The English legal system I commonly is known as the English common law. These are the laws prevalent in England. From these laws, various other legal systems of different countries have been derived from (Gillespie, 2013). They are authoritative by nature. The citizens of England are bound by the laws of the country. They have to be abide by the laws under their common law, legal system. In case there are violations of the conditions of law, they would be exposed to different kinds of punishments depending upon their acts. The key elements of the structure of the English common law system means and includes: all these laws and regulation are created by the parliament and the legislative organ of the government of England. Apart from the laws, there are regulations and by laws. There plenty of acts enforced under the English legal system regarding the different fields of occurrences that take place in the lives of the people. The laws of the common law have also been derived from judicial precedents, customs, usages, norms and traditions, some laws are derived from the principles of natural justice, equity and good conscience (Cownie, Brandney & Burton, 2013). There are two most important branches of the English legal system. They are: Civil laws and Criminal Laws.
The first and the foremost branch of the English legal system includes the civil laws. It is often to as a non criminal law in the countries of United States of America, Pakistan, England and Wales. The law relating to the civil aspects is different from the criminal law from many respects. The civil law basically deals with the civil matters of the society. The civil law is further divided into many branches. Some of these branches include income tax, property, contracts, torts, personal laws, laws relating to business and companies, legal methods, administrative law, laws relating to lands and acquisition etc. most of the civil laws are not codified. But there are many laws which are codified as well. Most of the civil laws are determined from the age old customs and usages and the judicial precedents. Crimes are not included under the branch of civil law. In case of violation of the rules of the civil laws, the punishment is given by the courts in the form of compensation, damages, fines, specific reliefs and the like (Jackson & Summers, 2012).
The laws relating to quasi contracts are inclusive under the civil law. The branch of civil law can be further divided into substantive and the procedural or Adjective laws. The primary purpose of the laws of civil nature is to understand the rights and duties of the persons towards each other as well as towards the society. Under the various punishments of the civil law granted by the violation of the civil, there can be exemplary, nominal, compensatory or punitive damages depending upon the act of the people. Under the English legal system, the burden of proof is always upon the parties who bring the case to the court. It is some upon the party who is aggrieved, to prove to the court that he has been aggrieved (Reinach & Crosby, 2013). The trial further proceeds with the witness and evidences brought by the parties. The burden of proof is upon the balance of probabilities. It shifts under the civil law. The parties under a civil suit are commonly known as the plaintiff and the defendant. Under civil wrongs, there are several exceptions, which act as defence for the defendant parties. The act of God (vis major), plaintiff the wrongdoer (Volunti non fit injuria), act of necessity, actions undertaken by the statutes, private defence are the instances of the general defences under civil law. The important cases which are very in the civil branch of the English legal system includes, Donoghue v Stevenson, Derry v Peek, Rylands v Fletcher, Ashby v White etc. thus, the civil law under the English legal system consists of various important elements which are essential for the smooth functioning of the society. Crimes do not happen every day. But all the people in the society across the globe are engaged with civil matters all the time. The civil law is that branch of law which provides the rule and regulations which required is the day to day lifestyle of the people (Zuckerman, 2013).
The second branch of the English legal system includes the criminal law. The criminal law deals with the crimes and the worse situations which take place in the society. Crime can be defined as the wrongs which are committed against the persons in the society. The aggrieved party suffers to a greater extent when compared with the wrongs of the civil law. The suffering can extend to the causing death of the parties. The crimes are caused not to the aggrieved persons alone but to family and relatives. The also suffer for the loss. Thus, crimes are always committed against the society (Cassese, Acquaviva, Fan & Whiting, 2011). Consequently, the punishments are also greater. The punishments under the criminal law includes imprisonment and imposition of fine together, solitary confinement, death penalty or capital punishment. The burden of proof under the criminal laws under the English legal system is always upon the parties who brings the case to the court. Such a person is called the prosecution. The burden of proof is always upon the prosecution to prove the case. It ne never shifts. It is upon the prosecution to proved the guilt of the accused beyond reasonable doubts and not only upon the balance of probabilities. In case the prosecution fails to do this, the accused would not be convicted (Halder, Jaishankar & Jaishankar, 2012). This principle is based upon the adversarial culture. The criminal jurisprudence under the English common law believes in the adversarial system of law. This means that no person can be presumed to be guilty unless proven guilty. The English legal system provides the accused with the fair chance of defending himself at all times during the trial. He cannot be convicted of any offence unless he is proven guilty beyond reasonable doubts.
