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Role of the judiciary
English law of contract
English law of contract
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“A Contract is an agreement giving rise to the obligation which are enforced or recognised by law”. The development of the rules and procedures set out in Contract Law is derived from the common law and statutes. Individual judge’s decisions on disputes, which grew over time, generated the ideas of what constituted as a contract. The view that English contract law is handicapped by the narrow range of backgrounds which judges are drawn; has been refuted here. This is due to the fact that English Contract rules set out through the formation, duress, illegality, capacity, frustrated contracts and remedies; which embark on representing society as a whole and especially on ordinary members of society. Judges in the English judiciary are unrepresentative, although, this has no impact on the law of contract, due to their decisions are based on facts and interpretation of the law, thus, a judge's opinion does not constitute a decision. However, this essay does not refute the fact the Judges in the judiciary have been known to be an ‘Old Boys club’. Although, the introduction of the Judiciary Appointments Committee, directs the judiciary to a reform of being representative. Hence, this essay aims to show that Contract Law Rules are not unfair to the ordinary members of society and the backgrounds of judges do not handicap the law of contract. Additionally, to show a reform put in place to make judges representative.
The view that the judiciary system is built up by the narrow range of backgrounds of judges predominantly being elderly, white, Eton and Oxford educated men causes the system to be unrepresentative has not been refuted here. This is due to the judicial statistics of 2013 showing that out of the 3,621 judges appointed, only 2...
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...reach of contract, or those damages within the reasonable contemplation of the parties at the time of contracting. This shows that a remedy aims to put the innocent party into the position if the contract had been performed. Additionally, Victoria Laundry Ltd v Newman Industries demonstrates, that the innocent party to claim damages above the reasonable foreseeable consequences, the defendants have to be aware of the circumstances. Furthermore, Nutbrown v Thornton , illustrates that Specific Performance is used only when damages are inadequate. As the claimant was not able to buy the machines elsewhere. Thus, the doctrine of remedies reflects the attitude of ordinary members of the society. Contract law sets out to protect the innocent party; Demonstrating that judges being unrepresented do not have an impact on contract law, permitting it to be claimed as fair.
The article suggests that mutual intention should replace objective presumptions of intention to provide sufficient evidence for contract formations and argues that the Australian court system has a long way to go. It further investigates the different court hierarchies and examines the impact to them through different case law. The central argument presents that evidence of intention should be of utmost importance and considered in every case, negating a flat objective
Andrews N, Strangers to Justice No Longer: The Reversal of the Privity Rule under the Contracts (Rights of Third Parties) Act 1999 (2001) 60 The Cambridge Law Journal 353
Having evaluated the current state of English contract law, mainly made up of piecemeal solutions, it can be seen that despite being satisfactory and doing its job, there still remain gaps within the law of contract where unfairness is not dealt with. Moreover, due to the ad hoc nature of those piecemeal solutions, the latter have often produced inconsistent justice and have manifested cases of unfairness. Hence, “a relatively small number of respected Justices have endeavored to draw attention to the fact that the application of a general principle might be useful and even necessary in English law.”
Lady Hale’s 2015 forward speech given at Birmingham University raised an important and controversial issue of diversity. It had created a new wave of discourse about diversity which increased the pressure for more representation, not only in the justices of the Supreme Court, but also in the justice system as a whole. Since then, another female supreme court judge, Lady Black was appointed, and the judiciary has been working with multiple organisations to improve the selection and appointments process. However, improvements in diversity statistics have not been impressive, with an average of 5% increase of female judges in all courts and even lesser increase for ethnic’s minorities in the courts. This shows that the issue is as relevant as
Introduction This submission will discuss the problems created by the Doctrine of Judicial Precedent and will attempt to find solutions to them. Whereas, English Law has formed over some 900 years it was not until the middle of the 19th Century that the modern Doctrine was ‘reaffirmed’. London Tramways Co. Ltd V London County Council (1898). Law is open to interpretation, all decisions made since the birth of the English Legal System, have had some form of impact whether it is beneficial or not The term ‘Judicial Precedent’ has at least two meanings, one of which is the process where Judges will follow the decisions of previously decided cases, the other is what is known as an ‘Original Precedent’ that is a case that creates and applies a new rule. Precedents are to be found in Law Reports and are divided up into ‘Binding’ and ‘Persuasive’.
