In England as well as in Wales, English Law is applicable. Majorly two sources are there from that this law has originated. One is legislation and another one is Common law. Legislations are the Laws and statues which are well defined and get their recognition from the authority i.e. parliament itself. The sovereign body of Parliament creates Legislations in Wales and England (Makuch and Pereira, 2012). This body consists of Queen, House of Commons, and the House of Lords. Legislations are an important source of law because while giving a decision in the cases related thereon, Lords refer to the section of these statutes. Further as mentioned above the Common law is another source of English Law. This is necessary to understand the meaning of Common Law. Not similar to Legislations, this law is not prescribed in the papers. Instead the same a set of rules and principles on that the same works. Common Law is based on the judicial decision given by Lords in past cases. This Law works on a doctrine named stare decisis, which means to stand and stay upon decision.
Cases reported in England and Wales either attracts a particular legislation or in the absence of the same attracts Common Law. When on the subject matter of any case, no legislation could apply then the Lords of the Court gives the decision based on Common Law. The House of Lords (Supreme Court), is not bound to consider it is or decision of any other courts (Marriott& Co., 2018). It can be stated that the Legal system in England and Wales depends on Legislations and Common Law as these both are the lead sources of English Law.
As the name implies, Public Law is the one that affects and involve interest of public or state as a whole, whereas, on the other part, Private Law carries the matters related to individuals in between them. In order to provide a definition of Public Law, it can be mention that this is a law of relationship between the state and individuals. Due to nature and Scope, there is some difference between Public and Private Law. Private Law concerns about the legal mutual relationships of individuals. Where on one side, Public Law ensure a legal and regulated environment in the nation, Private Law ensures the compliance under private contracts and transactions held between the individuals.
Public Law covers three Laws and that is Constitutional law, Administrative Law and Criminal Law (Smart, 2016). Constitutional Law has it is three branches i.e. Legislative, Executive and Judiciary Law. The administrative law focuses on subjects such as internal trade, taxation, manufacturing and so on. In conjunction with this, Criminal Law, Very well-known Law regulates the provisions in the area of crime prevention to achieve social order and justice. Further, Private Law is often known as “Civil Law.” This law makes rules and provisions in the area of Contract and Tort Law. As mentioned above, Private Law is all related to individuals; hence, this Law only focuses on relationships of individuals or Private relationship of Companies and Citizens. In conclusion, this can be stated that Public law governs, Citizens, Corporations or individuals, and state whereas Private Law is applicable to individuals only (differencebetween.net., 2018)
In this case, the plaintiff’s friend purchased a ginger beer bottle and the plaintiff consumed the same. Due to the poor quality, right after the consumption, the plaintiff suffered from personal injury. Afterward, the Plaintiff made a claim against the manufacturer of ginger beer. In the decision of this case, plaintiff’s claim held successful and Principle of neighbour test has come into the light (Scottishlawreports, 2018). According to this principle, a person owns duty of care in respect to his/her neighbours and here neighbour refers to the close and near ones. Any kind of negligence in the performance of this duty can cause a payment of damages.
In the above-cited case, Caparo Industries named company purchased shares of Fidelity Plc by realizing the fact that Fidelity Plc has the sound amount of profit and the same is in the healthy economic situation. Later on, Caparo industries (Plaintiff) realized that Fidelity Plc was in a loss in actual Plaintiff when came to know about the actual condition, brought an action against the auditors of Fidelity Plc but the claim of plaintiff did not hold succeed. It was held that for an action under Tort Law, the defendant must own duty of care, but as in this case there was no proximate relationship between plaintiff and defendant, therefore no standard of care existed (webstroke, 2018). The principle of proximity has given in the case, according to which there must be a reasonable relationship between the plaintiff and defendant to prove the existence of Duty of care.
In this case, Hedley Byrne asked for advice from their bankers in respect of credit reference. The given reference was favorable and contained an exclusion clause that bank or it is officials will not be held liable for any future consequences of such provided credit. Later on, this has come into light that the advice has proven wrong. Hedley Byrne asked for damages under Tort Law, but it was held in the decision that a duty was there but no liability. It has provided that whenever a skill is used to advise another person, a duty of care will arise (swarb.co.uk, 2017).
What is the nature of John’s advertisement?
In some of the cases, Invitation to Treat is the first taken step. One should not get confused between offer and Invitation to treat, as both of these terms are different. Invitation to treat is a general invitation for the offer and in reply to this; people make an offer (Translegal, 2018).. It was held in the case of Carlill v Carbolic Smoke Ball co [1893] 1 QB 256, that where such invitation requires an act to do by the general public in reply thereof, then the same shall be considered an offer and the subjective act will be considered as acceptance. However, for the application of the rule of this case, this is necessary that an act must be mentioned there in the Invitation, the performance of that can be treated as acceptance.
