at this point however between an offer and an “invitation to treat”.
Parties may enter into preliminary negotiations or pre-emptive talks before entering into a contract. The issues they cover will not necessarily form part of the contract and are considered to be invitations to treat. A classic example of this is the produce on display at Supermarkets and on shelves. The price highlighted amounts to an invitation to treat only. The offer does not materialize until the goods are taken to the checkout and the price confirmed. At that point the customer can accept the goods and pay the total amount, thereby completing the transaction and formalizing the contract. A similar situation is evidenced in auction rooms, where the offer is made when bids are put forward by prospective purchasers and acceptance once the auctioneers hammer falls.
Just as important in contract law as the offer, is the legality of the acceptance. This must be an unqualified expression of assent to the terms of an offer. An acknowledgement of an offer would not amount to acceptance, nor would a statement of intent. There must be a clear unequivocal communication of acceptance of the offer on the terms put forward by the offeree. Any attempt to amend the terms of the offer would amount to a counter offer. This would then put the parties back to square one and the offer would be open for acceptance with the offeree becoming the offeror.
The importance of contract law here may not be clear at first glance. Contract law not only governs what happens when the contract breaks down, but it also establishes what the terms of the contract are, in the event of a dispute. While the contract may be self explanatory in what the parties intend i.e. you pay A£50 and I’ll give you this washing machine, there are of course terms as to the time of payment, delivery, condition of the goods etc that need to be established. The most important terms are of course the quality of the goods and the method of payment. Certain pieces of legislation will import terms into the contract without any acknowledgement or agreement between the parties that they will be so included. An example of this is the Sale of Goods Act 1979 which ensures that in sales to consumers by anyone in the course of a business, that the goods are of satisfactory quality, fit for their purpose and correspond to their description. Contract law protects the purchaser without his knowledge. The phrase usually displayed at checkouts regarding sales and offers, “This will not affect your statutory rights” refers to such implied terms.
The offer and acceptance are the visible conditions of the contract, but perhaps even more obvious is the requirement of consideration. This term refers to the exchange of money for goods or services, or something else of value traded between the parties. It is also perhaps the most complex and contentious of the requirements for a valid agreement. Without some form of consideration, the contract is nothing more than a promise, which is unenforceable under English Law. But it is not enough that the parties make this exchange of worth, it must be “valued” consideration as opposed to inadequate consideration. This concept of “valued consideration” refers to something that is capable of estimation in terms of economic or monetary value. Furthermore it is not enough that such consideration has taken place in the past, there must be contemporaneous value by way of exchange to create a formal agreement. These technicalities have led to a raft of case law upon the issue of what amounts to consideration, hence the importance of contract law to mediate any dispute.
With the agreement between two or more people confirmed as an agreement, containing an offer and acceptance, and the exchange amount to money or something in money’s worth, there must still be the requisite intention to create legal relations. While in a commercial transaction it would appear obvious that the parties to the contract intended to create legal relations, in a more relaxed and informal setting there may be a question over how serious the parties were being? This does not mean that individuals i.e. consumers are free to return goods on the basis that they were never aware of the intention to create such legalities. The Courts may draw an inference from conduct and common knowledge that shoppers are well aware of the binding nature of any agreement to purchase goods or services. What we are referring to is the scenario where one party mistakenly believes that there is no formal intention, and the other party has knowledge of that error but fails to inform them. The Court will apply an objective test to consider all the facts of each individual case. A case involving a pupil barrister who accepted an offer from a Barristers Chambers was held to be a binding contract between the trainee and the whole chambers, not just the pupil master. The absence of specific intention on the part of the rest of chambers was irrelevant. There was clearly intent from the conduct of the parties.
More informal agreements between co-habitants living in a quasi-marital relationship can lead to dispute, particularly upon the break up of that relationship. Historically there was a question about whether a contract would form when the “stay at home mother” would find herself without recourse via matrimonial legislation. The contract was said to relate to the offer to be maintained for life by the husband, which was accepted, and the consideration would be foregoing the right to earn a living and/or providing a home for the family. The only question was relating to the formal intention of creating legal relations, a hurdle that many women could not overcome. While alternative remedies in equity exist to remedy such a scenario, it is a useful illustration of how intention can negate what at first instance appears to be a valid contract. Of course, the most obvious way to ensure that any agreement shows the intention of the parties is just to write it down. A statement of “This agreement is not entered into as a formal legal agreement” would probably suffice.
This basic overview of the law of contract demonstrates its importance and need to stay in touch with modern developments. The next section will deal more fully with this issue in terms of the scope of contract law in every day lives but it is fair to say that the need for this protection is fundamental. An unknowing party can enter into a contract without being fully aware of the implications. The development of legislation such as the Unfair Contract Terms Act 1977 and the various Consumer Credit Acts have all evolved from the basic principles of contract law and the principle of putting the parties on as equal a playing field as possible.
Where is Contract Law used today?
As was mentioned above on several occasions, contract law permeates our day-to-day lives, and often we are not aware of its presence. While legally qualified individuals may be aware every time a contract comes into existence and note phrases such as “the customer uses this at their own risk” with a wry smile, the majority of society lives in blissful ignorance of how deeply indebted to contract law they are.
In the first instance it would be a useful exercise to list a few of the various instances of contract law coming into play when we may not expect it.
- Public Transport – every ticket bought on a bus train or on the underground forms a contract. This is a contract of services and the majority of terms will be implied rather than express. If one was to state the whole list of terms on the back of a ticket as to the obligations of the provider of the transport to the customer, it would result in a piece of paper resembling an instruction sheet from Ikea rather than a ticket.
It should be mentioned here that such express terms that form part of the contract must be present at the moment it was entered into. The terms of importance will usually be on display either around the point where a ticket is bought, or it will direct the customer to a full list of the conditions elsewhere.
- Employment – every employee must have a contract of employment with their employer. While it is a fact that some employers have not bothered with the formality of drafting a document setting out the rights and expectations of both parties, the Employment Rights Act 1996 will infer a number of basic rights for the employee in any event. The offer and acceptance of taking a new job is a given, as is the consideration (days work for a days pay). The intention is not necessarily so obvious but the relationship the contract creates leaves no room for discussion as to its formality in a legal sense.
- Any purchase of goods or services – while this is dealt with in more detail below, the sale of goods or services is the most basic form of contract. While we may not appreciate the scope of the law and its impact upon a basic purchase of e.g. a new car, the terms and conditions of sale, the various pieces of legislation importing terms and the case law stretching back more than 100 years on similar issues all have a bearing upon a customers (and suppliers) rights and obligations. It is of course rare for anyone to be made aware of all the terms in existence and the “small print” usually covers most things of relevance.
- Buying a house – most people who have become involved in the conveyancing process will recall the stress of waiting for the solicitor to confirm that they have “exchanged contracts”. While the ownership of a property in England & Wales can only pass by way of deed, the contract is pivotal. The contract will set out the terms of sale, including the price, items of furniture and fixtures that are being left behind and the date of completion. Once the purchase is completed and the monies paid, any issue that may be taken between the parties will have to be raised as a breach of contract. While in the majority of cases the axiom “Caveat Emptor” (buyer beware) will apply, the specific terms of the contract must still be fulfilled and depending upon the severity of extent of the breach, this will dictate the appropriate remedy available.
What can be seen above is that Contract Law is everywhere. From the purchase of a newspaper in the morning to the service of gas and other utilities, there exists a contract to govern most relationships outside the domestic scenario. It is understandable therefore that this area of law may be the most diverse in its impact upon everyday life, yet its principles remain comparatively straightforward. There are of course complex issues and certain types of contract (acquisitions and mergers, share holders agreements etc) require specific rules to govern their application, most contracts have a quality that allows them to operate without the knowledge of their existence.
The most influential and commonly used contracts are those relating to the purchase of goods and services. The Sale of Goods Act 1979 and Supply of Goods and Services Act 1982 have developed from a background of Caveat Emptor, where consumers were unprotected from sellers able to peddle goods that were less than of merchantable quality. While the image of “Del Boy” flogging various items out of a suitcase springs to mind, it was actually the larger and more commonly used suppliers of goods that took the brunt of this legislation. We mentioned terms as to quality and fitness above, and a multitude of cases have gone as far as the House of Lords to ensure the protection granted under a contract is enforced. We have contracts for the sale of goods when we do our weekly shopping, buy a new appliance or finally get that pair of shoes. Similarly contract for the supply of services exist over the cables service for the TV, the mobile phone company or the plumber who comes into fix the leak upstairs. However they are created, the contracts that we are party to are numerous and often we are not specifically aware of our obligations under them, save to pay what we have agreed to.
While we have focused on consumers and individual contracts, that is not to say that there are any fewer contracts that exist between companies, corporations, charities or even governments. Most companies will have several contracts for the services it obtains from other companies i.e. cleaning, catering, accountancy etc. There will be contracts of employment with every member of staff, as well as contracts with each shareholder as to the money they have invested and the dividends received each period. They will in turn have contracts with the customers who retain their services, or even other companies by way of merger or shared services within a larger agreement. This is a non-exhaustive list but a good example of how contract law not only creates the basis for the relationship between individuals, companies etc, but also regulates their rights and obligations and ultimately provides a solution in the event of a dispute. The scope of this area of law clearly has no limit.
Case examples
Carlill v. Carbolic Smoke Ball Co (1893) 1 QB 256 (CA)
This case involved the defendant company who produced and advertised smoke balls as a preventative measure against influenza and the common cold. The advertisement stated that they would give A£100 to anyone who used the product for three times a day for two weeks but still contracted one of these illnesses. The defendant also stated that they had placed A£1,000 in a bank account to demonstrate their sincerity. Suffice to say that the claimant took up the challenge and after roughly 8 weeks of continuous use she contracted the flu. Mrs. Carlill claimed the A£100 but the defendant refused to pay; they claimed that there was no contract in place for her to enforce the claim.
This matter progressed to the Court of Appeal. The defendants maintained that there was no intention to create legal relations and the advert amounted to nothing more than an invitation to treat. At no stage did the claimant tell them that she had accepted their offer. Nevertheless the Court of Appeal confirmed that there was in fact a contract in effect between the parties. This situation amounted to a “unilateral contract” whereby one party offers money in exchange for the performance of a stipulated act. Whereas normally an advert would amount to nothing more than an invitation to treat, the request for the performance of an act made it an offer. There was no requirement for Mrs. Carlill to inform the defendant that she had accepted it, the undertaking of the challenge was tantamount to acceptance.
There were arguments from the defendant that the wording of the advert was too vague for it to amount to a contract. There is always a requirement that the specifics of the offer are precise so as to avoid confusion. While there was some scope for interpretation, the Court adopted a literal meaning to the advert, which simply state that providing the claimant took the smoke balls continuously and then contracted any of those illnesses she would receive A£100. The deposit of A£1,000 into an account was a demonstration of the defendants meaning and willingness to rely upon their product in light of this challenge. The Court had no hesitation is finding in these specific circumstances that there was a contract under which the claimant was due A£100.
While this case demonstrates how the law of contract protects the party who in good conscience accepts the terms put forward by the offeror, it remains something of an anomaly. This situation would only be enforceable where the offeree was required to undertake a specific task, thereby removing the need for communicating acceptance and transferring an invitation to treat into a formal offer. There is also a lesson for the nave or careless when setting challenges and making proposals to others. A contract can arise even when the intention was to make an informal offer, but in the absence of a specific statement to that effect, the conduct of the offeror may infer the requisite legal intention.
Coward v. Motor Insurers’ Bureau (1963) 1 QB 259 (CA)
In this matter Mr. Coward and Mr. Cole were work colleagues who had an arrangement regarding shared lifts to work. Cole would drive his motorbike and Coward would ride pillion in return for a weekly sum of money. Unfortunately both were killed in a road traffic accident and the wife of Mr. Coward made a claim for damages against the estate of Mr. Cole. However Cole’s insurance policy did not cover pillion passengers and as his estate had no assets or money to satisfy the judgment, Mrs. Coward pursued the Motor Insurance Bureau (MIB).
The MIB have an agreement whereby accidents and consequential claims would be satisfied by the Government in circumstances where the driver has no relevant policy of insurance. However the rules covering this situation require Mr. Coward was carried for “hire or reward”. Consequently Mrs. Coward needed to prove that there was a contract in place between Coward and Cole for the lifts to work.
There was clearly an offer of transport and this was accepted. In addition the consideration exchanged by the parties was the service of transport and the money paid by Mr. Coward. However there was a question over how formal this arrangement was so as to amount to an intention to create legal relations. Once again this matter progressed to the Court of Appeal and it was decided that notwithstanding the regular payment of money in return for the lift, it was not so formal as to create a contract. There were no terms as to how long this was to last, what would happen in default of payment or the availability of transport, or anything written down so as to at least make their intention clear.
The practice of colleagues sharing a lift to work (or “car pooling”) is an accepted and wide spread practice. Parties will usually agree that one will take their car and in return the others will make a contribution towards the petrol costs. This is usually a matter of convenience, reducing costs or even a conscious decision to reduce emissions from each separately taking a vehicle. It cannot be said however that the agreement is so formal as to form a contract for the provision of this service. The contrast is to a previous example, that of public transport. There are no tickets, conditions or terms of agreement and no business or profit making organization is involved. There can be no obligation upon people in this scenario to ensure that transport is always made available to the party that pays. What would happen when the owner of the vehicle went on holiday or there was a shift change? In these circumstances an element of common sense must come into play. Most people will make informal agreements ranging from car pooling to picking up children from school or even being the designated driver on a night out. None of these create a contract as the intention is one of informal assistance or a mutual benefit, not to create legal relations.
Olley v. Marlborough Court Ltd (1949) 1 K.B. 532
Mr. Olley visited the hotel belonging to the defendant. He had not made an in advance booking and upon arrival requested a room for the night. He signed the register and there was no mention at that stage of any other terms or conditions that might impact upon his stay at the hotel. During the course of his stay Mr. Olley discovered that someone had broken into his room and stolen certain property including a fur coat. It subsequently became known that the defendant was negligent in relation to the security within the hotel. Nevertheless, the defendant sought to rely upon an exclusion clause that was placed in the bedroom the claimant stayed in. This stated that the hotel would not accept liability for lost or stolen items belonging to customers.
The question was whether the exclusion clause that was displayed in the bedroom constituted a valid term of the contract. It was not disputed that there were all the required components to for the agreement i.e. offer, acceptance, consideration and intention, but that was not to say that all the terms the hotel sought to rely upon could actually be enforced against Mr. Olley. As we mentioned above, terms must be brought to the attention of the customer, consumer or party against whom they are trying to be enforced at the moment the contract was entered into. Otherwise it would allow parties free will to include other terms at a later stage, albeit if the customer had known of such a term they might have decided not to enter into it in the first place.
The Court decided that the contract was entered into the moment Mr. Olley arrived at reception and signed the register. That was the point when the room was offered to him and he accepted. Intention was not an issue and in consideration of the agreement, he would receive a room to stay for which the hotel would receive payment. The fact that payment would usually come after the stay was irrelevant. Consequently Mr. Olley was not given notice of this exclusion clause until he had already entered into the contract and therefore it was unenforceable against him.
Similar examples of this issue of notice and timing of the terms of any contract can be seen where clothes are purchased and notices attempting to exclude liability are put on the receipt. The example of public transport above and the terms and condition relating to the travel must be stipulated at the relevant time. It should be pointed out here however that the actual notice of these terms need not be something that is brought to someone’s attention every time they enter into a contract. If there is a course of dealing or repeated business, and in a previous transaction a term was brought to the attention of the customer, then they could be held to have been made aware of it and it becomes a term of the contract. If Mr. Olley had stayed at the hotel on a number of previous occasions, it would have been difficult for him to argue that he had no knowledge of the exclusion term. In such circumstances it is arguable that he would have been deemed to have had knowledge and the hotel could have relied upon the term within the contract.
Adams v. Lindsell (1818) 1 B. & Ald. 681
This case concerns the acceptance of an offer and the importance of how that acceptance is communicated to the offeror. Here the defendant offered to sell the claimant fleeces of wool for a certain price. They requested that the response be made by post. This letter was misdirected by the defendant so that it was not received for 3 days after it was sent. The claimant decided to accept the offer and responded on the same day. This was posted on the 5th September but not received until the 9th September. However the defendant decided on the 8th September that as they had not received a response decided to sell the wool to someone else. The claimant argued that a contract had been created as he had accepted their offer.
The Court confirmed that the delays were entirely the fault of the offeror. Had the letter been posted correctly then this scenario would in all likelihood not have arisen. Furthermore the contract was created on the 5th September when the acceptance was posted, not when it was received. While the agreement was not communicated to the offeror, it could not prevent the contract being created. To decide otherwise would be to prevent contracts being created by post completely. It would otherwise require (in this scenario) the claimant to wait until the defendant had received the offer and then written to him saying that the terms were agreed and so on. This system of acceptance was thereafter referred to as the “postal rule”.
In contrast the offer itself can only be communicated to the offeree via the post once it has been received. Any pre-emptive negotiations or discussions are likely to amount to nothing more than an invitation to treat pending the formal offer.
While there has naturally been some development in this area, the most obvious issues arise with the creation of the internet and on-line shopping. The majority of people with access to the internet have purchased something at one time or another. The question as to the formation of any contract here is when does that contract arise? While it is not important to examine the legislation and case law in that particular area (which is vast) what is crucial is how this example of a seemingly antiquated rule can be adopted into a new and totally unforeseeable system through the medium of contract law. While the rule itself remains applicable to postal orders via catalogues and other postal services, the evolution does not stop and wait for something completely new to take its place. The law of contract in this area requires modification and adaptation to meet the demand of e-commerce and a society moving towards carrying out the majority of household and social affairs through the internet. Protection for the unwary or even experienced surfer of the web, when entering into contracts on-line is clearly an important function of modern contract law.
Conclusion
We have seen how contract law permeates every section of our lives. From employment, to conveyancing or even to social and recreational activities such as buying a drink in the pub, contracts are created all around us. While the majority are short lived and the terms fairly simple and unobtrusive, breaches of such agreements may still be enforced with all the force of the law as with the more serious forms of contract.
The public perception of contracts is often misleading as many have not found it necessary to enforce such terms. As we live in a capitalist society with freedom of choice, the need to ensure quality often negates the need for a consumer to enforce their rights as to quality and fitness under a contract of sale. Standards are maintained by Government bodies and independent organizations i.e. BSI. The consumer rarely has the need to enforce breaches of contract, and even if they do, retailers are so aware of the rights of consumers that they will allow an exchange of goods without question. It is more often that not (certainly in the current financial climate) that the terms as to payment are enforced by suppliers and sellers in default of the agreement more frequently. Issues of credit are widespread at the moment and the contracts that regulate the borrowing of money against property (hire purchase) or simply under a general agreement (credit card) are being breached every day. This is the other side of the coin for contract law. There are terms and conditions for both parties. This is the essence of a legal contract, the exchange of consideration without which there is nothing more than an unenforceable promise.
The law of contract needs to change with the developments in economics, technology and social attitudes. It is usually a matter for Parliament to intervene and legislate for new situations and introduce law that will govern particular relationships and the contract that arise between them. It is impossible however to legislate for all potential eventualities as a situation may arise that was not foreseen, or the technology, issue or relationship that it was intended to regulate may have moved on. It is then for the Courts to interpret the law so as to find the solution to any dispute. This is how contract law was in 1818 with the case of Adams v. Lindsell and how it will probably remain for the foreseeable future. While the variety and scope of contracts continue to evolve and increase, the general principles that we have examined above remain applicable. It may be that in years to come there will be introduced a system that will create a standard form of agreement based upon the nature and relationship of the parties to it e.g. companies or businesses in the same market dealing between themselves but there will always be the isolated agreement, or informal shake of hands that ultimately creates a contract and the enforceable terms it grants to those party to it.
Cite this page
What is Contract Law?. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
Advance Directives Essay Example for College Students
PROTECT ME FROM WHICH I CANNOT SEE: WHEN ADVANCE DIRECTIVES ARE NOT KNOWN Dying is not as simple as it used to be. Today preparing for one’s death can be as arduous as hiring a lawyers to draft a last will and testament, making sure that every last detail of one’s life is accounted for, to filling out a few simple forms that give an account of one’s wishes for how they’d like to die. Thinking and conversing about death doesn’t come easy for most people; Americans especially have a difficult time with the subject. The notion of one day disappearing is contrary to many of our defining cultural values, with death and dying viewed as profoundly “un-American” experiences.1 However if planning for death is avoided or ignored, it can have profoundly negative consequences for both oneself and the family left behind. Planning for death no longer is simply about what should occur upon one’s death either. In recent history many cases have been brought to trial concerning one’s wishes before they actually died.
Cases in which the defendants, in many instances, were in persistent vegetative states and did not have their wishes of what they would have chosen to do should such an incident have occurred documented. These are cases in which a simple set of instructions, not requiring drafting from a lawyer but legally binding regardless, could have determined the course of action and protected these persons and their families from years of publicized and undignified suffering. Several landmark cases highlight the absolute need to be prepared for the possibility of death. The cases outline the importance that the preparation be known, specific and documented; and show how these critical elements can help avoid unwanted confusion about end-of-life choices regarding prolonged life-sustaining measures. ADVANCE DIRECTIVES Advance directives are a set of legal documents that allow you to spell out your decisions about end-of-life care ahead of time. They give you a way to document your wishes to family, friends, and health care professionals and to avoid confusion later on.2 The documents can outline one or several aspects of a patient’s end-of-life choices including but not limited to decisions about CPR, intubation, hydration and enteral feeding, administration of antibiotics, dialysis, surgical interventions and durable power of attorney appointments. If choosing to document only one set of instructions a living will is the most important. A living will outlines which treatments you want if you are dying or permanently unconscious.2 In it one can specify key components of life-sustaining measures that one may choose to have enacted or from which one might choose to abstain; this includes the use of dialysis machines, respirators, the initiation of CPR or a gastric feeding tube, and inclusion in organ donation. Of secondary importance, as aspects of it can be outlined in a living will, is a durable medical power of attorney which is a document that names your health care proxy, or someone you trust to make health care decisions for you should you not be able to do so.2 A health care proxy will act in your best interest because you have voiced certain instructions that you wish carried out on your behalf in regards to life-saving or –sustaining measures. A Do Not Resuscitate order (DNR) and a Physician Order for Life-Sustaining Treatment (POLST) are both medical directives that are preset and witnessed by a physician and are kept readily accessible should the need to consult them arise. Both of these directives are valid internal to and external of a hospital and are intended to prevent unwanted medical intervention to save a dying patient’s life. The importance of having an advanced directive is clear; document guidelines of how and to what end you would like your life saved or prolonged should unexpected tragedy befall you.
The intentions are to make sure your wishes are known and enacted upon and ensure total autonomy of your medical decision-making. Directives provide guidance for medical wishes, protection from unwanted medical intervention and establish a hierarchy of involvement that you would like made on your behalf. No matter which directive you use, no one will be able to control your money or other property based on your advance directive3; they are not intended to replace a Last Will and Testament.
And although advance directives are binding once signed and witnessed, they are revocable at any time by the holder and can be changed at will. In the clinical setting advance directives are usually initiated with the elderly population or upon a new diagnosis of a terminal disease. Rarely is it discussed among the young and able-bodied. But it is those unanticipated situations in which having an advance directive becomes the most important. KAREN ANN QUINLAN Due to an overdose of drugs and alcohol, Karen Ann Quinlan fell into a coma on April 15, 1975. After suffering severe brain damage from hypoxia she was unable to breathe properly on her own. She was intubated and rushed to the hospital whereupon she was dependent on a respirator to maintain adequate oxygen saturation. Neither the coma nor her breathing ever improved; Karen never regained consciousness and remained in a persistent vegetative state. In a landmark lawsuit on September 12, 1975, Karen’s parents, the Quinlans, asked that the respirator be disconnected and that their daughter be allowed to die ”with grace and dignity,” because there was no hope she would recover.4 Even though her physicians agreed that there was no hope for improvement they were concerned about the legality of withdrawing Karen from the respirator; at that time there had been no medical precedent for doing so in someone so young, particularly when her condition was not immediately terminal.
Confronted with the physicians’ refusal, the Quinlans petitioned the court to have the respirator removed.4 This case set a precedent as the first time that any higher court had ever been required to address whether or not life-sustaining medical treatment could be stopped in a persistently vegetative patient.5 It was the ruling of the New Jersey Supreme Court that Karen’s life support could legally be discontinued. Testimony of some of Karen’s friends made claim that she had specifically made her wishes of not wanting her life maintained indefinitely on a respirator known to them; it was found however that such testimony was without probative weight.6 The Quinlans won the case by arguing Karen’s right to privacy was being violated by maintaining life support with no hope of recovery; thus the court ordered her withdrawal from the respirator. The unfortunate caveat of the case was neglecting to include the gastric feeding tube as part of the life support measures to withdraw; Karen lived for another 10 years off the respirator and with enteral nutrition; she died in 1985 at the tender age of 31 and weighing a mere 65 pounds. NANCY CRUZAN Nancy Cruzan was 33 years old when she was involved in a severe automobile accident. The year was 1983, Nancy suffered massive head trauma and cerebral hypoxia from landing face down in a puddle of water after the accident. Like Karen Quinlan, many heroic efforts were made to save her life after being rushed to the hospital.
But Nancy never regained consciousness. Four years passed as Nancy was maintained, in a vegetative state, on a gastric feeding tube. In 1987, Cruzan’s parents went to court to ask that the feeding tube be removed and that she be allowed to die a dignified death as they said she would have wanted.7 During the hearings, however, the state of Missouri argued persuasively against the family’s request.5 This first ruling was against the Cruzans; the defense argued against the testimony from one of Nancy’s good friends who recalled a conversation she’d had with Nancy about sustaining on life support and Nancy stating that, “she hoped her family knew she didn’t want to live in a vegetative state,” calling the evidence “unreliable.”8 The Cruzans appealed to the United States Supreme Court, where it was ruled that a “constitutional right to refuse medical care, including feeding tubes” did exist.5 It was also found, however, that the state of Missouri would require “clear and convincing evidence” that Nancy Cruzan would have wanted her feeding tube removed as to not persist in a vegetative state. The Cruzans gathered evidence for another 3 years in order to provide the required level of burden of proof. The evidence consisted of testimony from relatives, friends and previous coworkers; and in 1990 the US Supreme Court ruled that “clear and convincing” evidence had been brought forward. The ruling spurred enormous interest in living wills and other advance directives that allow people to spell out, in advance, what treatment they want, and who should make decisions for them if they became incapacitated.7 Nancy’s feeding tube was removed on December 15, 1990 and she died on December 27th at the age of 33 with her family at her bedside. MICHAEL MARTIN On January 17, 1987, Michael Martin sustained multiple traumas and a closed head injury affecting both hemispheres of his brain following a car-train accident. The injuries left him severely mentally impaired, unable to walk or talk, as well as dependent on the use of feeding tubes to sustain his life.5 Although completely paralyzed, Michael was not in a persistent vegetative state; he maintained some minimal aphasic responses and appeared to recognize familiar faces. Michael’s wife, Mary, who was also his legal guardian, helped take care of him in the hospital over the next 5 years.
Michael required a colostomy, a gastric feeding tube and was completely dependent on his caregivers. His condition did not improve and in 1992, Mary filed a petition in the courts requesting authorization to remove Michael’s feeding tubes.5 Mary testified she and Michael had “discussions regarding…[their] wishes…if either of [them] was ever involved in a serious accident, had a disabling or terminal illness or was dying of old age,”9 forwarding that Michael had frequently stated that “he would rather die than be dependent on people and machines.”10 The probate court initially denied Mary’s request on account that although her testimony and the testimony of friends and old coworkers was both clear and convincing, Michael was not in a vegetative state and thus law did not apply. Upon appeal, however this decision was overturned and the request to remove the feeding tube was granted. Michael’s mother, Leeta Martin, and his sister, Patricia Major, opposed the request and filed a petition with the Michigan State Supreme Court, asking that Mary be removed as Michael’s guardian; alleging that Mary was only interested in settlement funds from a lawsuit against the railroad involved in Michael’s accident.5 Although this petition did not succeed in removing Mary as Michael’s legal guardian, the Court reversed the Appeals Court’s order to remove treatment, holding that life sustaining medical treatment could not be removed from a formerly competent patient who had not made a living will or durable power of attorney.11 Though the Appeal’s Court had found the evidence to be “clear and convincing,” the Supreme Court found insufficient evidence; ‘Michael’s wishes’ were “purely subjective,” “general, vague and casual…” and “could not be considered because they were not expressed in writing.”9 Thus, the court ordered that the tube feedings would be continued. As of 2001, Michael Martin was still alive. ANALYSIS All three of these cases present landmark changes in the way the judiciary system explores the controversy surrounding dying with dignity. Each case can be an example as to why advance directives are so important.
