PRINCIPLES OF LAW : LAW OF CONTRACT

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PRINCIPLES OF LAW : LAW OF CONTRACT

Transcript of PRINCIPLES OF LAW : LAW OF CONTRACT

  • Law Of Contract

    Principles Of Law

  • PRINCIPLES OF LAW

    Page 1 of 81 [email protected]

    The concept of Law Define what is meant by the term Law LAW are rules established by authority to regulate the behaviour of members of a community, society

    or country. LAW are legal rules. Law is a system of rules, usually enforced through a set of institutions. It shapes politics, economics

    and society in numerous ways and serves as a primary social mediator of relations between people. Law- That which is laid down, ordained, or established. A rule or method according to which phenomenon or actions

    co-exist or follow each other. Law, in its generic sense, is a body of rules of action or conduct prescribed by controlling authority, and having binding legal force

    ANALYSIS OF THE DEFINITION

    Bodies of rules governing human conduct Law in its sense, prescribes what must, what may and what may not Be done. It is an

    instrument designed to regulate human behaviour and order in the society.

    Recognized as binding by the state When Law finds acceptance in the common Law it is regarded as binding by the state. Here

    we are concerned with conscience of the individuals own view of what is wrong or right, i.e. what an individual considers desirable or undesirable as regards conduct.

    e.g. Ethical principles like, l must be helpful to others or l must respect my parents.

    An ethical principle or rule is a code of conduct, which is carried personally by an individual

    and acts as a motive to behave in a certain fashion. Such principles come about during the course of a life of an individual. Law must conform to the prevailing sense of justice in a community or it will fail to preserve peace.

    Enforcement In order to ensure that rules of human conduct are obeyed by all the inhabitants of the state

    it is necessary to have some form of compulsion or influence which induces them to comply with the rules.

    No rule can be effective without the method of compulsion called a sunction

    NB: A Sunction is some unpleasant or inconvenient consequence which a person knows beforehand will be inflicted on him if he doesnt follow a rule.

    A breach of the Law often invites punishment in the form of imprisonment, a fine or

    compensation. Associated with punishment, as far as the Law is concerned, are the mechanisms to enforce these legal forms. Thus the police, courts and penal institutions are set up to effect punishment. Such formal mechanisms are not evident in the field of ethics and positive morality where censure and punishment are more subtle.

  • PRINCIPLES OF LAW

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    The elements of Law and the difference between real and personal rights

    PRINCIPLES OF A JUST LAW. 1. Equality

    Law consist of rules, which apply to all persons in the same condition. What applies to Sam has equal application to Jeff, provided they fall in the same classification. Rich or poor, employer or employee, all men are the same in the eyes of Law if they fall in the same class. If Tom drives a car, Sam walks along the road and Dick cycles, they all fall into different categories applicable to road users and rules applying to one do not necessarily apply to others.

    Each would be subject to Laws governing the activities they are engaged in:

    The fact that Jill drives a Datsun and Ben drives a Benz is immaterial to the application of rules of negligence or Law against drunken driving.

    Exceptions to equality are insanity, minors but considerations must be based on distinctions which are objective and logical.

    If B a Lawyer sexually abuses a minor and C a teacher commits the same offence, the Law pertaining to the case will be applied equally regardless of status.

    NB: these considerations must be based on distinctions which are both objective and logically relevant. 2. Uniformity

    Uniformity simply means all people in all areas should be treated uniformly. The same Law that applies to Joe in Gokwe should apply to Tom in Mutare, provided they have committed a similar offence. If Mr. X a Lawyer in Harare and Mr. Z a bus driver in Kwekwe commits the same offense, the legal fate that is visited upon them is identical. The aspect of authority of the High Court ensures the uniform application of Law as far as possible. If a person is a foreigner and commits a crime he/she is treated applying the principles of Law in that country.

