The contrast between law and morality has been a point of argument for long that law is based on morality has been projected
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Law and Society
The contrast between law and morality has been a point of argument for long; that law is based on morality has been projected by many. The irony though being that people argue that religious moralism ought to be separated from the law; furthermore, they are seen to be committed to permissiveness, secular humanism, equality and justice.
There are times when the law recognizes the fact that there are some instances where there may be necessity and overwhelming urgency that may lead a person to break the law. Though there are very few precedents that have come to pass and that may be used to support this claim.
In order for such a defence to succeed, there must be proof of urgency and immediate risk to life which in the long run does create the circumstance under which the defendant has reasonable grounds to believe that he must break the law. These threats in themselves must occur naturally and must not have been caused by situations of duress which just happen to overpower the human will of a person.
As a general rule, necessity as a defence should not be allowed because these would lead to a Pandora’s Box of disorder and anarchy. For instance if someone, because of hunger committed burglary on the pretext to protect themselves from starvation they would plead the defence of necessity; that they did not have the intent to commit the burglary but for hunger. The Supreme Court of Canada in the case of Perka v. The Queen, [1984] 2 S.C.R. 232, put it in a more succinct manner as per Wilson J. “…The defence of necessity must be grounded either on excuse or on justification. The only way in which the defence of necessity can be applied as an excuse is where the accused’s act is done in the interest of self-preservation. ”
In the case study in point, the only defence therefore that is available to the men is that of necessity. This is because in such a situation, the only plausible argument to whatever they did, morals aside is that it was necessary for them to continue living until somebody rescued them. Under these grounds therefore it would be understandable to find them not guilty for the crime of murder.
However, given that the boy was no threat to their lives they did commit murder, and even though they lacked the intention to commit murder, they acted selfishly. In as much as morally I would be sympathetic to the situation I would find them guilty of murder and impose the sentence prescribed by law.
The two men Dudley and Stephens, had malice aforethought: the intention to kill the boy and they went ahead to commit the act by using a knife to cut his throat. This case was clearly murder. It can only be mitigated by some excusable reason which is admissible in law.
The only admissible defense of the two men’s act would be that of necessity. But the temptation which existed in this case would not sustain the defense of necessity. This is because murder in all its forms is not justifiable and neither is it excusable. As such, letting the two men walk would be very bad in law and in morals.
The Machinery of Justice
Like several other jurisdictions, the court system in Canada is made up of a number of courts that differ in levels of superiority under the law and are also separated by their individual jurisdictions. There are courts that are federal in their nature while others operate at provincial levels or territorial.
As a whole, the constitution of Canada gives the federal government the exclusive jurisdiction to legislate on criminal matters while the provinces can legislate exclusively on civil matters. Generally, the system is made up of four levels that differ in hierarchy from the highest to the lowest in terms of their authority under the law. Even though the courts are not bound by their earlier decisions, each is mandated and bound by the rulings of the courts that are above them.
The functions of the courts of appeal are to review the decisions made by the superior – level courts and to deliver references when such are needed by the provincial or territorial governments; the purpose for which the Supreme Court does for the federal government. In essence, they normally do not conduct trials or call witnesses to give evidence.
There are some appellate courts that have specialized in certain branches of law for example small claims or family law while others are established to hear appeals from tribunals suffice it to say that the operations in the courts of appeal deal with matters that relate to law and not facts.
Every single province and territory has a court of appeal and a division that hears appeals form the decisions of the superior court and the territorial courts. These courts also hear constitutional matters as involving individuals, the governments or their agencies.
On the other hand, each province and territory in Canada has a lower trial court that hears certain types of cases and most of them have been created by statutes and accordingly they do not posses inherent jurisdiction and many of them have specialized functions. These courts listen to evidence and are therefore courts of law and facts. There are instances where a trial court can listen to an appeal from the tribunals.
The Law of Torts and Professional Liability
The law on liability for professional negligence is part and parcel of the law of torts as pertains negligence which aims to cover the circumstances where the defendant after presenting himself as having the average skills and abilities by his acts or omission causes damage to the plaintiff.
This is based on the fact that a duty of care is owed by the defendant to the plaintiff and in the event that the duty is breached he will be held liable as long as he did what a reasonable person of his skills would do under the circumstances that are prevailing. In addition, given the services that professionals offer, they are expected to provide a higher duty of care as would be expected from an ordinary man. This is usually a ground considered in determining if a person is liable or not.
Negligence as it is, is a civil wrong but it is quite different from carelessness. For instance, a professional may be exercising the highest order of care that a person in their capacity would but legally, it may still be way below what their competence level mandates. It is ideally the opposite of what is commonly referred to as diligence.
For either the firm of Saunders and Watts or Standard Household Products Ltd to be found liable, Rusholme will have to show that it was as a result of their acts or lack of it that resulted to the loss and damage caused to their house. This may sound very simple on the face of it but if looked at intently, its complications start to show.
It is important not to victimize people for things that would otherwise not be within their control. Basically, the test would be to see if the damage or injury would have occurred but for the acts or omissions of the other party or would have still occurred without them. Additionally, whether the party that caused the breach increased the risk of the party to whom ultimately the risk occurred.
The firm of Saunders and Watts agreed to refinish floors in certain rooms of the home; they were mandated to carry out their contract with the utmost of care especially because the house owners had left the house entirely to them when they left. The instructions left were also very express and clear to the parties working on the house. She asked Saunders to leave the windows partially open for ventilation and to give the key back to her neighbor who would close the windows when the floors were dry, instructions which they ignored and consequently led to the fire.