The criminal law under the English common law is more complicated upon its comparison with civil law. There are various kinds of trials of the different offences ranging from the most t serious to the petty offences. There are warrant trials, summons trial, summary trial and the sessions trial. Some of the civil wrongs are also included in the arena of the criminal judicature. The civil wrongs which affect the society at large are included. Some of them are public nuisances, wrongful confinement, negligence etc. The evidence act comprises the rules for both civil and criminal laws. For the existence of crime, there should be the existence of mensrea, that is, guilty mind (Carson, 2018). Unless there is the presence of the guilty mind the act of the parties cannot be considered as crime. There are various defences available at the criminal judicature, they include doli incapax (a child below 7 years of age cannot commit a crime). Jus necessitus (necessity), accidents, private defence, acts justified by law etc. in order to keep the society safe and happy, the crimes have to be stopped and the offenders have to punished to create an example in the society that the consequence of a crime can be dreadful. Important case laws include Dudley v Stephens, Naz foundation case etc.
Thus, the above were the major branches of law under the English legal system.
The Alternative Dispute Resolution is commonly abbreviated as ADR. It is the process of the resolving the disputes which has arisen between the parties in a different way. These conflicts are resolved through other authoritative bodies other than courts. Under this method, the conflicting parties come to a mid way decision either through a mild litigation process or through agreements and settlements (Hollander-Blumoff & Tyler, 2011). In this way, the conflicts between them are resolved and the courts are also not involved. Thus, the parties who were under disagreement before, come under an agreement with the id of the third parties. The main purpose of the introduction of the Alternative dispute resolution is to reduce the burden of cases which are pending the court. The less serious offences and issues are included under the arena of the external dispute resolution. The more serious offences remain with the courts to be adjudicated. The chief purpose of the Alternative dispute resolution is to provide speedier justice to the people, save time and energy of the parties as well as the authoritative parties (Ridley-Duff & Bennett, 2011).
The most common ways of redressing the disputes under the Alternative dispute resolution is through conciliation, mediation, negotiation, arbitration, usage of collaborative laws. These methods of redressal can be used side by side with the functioning of the courts in England. Under this process of resolving the conflicts, they are widely classified into two broad categories. The initial method involves the resolution of the disputes externally, that is, outside the judicial fraternity. The second method includes the cordial and the informal methods which are attached to the courts (Blake, Browne & Sime, 2016). To add to this, there are independent ways of resolution like the mediating programs and the office of the ombudsman within the particular organizations. Under the system of the Alternative dispute resolution there are formal as well as informal tribunals, the formal procedures of mediation and other informal methods. The age old method of the dispute resolution in the alternative sphere has always been arbitration.
Though there plenty of benefits of the Alternative dispute resolution, yet their purpose is to provide aids to the courts. The purpose is not to replace the courts. The judiciary is a very essential organ of the government in England. The chief functions of the courts include the adjudication of the offences, to resolve disputes and to punish the offenders. This is the process of giving justice to the people. The powers of the courts are wide. They are empowered to deal with the most serious and the most complicated cases arising in the society. The courts are empowered with the laws and the regulations to deal with all these cases. They are also empowered to provide greatest punishments for the greatest punishments. The procedure of the court may be time taking, but it is considered to be the best way to provide justice to the people of England, (Goldberg, Sanders Rogers & Cole, 2014). This is because all the cases are heard in every detail so that every corner of the case comes under the court and justice is not denied to the people, the people have abiding faith in the courts that justice would be delivered to them. To keep this faith intact, the courts work hard to resolve the cases. The case laws to support this proposition includes Marmet Health Care Centre v Brown, Rachal v Reitz, Eagle v Fred Martin Motor Co and Loyer v Signature Heakthcare of Galion. Thus, they can in no means be replaced by the Alternative modes of dispute resolution. The Alternative dispute resolution is a mode to support the courts while they deal with pettier offences. They are helpful in the reduction of the burden of the courts so that justice can be delivered to the people soon. But they can in no ways replace the courts. This is because the courts are empowered to function in such ways and to do such things, which can neither be done by the other organs of the government or by the alternative dispute resolution (Lumineau & Malhotra, 2011). That is why the courts are given the status of independence in the government unlike the executive and the legislature.
