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Rule of Law (ROL) Ratio Decidendii

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Rule of Law (ROL) Ratio Decidendii Rule of Law (ROL) • Legal principle that law should govern a nation (None is above the law) • Characteristics of legal system complying with ROL: o Law applied equally to all o Courts uphold legal rights of citizens o Nobody punished unless conduct expressly illegal • Generally, legal system that complies with ROL has: o Separation of powers o No double jeopardy (tried 2 times for same crime) o Procedural fairness Types of Justice • Retributive – Proper response to wrongful act • Restorative – Restoring victim and reintegrating perpetrator • Procedural – fair trial, timely, evidence • Distributive – Dividing where it is going (when economic resources & power are divided) Ratio Decidendii R v Dudley & Stevens (1884) • Necessity does not give you a defence to commit a crime Precedent • Permits court to apply current community standards with fairness & flexibility Ratio Decidendi & Obiter Dictum • Ratio decidendi = legal proposition essential to case o Stare decisis = let decision stand o Binding on Lower courts • Obiter Dictum = opinions, words not essential to decision (not binding on lower courts [may be persuasive]) Establishing Precedent Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 • Person presumed to be aware of terms of contract from previous dealings o If had previous dealings before, assumed you know T&C Criminal & Civil Law • Criminal Law – wrongs against society o Prosecuted by state o Punishable by imprisonment ▪ Murder, treason, rape, theft o Presumption of innocence (until proven guilty) ▪ Standard of proof is ‘beyond reasonable doubt’ o Fagan v Metropolitan Police Commissioner (1969) 1 QB 439 ▪ Criminal act requires: • Actus reus (guilty act) – committing the crime • Mens rea (guilty mind) – intention to commit crime • Civil Law – wrongs between private individuals o State provides a forum but does not interfere ▪ Breach of contract, trespass, nuisance, negligence ▪ Standard of proof is ‘balance of probabilities’ Common Law & Statutory Law • Common = legal principles deriving from cases decided by courts • Statutory = law from Parliaments (Acts) o Laws made Parliament = Statutes o Legislation overrule a court decision because parliament is sovereign Statutory Interpretation – Literal & Golden Rule • Literal Rule = Giving words their technical/dictionary meaning • If results are absurd apply Golden Rule o Golden Rule provides an escape o Use only when Literal Rule fails Statutory Interpretation – Common Law Rule 1. Ejusdem Generis Rule (The Class Rule) a. General words preceded by specific words 2. Noscitur a sociis a. Words take their meaning from their context 3. Leges Posterirors Priores Contrarias Abrogant a. Later legislation overrules earlier inconsistent legislation 4. Generalia Specialibus Non Derogant a. Specific provisions override the general 5. Expression Unius Est Exclusio Alterius a. E.g. all cars, utilities, panel vans, motorcycles & buses would exclude trucks Equity • Body of rules that evolved over time to alleviate harshness of common law o Arose in ecclesiastical courts which became courts of chancery ▪ Courts of chancery & common law courts = merged Principles of Equity 1. Equity follows the law 2. Person seeking equity needs clean hands – equity will not help guilty person 3. Equity does nothing in vain 4. Equity aids the vigilant 5. Equity will not suffer wrong without a remedy Separation of Power 1. Exclusive Powers – Federal Parliament only 2. Concurrent Powers – Federal & State Parliaments 3. Residual Powers – State Parliaments only • If State parliament has made law in relation to on matter, that conflicts with law made by Federal Parliament o Federal law will prevail over State law • Types: o Formal – signed, sealed & delivered ▪ Deed – type of binding contract • Written document shows terms of an agreement made between 2 parties • No Consideration needed but formalities must be followed • Generally, needs a witness o Simple – written/oral • Role of Equity in contract law = Remedies, promissory estoppel, unconscionable conduct Types of Contract Number of Parties • Unilateral – 1 party • Bilateral – 2 parties (both with mutual obligations) • Multilateral – < 2 parties, all with obligations Form • Simple Contracts o Written, oral, part-written & part-oral o Need all elements of a contract (incl. consideration) o Enforceable • Formal Contracts (Deeds) o Satisfy formality requirements ▪ No need for consideration o Deeds required for: ▪ Unilateral contracts ▪ Where statute requires • Simple verbal contract will be legally valid; but: o If in writing → court presumes entire contract & will not allow oral evidence to change/contradict written doc (Parole Evidence Rule [PER]) ▪ Exception: oral evidence allowed if