Contract Law

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Transcript of Contract Law

  • TOPIC 1

    INTRODUCTION TO THE LAW

  • Topic 1 Introduction to the Law

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    TOPIC OUTCOMES At the end of this topic you will be able to: explain the nature of law and its role in society;

    contrast law and ethics;

    classify law into criminal and civil and discuss characteristics of each;

    discuss the application of law to the field of engineering.

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    1. INTRODUCTION Think about the range of activities you do each day and each week. Think about your studies and the kind of work that you will be engaged in. How many of these activities are influenced either directly or indirectly by the law?

    When you stop to think about it you might be surprised to find that the law and the legal system influences most of our activities. Although we are not necessarily conscious of the law and how it operates, its presence and influence are certainly evident in the society in which we live. The law comprises a vast body of legal rules and principles that have developed over time, and which are constantly evolving in order to guide and regulate human behaviour, activities and interaction.

    The law also governs and controls activities in the workplace. Therefore it is necessary for students of engineering to have a basic understanding of and appreciation for the legal system, how the law operates and the extent to which the law impacts on and influences our activities. In this unit you will learn about the legal system and some of the basic areas of law such as contract law, tort (negligence) law and intellectual property law, which are directly relevant to the engineering context. We begin the unit with an introduction to the nature, definition and classification of law.

    2. NATURE OF LAW

    2.1 What is law? Any study of law should include, at least, a brief understanding of the nature of law and its role in society. There are many opinions on what law is, and on how law, ethics and morality interact.

    Law represents different things to different people. Politicians may see law as an expression of government policy. For example, the Government's decision to provide unemployment benefits to assist unemployed persons is reflected in laws allowing for the payment of such benefits. Lawyers, on the other hand, may see it as a means to earn a livelihood. Police officers may see it as a source of power and as a set of rules that regulate social behaviour. The citizen may see it simply as something that is at times a hindrance and at other times a help.

    The following are some of the definitions of law that have been proposed from time to time over thousands of years.

    Law is the will and command of a supreme bring revealed to humanity through such instruments as the Bible, the Koran and other religious texts.

    Law is the command or will of the sovereign, the sovereign being a person or group of persons whom all other persons in that society obey.

    Law is an instrument of social engineering.

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    Law is an expression of the communitys guidelines for acceptable behaviour.

    Law is a means of ordering society and resolving disputes.

    Law is what the courts declare to be the law.

    Although there is no single correct definition, it does however seem that the various definitions share the following characteristics:

    Law consists of a body of rules for regulating human interaction.

    Law orders society.

    The rules are interpreted, applied and enforced by institutions of state.

    For our purposes law can be defined as:

    Those rules established by parliaments and courts which will be recognised and enforced by the courts.

    2.2 Law, Morality and Justice What are the differences between law, morality and justice? Are there any differences between them? Should laws conform to minimum standards of fairness?

    There is an assumption that law gives effect to the moral values of society and that law is based on considerations of justice. It is true that the areas covered by law and morals are sometimes the same and that law and justice sometimes coincide. For example, there is a law that prohibits stealing, and it would seem that most people hold the view that stealing is immoral and that a law prohibiting stealing is a just law. In other areas, however, law does not necessarily reflect morality but simply regulates behaviour for the orderly management of society. It is illegal to park the wrong way in a one-way street but such a law has no obvious moral content. Nor does it necessarily concern justice.

    There are many differences between law and morality. Some are:

    law deals with external behaviour while morality concentrates on the internal processes of intention, motive, and conscience;

    a violation of the law is met by enforcement of the law by mechanisms of the State (such as courts), while a breach of morality may be met by social condemnation and religious censure; and

    the legal verdict in a given situation tends to be in terms of black or white: judgment will go to either the plaintiff or defendant or the accused will be found innocent or guilty. Morality is not black or white: one person's morality is not necessarily anothers morality.

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    The ambiguous relationship between law, morality and justice raises a number of interesting questions:

    Can there be a law that is immoral?

    Is there a duty to obey an immoral or unjust law?

    Is an unjust law still a law?

    Should the law be used to enforce morality by punishing acts because they are considered immoral?

    2.3 Law and ethics The term ethics is difficult to define. The Macquarie Encyclopaedic Dictionary defines ethics as 'a system of moral principles by which human actions and proposals may be judged good or bad, or right or wrong'.

    In one sense, ethics can be seen as an agreed standard of morality. Many professions, such as the accounting profession and legal profession, adopt ethical codes which set out for members of the profession standards of conduct expected of members. Breach of these ethical standards may attract a punishment imposed by the professional body itself. Many businesses, on the other hand, may adopt codes of practice in an attempt to self-regulate their industry, and it is simply left to consumers to judge the behaviour of a business in the light of a declared code of practice.

    2.4 Engineering code of ethics Engineers work within a legal context. They are governed by the general law of the land which includes statutory law and common law. However, engineers, who are members of an engineering profession, are generally also subject to a code of ethics that comprises a basic set of principles that establishes a standard according to which engineers work. For example, the Institution of Engineers, Australia has a Code of Ethics for its members. Members are required to abide by the Code as part of their commitment to the Institution and profession, and as part of their responsibility to the community whom they serve. A breach of the Code is regarded as unethical conduct. A breach may attract the following sanctions: a reprimand, a fine, suspension or expulsion from membership and withdrawal of certification on relevant national registers.

    3. LEGAL SYSTEMS A legal system may be defined as a framework of institutions and rules within a community that regulates the community and governs relations between people and the state.

    Legal systems can generally be classified as either Civil Law systems or Common Law systems.

    Civil Law systems have their origins in ancient Rome. These systems use Codes of law which are much like sets of rules that have been developed from general

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    principles of law. The courts role in these systems is to apply the relevant code or set of rules to a situation to try and solve the problem. We call this an inquisitorial system. Countries in continental Europe and its former colonies are Civil Law system countries as is much of Asia and South America.

    The Common Law legal system originated in England following the Norman conquest of 1066. It was based on customs or traditions at the time and has developed incrementally, i.e. one case at a time. The courts role in these systems is to resolve disputes by applying decisions made in previous similar cases as well as principles of law. Countries such as England and its former colonies are Common Law countries. The United States, Australia, New Zealand, South Africa, parts of Asia and many other generally English-speaking countries are referred to as Common Law coutries.

    What is the difference?

    The main difference is that the Common Law system is law based on customs beginning before there were any written laws and continuing to be applied by courts after there were written laws. The Civil Law system developed from broad legal principles and is law based on legal writings and principles.

    The Australian legal system is based upon the Common Law system. From 1788 1992 Australia was regarded as a settled colony of England and so the laws of England were brought to Australia. The early colonies did not recognize the rights of indigenous peoples in Australia and regarded Australia as Terra Nullius which basically means land owned by no one. Of course, this was not true and in 1992 in the Mabo Case, (Mabo v State of Queensland (1992) 175 CLR 1), the High Court of Australia rejected the view that Australia was Terra Nullius and agreed to recognise indigenous rights, especially claims to land.

    4. THE M