Business and Company Law
Question 1.
a.
focusing on the common law, it is defined as a body of legal precedent, which is composed of the court rulings and decision which were made at a prior date and which apply in the present. Therefore, the decisions by those courts now become the rules which the judges of the everyday law use in judging different cases that they handle (Johns & Oldham 2018 pg. 208-226).
On the other side, the equity courts undertake to give a remedy in the situation where the common law courts, in their course of ruling, take to provide a verdict for a case that involved an inequitable situation. In terms of the difference in the provision of the two different courts, the common law court focus on the things which are legally unbalanced between the parties which are involved in the case. On the other hand, the equity courts must ensure there is a provision of the equalizing relief between the two parts required. That forms the significant difference between the common law and equity in their application (Turner 2018, pg. 63).
b.
the postal rule appears to the exception of the general rule of contract law. It occurs mainly in the common law countries, and it states that for an offer to be accepted, communication must first take place. According to the general rule, the acceptance of an offer becomes only useful once the discussion takes place (Defossez 2018 pg. 1). Also, the acceptance becomes effective only when it is posed of communicated to the offeror. Therefore, uncommunicated acceptance cannot be termed as validated until it is posted or delivered. Thus, the postal rule exists to oppose or to act as the exception of the general state of contract law (Che Hashim 2018 pg. 111-114).
c.
there are some of the circumstances under which paying the creditor with an amount less than he/ she claims can constitute a reasonable consideration. The first circumstance is that there should be a proper subject matter. Concerning the subject matter, for the less amount paid by the debtor to the creditor to constitute an appropriate consideration, the subject matter has to be looked into ad ensure that it is according to the law. The second consideration is the competency of the parties. In this scenario, the parties involved, that is, both the creditor and the debtor should be competent in all the dimensions to ensure that everyone is aware of what is going on during the payments. Failure to have that under consideration, then such a contract is null and void (Collins 2017, pg. 253-255).
The third circumstance is that the consideration must meet the mind of the parties. That means that every part involved in such consideration, that is, both the creditor and the debtor must come into an agreement without any intimidation and having full knowledge of what is going on. In the incidence where one of the parties is taking advantage of the other and more so the debtor, then on realization, the creditor is entitled to sue the debtor for any harm caused to him during the transactions. The fourth and the last circumstance on the consideration. The consideration made by the debtor to the creditor, even if not the full amount, it should be a reasonable amount, that is, it should be just new the required amount. This will ensure that the transaction will not cause much harm to the creditor (Levine 2018, pg. 239).
Question 2.
a.
concerning the scenario in Alia and Shujad, at first, there was an inspection of the goods, and then Alia accepted the good, and they were now in the conversation for the price. Afterward, Alia claimed that she wanted to go for lunch, and she would think about the price and then come back later. Therefore, in that case, there was not an offer and acceptance since both parties, that is, Alia and Shujad, had not come into an agreement on the price. Therefore, then, there was no aspect of offer and acceptance. After returning, she found that Shujad had sold the good to another buyer, Benjamin. In such a scenario, there was no offer and acceptance, and therefore Shujad was right to do what he did by selling the goods to Benjamin. Benjamin offered a higher price than that of Alia. Therefore Shujad decided to accept the offer of Benjamin, where they completed their contract by selling the goods to Benjamin (Schwartz 2016 pg. 1523).
The concept of offer and acceptance comes between Alia and Shujad after Alia comes from lunch. Earlier, Alia was willing to pay £480,000, which Shujad was not willing to accept as he proposed £500,000. On the second coming of Alia, she prosed to offer Shujad £500,000, a price which Shujad accepted though he did not have good in his possession as he had sold them to another party, Benjamin. Then Shujad decided to buy back the goods from Benjamin so that he can resell them to Alia at the agreed price of £500,000. Therefore, in the second scenario, there was offer and acceptance since Alia offered a price, and which Shujad accepted and sold the goods to her.
The offer and acceptance come in place in the scenario where the offeror gives the offer to the offeree, and then offeree accepts the offer. In such a scenario, the offer and acceptance are complete. In the offeree does not accept the offer, then there is no offer and acceptance in that case. There are two incidences in the case study, where in the first case before Alia goes for lunch, there is no offer and acceptance. In contrast, in the second scenario, there is an offer and acceptance after Alia and Shujad come into an agreement of transacting the good for £500,000 (Jingen 2016 pg. 44).
b.
there two elements that are not disclosed in the case between Shujad and Benjamin, and which would like to look at are that of legal capacity and mutuality of agreement. The first element I am focusing on is the legal capacity of both parties and more so Benjamin to enter into such a contract. For a contract to be valid, both parties involved in the contract should have the capacity to enter into the contract with one another. In the case of Benjamin and Shujad, it is indicated on the capacity of both parties to enter the contract, which they entered into. The capacity of the parties may be in different ways, and all the ways should be put into consideration to ensure that the party qualifies to enter into the contract without any restrictions. For example, a party should be of the age of majority; that is, he should not be a minor. Contracts with minors are null and void, and therefore they are unenforceable. The case does not indicate whether all the parties have attained the minimum age, and which will ensure that the contract is valid. The other focus on the capacity of the parties in a contract is that of the bankruptcy of an individual involved in the contract. It is not clear whether this aspect was considered or not (Giancaspro 2017 825- 836).