Much of the hardship and suffering endured by these families could have been prevented had proper medical directives been in place. Although in every case the accident victims were in their 20’s and 30’s, the testimonies of their families indicted that the thought of their own death had crossed their mind at some point. The unfortunate consequence of Karen Quinlan surviving her respirator removal for 10 years post-withdrawal was simply a physiologic response, not her “will to live” as some opponents argued.
After more than a year of assisted breathing Karen’s breathing reflexes had stabilized enough to sustain her lung function even after the respirator was removed.5 Though she had at one point voiced a disinterest of having her life sustained on a breathing machine she had never voiced any such regard for having a feeding tube, which in the end is what kept her alive. This demonstrates the absolute importance that advance directives are clear, explicit, unambiguous and of utmost importance, documented. Karen’s body could have come to rest a lot sooner were it not for the lack of directives. The case of Nancy Cruzan follows in the footsteps of Quinlan in that she too had voiced through circumstantial conversations her disdain for “living” on a respirator and in a vegetative state. Before her accident Nancy had had some experience working with patients on respirators and had made passing comments to friends and coworkers about “not wanting to end up like that.” The caveat for Nancy was that though her comments were heard, they were subjective and evidence of neither a clear nor convincing nature.
Again, advance directives were neither established nor documented and therefore “clear and convincing” burden of proof could not be ascertained from her ‘wishes’. Speaking plainly about what you do or do not want done and documenting all aspects of your advance directives is the best way to protect yourself from an undignified death. Michael Martin’s case was complicated by family disputes and the appearance of alleged secondary motives that clouded the case for his dignified death. Family’s involvement can be a blessing or a curse when it comes to deciding how to interpret their loved ones wishes. When instituting advance directives it is important to establish a durable power of attorney that you trust to carry out your intents should you become incapacitated like Michael did. Mary Martin was Michael’s best ally in his fight, but in the end he couldn’t protect her from the courts or his family. The DPOA is a binding agreement and can help protect those you love from unnecessarily painful negative allegations and distress.5 RESOLUTION Broaching the subject of preparing for death, especially when a patient is neither sick nor dying, can prove to be a difficult task for physician.
Patients find it even harder to ask their doctors about the taboo subject, as if talking about it brings it imminently closer. When it comes to advance directives and physicians it’s a “chicken and the egg” dilemma, you can’t have one without the other. It therefore becomes more important for physicians to acclimate to this age of preparation and rely that patients want to hear what they have to say; likewise patients must be open to the notion that advance directives are not going to bring death closer, simply prevent unexpected issues from worsening. Approaching your physician with an open mind to the process can make everyone involved more comfortable. Doug White, director ethics and decision-making at the University of Pittsburgh Medical Center states, “There’s a real hunger for [AD] information, even though it’s emotionally difficult to hear.” Advance directives are a necessary and often not-talked-about part of life. If we can learn anything from these cases it is that advance directives should be thought about early, prepared completely, documented properly and stored safely.
Due to the unpredictability of life and its many potential pitfalls, the only way to navigate it is by being informed and prepared. Advance directives should use clear and concise language that outlines the who, the what, the where, the when and the why of how you want your wishes enacted. Multiple copies of your advance directives should be available; a hardcopy at home and an electronic copy as part of your medical record should be maintained and kept up-to-date. The elderly and chronically ill may also wish to carry a POLST on their person in case of emergency trips to the hospital occur or a medical identification bracelet can be made to outline instructions. Above all know that you are in control of your own life and your own death, advance directives help you to do both. CONCLUSION Over the past century, death and sex battled it out to be the number one unmentionable in America; these two topics were most reflective of our shame and embarrassment when it comes to all corporeal matters.1 Natural death is an inevitable part of life, and preparing for that is easy; sudden and non-precipitous death is what takes the planning, and it’s what everyone wants to avoid. It is possible, however, to prepare for a ‘good death’ with an advance directive and effective power of attorney.12 In town of La Crosse, Wisconsin 96% of residents have an advance directive in place, the national average is about 30%. In this town, they are comfortable talking about death. In this town they are prepared for the unthinkable. In this town they are clear, concise and unambiguous about their wishes about how they want to be let go should that time come. In this town, they all sleep a little easier at night. RESOURCES 1.Samuel L, PhD. Death, American Style.
Psychology Yesterday 2013; https://www.psychologytoday.com/blog/psychology-yesterday/201306/death-american-style. Accessed March 7, 2014. 2.Institute NIoHNC. Advance Directives.
Medline Plus: Trusted Health Information for You 2005; https://www.nlm.nih.gov/medlineplus/advancedirectives.html. Accessed March 8, 2014. 3.Society AC. What is an advance directive? Advance Directives 2013; https://www.cancer.org/treatment/findingandpayingfortreatment/understandingfinancialandlegalmatters/advancedirectives/advance-directives-what-is-an-advance-health-care-directive. Accessed March 9, 2014. 4.McFadden RD. Karen Ann Quinlan, 31, Dies; Focus Of ’76 Right T Die Case. The New York Times. 19850612, June 12, 1985. 5.Directives L. Lifecare – Key Legal Cases. 2009; https://www.lifecaredirectives.com/key_legal_cases.html#Karen.
Accessed March 11, 2014. 6.In the Matter of Karen Quinlan, An Alleged Incompetent, 355 (Supreme Court of New Jersey 1976). 7.Lewin T. Nancy Cruzan Dies, Outlived by a Debate Over the Right to Die. The New York Times. 19901227, 1990. 8.Cruzan, By Her Parents and Co-Guardians, Cruzan et ux v.Director, Missouri Department of Health, et al, 497 (1990). 9.In Re Michael Martin, a Legally Incapacitated Person; Mary Martin, Guardian and Conservator of Michael Martin v. Leeta M. Martin and Patricia Major, 450 (1995). 10.Lewin T. Fight for Life of a Helpless, Brain-Damaged Man Goes to the SupremeCourt. The New York Times. 19960219, 1996. 11.Martin, Michael. Healthcare Ethics 2014; https://www.ascensionhealth.org/index.php?option=com_content&view=article&id=249&Itemid=173. Accessed March 11, 2014. 12.Andrews M. Prepare for a ‘good death’ with an advance directive and effective surrogates. Los Angeles Times. 02142011, 2011.
Cite this page
Advance Directives Essay Example for College Students. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
Venture Management Essay Example Pdf
Walton Construction (Qld) Pty Ltd v Venture Management Resources International Pty Ltd
Walton Construction Pty Ltd (Walton) entered into a building contract with Venture Management Resources International Pty Ltd (VMR) for completion of works. Walton provided VMR with an unconditional bank guarantee as security to cover its financial commitment under the contract. Walton submitted a progress payment claim toVMR and in response, the Superintendent from VMR issued a progress certificate certifying that payment was to be madeto Walton as per the existing contract. The contract required the Superintendent to allow in a payment certificate "amounts otherwise due from the Contractor to the Principal arising out of or in connection with the Contract." The Superintendent disputed the amount of the payment claim from Walton and calculated a variation to the payment of claim. The adjusted claim amount reflected the cost of resolving allegedly defective work as well as an amount of liquidated damages for late completion. In respect of calculating deductions for defective works, clause 35.3 of the Contract permitted the Superintendent to issue directions to the Contractor to correct material or work. If the Contractor failed to comply with the direction within the required notice period, then the Superintendent was entitled to request an amount due from the Contractor to the Principal for correcting the defective works based on the lowest of three quotes received from independent contractors. The Contract further provided that if the Contractor failed to make payment pursuant to the payment certificate within a stipulated time, then the Principal may have access to the security. The Contract further provided that if the Contractor failed to make payment pursuant to the payment certificate within a stipulated time, then the Principal may have access to the agreed bank guarantee security provided in the contract. Walton applied for an injunction restraining the principal from accessing the security because the superintendent failed to comply with the certification process under the contract and the superintendent was unlicensed and therefore the certification was invalid and had nil effect.[1] The court’s reasoning for granting the injunction for Walton stemmed from the superintendent failing to comply with the strict certification requirements under the payment provisions stipulated. Walton argued that the superintendent didn’t comply with a clause within the contract and therefore the payment certificate was invalid. Walton, as the contractor invoked the process of dispute against the superintendent’s certification. This was expressed through seeking an expert review of the certification, which had not yet reached completion at the time of litigation. Walton argued that the obvious commercial purpose or common sense of business was to prevent recourse to security where the contractor was in the process of disputing the Principal’s rights. The court found that the superintendent was not licensed under section 42 of the Queensland Building Services Authority Act 1992, this also contributed the court’s decision to grant an injunction and evidenced the deficiency of the certificate. The fact that Walton would suffer irreparable harm regarding the reputation of the building industry expresses the court’s reasoning for granting the injunction. It should be noted that the injunction is not a permanent resolution and awaits a full hearing in order to determine the necessity of this.[2] This is consistent with Vos Construction and Joinery Qld Pty Ltd v Sanctuary Properties Pty Ltd 2007 whereby both cases claimed loss of industry reputation and irreparable harm regarding this reputation. The cases are somewhat different as Vos Construction’s application was dismissed where Walton’s application was held. It is agreed that the findings of the court in this case are compliant with the legislative provisions relevant to the inquisition. Therefore it is also agreed that the injunction was appropriately granted in regard to Walton. The finding of this case raise implications for future precedent regarding the administration of construction contracts as well as the necessity to follow contractual processes in order for an entitlement to payment before a call upon a guarantee is made or foreshadowed. [3]Vos Construction & Joinery Qld Pty Ltd v Sanctuary Properties Pty Ltd & Anor [2007] QSC 332
In August 2005, the respondents, joint venturer’s Sanctuary Properties Pty Ltd and MIRVAC Developments Pty Ltd (Sanctuary), entered into a contract with Vos Construction & Joinery Qld Pty Ltd (Vos) for the completion of building work. The negotiated Contract price was $7,010,606 and as per the terms of the contract Vos provided security in the form of a bank guarantee as assurance of financial viability and its intention to complete. During the course of the project the architect extended the date for practical completion from 29th November 2005 to 17th January 2006. Despite the extension, on 13 February 2006, Sanctuary notified Vos of its intention to claim liquidated damages for failure to complete the project by the adjusted date for practical completion. The practical completion date was eventually achieved by Vos on 21st March 2006 and the architect issued the final certificate for the project on 8 June 2006. As a result on 12 June 2006, Vos disputed the final certificate by notifying the architect in accordance with Clause C8 of the contract. Clause C8 required the architect to assess the dispute and give a written decision to Sanctuary within 10 working days. Vos also notified Sanctuary of same. On 25 June 2006, the architect, rejected Vos’s submissions and concluded that the final certificate was valid and lawful. Sanctuary gave notice of its intention to draw on Vos’ bank guarantee in the sum of $173,800 (the sum certified by the architect) on the same day.[4] The court’s reasoning for dismissing the application was simply due to the fact that disputing the respondent’s rights under clause A8 was not enough to prevent the respondent from drawing on security. This is because the clause would lack purpose if the process could be stopped by any unsuccessful disputation of the certificate. In considering Vos’ application, the court addressed the financier’s obligation and the principle of autonomy. The Court acknowledged that the financier’s obligation in commercial instruments such as bank guarantees, is independent of the underlying contract. This means that a security provided under a construction contract mayprima faciebe called up unless there is a breach of a negative stipulation in the underlying contract which conditions the right to call it up. Rights to payment were also addressed, it was determined that they stand unless the payment certificate is negated. The court held that an unsuccessful dispute could not stall the debt recovery process because that would flout “business commonsense”. The right to payment is independent of obligation to follow dispute resolution procedures. Sanctuary’s right to draw down the security for a debt owed was independent of its obligation to resolve its dispute with Vos in accordance with the dispute resolution clauses under the Contract. The Court held that Sanctuary had the right to draw on the security even if the dispute between the parties had not proceeded to final resolution. Section 67J (2) of the Queensland Building Services Authority Act 1991, notice of a claim must be given within 28 days of a party becoming “aware, or ought reasonably to have become aware, of the contracting party’s right to obtain the amount owed”. The court determined that late application doesn’t prevent access to security because rights to such access did not accrue until the architect’s final certificate issued rejection of the dispute. This is because the respondents could not have been aware of right to obtain the amount under the contract until then. The court addressed Vos’ reputation and found that the present application turned on questions of construction and not disputed factual matters. It did not consider the argument of industry reputation as constituting a serious question to be tried. The court, for the above reasons, and in its discretion, found the balance of convenience to be in favour of not granting an interlocutory injunction.Kell & Rigby Holdings Pty Ltd v Lindsay Bennelong Developments Pty Ltd
Lindsay Bennelong Developments Pty Ltd negotiated and entered into a contract with Kell and Rigby Holdings Pty Ltd for the construction of a mixed residential and commercial development. The principal was also appointed to act as superintendent under the contract. It was agreed that the works would be completed in three stages. When the dispute arose only stage 1 had been completed with stages 2 and 3 still under construction. Two years into the project, the parties entered into an advance payment agreement, in which the principal agreed to advance the contractor a portion of the balance of the original contract sum to the value of $2 million. The deed of agreement provided for two advance payment bonds in the form of an unconditional bank guarantee of $1 million each. The contract also provided that, if the advance payments had not been repaid on or before the date of practical completion for stage 3, they would immediately become a debt due and payable by the contractor to the principal. In May 2010, stages 2 and 3 of the project sill had significant incomplete works that needed to be finished to a standard at which the sales to purchasers could be transacted. In June 2010, the principal, acting in its capacity as superintendent, issued both:- a notice of variation to works, which deleted the remaining stage 2 works and the remainder of the incomplete stage 3 works from the scope (the variation instruction); and
- A certificate of practical completion in respect of the stage 3 works.
References
Alden, S. and Eather, A. (2010). Superintendents Wearing Two Hats Risk Abuse Of Power. [online] Available at: https://www.mondaq.com/australia/x/109850/Property+Litigation/Superintendents+Wearing+Two+Hats+Risk+Abuse+Of+Power [Accessed 7 Oct. 2014]. Herbertgeer, (n.d.). Jumping through hoops: How not to call on a bank guarantee. [online] Available at: https://herbertgeer.e-newsletter.com.au/link/id/zzzz4dcb1c9dceab5234/page.html?extra=zzzz4dca0b87bf72d290 [Accessed 7 Oct. 2014]. Kell & Rigby Holdings Pty Ltd v Lindsay Bennelong Developments Pty Ltd [2014] (NSWSC). King & Wood Mallesons, (2010). Unconditional bank guarantees: not always a done deal. [online] Available at: https://www.mallesons.com/publications/marketAlerts/2010/ConstructionInsights/Pages/Unconditional-bank-guarantees-not-always-a-done-deal.aspx [Accessed 7 Oct. 2014]. Vos Construction & Joinery Qld Pty Ltd v Sanctuary Properties Pty Ltd [2007] (QSC). Walton Construction (Qld) Pty Ltd v Venture Management Resources International Pty Ltd [2010] (QSC). Wilson, J. (2010). Cashing Bank Guarantees: Not Always An Easy Process. [online] Available at: https://www.mondaq.com/australia/x/106120/Building+Construction/Cashing+Bank+Guarantees+Not+Always+An+Easy+Process [Accessed 7 Oct. 2014]. Yap, B. (2014). Vos Construction & Joinery Qld Pty Ltd v Sanctuary Properties. [online] Mallesons.com. Available at: https://www.mallesons.com/publications/marketAlerts/2008/Documents/9357337w.htm [Accessed 7 Oct. 2014].[1] https://herbertgeer.e-newsletter.com.au/link/id/zzzz4dcb0f4dde222275/page.html [2] [3] [4] https://www.mallesons.com/publications/marketAlerts/2008/Documents/9357337w.htm
Cite this page
Venture Management Essay Example Pdf. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
Undue Influence Law Essay Online for Free
- Gray, K and Gray, S F: Elements of Land Law (Fourth Edition); Oxford University Press, 2005.
- Mackenzie, J A and Phillips, M: Textbook on Land Law (9th Edition); Oxford University Press, 2002.
- www.lawtel.com
Footnotes
[1] McKenzie,J and Philips, M : Textbook on Land Law, 9th Ed, Oxford, at 19.17.2 [2] Allcard v Skinner (1887) 36 ChD 145 [3] [1994] 1 AC 180 [4] [2001] 3 WLR 1021 [5] McKenzie (above) at 19.17.7 [6] Fry v Lane (1889) 40 ChD 312 [7] [1971] AC 886 [8] Mackenzie at 16.5.1 [9] [1991] 1 AC 107 [10] [1982] 1 QB 133Cite this page
Undue Influence law Essay Online For Free. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
Valuable Consideration in Contract Law
- a new promise to try and do something you are not legally obligated to try and do, or
- a promise to not do something you've the to certainly do (often, this implies a promise to not file a new lawsuit).
Cite this page
Valuable Consideration in Contract Law. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
What Purposes do IPRs and Standards Serve?
- the rights of the patent owner (licensor) to enjoy the full benefits of the patent,
- the rights of third parties (licensees) to make and sell standard-compliant products, as well as
- the public interest not to lock users into specific technology platforms, while recognizing that in daily life society benefits enormously from the advanced technology that standards can bring.
- What is the conceptual relationship between standards and patents: complementary or conflict?
- How patent policies provided by SSO have failed to solve the dispute between patents and standards?
[1] See Herbert Hovenkamp, Mark D. Janis & Mark Lemley, IP and Antitrust: An Analysis of Antitrust Principles Applied to Intellectual Property Law, (2003-04) at 35.1. [2] See Janice M. Mueller, Patent Misuse through the capture of Industry Standards, Berkeley Technology Law Journal, Vol. 17, p. 623, 2002, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1346546, last accessed on 8th January 2014. [3] Carl Shapiro, Setting Compatibility Standards: Cooperation or Collusion? Available at https://faculty.haas.berkeley.edu/shapiro/standards.pdf , last accessed on 8th January 2014. [4] Mark R. Patterson, in his article asserts that patented invention and standards are two different things. Patentee is not allowed to get revenues out of the interoperatability of standards. Patentee is allowed to get revenues only for the invention that is used in the standard, available at https://www.law.berkeley.edu/journals/btlj/articles/vol17/PATTERSON.pdf , last accessed on 8th January 2014. [5] Mark Lemley and Carl Shapiro (2007), discusses how a threat to an injunction enhances the patent holders negotiating power when the patented technology is used in standards leading to royalty stacking and patent hold up, available at https://faculty.haas.berkeley.edu/shapiro/stacking.pdf , last accessed on 8th January 2013.
Cite this page
What Purposes do IPRs and Standards Serve?. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
Copyright Law Protect Essay Example Pdf
Copyright Law; Software is considered a literary work in the principle act in Ireland covering copyright, the copyright and related rights act, 2000. Software copyright is a form of intellectual property law that exists to protect rights associated with tangible property of people and groups. Copyright therefore cannot exist over ideas alone. and protected works must be recorded with an authors consent to have copyright protection. The protected material does not require registration and the rights are only waived explicitly through written notice, but the rights are retained by "the person whom the arrangements necessary for the creation of the work are undertaken", and includes preparatory design materials . Although the bar is set low over what can be protected, it usually must involve a minimum amount of work and be non-trivial and original. So what rights does copyright protect and why does it protect it and why is a law necessary to do this?. Copyright prohibits:
- Copying protected works for distribution as it infringes the “reproduction right”.
- Lending copies of protected works to unlawful users without remuneration to the copyright holder.
- Renting protected works to unlawful users where the rented software is the essential object of the loan and not incidental.
- Installing the software on a network to make it available for multiple users unless it is a special network version is prohibited as it infringes the “making available right”.
- The moral right of paternity, integrity and false attribution.
- Providing material technical assistance to people who infringe on copyright.
Punishment for infringement can be pecuniary or custodial and reflects the seriousness of the infringement from personal hacking to commercial piracy. Since coding, requires the investment of considerable human, technical and financial resources while programs can be copied at a fraction of the cost this offers an uncompetitive advantage to those who would copy products for commercial reasons. The theoretical basis for copyright includes to reward labour as described by Locke, to encourage expression of the will as discussed by Hegel, and for utilitarian and economic efficiency as treated by Bentham. Copyright is not an absolute right but is a fundamental right and in Ireland its possession is in keeping with the principles of social justice espoused in article 43 of the constitution of Ireland and within the European parliament directive. Indeed the constitution of the USA in 1787 recognised the authors rights for "Limited Times" showing the universal recognition to limit the benefit to the individual for the sake of scientific progress.
A utilitarian sense of fairness provides for “the greatest happiness of the greatest number” of people and although an economic analysis will often keep copyrighted works with a few people to benefit greatly sometimes the need for social justice outweighs these reasons. Recently there was a feature of a high profile case in the European courts between the European commission and Microsoft, where Microsoft were found to have purposefully kept competing software from inter-operating with their products and this was facilitated by the derivative work restrictions of copyright law. For under a normal economic analysis of law if a party is willing to expend more of their resources in securing the protected rights, all things considered the right should reside with them.
In the case of Microsoft EU the damage done to the EU's interests by excluding competition and thereby to maintain full control over its own information was judged to be of greater value than the investment by Microsoft in its development costs and the decision went against them. Presumably in the information age the premium placed on stores of information is very high and proprietary software will not be allowed to block this path. A subsequent European directive clear includes measures to allow interoperability to be achieved even to the point of de-compiling software, provided sufficient measures have not been taken by the original author of the work. By creating protection for works through copyright personal expression of the will is encouraged. This is one of the moral reasons for copyright law and is a feature of Irish copyright laws greater harmonisation with European law such as through the 2009/24/EC European directive. By these moral rights the copyright owner may assert their right to be recognised as the author in so called “paternity”. Also to prevent protected items from having work derived from them by maintaining the right to "integrity" and to prevent false attribution for cloned or non supported distributions even where software is redistributed with the authors consent for instance with GPL code disclaimers .
This Lawsuit started with a complaint from Novell, Inc. Which is an Americanmultinationalsoftware and services company headquartered inProvo, Utah, over Microsoft's licensing practices that happened in 1993, it stated that Microsoft was blocking its competitors out of the market through anti-competitive practices, this complaint focused on the license practices at the time which required royalties from each computer sold by a supplier of Microsoft's operating system, with or without the Windows operating system and this led to Microsoft reaching a settlement in 1994. This ended some of its license practices leading to the EU ordering Microsoft to disclose certain information about its server products and release a version ofMicrosoft WindowswithoutWindows Media Player, the European Commission made more focus on the interoperability issue.
Cite this page
Copyright law protect Essay Example Pdf. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
Crime Law Essay Online for Free
- Water Resources Act 1991 s85
- Areas to be considered within the case of Brockwell
- Who will prosecute?
- Nuisance
- The Hoffmann Test - Causation
- Causation
- Negligence
- Rylands Rule
- Acts of third parties including vicarious liability
- Knowingly permitting
- Discharge
- Mitigating circumstances
- Sentencing
- Conclusion
Water Resources Act 1991 s85
S85 of the Water Resources Act 1991 (the Act) indicates Civil penalties that may assist in a more effective regulation system and this is likely to be used in areas such as illegal waste disposal. In the area of water pollution there are many grounds for assuming that the importance of criminal prosecutions is set to continue. The Environment Agency has published a detailed prosecution code3, whereas, generally the Agency issues a low level set of fines, therefore it is unusual for custodial sentences to be used. The use of custodial sentences for environmental harm applies when it is a repeated or blatant offence and where in a public place the offence is such as to subject the public to hazardous substances as in R v O'Brien and Enkel4 or even community orders for polluters as in Environment Agency v UCE Ltd (Ipswich Magistrates Court June 2010)5. This gives rise to the need to consider each case on its own merit rather than using the sentencing advisory panel's advice. 3 Environment Agency guidance for the enforcement and prosecution policy https://www.environment-agency.gov.uk/business/regulation/31851.aspx 4 R v O'Brien and Enkel [2000] Env LR 156 where illegally storing waste tyres at an unlicensed site gave rise to an eight month prison sentence for O'Brian. On appeal the Court of Appeal quashed the sentence as it was regarded to be too excessive. 5 Environment Agency v UCE Ltd (Ipswich Magistrates Court June 2010) in 2008, A trail of blue-black liquid in Flowton Brook and Belstead Brook, Ipswich, in a series of incidents led Environment Agency officers to an illegal waste site run by Paul Arthur Fenton. They found mixed waste and liquid waste being stored without environmental permits and signs that some waste had been burned nearby. Ipswich Magistrates' Court issued a community order requiring Fenton to undertake 240 hours unpaid work and ordered him to pay £8,000 towards Environment Agency costs for breaches of the Water Resources Act, Environmental Permitting Regulations and Environmental Protection Act. https://www.environment-agency.gov.uk/news/117824.aspx accessed June 2010. There is evidence that Brockwell were negligent in their operation through the actions of their employees and it is not uncommon for the environment agency to proceed with a prosecution for both s85(1) and 85(3) offences, on the proviso that elements of the case can be established. Within the case of Fred Churchill (Construction) there is a breach of Environmental Protection Act 19906 although not a breach of s85 of the Act, as there is insufficient evidence that the illegal dumping of the removed substance leached or could have leached in to the River Trent.Areas to be considered within the case of Brockwell
Who will prosecute?
