Coursework: Business Law
- The concept of “stare decisis” applies to situations where a trial or appellate court upholds a decision based on comparison with a precedent case. While high court may not invoke stare decisis based on a ruling of a lower court, the lower court can only invoke stare decisis based on a precedent high court ruling. As in the case of the seat belts, the Supreme Court’s decision was constitutional, as was the Illinois Circuit Court’s invocation of stare decisis based on previous Supreme Court’s ruling.
- To confirm liability for negligence, some conditions need to be established. First, it should be confirmed that the accused party possessed a duty of care towards the offended party. There must have been a breach of this duty, which resulted into harm that could not otherwise have been undergone. It must also be established that the harm that the claimant underwent was foreseeable by the liable party. To determine whether a duty of care existed in the case, the issue of proximity emerges. This may be physical, emotional or even financial. In the case of the victim, it can be established that the woman was in physical proximity to Wal-Mart although it cannot be ascertained that the abduction actually took place on the part of the parking lot outside Wal-Mart. It can thus be concluded that based on this physical proximity, Wal-Mart possessed a duty of care towards the woman. Second, by failing to provide adequate security within its premises, Wal-Mart committed a breach of this care. This breach resulted into harm in the form of abduction, rape and murder. While all these factors make Wal-Mart liable, the fact that the presenting events were not foreseeable by Wal-Mart exempts the business from liability. Wal-Mart is thus not liable for negligence.
- The requirements for a given agreement to be considered a contract include mutual assent, consideration, legality and contracting capacity. In the aspect of mutual consent, the parties entering the contract must both agree to contract. The consideration in this case refers to the offer letter given by Garvey and the acceptance letters given by the various potential buyers. Since the sale of the boats is legal and all the parties have contractual capacities, it is therefore necessary that the first two conditions be met for any agreement to be considered a contract. In the case of Smith, an express contract was entered as all the necessary conditions for a contract were met. Also in the case of Braxton, since the executer was acting on behalf of the potential client, the contract entered was an express one. In the case of Meens, a contract may also be considered to have been entered, as the first message to be received was an acceptance. This made the agreement an enforceable contract as it fulfilled all the requirements for an enforceable contract. Consequently, any desire to revoke the contract could only be addressed in a court of law. Even then, an enforceable contract can only be voidable if based on legal issues such as fraud. On the other hand, if the rejection letter could have been received first, a contract could have been entered into only on condition that the boat was not yet sold by the time the acceptance message was received.
- In reference to the terms of contract, it is evident that in the case of FDCK and Martin Marietta, there was no mutual assent to contract. The conditions for an agreement to be considered a legally binding contract are thus not fulfilled and no contract can be said to have been entered between Martin and FDCK. This is due to the lack of acceptance from Martin as well as a lack of consideration to the same within the period outlined by FDCK’s offer before expiry. Consequently, in this initial offer, since no contract was entered into, the $1000 is refundable. At the same time, there is no contract between the two parties since the acceptance letter given by Pollitt on behalf of FDCK as a response to the September 7 letter to Gilmour was given back. In addition to this, Gilmour, when initiating contract with Martin, did not do so in the capacity of FDCK. Consequently, any contract entered into between Martin and Gilmour did not bind Martin to a contract with FDCK. Moreover, since Martin did not issue an offer letter to FDCK, the promise to sell cannot be legally binding. In addition, by assigning Gilmour to pose as a potential buyer and act on his offer could be taken as fraud on the side of FDCK as it initiates a contracting process without the intention of closing the contract. By doing this, Martin is engaged in a potential agreement without being aware of who the potential customer really is.
- Due to her residence in the Nursing home, Sharon finds herself in physical proximity to the Nursing home management. The Nursing Home on the other hand has the duty of care towards Sharon as it is mandated to ensure her safety and well being are of prime importance. In actualizing this duty towards Sharon and all other residents of St Mary’s Nursing Home, it is the responsibility of the Nursing Home’s management to employ honest and accountable employees who also value the well-being of the clients. It is therefore mandatory that any recruitment process be intensive in analyzing both skills and individual values of potential employees before hiring. By engaging a fraudster as an employee, the Nursing Home commits a breach of this duty of care owed to the home’s residents. This breach results in harm, which could have been foreseen by the home’s management. The home is thus liable for negligence in the occurrence of the monetary loss by Sharon. This loss is harmful to Sharon’s legally protected property, which should be compensated. The only way to achieve this compensation would be to make inference to civil law and demand compensation for the financial damages incurred.
- a.) The concepts of rights and obligations/ duties of a citizen are reciprocating in accordance to the law. Each right enjoyed by a citizen has an attached duty to it. For instance, while it is the right of every citizen to be protected by the law, it is also the duty of every citizen to comply fully with the law.
b.) The civil procedure comprises of three distinct stages, which include the pleadings, pretrial, the trial, appeal and enforcement. The pleadings include the complaint, which is an initial case pleading by the complainant. This is followed by an issuance of a summons to the defendant, an answer by the defendant and a reply by the plaintiff. The pre-trials include a pleadings judgment, the discovery, pretrial conference and the summary judgment based on the pleadings. The trial involves selection of the jury, the actual trial conduct, the final ruling by the judge, the instruction of the jury and the final verdict. Challenges to the final verdict can then be brought forward. In case either party is dissatisfied with the final verdict, the dissenting party can file an appeal.
c.) The criminal procedure involves arrest, booking, issuance of a notice of charges that must be formal, the determination of the probable cause in a preliminary hearing, information or indictment, arraignment in court and trial. During the arrest, any accused individual is protected by the law against unwarranted searches or unreasonable seizure. In the indictment, arraignment and trial processes, individuals are protected against self-incrimination and being charged for a criminal offence in the absence of a jury. After arrest, booking and issuance of the charges notice, each individual suspected of committing a criminal offence has a right to speedy public trial.
d.) The duty of care is owed by individuals to each other. A provable breach of this duty translates to a liability of negligence as it has the potential of resulting into harm for the person to which this duty is owed. This duty can however only be owed to individuals with whom the perpetrator is in proximity.
e.) Contributory negligence is taken as liability in a case where a victim fails to take precaution for their own safety and this failure on their part results in harm. In this case, the law does not provide for recompense. On the other hand, comparative negligence refers to a situation where a lapse of care on both the victim’s and the perpetrators parts result in harm to the victim. In this case, damages are divided between the parties depending on the degree of negligence attributed to each party.
- a.) The essential elements of a contract include mutual assent, confirmed by the signed napkin outlining the contract details; consideration, which in this case refers to the offer and the acceptance, legality of the contract elements and the capacity of the contracting parties. In considering this case, while the first three elements can be confirmed to have been existent at the time of contracting confirmed in writing, the element of capacity to contract arises. This is due to the fact that both parties were not sober during the contract. This can be invoked under law to consider both of them in no capacity to contract.
b.) By knowingly contracting to sell and eventually affecting the sale of a property requiring renovation without informing the potential buyer of the actual condition of the property, Donald Owner commits an intentional tort punishable by law. First, the initial property owner possesses a duty of care towards the buyer and thus selling the property to the buyer without informing the buyer of its condition translates to a breach of that duty. Also, selling a property in need of repair can be related to strict liability for any harm that may befall the buyer. In considering the potential harm on the buyer, the financial expenditure is considered harm as it results in destruction of the buyer’s legally protected property. The owner of the building can thus be sued for fraud based on carrying out business devoid of honesty.