11.07.2019 in Law

Law Questions

QN1: Explain the doctrine of precedent within the English Legal System.

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            The doctrine of precedent simply means that within the hierarchical composition of the English courts, any decision reached by the higher court act as the final binder of the lower courts. That is, before the judges try any case brought before them, they will first investigate and confirm if such a similar case had been brought before a court of law in the past. Therefore, if the court hiring the new case realizes that a precedent of a similar case had been set by a court of equal or higher rank, then the hiring judge of the new case will be bound to follow the rule of law established in the earlier case. However, where the precedent comes from a court of lower rank in the hierarchy, the judge in the new case is not obliged to follow the rule of law established in the initial case but just definitely consider it. It also important to note that, the functionality of the doctrine of precedent is dependent upon the fundamental principle that there is a hierarchy within the court, where each court has its own standing in respect to the other courts.

QN2: Explain the hierarchy of the courts within the English legal system in relation to the operation of precedent.

            Within the English legal system, the House of Lords acts as the highest court of the land which deals with appeals on legal points. It is followed in rank by the court of appeal which is divided into a civil division which deals with all civil and family appeals and the criminal division which deals with appeals against conviction and sentence.

            Below the court of appeal is the high court which is responsible for hearing appeals from the lower courts. Following the series is the divisional court which hears appeals from the lower courts on law. It is divided into three main divisions namely family division which deals with all family cases both public and private law and some divorce cases, chancery division which hears dispute about civil cases involving tax, trusts and property, and the queen’s bench division  which deals with civil cases such as personal injury, debt and negligence among others. This is then followed by the county court and the crown court. County court hears civil and family cases including most divorces and disputes about children whereas crown court deals with serious criminal cases and some appeals from the magistrate courts. Lower in the rank is the magistrate court.

             Under this, there are the family proceedings court, civil and criminal courts. Family proceedings court is responsible for all care cases and acts as their base. In addition, it also hears some disputes about children and maintenance. Civil court deals with licensing cases & rates and council tax cases. Finally, the criminal court act as the starting point for all criminal cases where the more complicated will be moved to higher courts.

QN 3: Explain the terms ratio decidendi and obiter dicta.

            Ratio decidendi refers to the doctrine of precedent that like cases should be treated alike. That is, if a court is hearing a case which has common material facts with an already previously decided case, the court is automatically bound by the previous verdict and should arrive to the same verdict. However, this is only applicable to the rules and ideology the judgment builds and forms its base. In establishing precedents that bind lower court in the hierarchy, ratio decidendi proves to be very fundamental.

            This helps in enhancing the prediction of its application thus minimizing the probability of using such judgments in making decisions to similar cases in the future. Obiter dicta are judicial judgments on positions of law which are indirectly applicable to the case or matter in question. They result when the judge decides to use a similar case but non-identical showing how she or he would have made a ruling so as to help her or him to make a ruling to the case under consideration before the court. This helps the judge to clarify to the court the legal principles which she or he wishes to apply in making the judgment. Because of this,  obiter dicta always takes the form of illustrations, contradictory points, summaries or analogies based on the theoretical conditions, contrary to dicendi.

QN 4: Explain the difference between reversing, overruling and distinguishing.

            In law, to distinguish a case means to compare the truth of the case in front of the court from the facts of a precedent case where there is a clear similarity. Once the case has been successfully distinguished, the legal logic of the earlier case will either not be applicable wholly or will be limited. Overruling refers to the use of a recently determined case to illustrate the irrelevancy of application of standing orders used in that particular previous case in determining the present case before the judges. On the other hand, reversing refers to a situation in which a judge from a higher court revisits a case which had been determined before after realizing that the decision was incorrectly reached and then and then decide to overturns that particular decision of the lower court on appeal.

QN 5: In relation to law of contract, distinguish between these two,  an offer and an invitation to treat and explain why it is important to make this distinction.

            According to Cross, R., and J. Harris. (1991), an offer is an expression by one party, person  or group, or by agents on their behalf, made to another, on  his eagerness to be bound to contract with the other on conditions  capable of being rendered certain whereas, invitation to treat refers to an action of inviting other parties or groups  form a contract or an offer. In the invitation to treat, one party develops an interest and begins to negotiate with the other party involved in the contract thus forming a binding contract. These actions may at times emerge to be offers in themselves, and the distinction can sometimes be complex to establish.  Therefore, distinction of these two legal terms is very important since agreeing an offer builds a binding contract just as agreeing an invitation to treat is simply making an offer.

QN 6: In relation to the contents of a contract explain the difference between conditions and warranties.

            A condition refers to an expression which directly goes to the contract’s main agenda or agreements. A condition is so importance to the bounded parties to the extent that whenever broken, the offended party may decide to treat the contract as disbanded. Hence the party will no longer be forced to abide by the terms of the contract when doing anything. On the other hand, a warranty simply refers to a term of contract whereby the term is a guarantee or a supplement of the main aim of the contract. Therefore, a violation of the warranty means damage to the contract and the innocent person or party is not permitted to treat the contract as discharged.

QN 7: Explain the remedies available for breach of contract.

            Breach of contract is a legal cause of judgment whereby an obligatory agreement or a bargained-for agreement fails to receive honour from one or more parties bound to the contract due to interference with the operation of the other party. In the case of breach of a contract, the aggrieved person or party can adopt some remedies against the guilt party. These remedies include suit for rescission, suit for damages, suit for quantum meruit, suit for specific performance and suit for an injunction or ban. In a suit for rescission, the breach of contract no doubt expels the contract even though the aggrieved party can still go to court and ask for a formal rescission such as cancellation of the contract thus enabling him or her to be free from its own duties stipulated in the contract. In a suit for damages, this is whereby the guilt party is instructed by the court, to accept responsibility and dearly compensate the aggrieved party.

            In a suit for quantum meruit on the other hand, refers to a situation whereby once a party has done a particular under contract, and the other party renounce the contract or interference with its performance then the aggrieved party has the right to claim for compensation for the work under a suit for quantum meruit. Suit for specific performance is where the court instructs the party in breach to conduct his promise according to the terms of the contract. This is done at the suit of the party not in breach. Finally, in suit for an injunction, the court orders or decrees the guilty party to refrain from doing exactly that which is causing the breach of contract, thus making the order to become a remedy to the aggrieved party.

QN 8: Explain the essential elements of the tort of negligence.

            In tort law negligence may refer to the failure to act or work reasonably, i.e., as a reasonable man would act. Negligence may be recognized in our courts when one party breaches his or her obligation to another. Nonetheless, a tort is a civil mistake.   The essential elements of the tort negligence include duty- concerns with the legal obligation of a person to act and the consequent legal accountability for refusing to act in a particular circumstance; reach of duty- a case where the defendant cannot attain the standards of care for a given role violating the role; cause in fact- this is a case where the plaintiff has to give evidence of the suffering undergone due to the defendants’ breach of duty; proximate cause- this is where the plaintiff has to give the causal relationship the defendant conduct and the plaintiffs’ injury is not seriously remote or freakish to justify the responsibility being imposed on the defendant. Another essential element of the tort of negligence is the damages. Damages refers to a situation the plaintiff must suffer a cognizable injury measurable by the court.

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