The other focus of aspect not included in the contract between Benjamin and Shujad it that of mutuality of agreement between the parties. It is not clearly stated in the case whether there was mutuality of agreement between Benjamin and Shujad when Shujad was buying back the goods and selling them to the other party who was Alia. A mutual agreement is a scenario where all the parties involved in the contract are aware of all the consequences and considerations in the contract and are willing to undertake all the obligations entitled to them. In the case of Benjamin and Shujad, it is not indicating whether both parties had a mutual agreement on the contract. Therefore, those forms the major elements which were not present in the contract between Benjamin and Shujad and which are worth noting for more facts about the contract to make it more valid (Schwartz 2016 pg. 1523).
C.
The term in contractual law refers to any of the provisions forming the part of a contract. Every term in a contract means that there is an obligation in it. In case one of the parties involved in the deal goes against the words in the agreement, there that is considered to be a breach of contract, and the individual can be sued for the violation of the contract (Jingen 2016 pg. 44). Terms in an agreement can be either express or implied, and all have some weight in the contract as both parties strictly follow them in the contract. The terms in a contract dictate what the parties in the settlements are obligated to do and what they are not supposed to do. Therefore, they are just guidelines that the parties in a contract should follow to ensure that there is no one party going against the provisions of the agreement at the expense of the other party. Failure to comply with the terms of a contract as it is indicated contract documents will sound like a breach of contract. Therefore the victim who breaches the contract will be obligated to compensate for the damages caused. All the terms in a contract must be known and agreed upon by all the parties involved in the deal before they sign the agreement (Jingen 2016 pg. 44).
On the other hand, a representation in a law contract refers to that statement which focusing on one side of a particular fact. The importance of the representation in a deal is mainly to show some of the assumptions that were made when creating a contract between the parties. The assumptions tend to dictate the possible course of action with the dealings in the contracts moves to a specific direction in the course of action of operations within the contract. It enhances comprehensiveness in that it ensures that other factors not covered in terms of the agreement are capture. That makes the arrangement more applicable and favorable to both parties (Goodrich 2017, pg. 1-12).
d.
there are five significant remedies of the injured party in a breach of contract. The solutions include compensation of damages, rescission, reformation restitution, and specific performance. Therefore, the injured part gets all these remedies from the other party in case of happening of such an incident. To start with, we will focus on compensation for damage. In the incidence where one of the parties gets injured as a result of the breach of contract by the other party, then the individual is entitled to get full compensation for the damages caused. That means the individual will get back to the same status before the accident occurred. Restitution, on the other hand, and unlike the case of compensation, the injured party takes back to the original position he was before he or she entered into the contract. That forms the significant difference between restitution and compensation of damages (Halaby 2018 pg. 151).
The third remedy is rescission, which means that the contract is terminated due to the injury of one of the parties as a result of a breach of contract. In this case, their contract terminates entirely, and it will not exist anymore. The fourth remedy is performance, which is usually a direction from the court. In such a case, the court offers a path to the party, breaching the contract to perform to the injured part as a way of compensating him or her. The last remedy is that of the award for the damages caused. In this case, the other section offers financial compensation to the injured party to cater to the financial loss which the injured party might have suffered (Zareshahi 2016 pg. 126).
References.
Betts, H.N., Gilbert, R.A., Cai, Z.G., Okedara, Z.B. and Rodd, J.M., 2018. Retuning of lexical-semantic representations: Repetition and spacing effects in word-meaning priming. Journal of Experimental Psychology: Learning, Memory, and Cognition, 44(7), p.1130.
Che Hashim, R., 2018. The postal rule in acceptance via email. Commonwealth Law Bulletin, 44(1), pp.111-127.
Collins, D.M., 2017. Part-payment of debt: a variation on a theme?. International Company and Commercial Law Review, 28(7), pp.253-258.
Defossez, D., 2019. Acceptance sent through email; is the postal rule applicable?. Revista de Direito, Estado e Telecomunicações, 11(1).
Giancaspro, M., 2017. Is a ‘smart contract’ really a smart idea? Insights from a legal perspective. Computer law & security review, 33(6), pp.825-835.
Goodrich, P., 2017. Imago decided: on the common law of images (pp. 1-57). Brill.
Halaby, A.F., and Kelly, P.W., 2018. Disgorgement of Profits as a California Breach of Contract Remedy: Intellectual Property and Other Guideposts. UC Davis Bus. LJ, 19, p.151.
Jingen, W., and DiMatteo, L.A., 2016. Chinese Reception and Transplantation of Western Contract Law. Berkeley J. Int’l L., 34, p.44.
Johnson, M., and Oldham, J., 2018. Law versus Equity—as Reflected in Lord Eldon’s Manuscripts. American Journal of Legal History, 58(2), pp.208-226.
Levine, T., 2018. The Devious Debtor: 11 USC 523 (A)(2)(B) and the Need for a More Equitable Outcome. Brook. J. Corp. Fin. & Com. L., 13, p.239.
Schwartz, A., and Scott, R.E., 2016. The Common Law of Contract and the Default Rule Project. Va. L., Rev., 102, p.1523.
Turner, P.G., 2018. Fusion and Theories of Equity in Common Law Systems. University of Cambridge Faculty of Law Research Paper, (63).
Zareshahi, A., 2016. A Comparative Study of Damages and Price Reduction Remedy for Breach of Sale Contract under CISG, English, and Iranian Laws. J. Pol. & L., 9, p.126.