Overview of Hart’s 3-Part Legal System
1(b):
The constitutional revolutions that recently took place in Fiji raised numerous issues. These issues can be referred as urgent practical and complex theoretical ones. The most important constitutional issues that have been raised are concerned with the issue of legal continuity and discontinuity which persist within a particular society. However, the constitutional issue is also concerned with the inequalities which prevail between legal and the customs of non-western societies. In this regard, it is noteworthy to mention here that as a result of lack of constitutional continuity experienced by the Fijian government cannot be taken into consideration without defining the influence of cultural practices and beliefs on the legal and constitutional system of Fiji.
It is worthwhile to refer here that, several attempts has been made by the administrative officials in the past to address the questions related to continuity and discontinuity as well as the relation which persists between formal and customary law. From the very beginning, the Hart’s 3-part legal system has been addressing the both sets of questions theoretically and descriptively by involving an integrated process. According to the Hart’s 3-part legal system, law can be defined as social rules and regulations which are distinct from mere customs and conventions as it forms an integral part of the formal legal system of a particular country. In this regard, it is worth noting that according to Hart’s 3-part legal system, an effective constitutional revolution takes place only when there is a substitution of one rule of recognition for another rule. Therefore, an account of legal revolution has been formulated by the Hart’s 3-part legal system that has been applied in addressing the issues faced by the legal system of Fiji.
It is worth examining the fact that, as a result of succession of coups and revolutionary changes that took place recently in Fiji has offered an opportunity to the makers of law and constitution to test the applicability of the Hart’s theory in addressing the issues of legal system. In addition to this, it can be stated that from the beginning Fiji has a strong set of traditional customs of its own which has a composite relationship with the formal system of law. It is noteworthy to mention here that, the Hart’s 3-part legal system has evaluated the fact that in recent era, Fiji has undergone a series of revolutionary changes which efficiently challenged the formal system of law. In this way the Fijian government efficiently demonstrated the continuing force of the traditional sources of power which prevails within the legal system of the country by applying the principles of Hart’s 3-part legal system.
Application of Hart’s 3-Part Legal System in Fiji’s Constitutional Revolution
The Hart’s 3-part legal system is based on the principle of recognition of law while the Australian legal system from the very beginning undermines the functioning of the Australian society. Laws are publicly adjudicated in the courts of Australia which are independent from the executive. In this regard, mention can be made about the regulators of law who are involved in the process of law making. Under the Australian legal system, the laws are made publicly so that the community could involve themselves in the law making process. Due to this reason, laws under the Australian legal system are clear, predictable as well as accessible to the general public. However, the rule of law is distinguished from the concept of recognition of law as formulated by the Hart’s 3-part legal system. It is worth stating that a number of formal and procedural principles are associated with the recognition of law in the Hart’s 3-part legal system. The rule of law under the Australian legal system also addresses the requirements of the recognition of law as stated in Hart’s 3-part legal system. This is because the rule of law under the Australian legal system is concerned with the principles of formal and procedural rules of law which addresses the way in which the community should be governed.
2:
Issue:
The issue in this case is that whether Barry can challenge the validity of the contract on basis of the statements made on the part of Angelo before the contract was entered by the parties.
Rule:
According to the Australian law of contract, a contract can be defined as an official agreement which is legally binding two or more parties. Contract can be both oral or in writing. There must be a promise within a contract between the parties involved in order to make them perform their contractual obligations. However, for a contract to valid, there should be some essential elements in it. In this regard, it is worthwhile to refer to the essential elements of a valid contract. For a contract to be valid, the essential elements are-
- Intention on the part of the parties to create legal relations.
- Offer:
In order to construct valid contract there must be an offer on the part of one of the parties to the contract. However, it is worth stating that there is a difference between offer and advertisement. An advertisement can be referred to as an invitation to treat in which a client invites parties to make a contract with them. For instance, when a job is being advertised on a TV or newspaper, it is referred to an invitation to treat rather than an offer. There shall be an offer if the client offers the job directly to a person without involving in any prior advertisement regarding such job. In case of invitation to treat, it protects the parties from being agreed to a contract which cannot be fulfilled by them. The offer can be refused by the parties if they cannot fulfill the terms of the contract. In Harvela Investments Ltd. v Royal Trust of Canada (CI) Ltd. [1986] 1 AC 207, it was observed that there was an invitation to treat to make sealed competitive bids for shares. However, in Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] EWCA Civ 6, is a landmark case of invitation to treat where, the customers offered on their part to buy the store. Therefore, there was an option on the part of the buyers to buy the store or not.
Comparison between the Australian Legal System and Hart’s 3-Part Legal System
In this regard, it can be stated that clients and contractors should be aware of the valid rules of offer and acceptance as well as invitation to treat. However, offer and acceptance are essential part of a contract and without these there shall be no contract.
- Acceptance:
When an offer is made by one of the parties to the contract, there should be an acceptance on the part of the other party. However, it is important on the part of the party making the acceptance to understand what is being offered in order to be clear with the terms and conditions.