Thus, after a close perusal of the above it can be concluded that the Alternative dispute resolution methods should not replace the courts as an avenue for the resolving of disputes. The responsibility of the courts should be performed by them, so that justice can be delivered in the right way.
Paul is making his new holiday home on an exposed sea side. He goes to the local building raw materials suppliers called, Brick-for –All for the purchase of bricks. Paul specifies that he wanted to buy bricks for outside use. However, he did not say clearly where would be the location of his house. Paul chooses the type of bricks he desired, from a wide variety of bricks shown by Brick-for-All. The type of brick chosen by him was called Sparkling Bricks. The manager of Brick-for-All is Aileen. Aileen wanted to have a conversation with Paul about the challenges and the limitations of the Sparkling Bricks. Aileen was reluctant about this, because Paul wanted to purchase all the bricks in a haste. A contract was signed between Aileen and Paul after that. In consequence of the contract, the bricks were delivered to Paul. Consequently, Paul started his construction for the house. Sparkling Bricks is composed of compressed paper. It is not made of clay like other bricks. The sparkling bricks which were exposed to the side of the sea were under constant touch with the sea waves. As a result of which there was a chemical reaction with the salts present in the sea. The bricks become permeable and there tends to be the formation of damp. Due to these damages caused to the building, there were irreparable damages and it caused the habitation of the human beings impossible. Ultimately, Paul had to destroy the building which he had constructed.
After going through the facts of the case, the issues which have arisen is that what would be Paul entitled to receive upon suing Brick-for –All? The other issue is that whether Bricks-for-All would be liable to pay compensation to Paul?
The consumer rights act of 2015 was designed by the parliament of United Kingdom to provide protection and security to the consumers from the frauds and misleading activities of the sellers in the market. It provides ample rights, interests and remedies to the customers so that they cannot be cheated upon, by the sellers (Dowler & O’Connor, 2012). As per the provisions of the consumer rights act of 2015, the products purchased by the sellers should be of the desired quality as per the needs of the consumers. The consumers possess the right to decline the offers of purchasing inferior quality products for their use. With the passing of this right, the consumers have been gifted with the right to reject all those products which do not serve the purpose of their particular needs (Prothero et al., 2011). It is essential that the quality of the products should bring in high satiety value to the consumers.
After a close perusal of the facts of the above case, it is important to classify certain conditions. When Paul was purchasing the bricks from Brick-for-All, he was in a very hasty situation. He did not pay heed to many factors, which were required to be held important on his part. Upon the suit against Brick-for-All, the defence can argue upon the concept of ‘caveat emptor’. It means the buyer should beware (Larsen & Lawson, 2013). Unless the buyer calls for the relevant information and the requisites of the particular goods, the silence of the seller will not be considered as a violation of the consumer rights. On the contrary there definitely lies a duty upon the seller to disclose all the relevant facts, advantages and the disadvantages of the products sold by him to the buyer. Failing to do this task would render the seller responsible for the violation of the rules of consumer protection. Consequently, the seller would be liable to pay compensation (Howells & Weatherill, 2017).
In the case, it cannot be said that the seller had not disclosed the relevant information. Brick-for-All had asked Paul for the specifications for the buying of bricks. In answer to this, Paul had only specified the house (Mak, 2011). It was very much essential on his part to disclose the location of his house, the weather conditions of the and the purpose. Had Paul disclosed all the facts, he could have prevented Brick-for-All to sell him Sparkling bricks which were made of compressed paper instead of clay. Hence, there was no fault of Brick-for-All from this aspect (Sirieix, 2013).
After that, the manager of the brick company called Aileen wanted to have a word with Paul to discuss about the limitations of Sparkling Bricks. But Paul was so engrossed in the construction of his house at the earliest possible way, that he did not meet Aileen to discuss about the challenges of the type of bricks chosen by Paul. There was no fault on the part of the seller here, as well (Alsmadi & Alnawas, 2012).