The case of Brockwell will be subject to the Environment Agency (the Agency) bringing a prosecution with respect to s85(1) of the Act for a water pollution incident. Exercising its prosecutable discretion7 the Agency will likely take in to account several factors, which include the seriousness of the incident and any past polluting records from the polluter. 6 Environmental Protection Act 1990 7 Discretion to Prosecute and Judicial Review Hilson, [1993] Crim LR 739 Another area to be considered is the deterrent effect of a prosecution for both would be polluters and the actual polluter. The Environment Agency's Enforcement and Prosecution Policy8 clarifies that a prosecution will be perused when an evidence test is satisfied and that a prosecution is in the public interest. Therefore foreseeability is a relevant factor when the Agency is using its common sense to decide whether an individual caused a polluting event, as in NRA v. Wright Engineering Co. Ltd [1994]9 and Alphacell Ltd v. Woodward [1972]10. The importance as to the protection of the environment is demonstrated within Cambridge Water Co v. Eastern Counties Leather Plc. [1994]11. Therefore in the context of the Brockwell case, the common sense causation is that Brockwell caused the pollution, although it was through the act of a third party (an employee) and therefore the company is liable for a prosecution under s85(1) of the Act. Alternatively there are cases where the duty of the 'causation' rule to take precautions to prevent loss caused by third parties as identified within Stansbie v. Troman [1948]12. The example of Stansbie demonstrates that a common sense answer to the question of causation for the purpose of attributing responsibility under the same rule without knowing such rule cannot be given. 8 Environment Agency Enforcement and Prosecution Policy (November 1998) 9 NRA v. Wright Engineering Co. Ltd [1994] 4 All ER 281 10 Alphacell Ltd v. Woodward [1972] AC 824, 847 a-b 11 Cambridge Water Co v. Eastern Counties Leather Plc. [1994] 2 AC 264, 305f 12 Stansbie v. Troman [1948] 2 KB 48 Therefore is the duty of a s85(1) prosecution includes a responsibility for acts of third parties. It is clear that the liability identified within the Act is strict and therefore it does not require mens rea in the sense of intention or negligence, the offence within this case is that of public nuisance as in Alphacell Ltd v. Woodward.Nuisance
Is an interference with an occupier's use or enjoyment of land where there has been substantial injury to property or personal discomfort. This is evident within the Brockwell case, as there is evidence of death fish; this would quite possibly cause a 'nuisance' for the local angling population and therefore should be taken in to consideration when summing up of the case is commenced.The Hoffmann Test - Causation
Within Empress, Lord Hoffmann attempted to encapsulate the law on causation, by providing magistrates' guidance on s85 prosecutions therefore being able to forestall13 any likelihood of future appeals. The true common sense distinction14 which Lord Hoffmann made between causation and breaking the chain of causation by the defendants acts, omissions or polluting event has been applied to several cases and would be applied in this instance within the case of Brockwell. 13 Journal of Planning and Environment N Parpworth Law 2009, Who may be liable for an offence contrary to s85 of the Water Resources Act 1991 14 Empress [1998] 1 All ER 481 at 491 HLCausation
The meaning 'causation' is well defined within the House of Lords decision in Alphacell Ltd v. Woodward [1972] and within Empress Car Company (Abertillery) Ltd v. NRA [1998]. The test within the Alphacell decision relates to the simple decision on 'causation' and requires that the defendant simply carries on with an activity which causes a pollution incident. The courts have repeatedly indicated that the notion of causing is one of common sense. The decision and subsequent judgement from Lord Hoffman in Empress will be relevant to the proceedings within this case as Lord Hoffman laid down five key guides for magistrates and judges to follow. Firstly that the court should require that the prosecution identify what the defendant has done to cause the pollution. Secondly that the prosecution need not prove that the defendant's actions caused the immediate pollution, If it is then established that the defendant did do something, it is then up to the court to decide that the defendant did do something to cause the pollution. The defendant did something which produced a pollution event by the efforts of a third party. The decision would also take into account whether the pollution act was a normal event or something extraordinary, for example an act by a third party or by a natural event. If the matter concerned an ordinary occurrence, then a break of the chain of causation would not occur and the defendant would be liable for causing the pollution. Only abnormal or extraordinary events can break the causation chain15. The chain of causation is evident, as Brockwells employees ignored systems and procedures for the disposal of a chemical by pouring the chemical in to a sluice gate, which flowed in to the controlled water. This would indicate that the companies' procedural and employee training systems were not well controlled; therefore the company is negligent within its actions. Additionally within Brockwell there appears to be no abnormal or extraordinary events that would have caused the break of the chain of causation.Negligence
Water pollution is subject to Strict Liability under Common Law, this means that it is irrelevant if the defendant intended to cause the pollution incident. Liabilities for the pollution of groundwater may give rise to an action for negligence or nuisance as in Rylands v. Fletcher LR16, where negligence arises from a failure to exercise the care demand in the circumstances, as a plaintiff must show that he is owed a duty of care, that the duty has been breached and that any harm suffered is due to the breach that the plaintiff is owed. 15 Environmental Law Wolf and Stanley, Cavendish, 4th Edition, Chapter 4 p 141 16 Rylands v. Fletcher [1868] LR 3 HL 330 [1861 - 73] All ER Damages may be awarded upon proof that the harm caused was foreseeable by the defendant. Negligence would be placed upon Brockwell as the employees poured the chemical in to the sluice rather than disposing of the chemical correctly as per the company's operational guidelines.Rylands Rule
The rule in Rylands v. Fletcher is where the land owner is strictly liable for the consequences of escapes from his property and where the land owner is engaged in a 'non-natural' use of his land. Discussion of how the three points within Rylands apply in cases involving water pollution may be found in the land mark decision of the House of Lords in Cambridge Water Co Ltd v. Eastern Counties Leather Plc [1994]16a. This case is likely to have significant impacts in the future development of the law in this area for some considerable time and would be considered within the case of Brockwell.Acts of third parties including vicarious liability
There is a well established principle within the law of tort that an employer is vicariously liable for the omissions or acts of his / her employees which is committed during the course of their employment. 16aCambridge Water Co Ltd v. Eastern Counties Leather Plc [1994] 2AC 64 Within a criminal context vicarious liability may be found and where it does exist it will be identifiable through the words of an offence creating provision. As within s85 (1) of the Act vicarious criminal liability can be imposed, although the Act does not expressly impose vicarious liability, as in National River Authority v. Alfred McAlpine Homes East Ltd[1994]17. In the event of substances that escape and pollute controlled waters from a company's premises, the company cannot escape a conviction for causing a water pollution event by blaming one of its employees who was the cause of the pollution (on proviso that the employee was acting within the terms of their employment - something that will be raised within the BP oil spill within the Gulf of Mexico). Criminal offences may be divided in to those that require full mens rea and that of strict liability. The definition of strict liability offences is where mens rea is not required in relation to one or even more elements of actus reus. The defendant company will be held vicarious liable for the acts and omissions from its employees, as identified within NRA v. McAlpine Homes East Ltd [1994], where it was identified that it is not necessary for the prosecution to prove that the managers who control the company were directly involved in the incident. 17 National River Authority v. Alfred McAlpine Homes East Ltd[1994] 4 All ER 286 QBDKnowingly permitting
It is accepted that it is necessary to prove knowledge as to the circumstances of actus reus. S85(1) and s85(3) of the Act identify offences where actions of companies 'knowingly permitted' pollution to controlled waterways. Liability for a company's knowledge of 'knowingly permitting' is identified within the Act yet it still fails to prevent the action. As it is necessary to establish that the defendant knew about the water pollution, this offence is not an offence of strict liability as identified within Schulmans Inc v. NRA [1993]18. The case Price v. Cormack [1975]19 offers a useful insight into an offence of 'knowingly permitting'.Discharge
S 85 (3) of the Act identifies the term of 'discharge' the identification is more restricted than that of the identification of the 'entry20' term. The terminology 'discharge' is identifiable with the entry into controlled water by way of means of a pipe, channel or conduit, a substance that pollutes such a water course. It is not known as if Brockwell holds a discharge consent order, if they had then the subsequent pouring of the chemical in to the sluice would have constituted a breach of such an order which would constitute a breach of strict liability. 18 Schulmans Inc v. NRA [1993] Env LR Div 19 Price v. Cormack [1975] 1 WLR 988 20 Entry is identified within s85(1) and refers to a wide range of scenarios in which polling matter enters controlled waters. The term covers situations where polluting matter is deliberately introduced within controlled water. Each occasion a breach is identified a s85(6) offence is committed, although if the breach is minor then the Environment Agency is unlikely to prosecute as in Seven Trent Water Authority v. Express Foods Group Ltd [1988]21.Mitigating circumstances
Whilst it is evident that Brockwell did in fact cause a pollution event in to a controlled waterway, the fact remains that the employees who created the pollution act for the company have been identified and corrective actions have been initiated. These facts should be considered when sentencing is summed up. If this was the first pollution case for Brockwell, then sentencing should reflect this on off incident. Although if this a subsequent case, then sentencing should reflect a continual failing to control polluting substances therefore issuing a stiffer penalty not exceeding the sentencing guidelines as in s85(6 a,b)22 similar to Robertson v. Dean Foods Ltd Sheriff Court (Tayside, Central and Fife) (Kirkcaldy) [2010]23, a small price for polluting the environment. 21 Severn Trent Water Authority v. Express Foods Group Ltd [1988] 22 On a summary conviction, which is either imprisonment for a term not exceeding three months, or a fine not exceeding £20,000 or both, with the term of imprisonment not exceeding two years. 23 Robertson v. Dean Foods Ltd Sheriff Court (Tayside, Central and Fife) (Kirkcaldy) [2010] GWD 8-139. SEPA officers were alerted to a problem following a call on 19 July 2008 to SEPA's 24 hour pollution hotline, and on attending the officers saw dead fish, including trout, eels, minnows and sticklebacks. The source was narrowed down to a discharge point downstream of Redford Bridge. These deaths may have affected fish stocks for some time, as mature sea trout that would have spawned in the autumn were killed, having an impact far wider than the number of dead fish seen at the time. The exact charge D pled guilty to was on a controlled activity, namely an activity liable to cause pollution of the water environment in that he did discharge chicken slurry into the surface drain at Sheep Pens via the railway drain without the authority of an authorisation under the after-mentioned Regulations; contrary to the Water Environment (Controlled Activities) (Scotland) Regulations 2005 Regulation 5 and 40(1)(a) and the Water Environment and Water Services (Scotland) Act 2003 Section 20(3)(a)." D was fined £3,750Sentencing
The area of criminal litigation within the field of environmental litigation is ready for a review24 as the case of Environment Agency v UCE Ltd [2010] where 240 hours of community order were issued and a fine of £8,000. Even from this case there is evidence that we are still using an antiquated 19th century legal system rather than a 21st century one25. At present any fines which are raised against a defendant go directly in to the treasury and not back in to the benefit of the environment. As indicated by the UCE case fines are small and sentences even smaller. Similarly within R V. Milford Haven Port Authority [2000]26 where Lord Bingham LJ did not feel that he could do more than draw attention to the factors which were relevant to sentence. Within R. v. Anglian Water Services Ltd27 a case where pollutants killed fish where as a river was polluted over two kilometres and serious damage was done to the wildlife and fish that lived in it. The case had been committed to the Crown Court due to the magistrates declining jurisdiction. 24 Environmental Law, D, Hughes, T, Jewell, N, Parpworth, P, Prez, Butterworths, 4th Edition 2002 p 48 25 Environmental Law, D, Hughes, et al p 48 26 R v. Milford Haven Port Authority [2000] JPL 943 27 R. v Anglian Water Services Ltd Court of Appeal [2003] EWCA Crim 2243; [2004] 1 Cr. App. R. (S.) 62; [2004] Env. L.R. 10; [2004] J.P.L. 458; (2003) 147 S.J.L.B. 993; Times, August 18, 2003; The court had found that Anglian Water was grossly irresponsible in its failure to have a safety system in operation. Anglian water contested that the Act was not a criminal one since s85(3) did not require mens rea. Interestingly Anglian water submitted that there was no causative culpability and that a high fine would impact upon investment. It was held by the court allowing the appeal that the original fine was manifestly excessive for a single offence and was reduced to £60,000. The offence was a strict liability offence whereas cases had to be considered on their merits. Anglian water had acted promptly to limit the damage and made sure measures were taken to prevent a recurrence. Additionally Anglian Water had pleaded guilty and there was no question of Anglian Water having deliberately cut corners to save costs. However, the fine had to be at a level to make an impact on the company to overcome any suggestions that it was cheaper to pay fines than undertake any work that was necessary to prevent the offence in the first place. In this case the magistrates appeared to have been correct to refuse jurisdiction and they should always do so if they thought an offence under s 85 may warrant a fine in excess of £20,000.Conclusion
If the object of Criminal Law is to prevent the occurrence of damaging actions which affect society, then it would be non productive for the Courts to turn a blind eye to cases which are caused by accidents, carelessness or negligence. The question of motivation of Brockwells employees is in the first instance, irrelevant28. Brockwells management admitted liability for the acts of its employees and by using the Anglian Water case against the scenario of Brockwell there would appear to be a similarity. Brockwell indicated admittance to their act, the question would be as to what size is the polluting company and therefore how large would the fine be. Taking in to account the Anglia Water case it would appear that the amount could be not in excess of £20,000 and more within the region of around £3,000 to £5,000. Within the case of Fred Churchill (Construction) as previously mentioned there is a breach of Environmental Protection Act 1990 and not a breach of s85 of the Act. Within the information provided there is insufficient evidence that the illegal dumping of the removed substance leached or could have leached in to the River Trent. 28 B Wootton, Crime and Criminal Law 2nd Edition, London, Sweet and Maxwell 1981 at 47 Therefore with respect to the Act, there would be no case to bring against Churchill (Construction). Will it ever be satisfactory for environmental law to be dependable on guidelines developed for another area of law29? 29 Wasa International Insurance Co Ltd v. Lexington Insurance Co [2009] HL 40Cite this page
Crime Law Essay Online For Free. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
Prisoner’s Dilemma Essay Online for Free
Introduction
In this report is to introduce what is the Prisoner's Dilemma and the meaning about Cartel Union. First is to analyze the correlation of manufacturers and the prisoners' dilemma due to the correlation. The effectiveness of Cartel coalition is investigated and the principle of output dispense is given. Explain the factors affecting the stability of Cartel. From the game theory it is a rational behavior for interactive decision problems. In a game, several agents strive to maximize their (expected) utility index by choosing particular courses of action, and each agent's final utility payoffs depend on the profile of courses of action chosen by all agents. The interactive situation, specified by the set of participants, the possible courses of action of each agent, and the set of all possible utility payoffs, is called a game; the agents 'playing' a game are called the players. From this precondition to understand about the prisoner's dilemma from the Dominant Strategies, Extensions of the Prisoner's Dilemma and the Issues with Respect to the Prisoners' Dilemma these three parts to analysis the problem of Prisoner's Dilemma. And used the Oligopoly Problem to explain the reason why Prisoner's Dilemma can solutions the problem of oligopoly pricing and the situation in the market. Combine whit the Cartel and the Nash equilibriumThe Prisoner's Dilemma
The Prisoner's Dilemma is one of the best-known models in game theory. In the picture, figure 1, the natural world in a ridiculous role to prove that two suspicious people help each other, or opposing each other. In this assumptive situation, two confederates have been locked up in prison, and they tried to fake evidence of a crime and not sell out the other side do not recognize the crime. And the next step is give the serious of the punishment that each receives is determined not only by his behavior, but also by the behavior of his or her accomplice. The two prisoners are separated and cannot communicate with each other. And the result should be have four different possible.- If one confesses to the crime and turns in the accomplice his sentence will be reduced.
- If one confesses while the accomplice does not, the first can make a deal with the police, and will be set free. But the information he provides will be used to incriminate his accomplice, who will receive the maximum sentence.
- If both prisoners confess to the crime, then each receives a reduced sentence, but neither is set free.
- If neither confesses to the crime, then each receives the minimum sentence because of the lack of evidence. This option may not be as attractive to either individual as the option of striking a deal with the police and being set free at the expense of one's partner. Since the prisoners cannot communicate with each other, the question of whether to "trust" the other not to confess is the critical aspect of this game.
Dominant Strategies
What has happened here is that the two prisoners have fallen into something called” dominant strategy equilibrium." The first is Dominant Strategy: Let an individual player in a game evaluate separately each of the strategy combinations he may face, and, for each combination, choose from his own strategies the one that gives the best payoff. If the same strategy is chosen for each of the different combinations of strategies the player might face, that strategy is called a "dominant strategy" for that player in that game. The second is Dominant Strategy Equilibrium: If in a game, each player has a dominant strategy, and each player plays the dominant strategy, then that combination of strategies and the corresponding payoffs are said to constitute the dominant strategy equilibrium for that game. In the Prisoners' Dilemma game to confess is a dominant strategy, and when both prisoners confess, that is dominant strategy equilibrium. This remarkable result -- that individually rational action results in both persons being made worse off in terms of their own self-interested purposes -- is what has made the wide impact in modern social science. For there are many interactions in the modern world that seem very much like that, from arms races through road congestion and pollution to the depletion of fisheries and the overexploitation of some subsurface water resources. These are all quite different interactions in detail, but are interactions in which individually rational action leads to inferior results for each person, and the Prisoners' Dilemma suggests something of what is going on in each of them. That is the source of its power.Extensions of the Prisoner's Dilemma
Few social situations can be modeled accurately by a single interaction. Rather, most situations result from a series of interactions over a long period of time. An extended version of the Prisoner's Dilemma scenario includes repeated interaction, which increases the probability of cooperative behavior. The logic of this version of Prisoner's Dilemma suggests that a player's strategy depends on his or her experience in previous interactions, and that that strategy will also affect the future behavior of one's opponent. The result is a relationship of mutual reciprocity; a player is likely to cooperate if his or her opponent previously demonstrated willingness to cooperate, and is unlikely to cooperate if the opponent previously did not. The knowledge that the game will be played again leads players to consider the consequences of their actions; one's opponent may retaliate or be unwilling to cooperate in the future, if one's strategy always seeks maximum payoffs at the expense of the other player.Issues With Respect to the Prisoners' Dilemma
This remarkable result -- that individually rational action results in both persons being made worse off in terms of their own self-interested purposes -- is what has made the wide impact in modern social science. For there are many interactions in the modern world that seem very much like that, from arms races through road congestion and pollution to the depletion of fisheries and the overexploitation of some subsurface water resources. These are all quite different interactions in detail, but are interactions in which individually rational action leads to inferior results for each person, and the Prisoners' Dilemma suggests something of what is going on in each of them. That is the source of its power. A number of critical issues can be raised with the Prisoners' Dilemma. That is a two-person game, but many of the applications of the idea are really many-person interactions. We have assumed that there is no communication between the two prisoners. If they could communicate and commit themselves to coordinated strategies, we would expect a quite different outcome. In the Prisoners' Dilemma, the two prisoners interact only once. Repetition of the interactions might lead to quite different results. Compelling as the reasoning is that leads to the dominant strategy equilibrium may be, it is not the only way this problem might be reasoned out. Perhaps it is not really the most rational answer after all. We will consider some of these points in what follows. Oligopoly prices and "Solutions" to Pricing Games there is a example to Table 1| Perrier | |||
| price = $1 | price = $2 | ||
| Apollinaris | price = $1 | 0,0 | 5000,-5000 |
| price = $2 | -5000,5000 | 0,0 | |
The Oligopoly Problem
It seems that game theory doesn't solve the oligopoly problem after all. There are at least two kinds of solutions to the problem of oligopoly pricing -- cooperative and noncooperative. Actually, it's a bit worse than that. In each of the two categories, there is actually more than one sort of solution, depending on how we approach the problem! That had become pretty clear to economists by the 1960's, and many economists lost interest in game theory. But despite its failure on this specific point, game theory has proved to be a powerful tool of economic thinking, so that it has become more influential since the 1960's, culminating in the Nobel Prize for three game theorists (including John Nash, who invented the Nash-Equilibrium) in 1994. And it is not just simply a failure in the analysis of oligopoly prices. Sometimes it's important to be confused at a higher level. We know that oligopoly pricing is a hard problem, but the reason why it is a hard problem. The pricing examples we have seen here give some insight about the reason why price competition -- when it does occur -- is so powerful in bringing prices down to the lowest stable level. And we can apply the same methods to a range of other problems, both related to imperfect competition and in other fields of economics.Cartel
Cartel union is an important form of business cooperation. So as to used price fixing and set limit to pursue the trade profits, then used the basis of equitable distribution of the profit-sharing mechanism. on the basis of the Cartel expansion of the alliance model, and analysis the repeated game mechanism; the result is that the static game under the conditions of the enterprises do not have the stability of the Cartel Union, in repeated games under the conditions of enterprises to cooperate balance in the balance between competition and choice depends on the size of the discount factor. Forgiveness policy is an effective cartel enforcement policy, it will help undermine the stability of the cartel, and the cartel will help improve the efficiency of law enforcement. Design the reasonable rule and effective policy of forgiveness play a role in the foundation of concrete and determined that forgiveness is transparent the basic requirements of the policy. Forgiveness policy and the effect of the cartel legislation, law enforcement situation is closely related to severe legal sanctions, the firm's attitude toward law enforcement and strong enforcement measures to promote the effective implementation of the policy of forgiveness. Cartel is in order to strengthen the law enforcement.Nash equilibrium
Assume N that a player involved in the game, given other people the strategy under the condition of each player to choose their own optimal strategy (personal best strategy may or may not depend on others to rely on the strategy), so to maximize their effectiveness. All in games player will make a strategic combination?Strategy Profile?. Nash equilibrium refers to a combination of strategy, this combination of strategies by all participants the best strategy component. Even given the strategy of others, no one has sufficient reason to break this balance. It has the case with the Prisoner's Dilemma. Assuming there are two A and B of the Joint thief was convicted, into private homes seized by the police. Police were placed in two different rooms within the two to trial, each of the suspects, the police are given the policy is: If you suspect a crime has been, frankly, to hand over the stolen goods, the evidence, both were convicted. If the other suspects also made frank, the two men were each sentenced 8 years; if another crime suspects but frankly did not deny, however, prevent the crime of official duties (as a result of evidence of their guilt has been) plus 2 penalty , To be honest and active 8-year sentence was immediately released. If they both deny, for lack of evidence the police can not be sentenced two of theft, but the accusal they can into the private home of the charges would be liable to imprisonment for 1 year. —————————————————————————— ??B???B?? ————————?————————?————————? ??confess???disavow?? ————————?————————?————————? A? confess???-8, -8???0, -10?? ————————?————————?————————? A? disavow???-10, 0???-1, -1?? ————————?————————?————————? On the case, clearly the best strategy is to deny both of them; the result is only sentenced to 1 year. However, due to two in isolation, should be the first from a psychological point of view, the parties will suspect the other party will sell out in order to protect themselves, followed by Adam Smith's theory, hypothesis that everyone to be " Rational economic man " and they will proceed from the purpose of self-selection. The two men will have a calculation process: If one frankly, one deny, would take a 10-year prison, a maximum of only 8 years frank; one would deny, one person will be able to be released, and he would take 10 years in prison. Taking all these circumstances into account, whether or not someone is honest, for another one, is frankly a cost-effective. The two would move such a brain, in the end, both chose to be honest; the results were sentenced to 8 years imprisonment. Rational agent-based on economics premise the assumption that the two prisoners in line with the interests of their own choice is to confess frankly, was beneficial to both sides of the strategy is not to confess and thus would not have been released. Both of this option, frankly, as well as the strategy are therefore sentenced to 8 years of the end. So "Nash equilibrium" in the lead to the "invisible hand" of the principle of a paradox: from self-serving purpose, the results Dog in the manger, not altruism or self.The relationship between the ‘Prisoners Dilemma' and the theory of cartels
Monopolize market is the reality of the existence that there is an important market structure, which refers to products in the market. With a product that only a few companies to provide production and characterized by any decision-making will Manufacturers of other vendors have an impact on production. In the monopolistic cartel Union, Cartel's output is allocated to form a key cartel. Such as the OPEC. Since the international oil price in the 1970's sharp rise year, OPEC cartel does have some of the traditional organization of the basic features, but with other traditional organizations cartel, OPEC also has some obvious differences. most of the studies can not prove that OPEC is a cartel; OPEC can only prove that there is a similarity between the members. In addition, the OPEC cartel's interests have been significantly reduced. As a result, the conclusion can be drawn: For now, OPEC is not an effective operation of the cartel's organization; or it could be argued that the international oil market, OPEC's is not entirely influence the power of the cartel. Cartel's output has a bearing on the distribution of the vital interests of manufacturers, as the productivity of firms, manufacturers. After forming cartels the ideal of production allocation should be based on the manufacturers' effect to determine the productivity of production quotas and more efficient production, Inefficient and less productive. Currently, to make the cartel of several companies as a monopoly vendor various Production plant. So the formula is: Ci = C = R (I = 1, 2... n,) “Ci” for the first “i” makers of the marginal cost “C” for the industry as a whole marginal cost “R” for the industry as whole marginal gains Actually, cartel will follow the general principles to distribute the sales quota. According to the manufacturer's production capacity to the level of sales quota allocation, the greater the scale of production, the higher ability of manufacturers will get the greater quota. According to the manufacturer's sales in the past to the level of sales quota allocation, sales in the past, the higher the level of the companies get bigger quotas. Base on location to distribute quotas, if the companies get a certain region or country market, while other manufacturers have been other regional or national markets. Through the Manufacturers together to formation of a cartel agreement and is often unstable, this instability in the cartel but also as the increased manufacturers, from the chart of analysis can identify the manufactory will leave the cartel in order to Lead to the dissolution of the cartel. From this chart, when the Manufacturers of production is mi, Ci=/=Ri, the mean is mi is not the manufacture's good output, in fact, if the manufactures reduce the price to P1, the Manufacturers amount of the request will become mtto mt', and in mt', Ci=Ri, the mean is the Manufacturers optimal output. That is to explain the manufactures Deviated from the limitative price Po, it will be increase the profit. At the same time, if there is another reality deviated from the makers of possible price-fixing. Such as the price or prices in one way to cut the price with impunity, the result is bound to deviate from the manufacturers limit price, which eventually led to the disintegration of the cartel.Conclusion
From this report we know about the Prisoner's Dilemma in game theory, what is the meaning of the Prisoner's Dilemma and the impact of economics. Different possibilities will bring different results. According to the first part of the chart there have four different the result of crime. But the both choices of strategy and frankly was sentenced to 5 years, therefore the result is called "Nash equilibrium", also called non-cooperative equilibrium. Each party in the choice of strategy when there is no "conspiracy", they just choose the most favorable to their strategy, without thinking about the benefit between each other. On other point of view through the prisoner's dilemma develop the resulting is the formation of monopolistic market and the price war. Lead the different companies have different price competition, under the Nash equilibrium and the influence of game theory will consider adopting a normal pricing strategy or the formation of high-price strategy of monopoly prices and make every effort to obtain the monopoly profits. If the monopoly can be formed, then will getting the largest mutual profit. In fact, perfectly competitive equilibrium is the "Nash equilibrium" or "non-cooperative game balanced." In this state, each manufacturers or consumers are all the others the price has been set for the decision-making.Cite this page
Prisoner's Dilemma Essay Online For Free. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
The Legal Systems of the World Law Example for Free
Common Law Legal System
History, sources and structure The common law system prevails in Britain and its former colonies, including Australia, Canada, and the United States. Traditionally, the common law system, as the name implies, was governed not by a code, but by court-made law that developed incrementally over time. It is different from the civil-law system, which is introduced mostly in Europe and in areas colonized by France and Spain. The body of decisional law based largely on custom as declared by English judges after the Norman Conquest of 1066. The common law doctrine of following precedent, known as stare decisis remains an important component of both the English and American legal systems today. English common law was based primarily on custom, tradition, and precedent rather than a formal written legal code. Over centuries of experience, the common law became the major influence on the development of American criminal law both before and after the American Revolution. After the Revolution, the common law continued to be the basic law of most states. However, today almost all common law principles and rules have been enacted by legislative bodies into statutes with modern variations. ). One of the interesting characteristics of the system is that the common-law system allows judges to look to other jurisdictions or to draw upon past or present judicial experience for analogies to help in making a decision. This flexibility allows common law to deal with changes that lead to unanticipated controversies.Civil Law Legal System
History, sources and structure and developed in Continental Europe and around the world. It is divided into two branches: the codified Roman law and uncodified Roman law.The Differences and Similarities between the Legal Systems
Common law and civil law legal systems share similar social objectives: individualism, liberalism and personal rights. A major difference between the civil law and common law is that priority in civil law is given to doctrine over jurisprudence, while the opposite is true in the common law: it finds in judge-made precedent the base of its law. The civil law doctrine's function is to draw from cases the rules and the principles which will clarify and purge the subject of impure elements, and thus provide both the practice and the courts with a guide for the solution of particular cases in the future. The common law author focuses on fact patterns. He or she analyzes cases presenting similar but not identical facts, extracting from the specific rules, and then, through deduction, determines the often very narrow scope of each rule, and sometimes proposes new rules to cover facts that have not yet presented themselves. Common law jurisprudence sets out a new specific rule to a new specific set of facts and provides the principal source of law, while civil law jurisprudence applies general principles, and that jurisprudence is only a secondary source of law of explanation. Civil law judgments are written in a more formalistic style than common law judgments. Civil law decisions are indeed shorter than common law decisions, and are separated into two parts - the reasons and the order. This is because civil law judges are especially trained in special schools created for the purpose, while common law judges are appointed from amongst practicing lawyers, without special training. The method of writing judgments is also different. Common law judgments extensively expose the facts, compare or distinguish them from the facts of previous cases, and decide the specific legal rule relevant to the present facts.Criminal Law and Civil Law
Basic Information There are two branches of law: Criminal Law and Civil Law. That means that when a person breaks any law, he or she may be judged according to what branch of law it is. Criminal Law those laws for redressing public wrongs that injure society in general and Civil Law those laws for redressing private wrongs to individuals.A Civil law attempts to right a wrong, settle a dispute, or honor an agreement. The victim is being compensated by the person who is at fault, this becomes a legal alternative to, or civilized form of, revenge. Criminal law consists of two main branches -- substantive criminal law and procedural criminal law. Substantive criminal law prohibits certain forms of conduct by defining what acts constitute crimes and establishing the parameters of penalties. Procedural criminal law regulates the enforcement of the substantive criminal law, the determination of guilt, and the punishment of those found guilty of crimes. Criminal Procedure and Civil Procedure Criminal Procedure. The branch of the criminal law that deals with the processes by which crimes are investigated, prosecuted, and punished. Thus, procedural criminal law is the process followed by police and the courts in the apprehension and punishment of criminals from the filing of a complaint by a member of the public or the arrest of a suspect by the police, up to the time the defendant is sent to jail, or, if convicted, to prison. Civil litigation that deals with private disputes between parties is subject to the rules of civil litigation, sometimes referred to as civil procedure. Criminal cases, deals with acts that are offenses against society as a whole, such as murder and robbery, as subject to the rules for criminal law, and is also known as the rules of criminal procedure.Cite this page
The Legal Systems Of The World Law Example For Free. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
Criminal Law Courts in the UK
Criminal offences are categorised into three classes in accordance with their gravity: summary offences (common assault, soliciting and failure to pay a TV license), offences triable only on indictment (murder, manslaughter and causing death by dangerous driving) and offences which are triable either way (inflicting grievous bodily harm, unlawful wounding and indecent assault). This procedure is governed by the Magistrates’ Courts Act, 1980 as amended by the Criminal Procedures and Investigations Act, 1996 and further amended by the Criminal Justice Act, 2003. The amendments to the original statute were intended to reduce the workload of the Crown Court, so the defendant is asked prior to the mode of trial decision being made, to indicate his or her plea. Mode of trial will be heard once bail has either been allowed or denied. The criminal courts in England and Wales are the Magistrates’ court and the Crown Court. Those offences considered least serious are those classified as summary offences and these are triable solely in the Magistrates’ courts. But those offences considered to be the most serious can only be tried in the Crown Court. A large number of offences such as theft are triable either way and so can be heard in either the Magistrates’ court r the Crown Court. This depends on the defendant’s plea and whether or not the magistrates’ believe that it is within their jurisdiction to pass sentence on such an offence. If the defendant pleads guilty to an offence which is traible either way then the magistrates’ can proceed to sentence (or commit to the Crown Court for sentencing). If the defendant enters a not guilty plea to a triable either way offence then the mode of trial will be held before the magistrates’. At this point the magistrates’ may decide after having heard representations by the prosecution that the matter is too serous to be heard at the Magistrates court and that the matter will be committed to the Crown court for trial. If the magistrates’ do not deicide to commit the matter to the Crown Court, the defendant still has the right to opt that the matter be heard in the Crown Court by way of trial by jury. In practice the majority of triable either way offences are heard in the Magistrates’ court as neither the magistrates nor the defendant will decide that the matter ought to be heard in the Crown Court. Failure to comply with this procedure may render the whole proceedings null and void and this may mean that defendant will able to apply for judicial review to quash any consequential conviction. A change to the mode of trial whether from being heard summarily to being heard on indictment or vice versa will only be allowed with the magistrates’ consent under s. 25 MCA, 1980 and subject to amendments by CJA, 2003.