- Consideration:
Consideration forms an essential part of contract which is related to the fact that in order to form a valid contract, something should be given in return.
- Intention to create legal relations:
There must be a common intention of the parties to make the contract legally enforceable.
- Certainty:
It is important that the terms and conditions of the contract should be clearly and accurately stated. In this regard, it is worth noting that if the terms of the agreement are not certain then it is not a valid contract.
- Capacity:
The parties must have a capacity to enter into a contract. Therefore, unsound persons cannot enter into a contract because it will be considered as invalid.
In the present scenario, it can be observed that there was an invitation to treat on the part of Angelo. Therefore, there was an option available to Barry that whether he would accept the offer or not. In this regard, the case of Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] EWCA Civ 6 and Harvela Investments Ltd. v Royal Trust of Canada (CI) Ltd. [1986] 1 AC 207 can be applied. This is because; there is a difference between offer and invitation to treat about which Barry was not aware. In this case, there was an acceptance on the part of Barry when a contract was signed between him and Angelo. There was also a consideration on the part of Barry when he paid a sum of $200,000. There was also an intention to create legal relationship and the parties were capable to enter into the contract. However, the terms and conditions of the contract were not certain which included the expenses of the business, the competitors and the turnover. As a result of uncertainty in the terms of the contract Barry had to suffer in business also there was no mention of the lease of the van and the condition of the loader.
Analysis of Contract Validity: Can Barry Challenge the Contract?
Conclusion:
In the conclusion, it can be stated that Barry could challenge the validity of the contract on the grounds of certainty which is an important essential of valid contract.
Issue:
The issue in this case is that whether Barry can sue Angelo for breach of contract.
Rule:
Under the law of contract, in case of breach of contract on the part of one of the parties, the injured part can claim damages or compensation. In Surrey County Council v Bredero Homes Ltd CA [1993] 1 WLR 1361, it was held by the Court that the purpose of unliquidated damages is not to punish the party who has breached the contract. However, it is a way to recover the losses on the part of the injured party incurred as a result of breach of contract. In this regard, it is important to categorize the concept of loss. Loss can be emphasized into two types-
- Expectation Loss.
- Reliance Loss.
The estimation of expectation loss is calculated by the courts. The concept of expectation loss is based upon a traditional system with the help of which the nature of the damages were efficiently assessed by the courts. In case of estimation losses, the claimant is placed in the same position and examined that what they would have done if the contract was performed. However, the application of expectation losses is governed by three limitations. The first limitation is regarding the remoteness of the damage; where the nature of the losses is so remote that it cannot be recovered. The second limitation is concerned with pecuniary in which damages can be recovered for breach of contract. The third limitation is mitigation, in which there is a duty on the part of the claimant to mitigate the loss. Reliance loss is concerned with the fact when the injured party has wasted expenditure while preparing the partial performance of the contract. In Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1, it was observed that an advertisement was made for the purpose of making an offer to the whole world and with an intention to bind those parties to a contract who agrees to the terms and conditions of the advertisement.
It is worth mentioning that in case of breach of contract which causes as a result of wrongful act on the part of one of the parties, the available remedy is damages. Damages under law of contract have been referred to the payment which can be considered as a form of remedy provided by the principles of common law. However, the intention is to provide financial compensation in order to cover the losses incurred as a result of breach of contract. Damages under the law of contract plays significant role in protecting the interests and expectations of the promisee and the performance of the promisor. In this context, mention can be made of contractual damages. Contractual damages are suffered when there is a breach of contract. Contractual damages are not considered to be a punishment for the parties who have breached the contract. However, the ability of the defendant to pay the damages buy ensuring its measure is not considered by the Courts. In case of breach of contract, the injured party is at the authority to bring suit for wrongful action on the part of the breaching party (defendant) and claim compensation or monetary damages.
Essential Elements of a Valid Contract
In the present case, it can be observed that Angelo has breached the contract because in the contract, matters regarding the lease of the delivery van and the condition of the loader were not mention. Angelo even misrepresented Barry regarding the fact that the actual turnover would be 20,000 per month and that there would be no competitors. Therefore, there is an authority on the part of Barry to bring a suit for breach of contract against Angelo in order to recover unliquidated damages. Therefore, the case of Surrey County Council v Bredero Homes Ltd CA [1993] 1 WLR 1361 can be referred in which it was held that unliquidated damages are not punishment, it is a way to recover damages incurred during breach of contract. In this case, second limitation of expectation loss can be applied which deals with pecuniary in which damages can be recovered for breach of contract. Therefore, the case of Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1 can be referred. It can be stated that Barry can recover contractual damages as well because Angelo has breached the performance of the contract.
Conclusion:
It can be concluded that there is an authority on the part of Barry to bring an action of claim against Angelo for breach of contract.
References:
Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1.
Harvela Investments Ltd. v Royal Trust of Canada (CI) Ltd. [1986] 1 AC 207,
Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] EWCA Civ 6.
Surrey County Council v Bredero Homes Ltd CA [1993] 1 WLR 1361.
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