It is evident from case law that the law regarding mistake has been inconsistent as a result of irregular decisions being made in cases with similar facts. In situations where a third party and their rights are concerned it is necessary to consider if the contract between A and B is void or voidable. Therefore, It is no surprise that Lord Nicholls and Lord Millet have raised an issue with the decision taken by the majority in Shogun Finance Ltd v Hudson and have deemed the law of contract to be unsatisfactory and unprincipled. However, before discussing that in depth it is important to understand the basic law of mistake. As defined by Pendleton in Vickey [1998] mistake can be a ‘misunderstanding regarding a fact, causing one or more parti...
INTRODUCTION: Parliament, the supreme law-making body, has unrestricted legislative power, and the laws it passes cannot be set aside by the courts. The role of judges, in relation to laws enacted by Parliament, is to interpret and apply them, rather than to pass judgment on whether they are good or bad laws. However, evidence has shown that they have a tendency to deviate from their ‘real roles’ and instead formulate laws on their own terms. Thus, the real role of a judge in any legal system continues to be a phenomenon questioned by many.
In Krell v. Henry {1903} a plea of frustration succeeded because the court held that the common purpose for which the contact was entered into, could no longer be carried out. But in the same year for similar set of facts, the Court of Appeal decided in Herne Bay v. Hutton [1903] that the contract had not been frustrated because the "common formation of the contract" had not changed. It clearly was a policy decision which shows the reluctance of the courts to provide an escape route for a party for whom the contract ha...
The given statement suggests that the emphasis on judicial diversity is unnecessary since there is no guarantee that a diverse judiciary would arrive at a different decision than that of a conservative judiciary. This essay attempts to argue that although there is no evidence that a diverse bench would radically change the outcome of a given case, the quality of justice will be substantially enhanced by the inclusion of a range of perspectives from which are currently not represented by the English judiciary.
The basic law of a contract is an agreement between two parties or more, to deliver a service or a product. And reach a consensus about the terms and conditions that is enforced by law and a contract can be only valid if it is lawful other than that there can’t be a contract. For a contract to exist the parties must have serious intentions, agreement, contractual capacity meaning a party must be able to carry a responsibility, lawful, possibility of performance and formalities. Any duress, false statements, undue influence or unconscionable dealings could make a contract unlawful and voidable.
United Kingdom is a country with a distinctive set of legal system. It is fairly different from other countries having civil law based legal systems. The legal system in the United Kingdom consists of various sources of law, where other civil law based countries rely only on a written set of law. European influences on the English Legal System came much later in near decades. This essay will aim to examine the development of the English Legal System by reviewing applications of various sources of law in the English Legal System furthermore to discuss the recent European influences on the law of England.
A contract is an agreement between two parties in which one party agrees to perform some actions in return of some consideration. These promises are legally binding. The contract can be for exchange of goods, services, property and so on. A contract can be oral as well as written and also it can be part oral and part written but it is useful to have written contract otherwise issues can be created in future. But both the written as well as oral contract is legally enforceable. Also if there is a breach of contract, there are certain remedies for that which are discussed later in the assignment. There are certain elements which need to be present in a contract. These elements are discussed in the detail in the assignment. (Clarke,
“We are blessed in the united kingdom by a judiciary whose integrity, dependence, professional-ism and skill that is not in question. But we take such a condition for granted at our peril. Justice is a delicate plant. It has to be ruptured, protected, cared for” Straw, Jack (July, 2007).
Firstly in this report, I will be giving the different definitions of rule of law by different philosophers; secondly, I will be applying the rule of law to the English Legal system and thirdly I will be explaining separation of powers with a focus on the impartial judiciary. Finally, I will be using cases to support every detailed point given.
The courts of England and Wales acknowledge that the above must be something of value, in order to amount to consideration. A valuable consideration in the perspective of the English La...