Cite this page
Criminal law courts in the UK. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
Trade Law Problem Question Answer
Section - 9 (Fair Trading Act of 1986) applies to a given truth circumstance. Act to preclude certain behavior and practices in exchange, to accommodate the revelation of customer data identifying with the supply of products and administrations and to push item wellbeing. Segment 13 - make a false or deceiving representation that merchandise are of a specific kind, standard, quality, grade, amount, creation, style, or show, or have had a specific history or specific past utilization; or Segment 27 False Consumer data the revelation of data identifying with the kind, grade, amount, source, execution, mind, structure, substance, outline, development, utilization, value, complete the process of, bundling, advancement, or supply of the products or administrations. According to the detailed analysis commercial utilized false representation to advertise their item by saying that guaranteeing that Hi-C held 4 times the vitamin C of oranges. The Commission figured out that this case is not genuine. In my perspective common cure in this situation could be that the deceiving organization ought to be fined of Nz$200,000 and asked to expel all their items from the business sector as they don't meet the standard and clients were not getting the thing for which they were paying for.
Criminal obligation for this situation could be alluded to as the deluding direct in connection to products as the organization had misleaded individuals in setting of their item, quality and aspects. Section 13 will be appropriate here as it is an instance of a false or misdirecting representation concerning the spot of wellspring of products or administrations. As keepsake supplier made a false or deluding representation that bundling of the items says it is made in New Zealand. However the assembling of the items was in China. Criminal obligation is the keepsake supplier organization and they need to repay $ 200,000. Section 19 will be applied in this case study as (Bait advertisement: unfair to the clients). Section 19 is applied here because hotel advertisement referred $79 for one night but it is not in reality and Fair Trade Act prohibits false and misleading representation. The advertisement claimed by them was also not true. In the given situation segment 13 ought to be relevant which says that false or deluding representation that merchandise are new or they are reconditioned, fabricated or reconditioned ought not be carried out if an individual or organization does that he/she needed to face results.
I pick this procurement for this situation as Brown the merchant had duped Alice by supplying him the fake of Genuine Chippendale suite, essentially tan had tricked Alice in light of the fact that tan guaranteed Alice that the suite he is giving is Genuine Chippendale suite yet that was an imitated one. In this Scenario as the individual is included in the case so the individual who had duped will need to pay the fine of Nz$60,000 as the Brown had sold the Reproduced Suite to Alice not the Original one or/and Brown may needed to give the cash for the suite over also. Criminal obligation could be that Brown might be asked to quit doing the business. Element 2 I think in the given situation three Provision might be connected that are Section 6 Guarantee as to worthy quality which implies products supplied to the purchaser ought to be of great quality and if there is any flaw they ought to be supplanted or cash ought to be discounted, Section 7 Meaning of satisfactory quality implies that the great supplied to the customer ought to be of adequate quality and it ought to free from minor absconds and Section 8 Guarantees as to wellness for specific reason which implies that supplier ought to take the assurance so that the merchandise he is supplying will be for the same reason what he told for or what the buyer requested.
Procurement picked by me apply in this situation as the new pool purchased by Jeff from Leisure endeavors was having numerous deserts as its channel gear was reconditioned and the water was gradually spilling out from the pool which accordingly had harmed Jeff's trampoline, besides in the commercial it was guaranteed by supplier Leisure undertakings that they will dole out free enclosure furniture with each pool bought. All the things guaranteed by the supplier was not supplied to the fulfillment level of the buyer as he requested the new pool yet was given a reconditioned one, which was spilling too. As per segment 18 customers have the Options against suppliers where products don't follow ensures which imply that customer can take activities if the merchandise supplied to him by the supplier are not up to the fulfillment level of the purchaser. Common solution for the situation might be that customer Jeff can ask the supplier to change the pool as he was being given the old one whose channel was reconditioned and which was spilling as well, Jeff can additionally approach supplier to pay for the harm which the spilling pool had caused to the trampoline.
Section 27 of the Commerce Act 1986 which applies to a given reality circumstance for the Contracts, plans, or seeing considerably decrease rivalry precluded.In this case the meat organizations made an assention not to contend with one another by method for uniform costs. As a result, they diminished the opposition. The organization need to pay the fine and must be shut as per the choice of the court & law. a) Section 29 will apply to the given reality circumstance for the barring contenders b) They cooperated and debilitated to blacklist the property guide. They have restricted contenders from entering into understandings that holds exclusionary procurements which limits rivals from obtaining or supplying merchandise or administrations. C) Yes I concur it right on the grounds that the case is clear and i have effectively examined all the procurement. D a) Section 27 and Section 30 will apply to the given fact situation. b) The bus company disclosed with another company as to the amount of their bid and agreed who should win in the bidding. This is a violation of the Commerce Act. Nobody can disclose the information act because it is unfair.
The High Court imposed penalties of $380,000 on the offending bus company and $10,000 on its Chief Executive. Yes i agree with the decision as they have breached the law. Section 36 will apply to the given fact situation. Section 36 prohibits a person or business with a substantial degree of market power in a market from taking advantage of their market power to prevent competition either in that market or in any other market. Section 27 this section provides a broad rule that states that no person shall enter into an agreement that contains a provision that substantially lessens competition in a market. The above provision will apply to the given fact situation because they are taking the advantage of the market power. The port company had used its dominant position to prevent a rival competing with its own pilot age service. A port company was ordered to pay penalties totaling $500,000 after the Court found that the company had breached both section 27 (substantially lessening competition) and section 36. It is fair because the position is very obvious. In my perspective Section 36 is pertinent for the given situation it states that Taking point of interest of business sector power which implies that if an individual or organization had the extensive measure of force in a business sector ought not attempt to exploit that power and attempt to stop or confine an individual or organization to enter in the business sector or taking out an individual from that or whatever available business sector.
I accept that procurements picked by me apply to the given certainty circumstance as the Building protection material organization ruled its position so that no one else can enter in the business as they embraced the '2-for-1' evaluating system for its products they were giving two parcels of protection to the cost of one. They received this method with the goal that no one can enter in the business sector as the majority of the customers will be approaching them as they were giving the protection to an extremely shoddy cost. In the event that I will be the judge of this case I may have done something exceptionally same as the commission knows the punishments and directive to be assumed the gravity or ground or base of the infringement of the law. As the choice of the judge is constantly made by taking a gander at both the finishes and after that characterizing who is at flaw and who is honest. Besides it is against law to receive such sort of approach which drives different contenders to leave the business or not to enter the business sector.
The above procurement will apply on the grounds that resale value support is restricted under Section 37 and 38 on the grounds that it limits or wipes out rivalry on cost. In the circumstances, deals agent had reveled or endeavored to actuate the bar not to offer packs for$ 15. The High Court constrained a punishment of $110,000 in addition to $5,000 costs on the distillery I think its correct and I backing the high court choice. Section 36 restricts an individual or business with a generous level of business sector control in a business sector from taking playing point of their business sector force to avoid rivalry either in that market or in any possible business. Furthermore area 37 is connected for this situation Resale Price Maintenance: Resale value support is precluded under Section 37 and 38 in light of the fact that it confines or wipes out rivalry on cost. b) Because he undermined to bar a retailer from free cloth advancement if marking down proceeded. c) Yes I concur with the choice .Because he can't put weight on anyone.
Cite this page
Trade Law Problem Question Answer. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
The Water Sustainability Act
The Future of Sustainable Protection of Surface and Groundwater;
The Water Sustainability Act.
Introduction:
The Water Sustainability Act is a new law that will be replacing the current Water Act that was made in 1909. The water act has now been outdated pertaining to our water needs, and our growing populations. The Water Sustainability Act will bring B.C. water laws into the 21st century. The water Sustainability Act will update the current laws from the Water Act, and also bring new policies into consideration, an example of this would be treating groundwater and surface water as one resource and protecting them both. The seven key areas that will be included in the Water Sustainability Act include: (A Water Sustainability Act For B.C., 2014, October)
- Protect stream health and aquatic environments
- Consider water in land use decisions
- Regulate and protect groundwater
- Regulate water use during times of scarcity
- Improve security, water use, efficiency and conservation
- Measure and report large scale water use
- Provide for a range of governance approaches
These improvements to the Water Act will insure that we are protecting are water so that we can be sustainable in the future. By protection the stream health and aquatic environments it prevents the dumping of wastes and pollutants. It also will protect streams from droughts. If the amount of water in a stream or river is effecting the aquatic life, there will be protection orders put out to stop any water being taken out of the stream or river, and anything that is under the influence of it. Another part of the act will be considering water in land use decisions. This is mainly focusing on sustainable development. The water on this planet will be protected and thought of before any development pertains near a water source. This will happen because new water objectives will be defined, and there will be more decision making towards a long-term health of aquatic environments, streams, rivers and any body of water. In this act the groundwater will also be protected, which is the first time in history that groundwater has been treated as a source water in British Columbia. Protection of groundwater will include; licencing of groundwater with an exception to domestic use, improvement of knowledge on the aquifers and wells, and updating all drilling requirements. These rules will improve our groundwater in quality and quantity because it will show how much groundwater is being used, how much groundwater every aquifer and well can give while still being sustainable, and by updating the drill requirements it protects from contamination of groundwater while improving the treatment process following source groundwater. The next point of the Water Sustainability Act is protecting water sources during scarcity. This will allow for adequate water needs for humans, but will also allow temporary restrictions to protect the quantity of water and the aquatic life that lives in it. By doing this every water source will always have adequate amounts for aquatic life as well as humans. The Water Sustainability Act will also improve security, water use, efficiency and conservation. Which allows for all water licences to be reviewed every 30 years, makes sure that all water users are using the water beneficially and in a conserving way. By measuring water uses, all big water users must report how much they use, this allows for people to have a set amount they are allowed to use, and they can pay a set amount for the water. This stops companies coming to British Columbia, taking our water in large amounts for free, and then selling it back to us. The last point of the Water Sustainability Act is enabling government approaches. This will allow for other agencies other the government to partake in water sustainability. Which will allow the public to have more say what they think is sustainable for our water. (A Water Sustainability Act For B.C., 2014, October)
Even though every part of the Water Sustainability Act is important to the conservation, protection and sustainability of our water; the focus of this paper will be on the protection of streams and aquatic ecosystems, regulating water during scarcity and groundwater protection.
Regulations:
In the Water Sustainability Act, the protection of our streams and aquatic ecosystems is provided. British Columbians had shown extreme support measures to protect stream health. This includes lakes, rivers, creeks and all bodies of water. (A Water Sustainability Act For B.C., 2014, October)
The Water Sustainability Act protects stream and aquatic health by: (A Water Sustainability Act For B.C., 2014, October)
- Environmental thresholds are considered when new allocations to water are made. This applies to surface water and ground water except in low-risk situations.
- Expanding on roles when dumping debris that currently exists in the Fish Protection Act. This includes debris like human and animal wastes, pesticides and fertilizers
Section 15 of the Water Sustainability Act is focused on environmental flow needs. In this section it is mentioned that the decision maker must consider flow needs of a stream in new constructions or projects. In these projects, assessments must be done, and the decision maker will then determine if this project will continue based on the effects on the stream or body of water. (Bill 18 — 2014: Water Sustainability Act, 2014, April 29)
In section 86 of the Water Sustainability Act, Declarations of significant water shortages are protected. It stated that if there are one or more streams that are at high-risk of critical environmental flow thresholds, the minister will make an order protecting the current flows of the stream, and any bodies of water that come in contact with the high-risk stream. These orders that are made cannot be longer than 90 days. Once this order has expired, the minister may make another order and asses if the stream or body of water is still high-risk or not. (Bill 18 — 2014: Water Sustainability Act, 2014, April 29)
Section 46 prohibits the introduction of foreign matter into a stream. It includes anyone introducing, or someone allowing anyone else to introduce foreign matter such as “debris, refuse, human and animal waste, pesticides, fertilizers, contaminants or any other matter or substance into or adjacent to a stream. These foreign substances must not be added where it will cause significant adverse impact to any of the following: (Bill 18 — 2014: Water Sustainability Act, 2014, April 29)
- Stream or stream channel
- Existing uses of water from a stream
- Property or riparian owners of the stream
- An aquifer that is hydraulically connected to the stream or the existing uses of the water from an aquifer
- Aquatic ecosystem of a stream
These practices do not apply to a forest practice or prescribed activity, practice or substance.
Section 56 provides rules on decommissioning or deactivating wells. Wells are considered to be in service when they are used on a regular basis, or when it is considered a backup supply. A well is considered out of service when it hasn’t been used for a period of time or has prescribed circumstances. When a well isn’t in service it must be deactivated or decommissioned under section 46 of the Water Sustainability Act. (Bill 18 — 2014: Water Sustainability Act, 2014, April 29)
Some definitions to understand that are stated in the Water Sustainability Act, Stream Health protection section retrieved from Bill 18 — 2014: Water Sustainability Act, 2014, April 29; include:
Aquatic ecosystem- means living organisms and their life processes dependent on the natural environment of a stream.
Critical environment flow threshold- meaning the volume of water flow below significant or irreversible harm to aquatic ecosystem of a stream is likely to occur.
Environmental flow needs- means the volume and timing of water flow required for proper functioning of the aquatic ecosystem.
In the Water Sustainability Act, groundwater will be regulated and protected. This is important because one fourth of people rely on groundwater for drinking supply, and or industrial uses. The current Water Act does not regulate groundwater. This means that anyone can accesses our groundwater without permission from the government, and free of charge. The Water Sustainability Act will address this issue by regulating our groundwater as we regulate our surface water. Groundwater users will have to hold a licence and be charged an annual fee for the use of the groundwater. The only exception of this rule is for domestic uses, as long as the aquifer is not in high demand. This act will also collect data on usages and information from owners and well users to improve the knowledge of the aquifer, and its water availability. This rule will help us with future water allocations. (A Water Sustainability Act For B.C., 2014, October)
Section 83 of the Water Sustainability Act will put laws and restrictions on groundwater activity by prohibiting: (Bill 18 — 2014: Water Sustainability Act, 2014, April 29)
- Construction of Wells
- Installing well pumps
- Conducting flow tests
- Performing another activity in relation to a well or groundwater
This section only applies if it poses a threat under the Water Sustainability Act or if the person doesn’t hold a drilling authorization. A comptroller or water manager mat amend or cancel well drilling if there is high risk situations. (Bill 18 — 2014: Water Sustainability Act, 2014, April 29)
Section 130 has regulations respecting groundwater and groundwater works. This regulates artificial openings in the ground that may not be classified as a well, but are still under the direct influence of groundwater or an aquifer. Well drillers and pump installers are protected and regulated by this section under the Water Sustainability Act with respect to section 83. Some other requirements, procedures, standards and codes with respect to groundwater include: (Bill 18 — 2014: Water Sustainability Act, 2014, April 29)
- Siting wells
- Construction of wells
- Installation of well pumps
- Designing, testing, operating, disinfecting, flood proofing, capping or covering of wells
- Or any other activities that pertain to groundwater
Conclusion:
The Water Sustainability Act has many advantages, and few disadvantages. The improvements that have been made under this act can be summed up by; protecting our aquatic environment will be protects by regulating debris dumped in, or around a stream river, or where aquatic life can be effected by the dumping. These debris include human waste, animal waste, pesticides and fertilizers. The environmental flow will also be protected by preventing “significant or irreversible harm to the aquatic systems”. Another advantage that the Water Sustainability Act has brought in would be water is now regulated during scarcity. This will protect water quantity with respect to human needs and aquatic life’s health. The final version of the Water Sustainability Act will obligate the decision maker to determine what flows should be in a certain river or stream, and then try to reach that goal. This is a change in the perspective of our water uses because before the government thought that being right on the limit was healthy, this act now shows that instead of pushing our water uses to the limit, we should be trying to regain what we had before. The water flows will also be restricted if the stream is labeled as “sensitive”. This is because the stream is not as protected as it should be, so to get the stream back to the health it was there will be more ruled forming around these streams, rivers and bodies of water. Last but not least the regulation of groundwater, precise mechanisms for giving licences to ground water, which will in time allow development under these licences and allow the governments to have more time to discuss water development with water users, communities, and First Nations people. This will insure that no unsustainable water decisions will be made. (Gage, A, n.d.)
The Water Sustainability Act is the future of our water protection ways, as said by the West Coast Environmental Law group; (Gage, A, n.d.)
“Water, and how we treat our water, is one of those fundamental issues that touches on so much of who we are, what we do, and how we build our economy. A weak Water Sustainability Act could fail to deal with current unsustainable and inefficient water use, and could lock in these problems for years to come. A strong Act could address past over-use, and wasteful use, of water and protect drinking water and fish from over-use, poor oil and gas, logging or mining practices, and other threats.” (Gage, A, n.d.)
Water is incapable of protecting its health, as humans, water is our future. The Water Sustainability Act will protect any aspect of our water that hasn’t been protected already, and is allowing us as a world to move forward in protection our future, with respect to sustainable development. (Gage, A, n.d.)
References:
A Water Sustainability Act For B.C. (2014, October 1). Retrieved April 6, 2015, from https://engage.gov.bc.ca/watersustainabilityact/files/2013/10/WSA_overview_web.pdf
Bill 18 — 2014: Water Sustainability Act. (2014, April 29). Retrieved April 6, 2015, from https://leg.bc.ca/40th2nd/3rd_read/gov18-3.htm#section86
Gage, A. (n.d.). West Coast Environmental Law. Retrieved April 6, 2015, from https://wcel.org/resources/environmental-law-alert/strengths-and-weaknesses-new-water-sustainability-act
1
Cite this page
The Water Sustainability Act. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
College Essay Topics to Write about European Union
SUPREMACY OF THE EUROPEAN UNION 1
This paper provides an analysis on the importance of the Supremacy of the European Union Laws, in helping the EU community to achieve its objectives. The European Union is a political institution, with its own legislative and administrative body. The intention of this Union is to promote the economic development of its member states, and create a single constitution that will guide the affairs of the Union. Despite the existence of the constitution, it has not been ratified by member states; hence it is the EU treaty, and directives established by it, that govern the relationships amongst member states[1]. This paper takes a stand that for the EU to achieve success in meeting its objectives, its laws and directives have to be supreme over the laws and directives of member states.
The principles of the supremacy of the EU denote that, the laws of the European Union are supreme when compared to the laws of the member states. The European Court of Justice introduced this doctrine in 1964, however, to date; it is still controversial with some states arguing against its adoption. This is because of the concept of sovereignty, which allows member states to have a right of determining their laws, without influence from foreign powers. However, there are a number of reasons given, in support of the principles of the EU law[2]. One of these principles is that, there would be uneven application of laws, if this principle does not exist. This is unacceptable within the European Union, mainly because it has the capability of threatening and compromising the legal system of the European Union. Another reason is based on the doctrines of the direct effect which was created by the European Union Court of Justice. This doctrine denotes that certain provisions of the European Laws are directly applicable to the national laws of member states, without any other enactments[3]. This is beneficial to the member states, mainly because it creates uniformity in the application of laws, hence promoting the objectives and mission of the European Union.
The concept or principle of the EU supremacy has never been expressly identified in any of the treaties that form the European Union. This concept was developed by the European Court of Justice through a series of very important rulings and judgments. However, the most important case responsible for introducing this concept of supremacy of EU laws is the case of Costa vs. ENEL[4]. According to this case, the judges denoted that a directly applicable, secondary or primary European law will prevail over the national law, even if, the law under consideration is a breach of the constitution of the country under consideration. Furthermore, in instances where a conflict arises, the national judge has to ignore the national laws, and apply the laws of the European Union aimed at solving the problem under consideration[5]. Furthermore, it is only the European Court of Justice that has the power and ability of annulling the European Laws, by using the European Treaties as a point of reference.
Through this judgment, the European Court of Justice was able to create the doctrine of Supremacy of European Laws. One of the major reasons given for the adoption of this principle is the special nature of the European Union treaty. This treaty was able to create a new legal system, whereby the provisions of the treaty, were part and parcel of the national laws of the member states. This is an indication that the laws of the EU determines the manner which states relate which each other, and their internal governance system. This is a breach of the sovereignty of a member state, and sovereignty is a concept that defines a state. Despite the existence of this argument, a number of scholars supports this doctrine of the Supremacy of the European Union Laws[6]. This is because the executive force of the laws of the European community cannot be different. This is because different laws would jeopardize the attainment of the mission and objectives of the treaty under consideration.
The founders of this treaty realized the dangers of inconsistent and different laws in the member states forming the European Union, hence the development of the concept of the direct effect. This is one of the major values and principles of the European Union, without which, the Union would be unable to meet its objectives[7]. The 2004 case of Mangold better explains how this concept of direct effect is applicable in all the domestic laws of member states. Under this case, the ECJ denoted that directive 2000/78/EC was able to preclude Germany from increasing the statutory age discrimination, through a reduction of a relevant threshold for fixed term contracts, without an objective reason. Furthermore, the ECJ referred to article number 18 (2) of the 2000/78/EC directive which denotes that member states are obligated to realize an equal treatment of people in employment, regardless of their age.
The ability of the court to review and make a ruling in this case, is an indication that the doctrine of Supremacy is applicable in the European Union. Furthermore, the decision by the courts to support the position of the ECJ, by denoting that the laws were contradicting directive 2000/78/EC, is an indication that there is a need of uniform laws aimed at protecting the rights of people within the European Union[8]. Different laws in this regard would frustrate the efforts of the European Union in ensuring that there is equality in the treatment of individuals, within the European Union. In the 1978, case of Simmenthal, the judges were able to denote that any national legal, administrative, judicial and legislative practice that might impair the effectiveness of the European Community Law are null and void[9]. In McCarthy vs. Smith, the court identifies the European Union treaty as an aid, as well as an overriding force. Based on these principles and laws, we are able to denote that the laws of the European Union Community are supreme to the domestic laws. In defending the supremacy of the European Union treaty, Federico explains that it is justifiable because the provisions of the treaty are signed after a series of negotiations, offers, and counter offers[10].
Based on this fact, the application of laws that are not uniform will frustrate the application and implementation of agreements contained in the European Union treaty. This was the major argument in the Mangold case, where the courts sought to create a uniform law that will protect the rights of people across the member states of the European Union. Furthermore, the issue of supremacy is touched in the case of Van Gend vs. Netherlands. Under this case, the European Court of Justice denoted that the European Union Treaty was able to create a new legal system in the international law, which would benefit the state, but they have to limit their sovereign rights. The court further denoted that the states have voluntarily transferred their sovereignty to the institutions of the European Community. This case further denoted that the articles of the European Union treaty are applicable to the national courts, and they are supreme to the laws of the land.
There are five major reasons why the European Court of Justice was able to insist of this doctrine of Supremacy. One important reason advanced for this case is that it creates a sovereign European Union community[11]. The European Union is a political community, and it has an intention of creating a constitution that is applicable to the entire community. It is important to explain that the constitution exists, but it has not been ratified by the member states. In-fact, article I/6 of the European Union treaty explains that the laws adopted and created by the European Union shall have primacy, over all the national laws of the member states. Nlau explains that the intention of this provision is to create a supreme and sovereign European Union community[12]. It is difficult to achieve this objective if separate laws that contradict the treaties of the Union are created and applied by the member states.
By being a member of the European Union, the state under consideration had transferred some of their sovereign rights to the community. This is a concept or belief that is held by Lord Bridge in the case of R vs. Secretary of State for transportation. Lord Bridge argues that by the ratification of the treaty of European Union, parliament passed some of the sovereign rights of United Kingdom, to the European Union[13]. Based on this fact, the national courts had a right to remove acts of parliament that were contradicting the laws of the European Union. Woods and Watson explain that in a bid to create a common market, there was a need of applying a uniform European Union law within the community[14]. One of the major objectives of the European Union is to establish a common market. It is virtually impossible for this to be achieved if; there are different rules that guide commerce in the member states.
Based on this fact therefore, there is a need of harmonizing the different commerce and business laws in member states, so that they may not contradict the established laws by the European Union. Craig and De Burca further asserts that a supreme European Union law would ensure that member states are not able to create laws aimed at pursuing their own self interest[15]. In the view of Schoitheete , the European Union treaty is formed after a series of negotiations, which involves offers and counter offers, with the intention of finding a compromise that would benefit the entire community[16]. A member state that enacts laws, which contradict the provisions of the EU treaty, goes against this compromise, and it aims at pursuing its own self-interest. This is unacceptable, and unwarranted, mainly because it would compromise the legitimacy of the European Union, and the laws enacted by it. It is therefore an acceptable practice for the laws of the EU to be supreme over the laws of the member states.
Despite the importance of the Supremacy of the EU laws, over that of member states, this concept has gained resistance from these states. It has been difficult to ratify the provisions of this treaty to the constitution of the national state, and their courts have found it difficult to respect these provisions. However, the major point of contention is whether their exist areas in which the member states of the European Union cannot legislate their own laws, and they must defer it, to the European Union. On most occasions, the national courts of member states normally apply the supremacy of the EU laws, based on the provisions of the national laws, as opposed to the rulings of the European Court of Justice[17]. This is because majority of the courts belonging to member states regard themselves as having jurisdiction on issues that affect their national and domestic interests. This is a concept referred to as Kompetenz-Kompetenz. A good example of a country that finds it hard to implement the supremacy of EU laws over its domestic laws is the United Kingdom. This is despite the ruling by the House of Lords, on R vs. Secretary of State for transportation, supporting the Supremacy of the EU law, over its domestic laws[18].
The reason why the United Kingdom fails to accept the Supremacy of parliament is based on the concept of parliamentary sovereignty. This principle denotes that parliament has the capability of doing anything, other than binding itself to future uncertainties. The UK membership to the European Union has not affected the sovereignty of the British parliament. This is despite the existence of the 1972 European Communities Act, which allowed for the incorporation of EU laws into the British legal system. However, it is important to explain that the ECA 19722 is an important legislation that tried to regulate the kind of laws passed by the British parliament[19]. This law denotes that any law passed by parliament, should not contradict the provisions of the EU treaty. This was a movement towards the recognition of the supremacy of the EU laws and policies. In Macarthy vs. Smith, Lord Denning explains that the treaty should be regarded as supreme, and an aid to the British laws.