clear ambiguity/uncertainty in the document Equity may sometimes allow a contract to be enforced if it would be unfair not to Regent v Millet (1976) Held: - claim part-performance (doctrine of equity) because had carried out the contract, so contract enforceable Elements Required for Contract Formation 1. Intention to create legal relationship (ICLR) ☼ a. Presumed in commercial (business) i. General presumption that it is legally bound ii. Commercial Agreements 1. Presumed to have been intended to be legally binding 2. Presumption that parties ICLR is very strong a. Can be rebutted: - i. Rose & Frank Co v JR Cromption & Bros Ltd 1. Parties had dealing over many years 2. “honour clause”- mutual trust & loyalty 3. Expressly stated agreement not to be legally binding b. Not in family/social relationship i. Court presume no intention to be legally bound c. Can be disproved d. Court applies “objective test” → reasonable bystander, considering for all circumstances of the case i. Someone thinking from an external perspective • Rebuttable Presumptions (Family/Social) o Assumption made by court, one that is taken to be true unless someone comes forward to contest it & prove otherwise o Social & Domestic Agreements; presumption against legal obligation ▪ Balfour v Balfour (1919) o Presumption is rebuttable ▪ Merritt v Merritt (1970) – separating spouses • Held: There was ICLR so there was a contract. Husband & wife were separated, so outside domestic context ▪ Wakeling v Ripley (1951) ▪ Riches v Hogben (1986) • Held: More than social arrangement (due to security). ICLR for social relationship was successfully rebutted 2. Mutual Agreement ☼ a. Offer & Acceptance ☼ i. Agreement = offer + acceptance of offer 1. Offer a. Can be made verbally, writing, internet, post or email b. Must be clear & unambiguous c. Can only be accepted to party whom it is made to(offeree) d. Accepted in manner specified e. Can be revoked at any time before acceptance 2. Sufficient precision is needed to eliminate further negotiation 3. Power of Acceptance → acceptance is necessary to make contract binding 4. Can be to individual or to world 5. Communicated effectively 6. Language need not be important a. Catalogues ads with offers will be invitation to treat not offer (Treat = Trade) b. Offer or Invitation to Treat i. Pharmaceutical Society (GB) v Boots Cash Chemists 1. Held: Offer was made by customer when customer presents item at register. Acceptance when vendor accepts money. ii. Fisher v Bell (1961) 1. Held: Display of goods is invitation to treat, not offer iii. Carlill v Carbolic Smoke Ball Co (1893) 1. Held: Language of ad was precise & clearly detailed the means of acceptance. There was an offer to the world at large, therefore the contract was binding. c. Not offer because supply of information i. Does not mean an offer – Nexus = where actual offer is ii. Harvey v Facey 1. Held: No Contract a. Was request for info, not offer b. Supply of new info, not offer/acceptance d. Possible responses to an offer: i. Reject it – terminates contract ii. Make counter-offer – terminates original offer iii. Ask for more information/clarification – no effect on offer but offer will lapse within reasonable time, if not accepted before lapse iv. Do nothing – offer lapse after reasonable time v. Accept offer in full terms – creates valid (simple) contract e. Acceptance Rule 1: Acceptance must be clear 1. Be clear, unambiguous 2. Positive decision, leaves no doubt 3. Must mirror the offer 4. Counter-offer destroys original offer a. Rule of Masters v Cameron i. If parties sign preliminary agreement subject to some condition, there is no binding final agreement Offeror’s Requirements must be met 1. Exclusive method of acceptance must be used 2. May be accept by alternative efficient method (Eliason v Henshaw) 3. Offeree can use same communication method as offeror 4. Acceptance is communicated only when received by offeror Postal Rule 1. Adams v Lindsell a. Parities know post will be used, acceptance occurs when letter is posted, not on delivery b. postal service acts as agent for offeror c. rule can be avoided by specifying condition Rule 3: Acceptance be given in reliance on offer 1. R v Clarke (1927) a. Held: No, because Clarke gave info to clear himself, he had forgotten about the reward Rule 4: Acceptance must be communicated 1. Felthouse v Bindley a. Held: B’s silence did not constitute acceptance ii. To be effective, acceptance needed to be communicated to F 2. Acceptance may be communicated by offeree’s agent a. Powell v Lee iii. Held: 3rd party was not authorised to communicated acceptance, no agreement 3. Brogden v Metropolitan Railway Company (1887) a. Held: Draft agreement was offered by M to B. Completed contract was counter-offer to M by B. There was implied acceptance by M because M acted per completed contract.
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