Regarding the quality of the product sold, the bricks were made up of compressed paper instead of clay. Naturally, they were completely decayed due to the chemical reaction with the sea water. Paul was not aware of the quality of his bricks on account of his personal negligence. He was under so much haste that he did not pay attention to the types of bricks purchased by him under contract. As a result of this, he had to demolish the house totally (Tobler, Visschers & Siegrist, 2012).
From the above facts of the case and the provisions of law involved, it can be concluded that there was no fault on the part of the seller (Brick-for-All). There was negligence on the part of the buyer (Paul). Thus, the buyer would not be entitled to receive compensation from the seller on account of his demolition of the building. The terms of their contract was upon the information given by the buyer. Hence, Brick-for-All would not be liable to pay compensation to Paul.
References:
Alsmadi, S.A. and Alnawas, I., 2012. Consumer Rights Today: Are They in Business or Out of Business?. International Journal of Marketing Studies, 4(1), p.159.
Blake, S.H., Browne, J. and Sime, S., 2016. A practical approach to alternative dispute resolution. 8th ed. London: Oxford University Press.
Carson, W.G., 2018. The sociology of crime and the emergence of criminal laws: A review of some excursions into the sociology of law. In Deviance and Social Control (pp. 67-90). Routledge.
Cassese, A., Acquaviva, G., Fan, M. and Whiting, A., 2011. International criminal law: cases and commentary. Oxford University Press.
Cownie, F., Bradney, A. and Burton, M., 2013. English Legal System in Context 6e. Oxford University Press.
Dowler, E.A. and O’Connor, D., 2012. Rights-based approaches to addressing food poverty and food insecurity in Ireland and UK. Social science & medicine, 74(1), pp.44-51.
Gillespie, A., 2013. The English legal system. 6th ed. Oxford University Press.
Goldberg, S.B., Sander, F.E., Rogers, N.H. and Cole, S.R., 2014. Dispute resolution: Negotiation, mediation and other processes. 5th ed. Wolters Kluwer Law & Business.
Halder, D., Jaishankar, K. and Jaishankar, K., 2012. Cyber crime and the victimization of women: laws, rights and regulations. 5th ed. Hershey, PA: Information Science Reference.
Hollander-Blumoff, R. and Tyler, T.R., 2011. Procedural justice and the rule of law: Fostering legitimacy in alternative dispute resolution. J. Disp. Resol., p.1.
Howells, G. and Weatherill, S., 2017. Consumer protection law. Routledge.
Jackson, J.D. and Summers, S.J., 2012. The internationalisation of criminal evidence: beyond the common law and civil law traditions. 6th ed. London: Cambridge University Press.
Larsen, G. and Lawson, R., 2013. Consumer rights: a co-optation of the contemporary consumer movement. Journal of Historical Research in Marketing, 5(1), pp.97-114.
Lumineau, F. and Malhotra, D., 2011. Shadow of the contract: How contract structure shapes interfirm dispute resolution. Strategic Management Journal, 32(5), pp.532-555.
Mak, V., 2011. Standards of protection: In search of the Average consumer of EU law in the Proposal for a consumer rights directive. Eur. Rev. Private L., 19, p.25.
Prothero, A., Dobscha, S., Freund, J., Kilbourne, W.E., Luchs, M.G., Ozanne, L.K. and Thøgersen, J., 2011. Sustainable consumption: Opportunities for consumer research and public policy. Journal of Public Policy & Marketing, 30(1), pp.31-38.
Reinach, A. and Crosby, J. eds., 2013. The Apriori Foundations of the Civil Law: Along with the Lecture” Concerning Phenomenology”. 8th ed. London: Walter de Gruyter.
Ridley?Duff, R. and Bennett, A., 2011. Towards mediation: Developing a theoretical framework to understand alternative dispute resolution. Industrial Relations Journal, 42(2), pp.106-123.
Sirieix, L., Delanchy, M., Remaud, H., Zepeda, L. and Gurviez, P., 2013. Consumers’ perceptions of individual and combined sustainable food labels: a UK pilot investigation. International Journal of Consumer Studies, 37(2), pp.143-151.
Tobler, C., Visschers, V.H. and Siegrist, M., 2012. Addressing climate change: Determinants of consumers’ willingness to act and to support policy measures. Journal of Environmental Psychology, 32(3), pp.197-207.
Zuckerman, A.A., 2013. Zuckerman on civil procedure: principles of practice. 7th ed. London: sweet & Maxwell.
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