However, Duke vs. GEC Reliance Systems explains that the principles of Macarthy are not applicable to domestic laws that are not compatible with the provisions of the laws of the EU. In the case of Duke vs. GEC reliance, the Von Colson principle was adopted, which required that all domestic laws should be interpreted, independently, and they must not be influenced by the laws or authority of the European Union[20]. Cases such as Pickstone vs. Freeman, Lister vs. Forth Dry Dock all agree on the supremacy of domestic laws, as opposed to that of the EU. However, they use the purposive approach, in ensuring that the domestic laws under consideration are compatible with the laws of the European Union[21]. This provision is further best explained in the case of Lister vs. Forth Dry Dock, where the court denoted parliament can pass a legislation whose purpose is to implement an identified provision of the laws of the European Community. These case laws and statutes therefore point to the notion that the people of UK still view its parliament as sovereign, irrespective of the judgments of thee ECJ, regarding the sovereignty of the European Union laws[22].
In conclusion European Union laws have to be supreme over the laws of its member states, for it to achieve in meeting its own objectives. For instance, one of the objectives of the European Union is to create a common market, for purposes of promoting and protecting its market. It is impossible to achieve this objective, if member states have different laws that seek to protect their markets. Furthermore, the European Union has an objective of creating a political federation, governed by one constitution. This would mean that the member states will have to limit their sovereignty. This is impossible to achieve with different laws that govern the operation and interpretation of laws within the European Union. However, this concept of Supremacy of European Union is not directly expressed in its treaties and directives. It is only implied through the judgments of the European Court of Justice. It is therefore a controversial issue within the member states of the European Union.
Bibliography:
Alina Kaczorowska, European Union Law (Abingdon, Oxon: Routledge Publishers,
2009).
Anca Pusca, Rejecting the EU Constituion? From the Constitutional Treaty to the Treaty
of Lisbon (New York, Harlow Publishers, 2009).
Catherine Barnard, The Substantive Law of the EU: The Four Freedoms ( 3rd edn,
Oxford, OUP, 2010).
Damian Chalmers, Gareth Davies and Giorgio Monti, European Union Law: Text and
Materials, (3rd end, Cambridge, CUP,2014).
Elena Korosteleva, The European Union and its Eastern Neighbours: Towards a More
Ambitious Partnership (London, Routledge Publishers, 2012).
Giacomo Federico,. The EU Charter of Fundamental Rights from Declaration to Binding
Instrument (Dordrecht: Springer, 2011).
John Fairhurst, Law of the European Union (6th ed. Harlow, England:
Pearson/Longman, 2007).
Justus Nlau, Drafting the EU Charter: Rights, Legitimacy, and Process ( Houndmills,
Palgrave Macmillan, 2005).
Lorna Woods and Philippa Watson, EU law (12th edn, Oxford, OUP, 2014).
Margot Horspool, European Union Law (4th ed. Oxford: Oxford UP, 2006).
Paul Craig and Graine de Burca, European Union Law: Text, Cases and Materials,
(5th edn,Oxford, OUP, 2011).
Philippe Schoitheete, The Case for Europe: Unity, Diversity and Democracy in the
European Union (Lynne Rienner, 2000).
Robert Schutze, EU Constitutional Law (Cambridge, CUP, 2012).
Sionaidhi Scott, Constitutional Law of the European Union (Harlow, England: Longman
Publishers, 2002).
[1] Anca Pusca, Rejecting the EU Constituion? From the Constitutional Treaty to the Treaty
of Lisbon (New York, Harlow Publishers, 2009), p. 11.
[2] Catherine Barnard, The Substantive Law of the EU: The Four Freedoms ( 3rd edn,
Oxford, OUP, 2010), p. 27 .
[3] Alina Kaczorowska, European Union Law (Abingdon, Oxon: Routledge Publishers,
2009), p. 33.
[4] Elena Korosteleva, The European Union and its Eastern Neighbours: Towards a More
Ambitious Partnership (London, Routledge Publishers, 2012), p. 19.
[5] Kaczorowska, European Union Law, p. 56
[6] Damian Chalmers, Gareth Davies and Giorgio Monti, European Union Law: Text and
Materials, (3rd end, Cambridge, CUP,2014), p. 29.
[7] Giacomo Federico,. The EU Charter of Fundamental Rights from Declaration to Binding Instrument (Dordrecht: Springer, 2011), p. 21.
[8] Federico, The EU Charter of Fundamental Rights from Declaration to Binding Instrument, p. 26
[9] John Fairhurst, Law of the European Union (6th ed. Harlow, England: Pearson/Longman, 2007), p. 36.
[10] Giacomo Federico,. The EU Charter of Fundamental Rights from Declaration to Binding Instrument (Dordrecht: Springer, 2011), p. 11.
[11] Philippe Schoitheete, The Case for Europe: Unity, Diversity and Democracy in the
European Union (Lynne Rienner, 2000), p. 47.
[12] Justus Nlau, Drafting the EU Charter: Rights, Legitimacy, and Process ( Houndmills,Palgrave Macmillan, 2005), p. 21.
[13] Margot Horspool, European Union Law (4th ed. Oxford: Oxford UP, 2006), p. 77.
[14] Lorna Woods and Philippa Watson, EU law (12th edn, Oxford, OUP, 2014), p. 33.
[15] Paul Craig and Graine de Burca, European Union Law: Text, Cases and Materials,
(5th edn,Oxford, OUP, 2011), p. 43.
[16] Philippe Schoitheete, The Case for Europe: Unity, Diversity and Democracy in the
European Union (Lynne Rienner, 2000), p. 41.
[17] Woods and Watson, EU law, p. 28
[18] Robert Schutze, EU Constitutional Law (Cambridge, CUP, 2012), p, 17.
[19] Sionaidhi Scott, Constitutional Law of the European Union (Harlow, England: Longman Publishers, 2002), p. 31.
[20] Schoitheete, The Case for Europe: Unity, Diversity and Democracy in the European Union, p. 42.
[21] Schutze, EU Constitutional Law, 36.
[22] Scott, Constitutional Law of the European Union, p. 44
Cite this page
College essay topics to write about European Union. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
UK’s Unwritten Constitution
“The unwritten nature of the UK constitution has made the legal system of the UK even better structured. It has the most supreme authority over its institutions and is organised enough as to run the functions of parliament in comparison to the written constitution of the people’s republic of Bangladesh” Critically analyse. Every state has an ultimate source of legal authority. A written constitution is a document which provides the state an ultimate authority.
[1] By contrast, United Kingdom (UK) does not have a written constitution[2], as a result, the ultimate law-making power lies with Parliament, the House of Commons (HC), House of Lords (HL) and the Crown[3]. For this everything that happening in UK it is constitutional and if nothing happens that would be constitutional also.
[4] But as the parliament and judges are the safeguards of justice and liberty and they embody the spirit of the constitution[5]in compare to giving unconditional power to the Westminster Parliament and carefully limiting the powers of Bangladesh parliament by the constitutional or judicial supremacy concept it is very doubtful in reality that whether man is enough of a political animal to produce a good, sensible, serious and efficient constitution as all the evidence is against it.
[6] (George Bernard Shaw). In other word in this question i will discuss the importance of a constitution and the nature of it exist in UK and Bangladesh and finally i will give a compare idea of two kind of supremacy exist in a constitutional system, which is most justifiable to uphold and maintain the liberty and justice in a democratic system, in reality. A constitution is defined by Aristotle (b. 384 – d. 322 BCE)
[7] as the way of life that the state has chosen for itself
[8] and it is the highest of all.
[9] He identifies it as same with the government.[10] [11] But According to Thomas Pains and De Tocqueville the constitution means the aggregate[12] of only those written principles which regulate the administration of the state. K.C Wheare, Hood Phillips and Gilchrist included also the unwritten principles.[13]So, whether it is in written or unwritten, it is a collection of principles[14] and rules, which identify and regulate the major institution of the state and govern and define the relationship between the state and individual citizen; i.e. define the extent of civil liberty.[15] At first considering the UK constitution, which is a product of gradual evolution and its main features are- Unwritten, Flexible, Unitary, Supremacy prevail to parliament, generally centralised, Monarchical in nature with a Bicameral parliament.[16] It is wildly known as un-codified constitution for its main sources, like Israel and New Zealand.[17] As the main sources of UK constitutional are – (i) Parliamentary statutes (ii) Conventions and custom (iii) Historical Principles(the sovereignty of Parliament, rule of law) (iv) Common Law (v) Royal prerogative (vi) European laws. Due to its flexible nature, the constitution is described as a ‘constitution in flux’[18]. On the other hand the Constitution of Bangladesh (BD) is the product of the Liberation Struggle. After nine month war Bangladesh achieved its independent on 16th December 1971 from Pakistan and soon after only within eleven month on 4th November 1972 the final draft was adopted by its Constituent Assembly.[19]The Silent features of this constitutions are- Written, Rigid, Preamble, and Supremacy of the constitution, unitary govt. system, Independence of judiciary, Fundamental Principle and rights. It has a unicameral parliament.[20] So, in compare to the Bangladesh constitution some argued that British Constitution should be codified. As a written constitution would be a better safeguard for the people’s rights, Liberals and freedoms. It reduces the executive powers of the Politian’s. It’s creating much better public awareness. But there are some arguments for an un-codified constitution those are- It is adaptable to changing circumstances as it is easy to amend.
The power of unelected bodies has simply passed to elected or accountable bodies. The constitutional safeguards are weaker in the UK Governments can respond more easily to crises such as the increased terror threat after 9/11. It has stood the test of time, unlike much of the Countries there have been no violent revolutions or civil wars for several centuries.[21]So, it is so much justified that the un-codified nature of UK constitution is more efficient from a written one. Now, I will give a compare idea about constitutional supremacy in Bangladesh with the parliamentary supremacy in UK. Firstly considering the UK constitution the doctrine of the unlimited sovereignty of parliament in UK is a product of a long struggle between parliament and the crown which culminated in 1688 with the bill of rights 1689.[22] As According to A.V. Dicey (1885) sovereignty are of two types, legal sovereignty and political sovereignty. [23] The people hold political sovereignty whilst legal sovereignty rests with the “Queen in Parliament” in UK.[24] Dicey had illustrated three main rules of legal sovereignty. According to the first principle of Dicey, Parliament is the supreme law making body and may enact laws on any subject matter. For instance UK parliament in 1716, to extend its own life enacted the Septennial Act to extending the duration of parliament from 3 to 7 years (Now 5 years by Parliament Act 1911, s.7). By enacting the Act of Settlement 1700[25] and His Majesty’s Declaration of Abdication Act 1936,[26] now UK parliament may legislate to change the succession to the throne. By passing the Union act with Scotland in 1706[27], Parliament may abolish itself and reconstitute itself as a different body. Now it may also legislate to alter its own powers (Parliament Act 1911 and 1949) by enacting the House of Lords Act 1999, its removed the hereditary peers from the Upper House. UK Parliament may grant independence to dependent states, whether dominions or colonies, as with the Nigeria Independence Act 1960 and the Zimbabwe Independence Act 1979. UK Parliament can pass laws which are retrospective or prospective. Following the House of Lords decision in Burmah Oil Company v Lord Advocate, [28]parliament passed retrospective legislation, the War Damage Act 1965 to nullify the effect of the House of Lord’s decision.[29] UK Parliament may legislate with extra territorial effect beyond the jurisdiction of the UK even if this produces a conflict with international law. (See Cheney v Conn [30]and Morisneen v Peters [31]case). As, the Aviation Security Act 1982, which extends the jurisdiction of the courts to try the hijacking cases irrespective of the territory in which the offence occurred. It can also pass laws which are contrary to fundamental constitutional principles (R v Jordan[32]). In R v Secretary of state for the Home Department ex parte Simms Lord Hoffman stated that the principle of Parliamentary Sovereignty means that parliament can if it chooses; legislate contrary to fundamental principles of human rights.[33]So we can say that according to Sir Ivor Jennings (1882) parliament can legislate to ban smoking on the streets of Paris.
However it is important to note that Dicey’s theory is concerned purely with the absence of any legal limitations on Parliament. He acknowledged that there were clearly political limits on what parliament could do. According to him sovereignty is limited on every side by the possibility of popular resistance. The second limb of Dicey is, No Parliament may be bound by his predecessor or bind his successor. That means each parliament must enjoy the same unlimited power as any before it. In Austin’s word “illimitable”. Two forms of repeal exist to signify that fact that parliament are not bound.
They are; As Express Repeal is where legislation is passed which expressly states its intention an act should be repealed. There are some strong arguments that the UK has succeeding in binding itself in this way in considering the effect of human rights act 1998 and the European Communities 1972. However there is also the argument that the requirement to use express words is not particular onerous and represents at best a limited form of entrenchment. Another, the doctrine of implied repeal provides the mechanism by which the judge gives effects to the rule against Parliament being bound by previous Parliaments. If Parliament passed an Act and did not repeal the previous Act expressly, then the doctrine of implied repeal come into the play and the judges will apply the latest statute deeming that the earlier Act was impliedly repealed. The two cases (Vauxhall Estates LTD v Liverpool Corporation 1932[34]) and (Allen Street Estates LTD v Minister of Health 1934[35]) illustrated the principle of doctrine of implied repeal. As The Statute of Westminster 1931, s4 was enacted to give statutory force to the convention that the UK parliament would not legislate for Dominions without their consent.
The Statute imposes substantive and procedural restrictions on Parliament’s ability to legislate for former colonies. In Blackburn v AG Lord Denning stated that, in legal theory one parliament cannot bind another. But legal theory does not always march alongside political reality. Legal theory must give way to practical politics.[36] (British coal corporation v The King case )[37] But In manuel v AG[38]and Megarry v C case clearly restated the orthodox view of sovereignty. In this view, “it is a fundamental of the English Constitution that Parliament is supreme. As a matter of law the courts of England recognize Parliament as being in all same the power to destroy its own omnipotence”. There can be seen that the grants of independence do impose political limits on parliament but do not limit the legal power of Westminster to pass laws governing these states. Furthermore, The Act of Union with Scotland 1707 provided a fertile source for academic debate which remains a powerful argument against the unlimited freedom of any Parliament at any time to legislation. In the words of Prof. J Mitchell the near parliament was ‘born unfree’, because the Acts bind and limits the power of Parliament [39]( MacCormick v Lord Advocate [40]and Gibson v Lord Advocate stated the above also). In Attorney-General for New South Water v Trethowan[41]case others the validity of the Constitution (Legislative Council) Amendment Act 1929 was tested also.[42] But according to Dicey’s viewed the acts as having no higher legal status than any other act and could not threaten sovereignty. As the UK Parliament has altered may of the principles contained in both the Scottish and Irish Acts of Union. Further the judicial remarks were obiter and for others arguments some academics have challenged that as parliament cannot bind its successors as a result of some commonwealth cases. The third limb of A. V. Dicey is, no person or body – including a court of law- may question the validity of Parliament’s enactments. As the manner in which sovereignty is upheld in UK is through judicial decisions.
Lord Denning stated this as “in my opinion, it is the function of the court to see that the procedure of the Parliament itself is not abused and that undue advantage is not taken of it. In so doing the court is not trespassing on the jurisdiction of Parliament itself. It is acting in aid of Parliament, and, I might add, in aid of justice. If is proved that Parliament was misled, the court can and should draw it to the attention of Parliament.” But, the House of Lords rejected this view and Lord Reid stated, “The function of the courts is to construe and apply the enactments of Parliament. The courts have no concern in the proceedings how the Act was passed.” (Pickin v British Railways Board 1974[43]and Jackson v Attorney General 2006 )[44] The U.K. has incorporated the European Convention of Human Rights (ECHR) into domestic law through the Human Rights Act 1998 (HRA 1998). It imposes some obligations on Parliament and judges. Under this act Section 3 requires the legislation to be interpreted as far as possible in a way which is compatible with Convention rights. Section 4 allows the higher courts to make a ‘declaration of incompatibility’ but the courts cannot declare an Act of Parliament invalid. If the Act is not compatible with Convention rights, then the courts have to leave it to Parliament to enact the necessary changes. (Thoburn v Sunderland City Council 2002)[45] Furthermore the UK became a member of European Community by means of European Communities Act 1972 (ECA 1972). The ECA 1972, Section 2 and Section 2(4) has radically altered the standing of Parliamentary Sovereignty. In Van Gend en Loos (1963) the European Court of Justice (ECJ) held that by signing treaties, the member states had created a new legal order in which individual states had limited their sovereign rights.[46] In Internationale Handelsgesellschaft (1970[47]) where ECJ stated that EU law is even superior to U.K. law. (Factortame no. 1 to 5.)[48] Moreover, in Simmenthal case, ECJ held that EU law is superior to national law whenever enacted.[49] As discussed above, EU and ECHR law is superior to English law and now U.K. parliament will not enact any law which is contrary to EU law and violates of Human rights. Therefore, rule 1 of A.V. Dicey is violated. As far as present U.K. Parliament is concerned, it is still bound by the obligations which were accepted by the Parliament of 1972 and HRA 1998. This is the violation of rule 2 of A.V. Dicey.
Moreover, if U.K. Parliament enacts any law contrary to EU law, U.K. courts will never accept it. Moreover, judges now have the power to issue ‘Declaration of incompatibility’ if the law is contrary to human rights .This is a form of challenge and therefore rule 3 of A.V. Dicey is violated. However, theoretically Sovereignty of Parliament remains as the Parliament can repeal the ECA 1972 and HRA 1998 and take UK out from EU. But in practical, it may not be possible due to ever increasing involvement of the U.K. with the European Communities and as the HRA 1998 it provides basic rights and freedom to the citizen of UK. To sum up, it is to say that, by the passage of time, parliamentary sovereignty has become limited to some extent. Since 1689 to recent time, numerous changes has occurred and thus, Dicey’s limbs of parliamentary sovereignty has lost their significance to some extent and are not relevant with todays modern changed civilization. But, it is essential to say that, under an uncodified constitution of United Kingdom, Dicey’s theory and principles of parliamentary sovereignty has provided a guideline to the United Kingdom. In conclusion, it can be said that with the inclusion of membership of EU and incorporation of HRA 1998, it is obvious that Parliament’s law making power has been practically limited and partial, but theoretically parliamentary sovereignty remains in UK. In other words, all legally organised parliaments have limited powers. The Westminster Parliament has constitutionally limited powers, very much like banglad
[1] H. Barnett, Constitutional & Administrative Law (7th ed. 2008), chapter 6, at P.146.
[2] H.A. Barnett and Morison, Public law, University of London subject Guide, 2012(London, UOL, 2012), P 20.
[3] See (n) 1 H Barnett (2009) P.146 [4](Griffith ‘The Political Constitution’) Belal Husain Joy, Constitutional History of Bangladesh,1st ed (Dhaka, Bangladesh Law Book Company, 2008)P 7
[5] Lord Denning , The Changing Law , 1953 , P 18
[6] See (n) 3 Belal Husain Joy (2008) P 7
[7] < https://plato.stanford.edu/entries/aristotle-politics/ >
[8] Abdul Halim, Constitution, Constitutional law and politics: Bangladesh perspective ( 2nd Edition, 2003)P. 25
[9] Pol. 1278b10-11. [10] Pol. 1278b11-14. [11] < https://www.scholardarity.com/?page_id=2564#_ftnref6 > [12] Lord Bryce [13] See, Zink, Harold, Modern Governments , 2nd ed, ( New York : D. Van Nostrand Company, 1983), P.18 [14] Stong, CF, Modern Political Constitution , (London : ELBS, 1970), P 11 [15] See (n) 2 UOL subject Guide, 2012, P 18. [16] See (n) 1 H Barnett (2009) P.14. [17] See (n) 2 UOL subject Guide, 2012, P 20. [18] Ibid. [19] For details see: Chowdhury, A.K,The Independence of East Bangla, (Dhaka, Jatiya Granthakendra,1984 ) P 270-274. [20] See (n) 7 MD. Abdul Halim (2003) P. 41-44. [21] See (n) 1 H Barnett (2009) P.14. [22] Diplock Lj In BBC v Johons (1965). [23] Dicey, AV, Introduction to the study of the law of the Constitution, 10th edn, (London : Macmillan1959). P 39 [24] For more elaborate categorisation, see Rees, “The theory of sovereignty restated”, ( Latett, 1975), Chapter IV. [25] See (n) 23 said by Priestly in 1771 , cited in Dicey ,1885,P 47 [26] See (n) 23 Dicey, 1885, P 47. [27] < https://www.legislation.gov.uk/aep/Ann/6/11 > [28] [1965] AC 75 [29] See (n) 1 H Barnett,(2009) P.159 [30] [1968] 1 All ER 779 [31] [1906] 14 SLT 227 [32] [1956] 40 Cr App R 152 [33] [1999] 3 All ER 400, [1999] UKHL 33 [34] [1932] 1KB 733 [35] [1934] 1 KB 590 [36] [1971] 1 WLR 1037 [37] [1935] A.C. 500 [38] [1982] 3 All ER 786,822 [39] Mitchell. JDB “Sovereignty of parliament –yet again” (1963) 79 LQR. [40] [1953]SC 396 [41] [1974] AC 763 [42] [1931] 44 CLR 395 [43] [1974] 2 WLR 208 [44] [2005] U.K.HL. 56 [45] [2002] EWHC 195 [46] [1963] EUECJ R-26/62 [47] [1970] E.C.R. 1125 [48] Factortame I [1991] 1 A.C. 603 Factortame II [1991] ECR 1-4586 Factortame III [1996] ECR 1-1034 Factortame IV [2000] EULR 40 R v S of S for Transport ex p Factortame Ltd (No 2) [1991] [49] [1978] ECR 629
Cite this page
UK's unwritten constitution. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
Trusts and Equitable Relationships in Utility to Commerce.
Critically evaluate the above view, with reference to case law and literature on both the nature of a beneficiary’s interest under a trust and on the nature of Quistclose trusts.
Traditionally trusts were private family arrangements. Historically much of trusts law emerged out of the desire of settlors to preserve family wealth, tying up property so that it could be enjoyed by successive generations.[1] In the twentieth century however, trusts have been used more and more in a commercial setting to the point that it is estimated that less than 10 per cent of trust assets are comprised in family and charitable trusts.[2] Therefore, it is clear that the most important feature of the trust concept is as an instrument of commerce, with the key attributes of protection against insolvency, the protective regime of fiduciary trust law and the flexibility of provisions that can be inserted in trust instruments. The key to the efficient commercial use of trusts is the idea of the trust fund owned by the trustee but segregated from his own estate and thus protected from the claims of the trustee’s creditors and available to satisfy the claims of the beneficiary.[3] In the commercial context the trust usually results from a contract rather than a gift meaning that often commercial trusts seem to straddle the line between the two systems of exchange, gifts and bargains which in the eyes of some commentators has blurred the line between trust law and contract law. Rudden’s account of the orthodox trust as "essentially a gift, projected on the plane of time and so subjected to a management regime,"[4] does not fit for trusts in commercial settings. The commercial trust, by contrast does not effect a gift and often has financial benefits for the lendor. For example in Northern Developments Holdings Ltd[5], where the banks had an interest separate and distinct from that of the debtor in seeing that Kelly’s debts should be paid. There has been much controversy over the nature of a beneficiary’s interest under a trust, based upon the difference between in personam rights against trustees and in rem rights against trust property[6]. In the commercial world, Goode suggests that it is upon the debtor's insolvency that the distinction between ownership and a personal right to an asset becomes of crucial significance.[7] This mainly because it is a basic policy of insolvency law to respect proprietary rights held by another prior to the debtor’s bankruptcy. So in a way, a finding of a trust can be a means of protecting an unsecured creditor because the estate available for distribution among the general body of creditors is limited to the debtor’s own assets. Therefore the degree to which the law is willing to recognise rights as proprietary rather than merely personal is of great import to unsecured creditors, for every extension of the concept of ownership erodes the debtor's estate. With the trust concept being expertly manipulated by lawyers to fit more and more commercial scenarios, it becomes increasingly unclear what the nature of the beneficiary’s interest in equitable property rights are. The widely held understanding of the beneficiary’s interest being a form of property ownership reflects the origins of the trust.[8] The trust of land provided the model, it is this paradigm of the trust which has subsequently influenced the way in which rights under trusts have been conceptualised.[9] It is often assumed that the existence of a legal estate vested in a trustee necessarily means that the beneficiary has a proprietary interest in it. This view was demonstrated by Lord Browne-Wilkinson, in Westdeutsche, who stated that “Once a trust is established…the beneficiary has in equity a proprietary interest in the trust property.”[10] To counter the argument that beneficiaries must have a proprietary interest in the trust, Parkinson argues that beneficiaries under discretionary trusts do not gain proprietary interests. In McPhail v Doulton,[11] consideration was given to the validity of a discretionary trust in which the potential beneficiaries listed were numerous making it difficult to say that they had proprietary rights. The significance of this argument is that it challenges objections to decisions based upon the proprietary nature of the trust, and opens up the possibility of accepting developments in the law without complex attempts to reconcile these cases with pre-existing assumptions and definitions of the trust. Parkinson states that because trusts now arise in so many different contexts and features of the trust vary correspondingly, it is a futile exercise to try and find a definition of the trust which is both comprehensive and accurate. [12] McFarlane and Stevens argue that the beneficiary’s interest is neither proprietary nor in personam but propose a new theses that equitable property rights are best understood as rights against rights.[13] They submit that by understanding the beneficiary’s interest in this way, the trust can be accommodated within legal systems that have not experienced the productive paradox of two rival court systems.[14] The conventional view that an equitable property right is a right against a thing suggests that such rules cannot possibly be exported to those prosaic civil jurisdictions that do not share English law’s colourful history.[15] That perception is unfortunate in a jurisdiction where the courts of common law and equity have long been ‘fused’, let alone in a world where the law is increasingly harmonised. Fortunately, as far as equitable property rights are concerned, that perception can be resisted as they depend not on the tradition of equity but rather upon the exportable concept of rights against rights. One example of how the traditional view of a trust has been modified to make it applicable in the commercial setting is Quistclose trusts. A Quistclose trust is a trust which arises where a creditor has lent money to a debtor for a particular purpose. The trust is formed in the creditor’s favour but is defeasible by the exercise of the power vested in the debtor to apply the money to the specified purpose. The name and trust comes from the House of Lords decision in Quistclose, [16]although the underlying principles can be traced back further. One of the great difficulties with the Quistclose decision is reconciling it with the orthodox principles of trust law. It would seem that the Quistclose trust is given different treatment than traditional trusts. Quistclose trusts straddle the line between trusts and contract. This is evidenced by the fact that the rights which form the subject matter of the trust were transferred to Rolls Razor pursuant to a contract of a loan. This meant that Rolls Razor was contractually obliged to repay the amount it received to Quistclose from the moment of receipt. So even if there was no trust found, Rolls Razor would still have to repay the value; the liability did not arise purely on rights transferred on trust. Therefore the consequence of finding a trust meant that the lender neither bore the risk of the destruction of the subject-matter of the trust (as would a normal trust-beneficiary) nor the risk of the borrower’s insolvency (as would a normal lender). A number of commentators such as Birks and Chambers take the view that the debt only arises at the moment of application of the money to the purpose for which it was lent or failure of the purpose. This would solve the problem of the double benefit in favour of the lender, although Swadling disputes this as he states that this does not square with the facts as the contract of the loan held no such provision.[17] Also the fact that the lender imposed no obligation on the borrower to keep the funds separate from its own assets suggested that the money was not in fact held on trust but became a part of the borrower’s estate. Although the presence of such a requirement is not necessary to determine whether or not there was intention to create a trust, its absence is a good indicator that the funds were to be held absolutely by their recipient. In Henry v Hammond, it was said by Channell J that if the recipient is not bound to keep the money separate but is entitled to mix it with his own money and deal with it as he pleases then, he is not a trustee of the money but merely a debtor.[18] Another feature of the Quistclose decision which puts it at odds with the orthodox view of trusts is that a trust must have certainty of objects. There are grave difficulties in identifying the objects of the trust in Quistclose. It could not be the creditors for a number of reasons, the most prominent of which is that it would allow them to be paid twice over. For almost identical reasons it could not be the lender. Nor could it be the purpose because the purpose was a private purpose and English law does not tolerate trusts for private purposes. It is on this basis that Swadling argues that no trust should have been found in Quistclose and the funds should have been held to be a part of Roll Razor’s assets and treated accordingly. [19] This begs the question of why Quistclose trusts exist at all seeing as they seem to depart so from the orthodox principles of trust law. Quistclose trusts are often invoked by the lendor in place of conventional security, such as mortgages or charges, in order to protect against debtor default or debtor insolvency.[20] Bridge suggested two recurring features of Quistclose cases; the emergency aspect of the matter as well as sometimes the non-professional character of the arrangements.[21] The emergency aspect of the matter is important in a number of cases where speed is of the essence because the debtor has an immediate need for financial assistance in order to continue in business. This is not always the case though, in Twinsectra Ltd v Yardley[22], on the facts there does not appear to have been any emergency but the parties still chose to resort to a Quistclose trust. The key point to be taken from this, that this is not an example of standard commercial practice but rather an unusual transaction. Quistclose trusts often contain within them an element of desperation; that is to say Quistclose is invoked by a claimant who wished to avoid being classified as an unsecured creditor and so maintains that he has a proprietary interest in the money that has been paid over to its recipient. Goldcorp[23] and Re Holiday Promotions (Europe) Ltd[24] are both examples of this. It has been submitted that the decision Quistclose is too uncertain in scope and basis, to be invoked by practitioners on a regular basis with any degree of confidence.[25] It is more likely to be used where time does not allow resort to more traditional forms of security or like in Carreras Rothmans[26], a transaction has got into difficulties and a Quistclose trust presents itself as the most obvious solution. It suffices to say that Quistclose does have a role to play in modern commercial practice, although it is difficult to determine the exact extent of that role. However, McKendrick argues that it appears to be principally a residual device, to be invoked where traditional forms of security are, for one reason or another, unavailable or unattractive.[27] Penner backs this view up by stating that in commercial transactions, the initial analytical impulse should be towards the contractual, at least in circumstances where the use of the trust device is not expressly intended.[28] Parkinson suggests that the Quistclose trust will come to be understood as an umbrella term for a variety of kinds of trusts concerned with limitations of an equitable character placed on the use of money by lenders and which do not always share the same structural characteristics. [29] The existence of the Quistclose trust does not seem to conform to ordinary traditional trust rules shows that the courts are willing to treat trusts in a commercial setting differently. Conclusion Judicial statements have been made from time to time that equity has merely an unsettling effect when transplanted into the field of commercial law.[30] However it has been shown that trusts can have great use in the commercial sphere. Although wider application of the trust model may lead to some confusion over the irreducible core of the trust concept, in particular with regard to the beneficiary’s interest, the practical potential commercial benefits namely; protection against insolvency, the protective regime of fiduciary trust law and the flexibility of provisions that can be provided by the trust instrument mean that use of trusts in a commercial setting should be encouraged. Even if this means they require treatment different from traditional trusts because they are often difficult to accommodate within existing principles or categories.[1] Hayton and Mitchell, Commentary and cases on the law of Trusts and Equitable Remedies (2010) p.16 [2] ibid [3] ibid [4] Rudden B (as cited in Langbein J.H., The Secret Life of the Trust: The Trust as an Instrument of Commerce (1997)) [5] Northern Developments Holdings Ltd (1978) [6] Scott A.W., The Nature of the Rights of the Cestui que Trust (1917), 17 Col. L. Rev. 269, pp 269-283 [7] Goode R.M., Ownership and Obligation in Commercial Transactions (1987) LQR [8] Parkinson P, Reconceptualising the Express Trust, Cambridge Law Journal 2002, pp 657-683. [9] ibid [10] Westdeutsche Landesbank Girozentrale v Islington Borough Council [1996] AC 669, 705 [11] McPhail v Doulton [1970] UKHL 1 [12] Parkinson P, (as n.8 above) [13] McFarlane and Stevens, The Nature of Equitable Property (2010) 4 Journal of Equity 1 [14] ibid [15] Hayton D, English Trusts and their Commercial Counterparts in Continental Europe (2002) [16] Barclays Bank Ltd v Quistclose Investments Ltd (1968) UKHL 4 [17] Swadling W, Orthodoxy In: Swadling W, The Quistclose Trust (2004) [18] Henry v Hammond [1913] 2 K.B. 515, 521 [19] Swadling W (as n.17 above) [20] McKendrick E, Commerce In: Swadling W, The Quistclose Trust (2004) [21] Bridge M, The Quistclose Trust in a World of Secured Transactions (1992) OJLS 333, 345 [22] Twinsectra Ltd v Yardley (2002) UKHL 12 [23] Goldcorp [1995] 1 AC 74 [24] Re Holiday Promotions (Europe) Ltd [1996] 2 BCLC 618 [25] McKendrick E (as n.20 above) [26] Carreras Rothmans Ltd v Freeman Mathews Treasure Ltd [1985] 1 All ER 155 [27] McKendrick E (as n.20 above) [28] Penner J, Lord Millet’s Analysis, In: Swadling W, The Quistclose Trust (2004) [29] Parkinson P, (as n.8 above) [30]
Cite this page
Trusts and equitable relationships in utility to commerce.. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
Financial Scandals: the Implementation of the UK Corporate Governance Code
Introduction Financial scandals of a business would happen through complex methods of misusing funds or giving incorrect information to mislead public and many others way. The occurrence of financial scandal had brought huge impact to the economy, the revenue of the economy was reduced drastically, escalating unemployment rates and local governments suffer huge losses prior to these financial scandals. The confidence in the business system has been weakened by these incidents and people broached questions with regard to the effectiveness of corporate governance. A good work was done by Cadbury Committee to introduced UK Corporate Governance Code in year 1992 to lead the company as a guideline to perform effective, entrepreneurial and sensible management to deliver a long term success for the company. UK Corporate Governance Code is also implemented broadly by many companies to establish an effective management for sustainable success of the company. Financial Scandals Tyco There will be discuss about 3 cases of financial scandals that happened in the world; one of the financial scandals was cases of Tyco.