    3. Certainty

    Certainty in the Law prescribes how a person must, or may, or may not act, and to that extend it safeguards the rights and liberties of the people themselves. If X infringes Ys right, Y will know that because the rules of Law are certain a remedy lies in the courts.

    Inn the same way, people can order their affairs knowing what the legal consequences of a particular course or courses of action will be.

    Certainty also acts as a limitation on the tries of fact in that they are bound to follow the establishment rules of law as set out beforehand and in so doing silly or arbitrary decision making is checked.

    Requirements of certainty are:

    Rules must be formulated in clear and unambiguous terms;

    Law must be known i.e. new laws must be disclosed i.e. promulgated (made known). By publication in the Government gazette. Once this process has been carried out, the legal maxim IGNORANTIA LEX NEMINEM EXCUSAT (ignorance of the law excuses no one) is said to apply.

  • PRINCIPLES OF LAW

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    e.g. if an individual who has been out of the country in search of work for years contravenes a new law published in his absence he is nevertheless guilt of the relevant offence although he had no possible chance of having learnt the new law. However, this concept has been subject to criticism in that in practice so many laws are promulgated that even lawyers cannot possibly presume to know them all. The access to the gazettes and the level of literacy of a person to be able to comprehend the gazette are other issues of concern. Despite all that, as things stand at present the maxim still applies in Zimbabwe.

    4. Generality

    In order to be just the law must be consistant and it must be applied without distinction to all persons of the same class and in the same circumstances. The general rule should remain fixed as a constant and not to be varied arbitrarily from one case to the other simply because of the magistrates or judges personal feelings.

    5. Authority

    This applies to the Law enforcement machinery clothed in authority by parliament to enforce Law equally, uniformly to all races, tribes and so on. Authority signifies that all Laws used should be applied by only bodies given the authority.

    6. Reasonableness

    According to VOET, (Legal Jurist), Law must order what is honourable and prohibit what is reprehensible. This simply means law should be a code of conduct that governs society. Law should be just in that, what is wrong to be treated as wrong and what is good to be treated as good. Thus arbitrary, absurd and senseless rules will tend to be disobeyed. The concept of reasonableness or the reasonable person is of wide application in our legal system and if the law expects those to whom it applies to behave reasonably, then surely the law itself must be seen to be reasonable.

    The difference between real and personal rights Personal rights are those rights that someone has regarding his/ her body, eg. body protection and self-esteem and self respect while real rights refers to those rights that bind all the citizens of the country, those rights will include no rape, no crime, no smoking in public and etc.

    The concept of legal personality and the difference between natural and juristic persons The concept of legal personality

    Legal personality (also artificial personality, juridical personality, and juristic personality) is the characteristic of a non-human entity regarded by law to have the status of a person.

    A legal person (Latin persona ficta), also legal person, artificial person, juridical person, juristic person, and body corporate) has rights, protections, privileges, responsibilities, and liabilities under law, just as natural persons (humans) do. The concept of legal personality is perhaps one of the most

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    fundamental legal fictions. It is pertinent to the philosophy of law, as well as corporations law (the law of business associations).

    Legal personality allows one or more natural persons to act as a single entity (a composite person) for legal purposes. In many jurisdictions, legal personality allows such composite to be considered under law separately from its individual members or shareholders. They may sue and be sued, enter into contracts, incur debt, and have ownership over property. Entities with legal personality may also be subject to certain legal obligations, such as the payment of tax. An entity with legal personality may shield its shareholders from personal liability.

    The concept of legal personality is not absolute. "Piercing the corporate veil" refers to a legal decision in which the rights or duties of a corporation as the rights or liabilities of its shareholders or directors. Legal persons may not have all the same rights as natural persons - for example, human rights, including the right to freedom of speech.

    Although the concept of a legal person is more central to Western law in both common law and civil law countries, it is also found in virtually every legal system.

    Some examples of legal persons include: Cooperatives (co-ops), which are business orga