In the given case, John carries a business of selling paintings made by famous artists and in addition to this owns an Art gallery. In the course of his business, he has displayed a notice on the window of his art gallery stated that he has a unique Matisse Painting named “Cornfields” to which he is interested to sell for £5000 in cash. Further, he mentioned that the painting will be sold to the first person who will purchase the same tomorrow, Saturday. No task was required to do on the part of other people. John was merely inviting people to purchase the said painting.
Conclusion
Although the price was mentioned in the notice, yet the performance of a particular task was not mentioned there. Hence, John’s notice was an invitation to treat not an offer.
1 (b)
Whether a Legal Contract was there between Mick and John?
An agreement that has all the elements of a valid contract such as offer, acceptance, consideration, free consent, and intention of the parties, is known as “Contract.” All the aforementioned elements need to be there in a contract (Laws, 2018). This is to mention that an offer must be accepted, as it is original form. Acceptance is the significant term of any contract. In fact, without an acceptance, an offer cannot be turned even into an agreement. For a valid acceptance, it is required that the same must be free from any kind of misrepresentation or fraud. Further, It was held in the case of Entorres v Miles Far East [1955] 2 QB 327 that only acceptance of an offer is not sufficient, the same also must be communicated to the offeror. According to the decision given in the case of Felthouse v Bindley [1862] EWHC CP J35 silence cannot be considered as acceptance. Hence, this is to mention that for a valid acceptance it is required that the same must be clearly accepted and communicate to the offeror.
In the provided scenario, John has displayed an Invitation to treat on the window of his art gallery. In reply to this, Mick has made an offer. In the offer, Mick stated that he is ready to buy the painting but he will purchase the same for only £4800. As John earlier stated in the Invitation to treat that he will sell the painting for £5000 in case, he has decided to not to sell the painting to Mick and not to enter into any contract with him. Therefore, he did not reply to the post of Mick. Applying Felthouse v Bindley, the action of John, in this case, will not be treated as acceptance. In order to develop a contract with Mick, John was required to accept his offer and to inform him of his acceptance, but he did not do anything so far.
Conclusion
Setting aside John’s invitation to treat, Mick has made an offer that was required to be accepted by John. As John did not reply to the post of Mick, there was no acceptance of the offer. Further, in the absence of acceptance, no contract was there between John and Mick Therefore to conclude the asked issues, this can be mention that Mick has not entered into any binding contract with John.
1 (c)
Whether Ronnie has right to bring any action in against of John and if yes then what kind of right he has?
For a valid contract, acceptance is a very significant requirement. Without a valid acceptance, an offer cannot be turned into the contract (Poole, 2012). As similar to an offer, acceptance also has it is of huge significance. It is up to the offeree to accept or not to accept an offer. If an offeror does not receive acceptance for his offer from the person to whom such offer has made, then the offeror has no right. Further, this is also to state that an Invitation to treat is merely an invitation for offers (duhaime, 2018). A person cannot be held liable to accept an offer that has come out in reply to an invitation to treat.
In the studied question, John wanted to sell his painting for £5000. Ronnie, the offeror of the case, has offered to purchase the painting for the asked consideration i.e. £5000. However, John has refused to sell the painting to Ronnie. Here, the reason for such refusal is irrelevant, and the important fact is that John has not accepted the offer. As mentioned under the rules section that a contract comes into existence when offeree provides his/her acceptance of the offer made by offeror, hence no contract was there between John and Ronnie.
Conclusion
Ronnie has no right to bring an action against John as no legal relation was there between them in form of contract due to the reason of non- acceptance of the offer on the part of John.
1 (d)
Do charley have any right to sue against John? If yes then which right?
As per the provisions of Contract Law, in addition, to offer and acceptance, consideration is also a mandatory element of the contract. Without consideration, an agreement cannot be converted into a contract and will remain merely agreement. It was held in the case of Tweddle v Atkinson [1861] EWHC QB J57 that in a contract, consideration must move from the promise (e-law resources, 2018). In conjunction with this as per the decision was given in the case of Chappell v Nestle [1960] AC 87, a valid consideration needs to be sufficient. The same need not to be adequate. It can state that without a valid consideration, a contract comes into existence.