There was a general belief that Tyco was a reliable blue chip investment, fabricating electronic components and safety products. The scandal happened in the year 2002 as CEO Dennis Kozlowski and CFO Mark Swartz were reported for siphoning off big sum of money from Tyco. $170 million was obtained by Swartz in unapproved loans and Kozlowski fraudulently sold 7.5 million shares of unauthorized stock, for a reported $450 million. The money was stolen from the conglomerate, usually concealed as executive bonuses. The money was used by Kozlowski to further his luxurious lifestyle, which included a birthday party of his wife which cost him 2 million. The executives got caught as questionable accounting practices were exposed. Tyco scandal might be avoided with the compliance of the current version of UK Corporate Governance Code.
Kozlowski was the former chairman of Tyco’s board of directors. One of the main principles of the Code that could be apply to this case is leadership.
According to the principle of leadership section A.2, the duties between the operation of the board and the executive should be divided plainly. No individual should possess unlimited powers of decision. The same person should not take on the roles of chairman and chief executive. The distribution of duties between the chairman and chief executive should be plainly established, presented in writing and approved by the board. Tyco could prevent the happened of scandal by adopting this principle. It is incumbent on the board to track the running of the company and to guarantee that it is being operated together with the mandate of the company and the desire of the shareholders.
Since the CEO is the executive position accountable for facilitating those operations, possessing an integrated role leads to monitoring oneself. The CEO may abuse his or her position. As such, the ability of CEO to vote on his or her own compensation gives rise to a conflict of interest. Besides, the principle of leadership A.3 states that it lies with the chairman to lead the board and be always effective on all respects of its role. Culture of debate in the company should be encouraged by the chairman through stimulating the non-executive directors to contribute effectively and ensuring positive relations between executive and non-executive directors. The chairman should also provide correct, plain and opportune information to the directors. Not only is that, as a chairman there are responsible for communicating effectively with shareholders.
Tyco should meet the important criteria that set out in A.3.1 which states that a chief executive should not continue to take on the role of chairman of the same company. If the board makes decision to appoint the chief executive as chairman in unusual circumstances, the board is necessary to ask the major shareholders for advice in advance and present the grounds of the appointment to shareholders in the appointment and what is more the next annual report. By implementing this principle into practice, conflict of interest could be avoided by Tyco. An independent individual should be the chairman of the board should not be the CEO of the company; it would be easier for Tyco to detect unethical behavior of the directors and professional misconduct. In addition, the principle of leadership section A.4 states that the non-executive directors who take part as the role of the members in unitary board should aggressively interrogate and contribute to the development of proposals on strategy. They should work out to ensuring the reliability and transparency of financial information and that financial management and systems of risk control are strong and appropriate. It is incumbent on the non-executive directors to set proper levels of remuneration of executive directors and they have a fundamental role in appointment and removal of the executive directors. There is no getting away from the fact that companies with inexplicable financial structures are more dangerous and worthless investments because the investors are not able to estimate the financial position of the companies and their bankruptcy risk. Without setting the appropriate levels of remuneration, Kozlowski could abuse the funds of company to improve his lifestyle. Furthermore, Tyco should fulfill the integrity criteria set out in C.3.5 which states that the audit committee should reassess the concerns raised by the employees of the company about probable dishonesty in financial reporting issues.
Independent investigation of such issues should be carried out by the audit committee. Tyco could avoid the scandal by booking the transactions at the level above what the external auditors examined and internal auditors should take part in reassessing functions of the headquarters. Bayou Hedge Fund Group Next of the scandals that will be discussing is the case of Bayou Hedge Fund Group scandal. It was a funds group and founded in by Samuel Israel 3, $450m was raised from investors but the funds were misappropriated for personal use. The investors were conceal about the fund’s returns, to cover up their misdeed a fake accounting firm was set up to provide fake auditing results by Samuel Israel 3 and CFO Daniel Marino. In July 2004, the officials were started alert about the company when an abnormally large transfer of $99 million was made into a Wachovia account in New Jersey, prompting the initial investigation and follow by the demise of Bayou. Both of them were pleaded guilty in year 2005 because the company started a fake accounting firm to perform an audit to themselves. Sam Israel led the Bayou hedge fund, and had stolen estimate around $300 Million from its investors. He convinced his clients that the fund was doing well by producing fake accounts, while they were under performing.
According to the UK Corporate Governance Code, under section C accountability in the principle of C.1, it stated that financial and business reporting the board should present a fair, balanced and understandable assessment of the company’s position and prospects. It is the board’s responsibility to present a correct assessment. They had intention to conceal their investors since the beginning, by overstating gains, understated losses.
The principles of financial and business reporting state that the board should establish arrangements to ensure that the information presented is fair and understandable. Furthermore the annual report should also include the correct figure of the profit and loss of the company. If Bayou Company obeys the principles, there would not be happen that hiding the truth from the investors when they are generating a lost. Besides that, if Bayou Company obeys the rules that under section C accountability, a correct n fair assessment can be show to the directors and also their investors, so that a financial crime might be prevented. Furthermore, under section B effectiveness, section B5, information and support indicate that the board should be supplied in a timely manner with information in a form and of a quality appropriate to enable it to discharge its duties. For example the chairman is responsible and should ensure that the directors receive accurate timely and clear information.
Management has obligation to provide accurate information but directors should seek clarification or amplification where necessary. In this case we can clearly see that Bayou Hedge Fund group did not obey the principles, the director Samuel Israel 3 did not present accurate information to directors. He claim that the company is generating profit while it is suffering lose. He also produces a fake account to hide it from the directors, but the actual is the company had never made any money.Israel has consistently sent out performance reports to investors and at one point claimed the fund was worth $450 million. He funneled all of thehedge funds trades through Bayou Securities, reaping huge commissions since hedge funds trade millions of dollars’ worth of stocks every day.So even as the hedge fund lost money, Israel still banked through his securities firm. If the director doesn’t produces a fake accounts the investors will not surfer such a great lose. Next, according to section A, A.1 the role of the board mention that every company should be headed by an effective board which is collectively responsible for the long term success of the company. Bayou Hedge funds does not have an effective board because of Samuel Israel 3 and James Marquez, they did not provide entrepreneurial leadership of the company and clearly did not have effective control of the company which lead to high risk high loss of the company. Risk has to be assessed and managed by having effective control of the company by the leaders. From our opinion, it shows that they are both ineffective leaders and the company will end up generating loss and have to create fake accounts to trick the directors is because of both of them which have no proper plan and direct direction of their company.
This can be prevented if they obey UK corporate Governance Code section A leadership A.1 the role of the board. Enron Lastly, the final cases that would be discussed in this research is the cases of Enron Company. Enron company scandal cases had make a noise in the world, it consider is one of the most serious scandal in the world and also United States history. After merging of Natural Gas that based at Houston and InterNorth, Enron was formed in year of 1985 by Kenneth Lay, and the scandal was revealed in October 2001. The main players of the scandals include the former CEO Kenneth Lay and the CEO of Enron, Jeffrey Skilling, the fraud case had influence financial problem of Enron Company and lead to bankruptcy in December 2001. In the Enron financial scandals, they had tried to conceal the fraudulent of their financial report to continue enjoy the revenue from the investors that are doesn’t know about the true financial condition of Enron. Due to the fraudulent earnings report that report to public, it had attracted many new investors that are desired and willing to enjoy the apparent financial gains.
The action of hiding the true of the financial conditions of Enron not only caused a huge loss to Enron it also affected all of the investors lost their money and thousands of employees lost their jobs. Arthur Andersen, auditors of Enron Company also founded guilty by giving inaccurate information and hiding the truth for Enron Company. The introducing of UK Corporate Governance Code could likely help to prevent these financial scandals, Enron as the example to explaining how the UK Corporate Governance Code might be prevented happened of the incident of Enron. Based on the main principle of effectiveness of UK Corporate Governance Code, under the B.1 the composition of the board, it stated that the board and the committees should have suitable and acceptable balance of skills, experience, independence and knowledge of the company to enable them to perform their duties and responsibility effectively. With the compliance of this principles, the board should be include with an proper combination of executive and non-executive directors to prevent there are individual or small group of people can control the board’s decision making. In the case of Enron, majority of the decision probably mostly taken Mr. Skilling, the chance of Enron to hiding the truth will be decrease if the company compliance this principles. Besides that, code provision had further explained that the board should identify the annual report of each non-executive independent director and indicate that the reasons if it is determined as independent person. If Enron obey the principles, there could hardly be hiding any truth from the public. Besides that, in the main principles of effectiveness, there is a concept of re-election. Re-election should be submitted for re-election for all directors at regular times to continue running the company with a satisfactory performance.
Shareholders should take notice with the annual election for all directors; all directors should be subject to the elections after the first annual general meeting. The re-election should no more than three years.
This could help to prevent there is directors or CEO trying to play a role of one man show to cover or hiding some truth such as Enron company. In additions, based on the principles of C3, audit committee and auditors, it stated that formal and transparent arrangements should considering by the board on how they should apply to reporting the risk management and internal control. It also stated that the board should maintain an appropriate relationship with the company’s auditors. One of the code provisions states that role and responsibility of audit committee should be written in term of references. If Enron Company has maintain an appropriate relationship with auditors, Arthur Andersen the auditors will not help Enron to cover and hide information. Significance of UK Corporate Governance Code In year 1992, the first version of the UK Corporate Governance Code had introduced by Cadbury Committee. The purpose that UK Corporate Governance Code introduced by Cadbury Committee is to provide effective, entrepreneurial and prudent management that drives the company for the long-term success. The UK Corporate Governance Code divided into five main principles such as leadership, effectiveness, accountability, remuneration and also relations with shareholders.
Leadership is where an efficient leader is needed so that the operation of the company can flow nicely. The leader is responsible for the long term success of the company. Besides that, effectiveness is where every employee including the board and its members should have balance of skills and knowledge regarding the company in order to balance the operation of company. Furthermore all directors should allocate some time and regularly update skills to their company. Next of the main principles of UK Corporate Governance code is accountability, which is how important the board is in a business where they have to present a clear assessment of the company to the directors and to determine the risk and strategic the company have to use. In additions, remuneration is where a significant proportion of reward is needed time to time to the employees in order to attract and motivate directors to run the company, but no director can decide their own remuneration. Lastly, relationship with shareholders stated that shareholders should have a dialogue between them and communicate well where it is the board’s responsibility to make sure that a satisfactory communication takes place and helps the company run smoothly.
This not only supported by company and the shareholder, it also had been imitated by internationally. From the understanding about the UK Corporate Governance Code, one of the most significant codes for the business is principles of accountability. In the code of accountability, it has 3 sections; it is financial and business reporting, risk management and internal control and also audit committee and auditors. From the section C1: financial and business reporting, it said that a fair, accurate and understandable report should be present by the board of directors. When preparing the annual reports, directors should be responsible to consider the necessary information regarding the company performance, business and strategy. If company comply this principle, company will more responsible to provide an annual report that include explanation of the basis and fair, balanced and understandable about their company information. Secondly, section C2 is about the risk management and internal control. This is about the responsible of the board to find out the nature and the importance of the risk that will be occurring in achieving company strategies objectives.
Not only that, the board should also control and maintain the management and internal control systems. A review of the effectiveness risk management and internal control system of the company should report to the shareholders yearly. Review must be fair and clear which includes all materials control such as financial, operational and compliance controls. Without this code, the directors will be blurring about the company’s operation and result whether it is generating profit or loss. The board must inform the shareholders about the risk of company will be facing annually so that they can decide whether to continue invest in the company or to getting other way to reduce the risk of company. In section C3, audit committee and auditors stated a formal and transparent arrangement should establish for company to consider how to apply the report of company and risk management and internal control principles for maintaining an appropriate relationship with the company’s auditors. Main role and the responsible of the audit committee are to monitor the financial statements and the formal announcement about the company’s financial performance and the review of the significant financial reporting judgement. If a company can maintain an appropriate relationship with auditors so that a understanding and clear information can be present in the corporate yearly report. Overall, although accountability may are the significant principles in business, but to run and set up a business there are many dimension that should be look after to achieve a better performance, so that the other principles such as leadership, remuneration also playing an important role in business.
Company is encouraging that to comply and explain the UK Corporate Governance Code to attain a better future. Conclusion In this research, we had reviews some company had failure in management system run by the high status companies, we also had discussed that the key components of the code which can lead to the avoidance of the scandals. In the UK Corporate Governance Code, we had learn that there are many importance and usefulness of the code such as effectiveness of the boards of directors, the role of audit committee, integrity of financial information, division of responsibilities at the head of the company are essential to the long-term success of the company. Therefore, the chances of preventing cases of financial scandals such as falsifying financial statements and embezzlement of funds will be outstandingly high if every institution complies with the UK Corporate Governance Code. This is because the Code plays a vital role in upholding the ethics that could produce everlasting success of the corporation. An overarching conclusion of this review, not amazingly, is that the severe conflicts of interest result in the failure of corporate governance.
Cite this page
Financial scandals: the implementation of the UK Corporate Governance Code. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
Two Sides of the same Coin: Evaluating 74th Constitutional Amendment Act
Introduction:
The system of local service delivery through the means of local government bodies began with a Budget Speech by a member of viceroy’s council Samuel Laing, he proposed that local services should be based on local resources. Local governance bodies have been a part of Indian governance system since the British Era, the first Municipal Corporation was set up in Madras in 1688 followed by Bombay and Calcutta. In the beginning local governance bodies were mere implementation instrument of state government’s activities but since the introduction of the 74th Constitutional Amendment Act, there has been a change in this status quo. Since the early 1990s there has been a lot of initiative undertaken by the Government of India which were aimed at decentralisation of urban governance, this was the part of adoption of neo-liberal policies adopted by the government after facing failure of the state-led development model, as for under this model the government kept its role secondary giving more importance to market oriented approaches. Under this step taken by the Government of India enactment of the 74th Constitutional Amendment Act, was one such initiative, this gave constitutional recognition to urban local bodies and a constitutional right to exist. AnewTwelfthScheduletotheConstitutionprovidesrecommendedlistoflocalfunctions. Under the 74th Constitutional Amendment Act, it requires the state governments of all the states to amend their respective municipal laws so as to increase the powers and authority of the urban local bodies, as quoting the line for the 74th Constitutional Amendment Act “withsuchpowersandauthorityasmaybenecessarytoenablethemtofunctionasinstitutionsofselfgovernance”. The 74th Constitutional Amendment Act provides a base to the state the ability to transfer certain responsibility and authority to the urban local bodies i.e. municipalities in order to provide a strong base for municipal local governance in cities, in this regard several state government has amended their state legislature in the same regard. Under Jawaharlal Nehru National Urban Renewal Mission, it is mandatory to undertake the 74th Constitutional Amendment Act and implement in the respective state legislatures. It is under the article 243ZE of the constitution which requires all the state governments to review the existing municipal laws and either repeal or modify those which are inconsistent with the provision of 74th Constitutional Amendment Act within one year from the commencement of the Act.[1]74th Constitutional Amendment Act in a nutshell: Features and Issues
Features of 74th Constitutional Amendment Act
74th Constitutional Amendment has been constituted in congruence with the idea of new public management. Under this concept the major role the state play is of withdrawing itself from directly influencing the market activities and let demand and supply correct the course of market. One of the features of this concept is that the government breaks down the huge monolithic government beaurcracies, which refers to heavy decentralisation of responsibilities and authorities. According to my understanding the enactment of the 74th Constitutional Amendment Act is very much influenced by this characteristic of new public management. Before the enactment of 74th Constitutional Amendment Act the role of urban local bodies was merely of implementation of activities undertaken by state and national government. Constitutional status has been granted to the urban local bodies under the 74th Constitutional Amendment Act, under which a three tier structure of the urban local bodies has been envisaged. Formation of Municipal Corporation for larger area with higher populations the example of this can be Ahmedabad Municipal Corporation, and creation of municipal councils for smaller areas which includes towns like Upleta in Gujarat, and creation of village panchayats for villages that are in transitions to become towns. Under this amendment the governing members of the municipal corporation are being elected by the people through an election in a similar way in which the members of the lok sabha are elected, the election is conducted, managed and regulated by the state election commission. This indicates that the democracy has established deep roots in the political system of the country. Under article 243Y, it makes it mandatory for every state to establish a state finance commission as it is defined by article 243I. The function of the state finance commission is advising the Governor of the state regarding the distribution of funds between state and municipalities which also includes the revenue generated from tolls, taxes and duties. The state finance commission also acts as a auditing organisation which scrutinises the employment of the finances to the urban local bodies. The 74th Constitutional Amendment Act in its article 243ZD and 243ZE makes it mandatory to form committee for district planning in each district and committee for metropolitan planning in every metropolitan area. These committees endeavour to provide newer dimension for the role of citizens and its elected representatives in preparation of plans for their respective regions, infrastructure plan being it most important component. It is sometimes that cities in the same districts share certain natural resources or problems like allocation of water, waste management which might create overlapping situations; it is the function of committee for district planning to cater to such scenarios. Whereas committee for metropolitan planning caters to the increasing infrastructure and amenities demand in metropolitan cities due to expansion of its boundaries or population. Under this act the urban local bodies are endowed with responsibilities for formulation and implementation of schemes for economic and social development, the subjects for the same have been specified under the 12th schedule i.e. article 243W.Issues in the 74th Constitutional Amendment Act
The enactment of the 74th Constitutional Amendment Act marks a transformation in the role of urban local governing bodies in terms of the urban governing bodies being constitutionalised and substantial authorities being granted to them under the act regarding decision making to acquiring finance, but still certain questions remained unanswered. The first issue in implementation of the act is the identification and demarcation rural and urban areas. In states like Gujarat, West Bengal, Kerala, approximately two third of towns are non-municipal towns.[2] Even though these towns in these states have higher prevalence of non-agricultural activities these town are not recognised as cities and are still under the status of villages, this is because under the status of villages the state government can sanction grant for implementation of projects for rural development like MNREGA, NREGA etc. while on the other hand if these area are classified as cites the states would not be able to sanction money for such developmental activities from the government and the state itself will be responsible to provide grants for further infrastructure development in these newly formed cities. The implication of this is that the local bodies lose out on better sources of finance. Therefore due to the vested interest of the members of the political structure of the state barriers are created in the implementation of the 74th Constitutional Amendment Act. The 74th Constitutional Amendment Act makes the urban local bodies responsible not only for mere implementation of the state directives, but also makes them responsible for carrying out activities for social and economic development under 18 subject mentioned under schedule 12 i.e. article 243W, but the act does not make it clear how the three tier bodies i.e. municipal corporations, municipal councils and nagar panchayats will work in synchrony in order to accomplish this tasks. The act leaves it to the discretion of the state to work out the arrangement in this regard. One of the objectives of enacting 74th Constitutional Amendment Act was increasing people and private participation in urban planning, but due to public and private organisations being suspicious about the functioning of the urban local bodies, there has been no significant change in this regard.Case Study: Implementation of 74th Constitutional Amendment Act in Chandigarh
I have adopted the following case study from an article by Deepak Sharma titled as: An Evaluation of 74th Constitutional Amendment Act: A Case Study of Chandigarh, IndiaBackground
Chandigarh is a union territory and a joint capital of the state of Punjab and Haryana. With around 9, 00,000 population it is one of the fastest growing city. The municipal corporation of Chandigarh was formed in 1994 and its jurisdictional area is around 79.34 kms. The municipal corporation of Chandigarh came into being after passing of Punjab Municipal Corporation Law ordinance, 1994 under the Punjab Municipal Corporation Act, 1976. The functioning of the Chandigarh Municipal Corporation is done by formation of various committees that are allocated with different task for the governance of the city. The example committees under the Chandigarh municipal corporation are as follows:- Water Supply and Sewerage Committee
- Roads Committee
- Slum Development Committee
- Fire Services Committee
- Environment & City Beautification Committee
- House Tax Committee
- Finance Committee
- Contract Committee
Report of findings
Under the74th Constitutional Amendment Act, the urban local bodies is also been charged with activities of social and economic development for the empowerment of the citizen of the particular cities, but in Chandigarh there has been incongruence with the mandates of the act, where the Chandigarh Municipal Corporation has been partially endowed with such responsibility education and health and the Chandigarh administration maintains a monopoly, this lead to overlapping functions, and it is conceptually against what has been mandated in the 74th Constitutional Amendment Act. As per the 74th Constitutional Amendment Act, the members of the urban local bodies have to be elected by the people of the city, this what has been implemented in the Chandigarh Municipal Corporation as well, but as the members of the municipal board belong to different political parties, there has been difference of opinion regarding decision making and implementation of project, which in turn delays or either sabotages the developmental or infrastructural initiative by the Chandigarh municipal corporation at times, here there has not been a failure of the act, but this is because of different political parties acting as per their own vested interest. The municipal corporation in Chandigarh faces issue of funds accumulation because of two reasons. The first being that the funding grants are in the hands of Chandigarh administration which at times end up either blocking or delaying transfer of funds to the Chandigarh municipal corporation and the second being the inefficient state finance commission. Even if the funds are being allocated only a small fraction is employed in implementation of project as due to the layer of political agents that end up utilising funds from their own purposes. As mentioned above that the Chandigarh municipal corporation has been facing dearth of funds, one of the reason is that the municipal corporation has failed to recover tax arrears, majorly these tax arrears has been because there has been defaulters amongst liquor vendors and water tariffs. Thus this implies 1) there is an improper record system in the Chandigarh municipal corporation leading to arrears as large as $112,375,000[3], 2) extensive corruption.Conclusion:
From the information about the enactment, features, flaws of the 74th Constitutional Amendment Act, and by presenting the case study of Chandigarh Municipal Corporation, I finally conclude that the 74th Constitutional Amendment Act is apt in its spirit of empowerment and decentralisation of function and responsibilities to the urban local bodies, but there lies an issue with the effective implementation of the act. In this regard the blame can be given to the still existing beauracratic structure of governance in India leading to rent seeking and red-tapping, but along with this there has been lack of awareness and motivation amongst the public which are an equal part of the governance system.Appendix:
References
[1] Article: Implementation of the 74th Constitutional Amendment and Integration of city planning and delivery functions. [2] Adopted from article: Features of 73rd and 74th Constitutional Amendment [3] Figure adopted from Article: Evaluation of 74th Constitutional Amendment Act: A Case Study of Chandigarh, India by Deepak Sharma
Cite this page
Two sides of the same coin: Evaluating 74th Constitutional Amendment Act. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
The Westminster System and the Government
1. The Westminster System The Westminster System (WS) is the British structure of representative government embodied by an executive council meeting within and being accountable to the legislature. Some other elements of the WS are a supreme executive authority, the Crown which doesn’t actively play a part in government, and a self-determining judiciary. Executive and legislative powers are not separate. It is called the WS because the British Parliament sits at Westminster which is part London. The constitutions of the Australian Commonwealth and the States adopted the WS which is also acknowledged as responsible government (Butt 2004, 457). 2. Responsible Government Responsible government is a specific way of governing through its elected representatives. Under this structure, the Parliament, not the government, is elected by Australian voters. Government Members are also Parliament Members. They become the government as they have a majority of members in the House of Representatives of the Australian Parliament. Occasionally a minority government might need the support of either a smaller party or independent Members. What is central to this structure is Responsible Cabinet government in Australia, and the democratic and liberal values which are entrenched within it. 2.1 Parliament and the Election of the Government The democratic element in the structure of the Australian government is the voters elect the Members of Parliament these Members then select the government. Under the WS the government is in the form of the Cabinet which is made up of the Prime Minister and Ministers who are drawn from the Government Members. 2.2 Parliament and the System of Responsible Government The Liberal element in the structure is that the government is held accountable to the Australian people. The Government is responsible to the Parliament not only for its actions but also for the government’s administrative arm (public service). The Government accountability is to the voters through periodic elections and is reinforced by procedures of the Parliament, and checks on the government executive branch and its bureaucracy. 2.3 Parliament and Ministerial Responsibility Individual ministerial responsibility is that Ministers are responsible to the Parliament not only for their actions but also for those of their departments. In the event of improprieties or maladministration’s a Minister should resign. A collective ministerial responsibility is when all Ministers must take responsibility for Cabinet decisions. A Minister that disagrees publicly with cabinet decisions should resign from the Ministry first. 2.4 The Australian model of the Westminster System The drafters of the Australian Constitution made two important modifications to the WS. They established the Senate an elected second chamber of Parliament where each State had equal representation. The other is based on parliament’s formal procedures which disguises the exercise of power of the Parliament, and its role in regards to the government’s exercise of executive power (Woodward 2010, 73-74). 3. Head of State A feature of responsible government in Australia involves the head of state. All executive powers are allocated in the Australian Constitution to the head of state. Yet in practice, these powers are implemented on the recommendation by the elected government in virtually all cases. The government bears responsibility for all the decisions and the head of state (Governor General) remains above most of the political disputes (Woodward 2010, 66-68). 4. Conventions of Westminster-style democracies Australia, unlike the United Kingdom, the constitution is a written document where some of these rules are contained. The stipulations of the Constitution contain the official rules of government. But there are areas where the Constitution is silent, political behavior is directed by established practices, usages, methods, maxims and habits most of them were received from colonial parliaments, and in turn they were received from WS (Reid 1977, 244). 4.1. Principles of Westminster-style democracies Conventions are an integral component of the Westminster-style democracies supplying the details and assisting political practice to observe the principles of responsible government. For instance, conventions cover: •procedures concerning the relationship involving the Prime Minister or Premier and the Cabinet, •the function and the responsibilities of Cabinet; •separation of powers; •relations between the Crown and the Parliament; •relationships between the Houses of Parliament; and •how budgets are appropriated (Heard 1991, 1). 4.2 Constitutional Conventions There is a variety of definitions on what establishes a constitutional convention. Mainly definitions refer back to the work of British scholar A.V. Dicey who examined the distinctions concerning the law and the numerous constitutional conventions of the Constitution (Heard 1991, p. 4). 4.2.1 Identifying the existence of a convention The questions that need to be asked: •what are the precedents; • do the players in these precedents consider they were obligated by these rules; and • is there a beneficial purpose for the rule (Jennings 1959, 159) 4.3 Australian Parliamentary Key Conventions The main conventions are: •governments recognise a loyal opposition; •ministers must answer on behalf of their departments and provide explanations if questioned; •ministers must not mislead Parliament – or if they do inadvertently, then they must correct the record immediately; and •ministers have a duty to attend Question Time, except if they have urgent business (Jaconelli 2005, 150). 5. Conclusion The WS has evolved over hundreds of years and will continue to evolve; these precedents and practices continue to play a significant role in Australia, and serve our democratic way of life well. Bibliography Butt, P 2004, Concise Australian Legal Dictionary, 3rd edn, LexisNexis Butterworths, Chatswood NSW. Heard, A. 1991, Canadian Constitutional Conventions: The Marriage of Law and Politics. Oxford University Press, Toronto. Jaconelli, J. 2005, Do Constitutional Conventions Bind? Cambridge Law Journal, 64(1), March, pp. 149-176, viewed 12 March 2014, via Google Scholar. Jennings, I. 1959, The Law and the Constitution, 5th edn, University of London Press, London. Reid, G.S. 1977, ‘Commentaries’. In Evans, G (eds) Labor and the Constitution: Essays and Commentaries on Constitutional Controversies of the Whitlam Years in Australian Government. Heinemann, Melbourne. Woodward, D., Parkin, A. and Summers, J. (eds), Government, Politics, Power and Policy in Australia, 9th Edn., Pearson, Frenchs Forest NSW.