As to the action against Standard Household Products Ltd. this would be impossible to prove. In order for the claim by Rusholme to stand against them, he must prove that they owed him a duty for the safety of the house, and that this duty was breached and what in her opinion amounted to the breach and finally that he suffered damage from the said breach and is therefore liable to be compensated for those damages.
However, the doctrine of privity of contract diminishes any action he may therefore have. It provides that a contract signed between given number(s) of parties cannot confer any rights to a person or obligations from a person except to those parties that are subject to it only. This therefore means that only parties to the particular contract can be able to sue upon it.
Given that there was no relationship between the company and him, he can therefore not sue for any faulty equipment. Furthermore, it would be hard if not impossible to prove that the company could reasonably anticipate the effects of their products in a situation like the one presented by this case.
It is true that liability is an indeterminate amount for an indeterminate time to an indeterminate class of people. As such, a clear and distinct line must be drawn between legal causation and factual causation. The consequence of a person’s negligence or harm must not be or appear to be too remote and could not have been reasonably foreseeable.
In this regard, Standard Household Products Ltd could thus not be said to foresee such a consequence for their products. They cannot therefore be liable as a matter of law despite the fact that it was their product which eventually caused the fire as a result of a negligent act by Saunders and Watts. This is because there is almost no correlation between them and the ultimate cause of the damage, it is too remote so to speak.
In conclusion therefore, the responsibility as to the damage caused by the fire on the house squarely lies upon the shoulders of Sanders and Watts and as such, Standard Household Products Ltd. cannot be held liable for any consequences as to the negligent use of their products.
Formation of a Contract: Offer and Acceptance
There are times it becomes essential to distinguish between a normal invitation to treat from an offer which is intended to be binding provided the conditions offered are met. The best way to understand this concept is usually mostly understood from the instances that the courts have ruled and made decisions on.
Statutory or complementary obligations may at times be present such as consumer protection laws against misleading advertising and selling to the highest bona fide bidder in an auction.
Carlil v Carbolic Smoke Ball Company is a case that was determined back in the year 1892. It does form a locus classicus for many offer and acceptance conflicts as a result of its uniqueness. This case concerns a flu remedy. The company was found to have been bound by its advertisement and the court construed it to have amounted to a contract rather than a mere advertising gambit.
When the court ruled that performance of the conditions set out was a sufficient acceptance without notifying the company, it based its ruling on certain basic elements of a contract that is offer and acceptance, the consideration thereof and an intention by the parties to enter into legal relations. The reasons for such a ruling would be based on the fact that the advert was a unilateral offer to the world as a whole and not an invitation to treat.
Secondly, that the fact that Carlil satisfied the conditions thereof for using the smoke ball amounted to the acceptance of the offer and thirdly, she offered good consideration because it was clearly a detriment towards her as at the company’s behest and also the advert itself as it was would lure more people to purchase the smoke balls and this would be to the company’s benefit. Finally as to the intention to be bound, the fact that the company deposited some money with the Alliance Bank showed how serious they were to the idea of being legally bound.
The fundamental fact is that no matter how a person reads the advertisement, one thing that is almost irrefutable is the fact that £100 reward will be paid by the company to any person who contracts the flu even after using the smoke ball as prescribed. This is what is referred to as a unilateral contract because it arises where the promisor has made an offer to pay the promisee in return for the performance of an act which the promisor has prescribed.
In contrast, a bilateral contract is where both the parties involved make promises to each other to carry out certain obligations on condition that the other party will do the same. In essence, each party to such a contract is both the promisor and the promisee.
Formation of a Contract: Consideration, and Intention to create Legal Relations
In any contract, consideration is very essential to its validity, especially if it is not under a seal. Therefore, some right, interest, profit or benefit must accrue to the one party or some forbearance, detriment, loss or responsibility, given, suffered or undertaken by the other. In other words, for a person to be able to claim under a contract, he must show that he has done something or given something in return for the promise by another.
It is important to note that consideration must move from the promisee. A person cannot enforce an obligation unless he himself has given consideration. It is firmly established that a stranger to the consideration cannot hence sue. Important to note also is that consideration cannot be what a person is already bound to do.
In order for Williams to sue in this situation, it paramount that he can show that an agreement did exist between him and the sales representative, that is to say that an offer was made and an acceptance received and what was remaining was the carrying out of the duties that were created by the contract as a result.
Therefore as it is, Williams cannot sue for several reasons. The prominent display by Superior Used Cars Ltd. of the immaculate, highly polished model which rotates slowly on a raised circular platform under powerful floodlights and a price tag is more of an invitation to treat and not an offer in itself. Williams cannot therefore claim to have accepted an offer that had not been made in the first place.
Secondly, Williams is the promisor and not the promisee in this situation. In actual legal sense, he is the one to make an offer to buy the car, an offer which the agent on behalf of the Company will accept or refuse. This therefore means that a contract does not exist between him and the company by whatever name.
The representative has stated clearly, that the display is merely an advertisement gambit, and in its display there is no reason to construe that they would sell it to the person who walked in to purchase it. They, in no uncertain terms therefore, were not willing to enter into any agreement with any person who wanted to acquire the model and it was clear that there was no intention to be legally bound in any terms whatsoever as pertains the said model.
Under contract law, the court sometimes can presume from a certain situation the intention of the parties to an agreement had an intention that whatever agreement they get into shall be enforceable in a court of law. In this situation however, such a presumption would be wrong. In order to ensure that there was meeting of the minds, unless under situations such as equitable estoppels, misleading conduct, unjust enrichment or misrepresentation, the offer and acceptance must be clearly established.
References
Smyth, J. E., Soberman, A. J. and McGill, S. A. “The Law and Business Administration in Canada”. 12th Ed. Pearson Education Canada. 2009.