In the given case, Charlie, the offeror made an offer to purchase the subjective painting for the consideration worth £5000. But as John wanted this consideration in the case, therefore Charlie has requested him to keep the offer open for him, as being the Saturday he had not enough fund in cash. John has become agreed on this. Although, John was agreed to keep the offer open for Charlie until Monday, yet no contract was there in the absence of consideration. Both the parties only decided the consideration but the same has not moved from Charlie to John.
Conclusion
In the absence of consideration, the contract has not been developed between John and Charlie. As John and Charlie have not entered into any contract, therefore, Charlie cannot bring any action against John, irrespective of the fact that later he has suffered from a loss of £3000.
1 (e)
Does John have right to action against the purchaser of painting “Marianne”? If yes then which kind of Right to action?
As soon as an agreement gets all the essential elements of a contract, the same made parties thereof liable to each other. An offer when receives acceptance becomes a contract if a valid consideration and intention of parties to create a legal relation also exist. Parties to the contract cannot deny performing their performance later on. Further, a contract can be discharged in many ways, such as by performance, by agreement and by the breach (Findlaw, 2018). Whenever a party of the contract breaches the mentioned terms and conditions, another party can sue the first party for damages or performance of the contract.
Marianne has made an offer to John to purchase the respective painting for a valid consideration i.e. £6000. This was a final offer of this case, to that John has accepted. All the essential factors of a contract were there and therefore a legal contract has developed between John and Marianne. Marianne also handed over the agreed consideration to John. Later on, Marianne refused to take delivery of Painting and asked for the money back. As a legally valid contract was there already, this act of Marianne will be considered a breach of Contract.
Conclusion:
John was in a valid contract with Marianne. Marianne was required to take the delivery of painting, but instead this, she has asked for the return of her money. Marianne has breached the contract by asking the same and therefore John can refuse to return her money under Contract Law and Marianne will have no right to take any action against John.
References:
Caparo Industries pIc v Dickman [1990] 2 AC 605 House of Lords
Carlill v Carbolic Smoke Ball co [1893] 1 QB 256
Chappell v Nestle [1960] AC 87
differencebetween.net., (2018) Public vs Private Law. [online] Available from: https://www.differencebetween.net/miscellaneous/difference-between-public-and-private-law/ [Accessed on 04/08/18]
Donoghue v Stevenson [1932] AC 562 House of Lords
Duhaime. (2018) Invitation to Treat Definition. [online] Available from: https://www.duhaime.org/LegalDictionary/I/InvitationtoTreat.aspx [accessed on 05/08/18]
e-law resources. (2018) Tweddle v Atkinson [online] Available from: https://www.e-lawresources.co.uk/Tweddle-v-Atkinson.php [Accessed on 04/08/18]
Entorres v Miles Far East [1955] 2 QB 327
Felthouse v Bindley [1862] EWHC CP J35
Findlaw. (2018) How can contracts be discharged from further performance? [online] Available from: https://www.findlaw.com.au/articles/4551/how-can-contracts-be-discharged-from-further-perfo.aspx [Accessed on 04/08/18]
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465
Laws. (2018) Contract Vs. Agreement. [online] Available from: https://contract-law.laws.com/contract-law/contract-vs-agreement [accessed on 05/08/18]
Makuch, K. and Pereira, R. (2012) Environmental and Energy Law. New York: John Wiley & Sons.
Marriott & Co., (2018) The legal sources of law in England and Wales. [online] Available from: https://www.marriottco.co.uk/the-legal-sources-of-law-in-england-and-wales/ [Accessed on 04/08/18]
Poole, J. (2012) Textbook on Contract Law. Oxford : Oxford University Press.
Scottishlawreports. (2018) Donoghue v Stevenson [online] Available from: https://www.scottishlawreports.org.uk/resources/dvs/donoghue-v-stevenson-report.html [accessed on 05/08/18]
Smart, U. (2016) Optimize Public Law. London : Routledge, Taylor & Francis Group.
swarb.co.uk (2017) Hedley Byrne And Co Ltd V Heller And Partners Ltd: Hl 28 May 1963 [online] Available from: https://swarb.co.uk/hedley-byrne-and-co-ltd-v-heller-and-partners-ltd-hl-28-may-1963/ [accessed on 05/08/18]
Translegal. (2018) Contract law: invitations to treat (1). [online] Available from: https://www.translegal.com/lesson/7073 [accessed on 05/08/18]
Tweddle v Atkinson [1861] EWHC QB J57
Webstroke. (2018) Caparo Industries Plc v Dickman [1990] [online] Available from: https://webstroke.co.uk/law/cases/caparo-industries-plc-v-dickman-1990 [accessed on 05/08/18]
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