1
Cite this page
The Westminster system and the government. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
The Tort Law Effect on Victims Essay Online for Free
- Hingis Ltd
- Martina/Shane
- Conclusion
- QUESTION 2
- Victor
- Christine
- The OLA 1984 covers uninvited visitors or trespassers in (s.1(4)) it states that 'an occupier of premises owes a duty to another in of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned.'
- In British Railways Board v Herrington (1972) the board was held liable for injuries to a six year old child who had been playing on the railway line. The House of Lords held that the occupier of the railway premises owed a duty of common humanity to the child. Until this case no duty of care was owed to trespassers. The Occupiers Liability Act 1984 was then extended after this to include a duty of care to trespassers).
- My advice to David and Montgomery Construction Ltd is that as one of them is the owner and the other is the builder they both are jointly occupiers of the premises and have control over the premises. Christine was a child trespasser who entered the building through an unglazed window. The site should have proper Heras fencing around it with all the correct signage for health and safety. The building itself should be fairly secure to stop trespass and for security. The window that Christine entered through should really have been boarded up. Referring back to the British Railways Board v Herrington case they could well be held liable for no duty of care to Christine.
- Edgar
- where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe; and
- (b)
- where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.
- QUESTION 3
- Biography
- Swarb 'Nuisance - 1930- 1959' [online] Available at: https://www.swarb.co.uk/lisc/Nuisn19301959.php [accessed 14th May 2009]
- Fenwick Elliott 'nuisance and the builder' [online] Available at: https://www.fenwickelliott.co.uk/files/docs/articles/html/nuisance.htm [accessed 14th May 2009]
- Loughborough University 'IDENTIFICATION OF ENVIRONMENTAL RISKS' [online] Available at: https://www2.ing.puc.cl/~icccon/abstracts/PDF/Track5/T5-P22.pdf [accessed 16th May 2009]
- Swarb 'Torts 1960-1969' [online] Available at: https://www.swarb.co.uk/lisc/TrtOt19601969.php [accessed 16th May 2009]
- Law teacher 'AMF International Ltd v Magnet Bowling Ltd' [online] Available at: https://www.lawteacher.net/cases/neg15.htm/file-91.php [accessed 16th May 2009]
- Card,R. Murdoch, J. Murdoch,S.,2003. Estate management law. 3rd ed. New York: Oxford University Press.
- Paper 6041 (2002) General liability, CEM
- Paper 6042 (2002) Direct and indirect interference with land, CEM
- Paper 6043 (2002) Negligence, CEM
- Paper 6044 (2002) Defective premises, CEM
- Paper 6045 (2002) Breach of statutory duty, CEM
- Paper 6046 (2002) Strict liability, CEM
Hingis Ltd
Hingis are a specialist tree contactor who have mismanaged the work and broke the telephone wires leaving them trailing across the road. A firm specialising in tree management should know the risks of branches hitting telephone wires that are close by. The tort of negligence can be summarised as: the defendant must owe duty of care to the claimant the duty must have been breached the breach must be the cause of the claimants damage or loss Hingis had a duty of care to other people around them which is called the neighbour principle and was established in the Donoghue v Stevenson (1932) case. Lord Atkin said that you have a duty of care owed to your neighbour in law. Lord Atkins response to the question 'Who is my neighbour?' from the lawyer is 'You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be-persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question' From this case it was established that if a duty of care does not already exist, a 'reasonable man' will owe a duty of care not to injure those whom it can be reasonably foreseen would be affected by their actions. When Hingis cut down the tree which brought down the telephone wires they breached this duty of care; as a professional this should not have happened. In Bolam v Friern Hospital Management Committee (1957) a doctor's professional judgement was made that another substantial body of other doctors would not have made and from this the House of Lords laid down standards that are expected of professional people. Could Hingis have reasonably foreseen that the tree would bring down the telephone lines? I think that as professionals they should have foreseen this. In The Wagon Mound case the opinion of the Privy Council was that a person is responsible only for consequences that could reasonably have been anticipated.Martina/Shane
Martina was driving her car around the corner at speed when she hit Shane. Section 1 (1) of the Contributory Negligence Act 1945 says 'Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage' The fact that Shane would not have been in the road if Hingis Ltd did not make the telephone cables trail dangerously in the road. I feel that it is a little unfair to blame Martina completely for hitting Shane. In Gregory v Kelly (1979) the claimant was held to be contributory negligent when travelling in a car when he knew that the footbrake did not work. In this case it is clear that the claimant was contributory negligent but in our case it is not clear cut. On the other hand Martina owes a duty of care to other road users and pedestrians, and therefore could be liable regarding any lack of duty of care. As she was perhaps driving too fast and the incident was around a corner where she obviously could not see clearly around. Shane as the reasonable man faced with an emergency of a potential traffic accident, took an instinctive decision to lift the wires to the side of the road. Shane could be referenced to a rescue case in law called Cutler v United Dairies (London) (1933) in which the claimant was injured trying to help the driver of a milk float whose runaway horse had come to rest safely in a field. The court held that the danger was over by the time the claimant carried out his heroics. The horse as I see it is the equivalent of the wires on the road in our case. Volenti non fit injuria is a rule that means a person cannot usually sue for damages when he consented in the first place to whatever it was that caused the damages. If someone willingly placed themselves in a position where they may be harmed, they cannot then sue if harm does in fact happen. It could be argued that Shane as someone with a pre-existing back condition go into the middle of the road to remove the wires? The 'volenti' only applies to the risk which a reasonable person would consider them as having assumed by their actions. Rescuers are unlikely to be held volenti if they sue the person who originally created the danger. In Harrison v British Railways Board (1981) the court said that an injured rescuer could sue the person who created the danger. The rescuer was found to be contributory negligent for not following established work procedures.Conclusion
My view is that Hingis is certainly negligent for the mismanaged work, but they could not have foreseen that a member of the public would run out into the road to remove the wires. Martina is negligent for not driving with due care and attention to other road users, as she should not have been driving to a speed which would not allow her time to stop if something or someone was in the way. For example it could have been a child which had run out in the road and she needed to stop quickly. Although Shane acted completely recklessly by removing the wires when a reasonable man may have just stopped the traffic and called for assistance. He could sue both Hingis and Martina which would lead to multiple tort feasers. If he was to sue only Hingis he would leave Hingis the choice to sue Martina for contributory negligence.QUESTION 2
Victor
The building operations that disturb Victor in the early mornings and during the afternoon, when he is trying to give piano lessons are due to Montgomery construction Ltd carrying out renovation work on David's house. This falls into a category of nuisance in the law of tort. This is the unlawful interference directly or in directly with a person's land. The interference must be within circumstances that a reasonable person cannot be expected to tolerate which is a very difficult and complex decision by the courts to reach. Nuisance has four different categories: Trespass Private nuisance Public nuisance Statutory nuisance Victor's case is one of private nuisance as it is a neighbour's property as outlined in the case of Spicer v Smee (1946) when the judge said 'Private nuisance arises out of a state of things on one man's land whereby his neighbour's property is exposed to danger'. A balance must be maintained between the right of the occupier to do what he likes with his own home, and the right of his neighbour not to be interfered with. In Christie v Davey (1893) Christie and Davey were neighbours. Christie was a music teacher that gave lessons and sometimes held musical parties. Davey objected to this, and retaliated by blowing whistles, banging on metal trays, shouting, and generally making a noise to disturb the music. An injunction was granted to Christie as Davey's conduct was purely malicious and was therefore unreasonable. In Andreae v Selfridge & Co Ltd (1937) Selfridges failed to keep the noise and dust of building work to a minimum are were found negligent as they had conducted its operations in such a way noise and dust had interfered with the reasonable and comfortable occupation of Andreae on her premises. The contractor must take proper precautions, and see that the nuisance is reduced to a minimum as Andreae had suffered damages. If Victor can prove that his students are not having lessons with him due to the noise than maybe he could have a case where he could claim damages to his business due to the building work noise as in the Andreae v Selfridge & Co Ltd case. I think Victor is over sensitive because he would have a tuned ear to noise as a piano teacher. The majority of people would not be adversely affected by construction work to a neighbour's property although they may be inconvenienced. The piano lessons in question are similar to the case McKinnon Industries v Walker (1951) where fumes from the defendant's factory damaged delicate orchids. As the fumes would have damaged flowers of ordinary sensitivity there was a nuisance. The court ruled in favor of the plaintiff because his right to enjoy his land had been damaged and therefore could also claim protection for his more unusual and sensitive activities. The standard of tolerance is that of the 'normal neighbour' but a plaintiff has a case in nuisance for damage even if he is abnormally sensitive. I conclude that the best Victor is likely to achieve in court is a restriction on the early morning working hours on the site. David and Montgomery Construction are not liable for the noise as a private nuisance. The work is temporary and the complainant is sensitive. Victor as a piano teacher seems to be over sensitive to noise and the noise is just a short term issue.Christine
This falls under occupier's liability acts (OLA) 1957 and 1984 an occupier of premises owes a common duty of care to all lawful visitors. The definition of an occupier was discussed and clarified in Wheat v E Lacon (1966) when Lord Denning defined the "occupier" as a person who has sufficient control over the premises to the extent that he ought to realise that lack of care on his part can cause damage to lawful visitors. He said: 'Wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an 'Occupier' and the person coming lawfully is his 'Visitor' and the 'Occupier' is under a duty to his 'Visitor' to use reasonable care.' In AMF International Ltd v Magnet Bowling Ltd (1968) the contractor was to provide and install valuable timber and other specialised bowling alley equipment. On July 21, 1964 an exceptionally heavy rainstorm flooded the building and the timber for the building work was seriously damaged. The court held that the contractor and the building owner were both occupiers of the building. In the OLA 1957 an occupier must be prepared for children to be less careful than adults (s2(3)(a)). Therefore, if an occupier admits children to the premises the child visitor must be reasonably safe as in Phipps v Rochester Corp (1955) the Defendant was not liable to a boy who fell into a trench while walking across open ground with his sister. This was not a breach of duty as reasonable parents will not permit young children to be sent into danger without protection.The OLA 1984 covers uninvited visitors or trespassers in (s.1(4)) it states that 'an occupier of premises owes a duty to another in of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned.'
In British Railways Board v Herrington (1972) the board was held liable for injuries to a six year old child who had been playing on the railway line. The House of Lords held that the occupier of the railway premises owed a duty of common humanity to the child. Until this case no duty of care was owed to trespassers. The Occupiers Liability Act 1984 was then extended after this to include a duty of care to trespassers).
My advice to David and Montgomery Construction Ltd is that as one of them is the owner and the other is the builder they both are jointly occupiers of the premises and have control over the premises. Christine was a child trespasser who entered the building through an unglazed window. The site should have proper Heras fencing around it with all the correct signage for health and safety. The building itself should be fairly secure to stop trespass and for security. The window that Christine entered through should really have been boarded up. Referring back to the British Railways Board v Herrington case they could well be held liable for no duty of care to Christine.
But it must be stated that the signage that is sufficient for adults is not good enough to apply to children. That is if a sign that states no trespassing for example is it considered inadequate for a child to understand and follow.Edgar
Edgar was a lawful visitor to the site in question and under the OLA 1957 the occupier owes a common duty of care to him. Again both the contractor Montgomery and David may be considered to be the occupiers of the building. All visitors to sites are given an induction and told of all the health and safety risks on site. I feel Edgar should have been aware of the hazards on site after this and should take the necessary precautions associated with a building site. (s.2(4) OLA 1957 states: (a)where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe; and
(b)
where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.
I feel that wet plaster on the floor is not a sign of an incompetent tradesman but more of the nature of the job with plastering. Edgar was aware of the risks on site and any injuries sustained to him could be due to contributory negligence from lack of care. But if Edgar was on site without a site induction David and Montgomery could be held liable for duty of care to Edgar.QUESTION 3
The rule of Rylands v Fletcher (1868) is a tort of strict liability and was laid down from the case which caused harm by escapes from land used for hazardous purposes. The defendants employed a contractor to construct a reservoir on their land. When doing this water broke through the filled-in shaft of an abandoned coal mine and flooded connecting passageways into the plaintiff's active mine nearby. The defendants were held personally liable irrespective of fault. Judge Colin Blackburn said: "We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the Plaintiff's default; or perhaps, that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exits here, it is unnecessary to inquire what excuse would be sufficient." This rule opens up an opportunity for the courts to apply all liability upon the owner of the land who had not intended for the escape and or damage. It is a good example of a loophole that allows the independent contractor to get away with negligence and the owner of the land is held accountable for everything. Strict liability is imposed under the liability for fire and to a degree for animals. Defences can be: If the claimant has consented Default of the claimant Act of a stranger Act of God Statutory authority Rylands v Fletcher is very useful where the defendant has done everything that he could possibly do to stop something happening. Word count: 3282Biography
Brewer Consulting 'Extra hazardous liabilities' [online] Available at: https://www.brewerconsulting.co.uk/cases/CJ9619NE.htm [accessed 9th May 2009] WordPress 'Duty of care in torts'[online] Available at: https://www.legal-history.com/?p=42 [accessed 9th May 2009] The K Zone 'Bolam v Friern Hospital' [online] Available at: https://www.kevinboone.com/lawglos_BolamVFriernHospitalManagementCommittee1957.html [accessed 10th May 2009] Law teacher 'The tort of negligence' [online] Available at: https://www.a-level-law.com/tort/Negligence/Flowchart.pdf [accessed 10th May 2009] Office of public sector information 'Law Reform (Contributory Negligence) Act 1945 (c.28)' [online] Available at: https://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1945/cukpga_19450028_en_1 [accessed 14th May 2009]Swarb 'Nuisance - 1930- 1959' [online] Available at: https://www.swarb.co.uk/lisc/Nuisn19301959.php [accessed 14th May 2009]
Fenwick Elliott 'nuisance and the builder' [online] Available at: https://www.fenwickelliott.co.uk/files/docs/articles/html/nuisance.htm [accessed 14th May 2009]
Loughborough University 'IDENTIFICATION OF ENVIRONMENTAL RISKS' [online] Available at: https://www2.ing.puc.cl/~icccon/abstracts/PDF/Track5/T5-P22.pdf [accessed 16th May 2009]
Swarb 'Torts 1960-1969' [online] Available at: https://www.swarb.co.uk/lisc/TrtOt19601969.php [accessed 16th May 2009]
Law teacher 'AMF International Ltd v Magnet Bowling Ltd' [online] Available at: https://www.lawteacher.net/cases/neg15.htm/file-91.php [accessed 16th May 2009]
Card,R. Murdoch, J. Murdoch,S.,2003. Estate management law. 3rd ed. New York: Oxford University Press.
Askey,S. McLeod, I., 2006. Studying Law. 2nd ed. Hampshire: Palgrave MacmillanPaper 6041 (2002) General liability, CEM
Paper 6042 (2002) Direct and indirect interference with land, CEM
Paper 6043 (2002) Negligence, CEM
Paper 6044 (2002) Defective premises, CEM
Paper 6045 (2002) Breach of statutory duty, CEM
Paper 6046 (2002) Strict liability, CEM
Mullis,A. Oliphant,K. 2003. Torts 3rd ed. Hampshire: Palgrave MacmillanCite this page
The Tort Law Effect On Victims Essay Online For Free. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
The Withdrawal of Shareholders
Considering the many unfavorable results of company dissolution, it can be appointed in the articles of association that the withdrawal of shareholders should be the pre-procedure for dissolution of the company. Only when shareholders cannot agree upon their ways of withdrawal, the company takes the act of dissolution. Therefore, the author suggests that the company regulates in the articles of association that the withdrawal of shareholders should be a necessary procedure before the resolution of the company.
But it should not force different parties of the shareholders to agree upon this resolution. Shareholders should be allowed to discuss on this matter, the best result is to form a resolution, but if a resolution cannot be made, the dissolution of the company is employed. Since dissolution of the company is the last measure for company to resolve corporate deadlock, it should be regulated in the articles of association, so that the company can enter into the dissolution process and thereby break the corporate deadlock. At the time of the establishment of a company, it allows shareholders to choose their ways of withdrawal according to their wishes and the actual situation of the company. It must be noted that the first approach is the best strategy. Not only does it allow the company to continue to exist, the procedure of it is simple. The second approach may well be a good way to resolve the corporate deadlock, especially for large-scale enterprises with good assets and good operating state. It is a move that can be boldly took on the condition that it does not damage the creditors’ interest.
However, this approach involves reducing the company’s registered capital. Shareholders should form resolution on the reduction of capital (it is a difficult move in the case of the loss of mutual trust among shareholders). The company should notify known creditors and make newspaper announcements, but at the same time safeguard the interests of creditors. It can be seen that the procedure of the second approach is more complicated than the first approach.
And it also involves complex issues such as the protection of creditors and equity price. Therefore, for company with poor operating conditions, non-performing assets and debt, it should be cautious when adopting the second approach in case the withdrawal of one side of the shareholders may result in the situation where the company’s asset is insufficient to cover the debt, and therefore damages the creditors’ interest, especially when some shareholders attempt to withdraw their capital to circumvent their shareholder responsibilities. For these reasons, the author is inclined to the first approach. It has been mentioned that when taking the first approach, it is unfair to force one party to transfer their shares. The way of transfer should be allowed to be discussed. In order to determine the transfer and buyer of the shares, there is a “bidding process” that can be referred to in the judicial practice. In the bidding process, the articles of association provide the bids. Within a prescribed period of bid, shareholders with the highest price become the buyer, while shareholders who do not participate in the bidding or offer a lower price have to transfer their shares. In such way, the company solves the transfer problem with a bid.
The author believes that the transfer of shares is very complicated. There are plenty ways of transferring, for example, it can be transferred internally or externally. There are many shareholders in the internal transfer. To decide which shareholder to transfer to and the price of transfer can be a bother. It is difficult for the articles of association to cover all the situations. And often the more it regulates, the more possible vulnerabilities there are. Therefore, the author believes that the company does not need to have specific provisions on transfer in the articles of association. It only needs to make sure that the transfer is a necessary pre-procedure.
All sides can discuss upon this matter. And if a resolution cannot be formed, then the company dissolved. Therefore, the author suggests that the articles of association regulate the following: If the Board of Directors could not form effective resolutions on matters that need to be resolved, then the meeting should be postponed and reconvened twenty-four hours later. If the board reconvened is still unable to form any effective resolution, it should keep detailed records of relevant discussions and hand them over to shareholders or designated representatives for further discussion and resolution. Within forty-five days after the board meeting reconvened, if shareholders or designated representatives still could not form any effective resolution, shareholders should discuss on the purchase of equity by one side of the shareholders from the other side. If shareholders fail to reach an agreement on the sale of equity, either party may inform the other party by written notice to convene a board meeting to discuss the dissolution of the company. Shareholders should urge directors to attend the meeting and agree to sign the resolution on the dissolution and liquidation of the company. It should be noted that, Article 75 in “The Law of Corporations” provides the shareholders withdrawal system, but it does not specify whether the corporate deadlock conforms to its regulations.
The Article 75 regulates: “Under the following circumstances, shareholders who vote against the resolution may request the company to purchase their shares at a reasonable price: 1. The company does not distribute profits to shareholders for five consecutive years, while the company is actually profitable during the five years, and it conforms to the profit distribution conditions regulated in this provision; 2. The company merges, divides or transfers its main property; 3. Due to the expiration of the term of the operation of the company as regulated in the articles of association, or other reasons for the dissolution of the company, the shareholders’ meeting forms an resolution to revise the articles of association and continue the existence of the company. Within 60 days after the meeting form the resolution, if shareholders cannot come to a purchase agreement with the company, they can institute a proceeding against the company within 90 days after the meeting. The author believes that the withdrawal situation as provided in the provision contains three parts: the shareholders’ meeting has form a resolution, shareholders who withdraw vote against the resolution, and it is the company who buys back the shares rather than other shareholders. But in the case of corporate deadlock, it is impossible for shareholders to from any resolution. And for Sino-foreign joint ventures, the organizational structure of the company is the board of directors rather than the board of shareholders.
Therefore, provisions of the Article 75 in “The Law of Corporations” do not apply to the corporate deadlock of joint ventures. Section II Solution during the Event Solution during the event means when conflict among shareholders and directors has already affected the company’s management and operations, the company solves the deadlock through mediation and arbitration. Of course, mediation and arbitration can be applied to any stage of corporate deadlock, that is before, during and after the event. Before the event, the company can regulates in the articles of association that mediation should be a necessary pre-procedure when breaking the corporate deadlock. It can appoint a third person as the mediator.
Both sides should cooperate with the mediator. Or the company can regulate in the articles of association the arbitration clause or arbitration agreement before the proceeding, so that it can refer to the arbitration for the corporate deadlock. Shareholders and directors can also mediate during and after the event to solve the corporate deadlock through mediation and arbitration. Either party can ask a third person to mediate. In order not to be lengthy and at that same time highlight the key point, the author will discuss the measures of mediation and arbitration during the event in this section. But in fact, as mentioned before, mediation and arbitration can be applied to any stage of the corporate deadlock. Mediation as the Necessary Pre-Procedure for the Resolution of Corporate Deadlock It is when there is problem in the “collaboration” of the company, directors or shareholders begin to take opposite attitudes and act against each other.
Mediation can help to ease the conflicts and reconcile shareholders and directors. Life tells us that many things are not irreconcilable. By mediation of a third party, conflicts can be resolved, and misunderstanding can be eliminated. Especially for dispute caused by poor communication or momentary impulse, mediation can help resolve contradictions. Mediation has a direct effect on the conflicts. It is easy to use. And it consumes little social resources.
Therefore, when corporate deadlock occurs, medication should be the first measure to be taken. The author suggests that a company can regulate in the articles of association that mediation should be a necessary pre-procedure when solving the corporate deadlock, and it can appoint a third party as the mediator.
Cite this page
The Withdrawal of Shareholders. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
The Theories Underpinning Corporate Example for Free
Introduction The corporate insolvency concerns different parties with an interest in the business and those interests may resulted in conflicts and tensions between them. The existence of corporate insolvency law attempts to balance the interests of the competing stakeholders, such as creditors, employees, local community and the public. While on one hand, insolvency law is to focus on the creditors’ interest, on the other hand, insolvency law serves to embrace a wider role as to consider interests of various constituents in the society.
Thus, this has pointed to the debates on the fundamental principles such as the theoretical foundations and objectives of corporate insolvency law. UK insolvency law has developed in a pragmatic and piecemeal way[1], with various perspectives exerting varying degrees of influence over the current law. In view of the importance of theories underpinning corporate insolvency law to a proper understanding of the objectives and principles of the law, it is necessary to review various theories on how they have constructed and moulded the insolvency procedures. Creditor Wealth Maximisation vs Communitarian vision According to the Creditor Wealth Maximisation (CWM) theory, the main objective of insolvency law is to maximise the collective return to creditors whereby the company creditors agree to a collective procedure to enforce their claims rather than procedure of individual actions.
[2] It follows that rehabilitation of the corporate enterprise is not a legitimate goal of insolvency law except to the extent that it is intended to maximise returns for the existing creditors. These theories emphasises that the insolvency law must respect the existing pre-insolvency creditor’s rights where distribution is relied upon. Therefore, insolvency law is not considered to concern itself to protect the interests of other than creditors affected by the failure of corporate enterprise. Keeping firms in operations is this not seen as an independent goal of insolvency law. The problem with this approach is that strict adherence to this rule is likely to produce injustice vis-A -vis other parties, such as the employees and members of the community. In contrast with the emphasis on private rights contained within the CWM approach, the communitarian vision sees insolvency processes as weighting the interest of a broad range of different constituents. It does not just take on board the creditor’s interest but the interests of other like employees, suppliers, and local community
[3] are also considered.
This approach permits the insolvency procedures to rehabilitate commercial enterprises where this would have a better result for the community in protecting jobs even at the expense of some other rights. The communitarian theory also argues that insolvency law should cater for the survival of businesses and to their proper dissolution.
Competing objectives and various theories have provided a fundamental basis of how may the design of procedures a jurisdiction be based. However, based on different historical, social and cultural background of different countries, the balance and collaboration of different objectives may seek to shape the best design for insolvency law. Liquidation Liquidation is the most commonly used insolvency procedure and it has been widely used for centuries in the UK. It is the final step before a company’s dissolution and is the process whereby the assets of the company are collected and realised. Upon dissolution, the liquidator will then need to use the assets to meet the company’s debt and liabilities. The distribution of assets is generally subject to the pari passu rule, which means that creditor receive an equal share of the company’s assets.
However, the pari passu rule is subject to several exceptions according to the statutory creditor priorities. To certain extent, the foundation of the liquation procedures seems to lie in the CWM doctrine which has dominated the insolvency field and continues to have a profound influence. The process of liquidation is designed to ensure that the return to creditors as a group is maximised. This collective approach of liquidation procedure has reflected in Jackson’s assertion
[4] that insolvency law is essentially a debt collection device where the creditor bargain provides for the individualistic regime to be replaced by a collective one. However, the CWM theory is fundamentally flawed in alleging that pre-insolvency entitlements are designed with an eye to ongoing contractual relationships. This argument can be supported by asserting that a core and proper function of insolvency law is to pursue different distributional objectives than are implied in the body of pre-insolvency rights; that insolvency law does so by adopting a base-line rule on equality- pari passu- and by then making considered exceptions to that rule.
Notwithstanding the drawback of CWM theory, protection and maximization of creditors’ wealth is still a basic objective in the present Insolvency Law. To facilitate the development of a capitalist economy, new business venture and entrepreneurialism must be encouraged. However, due to the lack of funds and loans, the Government is counting on private credit lending such as banks and building society to provide such funding. As such, there is a need for this society to promote creditor lending and hence the insolvency regime to ensure the privilege of creditors is preserved. Although the CWM vision may have dominated and that public interest is not the major aim for instigating insolvency proceeding, the procedure itself still underpins a notion of public protection. This can be exemplified by the fact that liquidation procedure involves the investigation of the affairs of an insolvent company, to ensure any conducts of violation by the debtors or management of the insolvency company will be subjected to criminal or statutory sanctions.
Supporting the above view, Morkal[5]argues that ‘liquidation, aside taking care of the interest of the creditors, also regards the public interest by making sure the insolvent company has not violate commercial morality.’ The Cork Report
[6] In regard of the ambiguity created between competing interests in an insolvency procedure, devising principles based on sound theory is critical to insolvency law. However, thus far, the law has developed in an ad hoc fashion largely devoid of clear principles.
[7] In view of formulating clear objectives of the English insolvency law, the Cork Committee (1982) has played a vital role in framing a sound system for the Insolvency Act 1986 and later provisions. The Cork Committee suggested that reform was needed to shift UK’s insolvency procedure away from the pro-creditor regime towards a more practical rehabilitation approach. This is to encourage viable business to continue operate as possible in order to obtain more value than which might be obtained from standard liquidation. Although the legislation still not yet lay down a formal statement or set of objectives of the purpose of insolvency law, the introduction of various procedures does evident that UK insolvency law tends to foster a business rescue culture. The rescue culture Corporate rescue law is regarded as an essential feature to promote well functioning of market economy. It aims to enable companies to overcome difficulties and to restore financial health.
The introduction of Administration procedures suggests a move away from the old receivership process by which a company might be saved, rather than to dissolute, in times of financial difficulties. It facilitates the preservation of the economic value of the business in a manner that would not be possible in case of liquidation, resulting in higher returns to creditors. This illustrates the UK’s commitment to the goal of saving business from fatality at all costs and to safeguard the prosperity of a capitalist jurisdiction.
Likewise, the introduction of voluntary arrangements addresses the weakness of ‘debt collection’ agenda and move towards a rescue approach to promote rehabilitation process through arrangements agreed by the company with its creditors. These new provisions provide an easier and more efficient initiation of corporate rescue. Lower cost and simpler procedure will benefit the corporations, especially small entrepreneurships. The rescue culture does coincide with the communitarian vision which emphasises on a variety of constituent interest especially the public interests.
[8] This approach supports the insolvency procedures to rescue commercial entities where this would yield a better outcome for the community even at the expense of some other rights.
[9] The communitarian vision contests that insolvency law should cater for the public benefits resulting from business continuity. In this respect, the Cork Committee’s statement endorses aspects of communitarian theory in emphasising that insolvency not only affects interests in community beyond insolvents and their creditors, but that the procedure should offer means to preserve viable businesses capable of contributing to the economic prosperity of the country.[10] At the outset, the corporate rescue laws may seem to endorse solely the communitarian vision in acknowledging broad interests of the society.
Indeed, the statutory goal of the rescue procedures has reflected the CWM vision to certain extent in achieving realisation of assets for creditors while upholding the fundamental role of protecting creditor’s rights. This can be seen that while rescuing the business is a concern to facilitate the capitalist economy, the ultimate goals still lies in providing higher and better returns to creditors. In addition, the practice nature of the court in dealing with cases also shed some light on the situation of the insolvency reality. In England, judges tend to favour the financiers; bankers appear to have acquired respectability over the centuries whereas those who take risks in business have not. It is just to say that generally these parties are given special treatment in insolvency because of the profound regulatory concerns that affect these industries. This indicates that a more creditor-favoured regime is the prevailing phenomenon within the insolvency procedures. Albeit the rescue culture has been seen as being biased towards the enforcement of the creditor’s rights,[11] yet as suggested by Finch, “the route to a clear design of a rescue regime is to decide on an appropriate balance of interests and to set up a procedure that pursues those interests consistently with that balancing.” [12] Ongoing trend towards a rescue culture While it cannot be said with certainty that there is a uniform adherence to either end of the theory spectrum in designing the insolvency procedures, it is safe to say that different jurisdictions are continually making changes to their insolvency laws to focus on continuation of the business and preservation of jobs rather than on assets realisation for the benefits of creditors and on liquidation of insolvent companies. Similarly, the UK’s Insolvency Act of 1986 has been reformed by the Enterprise Act 2002 to reflect the UK government corporate rescue incentive.
Here too, the ethos is the assisting of the rehabilitation of viable businesses to be accomplished by tilting the balance in favour of the administration procedure deemed capable of accounting for the interests of all affected parties and restricting the use of administrative receivership which used to give a single secured creditor effective control over the insolvencyprocedure. In view of employment protection, there is also an emerging trend which suggests the notion that when a company is insolvent the only interests deserving consideration are those of its creditors can no longer be sustained. Employees are beginning to find favour for the protection of their interests in the legislative arena in which insolvencylegislation has been previously crafted. The insolvency Act 1986 provisions on preferential debts also offer some assistance to employees.[13] It was seen that the legislation gives preferential priority to unpaid wages and accrued holiday pay owed.[14] This means that such payments are payable out of the available assets of the company prior to unsecured claims and claims secured by floating charges but after relevant insolvency expenses and other secured claims. [15] In addition, source of statutory protection also flows from employment and the social security system.[16] Employees of an insolvent company are entitled to claim against the state National Insurance Fund on the terms set out in the Employment Rights Act 1996.[17] These provisions enable employees to launch a claim for a range of compensations such as unpaid arrears of wages and award for unfair dismissal. Further evidence in supporting employment protection can also be seen in the TUPE Regulations.[18] Under the Regulations, a transfer of an undertaking passed contracts of employment over to the transferee and previously employed persons became employees of the transferee under the same terms and conditions as were set out in their initial contracts.[19] The provisions make it easier for insolvent business to be transferred to new employers and thus facilitate the rescue of the business as an “ongoing concern”.[20] Future development Regardless the ongoing trend of the society in favouring a rescue culture, ambiguity of theoretical consistency in the legal framework still produce high cost, inefficiency and unfairness. It may be responded that laws can never be certain, that judges have to apply rules to differing circumstances, and to adjust criteria, standards, and rules to cope with changes in such matters as business practices and ways of setting up commercial relationships.
There is however, an important distinction to be drawn between the unavoidable uncertainties that flow from the factors and the unnecessary uncertainties that arise because inconsistent theories are varying with each other in driving legal developments. It is therefore suggested that the issue of theoretical deficiency can be addressed by adopting an ‘explicit values’ approach[21] to the design and evaluation of corporate insolvency process. This is an approach that is applicable to all corporate insolvency procedures and encourages the development of mechanisms that are consistent in so far as they are to a common philosophy and to a limited number of identifiable values. It seeks to embrace both the public and private dimensions of corporate insolvency law. Such an approach does not offer the certainty or the authority that flows from a single theoretical vision of the just insolvency system but on a much safer outcome and practical ground with incorporating values of efficiency, expertise, accountability and fairness. It is envisaged that insolvency law should be assessed and redesigned with an eye to operational matters and not merely to the formal rules. Albeit the explicit value approach is merely an academic point of view, it provides a structural foundation in offering guidance to the future development of insolvency procedures. Conclusion Insolvency Law can be seen, to date, as a chaotic piece of legislation encompassing different theoretical ambiguities. Notwithstanding the lack of consistency, theories play a pivotal role in providing fundamental basis of the purpose and limit of insolvency doctrines.
Theory can assist in explaining what the means and ends of insolvencylaw should be, without dictating what the best or most efficient proposal for achieving that end should be.[22] Yet, the paramount goal of a normative theory of insolvency law is, as suggested, to ascertain an fundamental perspective on values that underpin current law.A theory provides direction for resolving problems of conflicting values inherent in insolvency procedures[23] and may yield explicit, but never perfect, solutions to particular insolvencyproblem.[24]As opined by Etukakpan, ‘The success of any given theory should not be justified by how well it resolves every value-based insolvencyquestion.’[25] Rather, it is judged by its competence to recognise the nature of the values and objectives on which the law is founded, and then in its ability to provide a meaningful prescription regarding how the current law should be balanced or preserved. [26]
[1] Christopher F. Symes, Statutory Proirities in Insolvency Law (Ashgate, 2008) p.51
[2] Thomas Jackson, The Logic and Limits of Bankruptcy Law (Harvard University Press 1986) Chapter 1 and 2
[3] Andrew Keay & Peter Walton, Insolvency Law: Corporate & Personal (Pearson, Longman 2008)
[4] DG Baird, TH Jackson ‘Corporate Reorganisations and the Treatment of Diverse Ownership Interests: A Comment on Adequate Protection of Secured Creditors in Bankruptcy” (1984) 51 University of Chicago Law Review 97.
[5] Rizwaan Mokaal, ‘What Liquidation does for Secured Creditors, and what it does for you’ (2008) 71 MLR 699-733
[6] Report of the Review Committee on Insolvency Law and Practice(1982) Cmnd 8558
[7] Andrew Keay, ‘Balancing interests in Bankrupcty Law’ [2001] CLWR206.
[8] K Gross (1994) ‘Taking Community Interests into Account in Bankruptcy: An Essay.’ Washington University Law Quarterly 72
[9] Vanessa Finch, Corporate Insolvency Law: Perspective & Principles (2nd ed. Cambridge University Press, 2009) [10] Cork Report, para. 198(i) and (j). [11] Douglas Baird & Thomas Jackson, , ‘Corporate Reorganisation and the Treatment of Bankruptcy’, 51 University of Chicago Law Review, 98. [12] Vanessa Finch, ‘The Measures of Insolvency Law’ (1997) 17(2) OJLS 227. [13] Insolvency Act 1986 s. 386 and Sch.6. [14] Ibid. Sch.6, Category 5. [15] Ibid. Sch.6, Category 5. [16] L. Clarke and H. Rajak, ‘Mann v. Secretary of State for Employment’ (2000) 63 MLR 895. [17] Employment Act 1996 ss. 166-70 and 182-90. [18] Transfer of Undertakings (Protection of Employment) Regulations 2006. [19] Ibid.
Regulation 4, 7 and 10. [20] Insolvency Act 1986 Sch. B1 para3. [21] V. Finch, Corporate Insolvency Law: Perspective & Principles (2nd ed. Cambridge University Press, 2009) [22] K. Mooney, ‘A Normative Theory of Bankruptcy Law’(2003) <https://ssrn.com/abstract id=425120>Accessed 28 March 2014 [23] Donald R. Korobkin, “Contractarianism and the Normative Foundations of Bankruptcy Law” (1993) 71 Texas Law Rev. 111. [24] E. Warren, “Bankruptcy Policy” (1987) 54 U. Chi. L. Rev. 775, 797. [25] Samuel Edwin Etukakpan, ‘Business rescue and continuity of employment: analysing policy through the lens of theory’ (2011) Comp. Law. 2011, 32(4), 113 [26] ibid.
Cite this page
The Theories Underpinning Corporate Example For Free. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
Tort Law Problem Answers
- An intentional act
- The absence of consent on Defendants part in this case
- The inducement of an apprehension of imminent contact ( An imminent battery)
- Is there any reasonable apprehension for reasonable battery?
- Foreseeability of damage
- Sufficient proximity between the parties
- Fair, just and reasonable
- Foreseeable victim
- Foreseeable zone
- Foreseeability of damage
- Sufficient Proximity between the Parties
- Fair, just and reasonable
- Foreseeable victim
- Foreseeable Zone
- Close tie of love and affection
- Witnesses the event with their own unaided senses
- Proximity to the event itself or its immediate aftermath
- Psychiatric injury must be a result if a shocking event
- Close tie of love and affection
- Witnesses the event with their own unaided senses
- Proximity to the event itself or its immediate aftermath
- Psychiatric injury must be a result of a shocking event.
[1] W.V.H Rogers, Torts,(1994)p58 [2] Tuberville v Savage (1669) 86 ER 684 [3] Stephens’s v Myers (1830) 172 ER 735 [4] K. M. Stanton, The Modern Law of Tort, (1994) p 58 [5] ibid [6] Above n3 p188 [7] Smith v Chief Constable of working (1983) 76 Cr App R 234 [8] Michael A. J, Textbook on Torts, (8th Ed, 2007) p31 [9] Tony. Weir, A Casebook on Tort, (10th Ed, 2004) p46. [10] Home Office v Dorset Yacht Co Ltd [1970] AC 1004 [11] Michael A. J, Textbook on Torts, (8th Ed, 2007) p37 [12] Home Office v Dorset Yacht Co Ltd [1970] AC 1004 [13] Cited in K. M. Stanton, The Modern Law of Tort, (1994) p27 [14] Richard v State of Victoria (1969) VR 136 [15] Michael. A. J, Textbook on Torts, (8th Ed, 2007) p35. [16] Home Office v Dorset Yacht Co Ltd [1970] AC 1004 [17] I.Fraser, LW 203 Torts I, (Sera Rokodi, 2011) pg 5.24 [18] n [19] W.V.H. Rogers, Torts, (1994) p120 [20] Alcock & ors v Chief Constable of South Yorkshire [1992] AC 310 [21] Tony. Weir, A Casebook on Tort, (10th Ed, 2004) p209-210 [22] Alcock & ors v Chief Constable of South Yorkshire [1992] AC 310 [23] Cited in above n22 p208 [24] McLoughlin v O’ Brian [1983] 1 AC 410 [25] Michael. A. J, Textbook on Torts, (8th Ed, 2007) p208
Cite this page
Tort Law Problem Answers. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
Transfer Pricing – an Introduction
- Introduction
- TRANSFER PRICING
- OECD Guidelines
- Transfer pricing in India- a brief history
- The business should be transacted between a resident and a non resident
- There should be a close connection between the two
- On the account, the course of the business so arranged that the business produces either no profit or less than normal profit to the resident.
- Research question
- Whether Capital receipts by way of subscription of shares is covered under the transfer pricing regulation and under the jurisdiction of the Income Tax Act, under Chapter X?
- Whether a single transaction of issue of shares can be treated as two transactions – viz. as that of issue of shares and of grant of a financial accommodation?
- Whether the income tax authorities can challenge the valuation of shares undertaken by the Indian subsidiary during the share subscription at the time of issue of shares?
- Methodology
- Objective
- Impact and Significance
- Chapterisation
- Introduction
[1] Ministry of Finance Department of Revenue, Central Board of Direct Taxes, White paper on black money, May 2012. See also, Christian, Death and Taxes: The Truth of Tax Dodging, March 2009. [2] See generally KAnga, Palkhiwala, Vyas, The Law and Practice of Income Tax 1736 (LexisNexis Butterworth 9ed.) [3]Income Tax department, Transfer Pricing, available at https://law.incometaxindia.gov.in/DIT/File_opener.aspx?fn=https://law.incometaxindia.gov.in/Directtaxlaws/act2005/tp1.htm (Last accessed Feb 12, 2013) [4]OECD, Glossary of statistical terms. [5]Department of Valuation, Transfer pricing, available at https://www.dov.gov.in/newsite3/tp_agenda.asp (Last accessed Jan 31, 2013). [6] Supra note 1 [7] Garner, Black Laws Dictionary 1536,( 7th edn., 1999). [8] D.P. Mittal, Law of Transfer pricing In India 9.(Taxmann, 3rd ed. 2009) [9] See, History of OECD available at https://www.oecd.org/about/history/ (Last accessed Jan 31, 2013). [10]The OECD Transfer pricing Guidelines for Multinational Enterprises and Tax Administrations, 2010. [11] As provided in the guidelines. [12] The OECD Transfer pricing Guidelines for Multinational Enterprises and Tax Administrations, 2010. [13] Section 42(2) of the Income Tax Act, 1922 has prescribed certain conditions to invoke the transfer pricing provision. [14] The Finance Act, 2001, made the compliance with the transfer pricing regulation mandatory. The memorandum with the bill gave an explanation as to the growth of the MNE and the need for a tax legislation to prevent the tax erosion. See Circular NO. 14 dated 20 November 2001.
Cite this page
Transfer Pricing - An Introduction. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
Types of Criminal Justice Systems Law Essay
Across the world there are many different types of criminal justice system to keep and maintain order and peace within their area of jurisdiction creating a social code of conduct, the law. The criminal justice system tries to deter individuals from disrupting this peace and order by pressuring them with the notion of punishment forcing the individual to abide to the law. These punishments differ from being a punitive one or a rehabilitative nature. By doing so the criminal justice has certain power to control society by means of policing. Policing plays an important role in the criminal justice system as it is the first step to criminal proceedings following investigation, judgment and finally punishment where applicable. The criminal justice system can be categorized in three main parts; policing where the investigation is held, the courts for judgement to take place and corrections where the type of punishment is looked over by the correctional authorities (Bernard, 2011). As mentioned before there are many different types of criminal justice system, the author of this literature will be comparing and contrasting the Japanese criminal justice system with the England and Wales's system. England and Wales criminal justice follows an adversarial system where the magistrate or a jury hears two opposing views of a case. The defence and the prosecution parties can present their case as how they deem fit by calling and examining witnesses as they like within certain restriction provided by the law (Chapman & Niven, 2000). Unlike the England and Wales's system the Japanese system follows a semi-inquisitorial scheme where a judge is present in the preparation of evidence with the police and has a say in the way different parties are to show their case in trial. The judge asks questions to the witnesses while the defendant and the prosecution parties can enquire additional questions only through the judge (Mortimer, 1994). Furthermore the Japanese system does not use the jury system as the England and Wales do. This system of the Japanese is called the "Monopolization of Prosecution" and gives exclusive power to public prosecutors only. Nevertheless there is an exception to the Monopolization of Prosecution and is practiced when a victim of crime believes that the public prosecutors are abusing of their exclusive power. He or she can apply to the court to order the case to be tried. If the order is well-founded then the court must order the case to be tried and a practicing lawyer is selected by the court to exercise the role of the public prosecutor, however if otherwise the order is dismissed (UNAFEI, 2010). A common characteristic in both the Japanese and the England and Wale's system is the presumption of innocence until proven guilty and that the standard proof must be beyond the reasonable doubt. This presumption of innocence applies at every stage of the criminal procedure and in case of doubt the defendant's view will always be favoured. (Chapman & Niven, 2000; UNAFEI, 2010). Throughout all Japan there is one territorial jurisdiction; the same procedure is followed in all criminal cases under the Code of Criminal Procedure (CCP) and the Rules of Criminal Procedure.
The constitution protects most of the rights of the individual regarding court trial and criminal investigation under several articles. A few article are listed below Article 31: "no person shall be deprived of life, or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law," Article 33: "no person shall be arrested except upon warrant issued by a competent judicial officer, which specifies the offences with which the person is charged, unless he is arrested in the commission of the offences". Article 38: "no person shall be compelled to testify against himself," and that a "confession made under compulsion, torture, or threat, or after prolonged detention or confinement shall not be admitted in evidence". It further provides that "no person shall be convicted or punished in cases where the only proof against him is his own confession". Article 40:"any person, in case he is acquitted after he has been detained or confined, may sue the State for redress as provided by law". (UNAFEI, 2010, p. 20) Similarly with the England and Wales criminal system the individual has many different rights under the "The Human Rights Act 1998". In the same way as Article 40 in the Japanese constitution the individual can sue the State to the European Court. A few articles from this Act is as follows "Article 2 - Right to life Article 3 - Prohibition of torture Article 6 - Right to a fair trial Article 7 - No punishment without law - this article states that no person can be punished for an action which did not constitute a criminal offence at the time it was committed. Article 18 - Limitation on use of restrictions on rights - this article ensures that the restrictions on rights in the convention are not used for any purpose other than those for which they have been prescribed." (Chapman & Niven, 2000, p. 5-6)
The Police
In Japan a police Law was put into force in 1947, completely amended in 1954 in order to offer an efficient and effective police organization showing considerable respect to the principle of local autonomy. The police are trained in order to safe guard the national public in matters relating to serious natural catastrophe creating public disorder and matters relating to civil disturbances. The police in Japan are called "Prefectural Police". For some reason or another, as according to the Cabinet Order, in Japan there can only be 278,300 prefectural police. It is estimated that in Japan 1st October 2003, the population was of 127,619,000 meaning that there is one police officer for every 460 persons in the country. The Police law stipulates the duties of the police as "protection of life, person and property of individuals; prevention, suppression and detection of crime and apprehension of suspects; control of traffic; and other functions necessary to maintain public peace and order" (UNAFEI, 2010, p. 2). According to the police law crime detection is one of the main duties of the all the police officers including patrolmen in all police jurisdiction. (UNAFEI, 2010) In England and Wales the police have more or less the same role as the Prefectural Police. However for England and Wales, before the Police Act of 1964, the idea of the police was regarded as "police force" to enforce the law. Within time difficulties and concerns were experienced with the public and these experiences changed the mentality of a police force to "police service". A difference from the Prefectural Police is that in England and Wales, the police have different number of forces. These forces have specific territorial powers such as the British Transport police, the Ministry of Defence Police and Royal Parks Police (Chapman & Niven, 2000). In Japan there is only one force that controls different territories.
The Courts
In Japan there are five types of courts in Japan and are all integrated into a unitary national judicial system. These courts are; the Supreme Court, High Court, District Court, Family Court and Summary Court. The Summary Court; where all cases are heard by a single judge. This court's jurisdiction is very limited to small offences, offences not more than 1,400,000 (12,496.65), punishable by a fine or a lighter punishment for example penal detention or a minor fine, and other minor criminal offences. A few examples of minor criminal offences include habitual gambling, embezzlement, petty theft and buying or accepting stolen property. The Summary may not give a prison sentence or a graver punishment however can impose imprisonment with labour not exceeding three years. When a case has an outcome of imprisonment of more than three years, the Summary Court can transfer it to the District Court. (UNAFEI, 2010) The Family Court; has jurisdiction over family issues and juvenile delinquency involving persons under the age of 20. In addition this court hears adult criminal cases that involve offences harmful to juveniles. (UNAFEI, 2010) The District Court; hears all cases at the first glance except those set aside for the Summary court, Family Court and the High Court. Most of the time cases are tried by a single judge. Nevertheless if there is the possibility of sentencing a life imprisonment, imprisonment for more than one year or death, three judges hear the case. (UNAFEI, 2010) The High Court; has jurisdiction appeals from decisions made by the District Court, Family Court and the Summary court in criminal cases heard by three judges. The high court even hears cases involving insurrection where 5 judges handle the case. (UNAFEI, 2010) The Supreme Court; situated in Tokyo, is the highest court and consists of 15 Justices including the Chief Justice, nine of them qualified to be a Japanese legal practitioner and five of those who has extensive knowledge of the law and is at least 40 years of age. This court exercises appellate jurisdiction. Articles 81 of the Constitution state that this court is the court of last resort and is to decide on the constitutionality of any law, regulation, order or official act. The Supreme Court implements this power by rendering case-specific conclusions not by declaring constitutionality in a general way. It generally hears appeals that were tried at a high court if and only if "(1) a violation of the Constitution or an error in constitutional error, or (2) adjudication contrary to precedents of Supreme Court or High Courts" (UNAFEI, 2010) In England and Wales the Courts there are five courts too, the lowest court is the Magistrates Courts where over 96% of criminal cases are dealt with this court. The Magistrates' Court is tried by at least two lay magistrate but normally three magistrates hears the trial. A district judge can hear a case on his or her own. The magistrate court acts as the Summary Court, The Family Court and the District Court of Japan but can only impose a prison sentence of less than six months or 12months for consecutive sentences, nor can exceed a fine of £5000 (5,926.98). (Chapman & Niven, 2000) Three other courts which are under the Supreme Court are the Court of Appeal, the High Court and the Crown Court. The Crown court hears trials of indictable offences and appeals from the court of Magistrates. Appeals from cases originating in the magistrates courts on points of law and proceedings are heard at the High Court. Appeals arising from the Crown court and the High Courts are heard at the Court of Appeal where the final Appeal is heard at the House of Lords. The House of Lords is made up of Lords of Appeal chosen amongst the judges of the Court of Appeal. The High court in Japan is equivalent to the Supreme Courts in England and Wales whereas the House of Lords is similar to the Supreme Court of Japan. (UNAFEI, 2010; Chapman & Niven, 2000)
Corrections
After a verdict is given and the individual is found guilty, apart from imprisonment there are many other sanctions that both the Japanese and the England and Wales's system. Both countries have Probation Officers, Halfway Houses, Parole, Fines and Suspended sentences. The Japanese constitution puts a good effort in Probation and Parole where the offender is put within society supervised. Many citizens volunteer as an assistant probationer or parole. Furthermore in Japan Juveniles are given more attention in order for them to rehabilitate; Living Guidance, Academic Education, Physical and Health Education is provided. The prisons in Japan never suffered overcrowding as the rehabilitation of the offender was more important than retaliation. In England and Wales, effort is put more in community sentences, resulting in less concentration with probation and parole. Community service, Combination, curfew and drug treatment and testing orders are all an option. Community service is when a prisoner does unpaid work for the community with a minimum if 40hours and a maximum of 240hours in twelve months. The Combination order works hand in hand with a probationer where community service is given with the other rules of the probationer. Curfew order controls the person's liberty of a person to leave an address at certain hours. These different option were put into force as a solution to overcrowding in the prison system where again the mentality has changed throughout the years. A difference in sentencing between the Japanese and England's system is the capital punishment. In England and Wales the capital punishment for murder was abolished in 1965. However it was kept but unused for crimes such as treason and other offences. In September 1998 capital punishment was completely abolished under the Crime and Disorder Act. In Japan the capital punishment is still practiced for homicide and treason. However the homicide must include aggravating factors and/or multiple murders.
Conclusion
Even though the English system has been practised before the Japanese system, there is not much of a distinction between the two as one would perceive it to be due to cultural difference. Most of the rights of the individual are protected in both countries; however power is not always exclusive within public prosecutors. So much so, even though power is mainly in the hands of the Japanese public prosecutors, the citizen still has right to go against such mentioned power.
Cite this page
Types Of Criminal Justice Systems Law Essay. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/10/
