Commercial Law Undergraduate Law Education

Question:

Discuss About The Commercial Law Undergraduate Law Education?

 

Answer:

Introducation

The principles of law contract need to be applied in this question. In case of the law of contract, there are no specific legislations or rules. Instead, it is based on the set of principles that define the rights and duties of the parties who have entered into the contract therefore, ensuring that the parties to the contract should not breach the legal provisions (Henkel, 2014). The law provides that each promise made by the parties forms of concentration for the other party. In this way, when a proposal has been accepted by the other party is known as a promise. Keeping in view the above mentioned in relation of the contract, it is significant to understand that a valid contract is created only when the elements of offer and acceptance are present. In this way, offer and the acceptance of the offer can be described as the essential elements required for a contract (Frisch, 2014).

Keeping in view the relevant case law, in the present case, there is an offer and several agreements to be offer. Therefore in the above-mentioned case, an offer has been made by Alan. He wanted to advertise this book, “introduction to business law”. This book is used in the “Commercial law” paper. He has posted a notice on his Facebook page on November 1, declaring his intention to sell the book. He was asking for a price of $200 for the book. At the same time, he had also mentioned that the deadline to make debate before the book was November, 5. The offer was accepted by Bernard. He replied through post, declaring his intention to accept the offer. But Alan did not give any response to Bernard. Under these circumstances, Alan received the money sent by Bernard through courier on November 4. On November 7, Alan gave the original book to Bernard. He stated that his nodes have been written in the book itself.

On the other hand Charleen is the younger sister of Alan. She also saw the message posted by Alan on his Facebook page to sell the book. She also wanted to purchase the book for $200. However Alan did not consider the acceptance of the offer by Charleen to be serious. He thought that Charleen was too young to read the book. Therefore, he was thinking about something else then he nodded his head in return of the acceptance of the offer by Charleen. A contract has been created between Alan and Charleen when Charleen left $200 on his table. This amounts to the formation of an agreement.

Damien had also expressed his interest in purchasing the book. On November 4, Damien visited Alan and gave $2000 in cash to Alan. This money was taken by Alan and he promised that he will give the material to Damien on November 7. The next day, he was just a similar book from the shop and gave it to Damien along with his handwritten notes.

As in the present case,. At the actual contract has not been created between Alan and Bernard, the acceptance of the money by Alan and later on giving the book to Bernard on 7 November is a wrong act of Alan. Later on, it was discovered that the book was provided free of cost by Kaplan Higher Education. Under these circumstances, it can be said that Bernard can claim compensation from Alan for the fake acceptance of the offer.

Bernard had responded in return of the offers made by Alan on November 1. He expressed his interest in purchasing the commercial law book. Although initially, Alan had showed his intention to sell the book for $200, but Bernard made a counteroffer according to which he was ready to purchase the book for $150

Therefore, the offer has been made in return of the initial offer. However, such offer is not acceptable under the law. A counteroffer can be described as the revision of the first offer to make the offer more attractive and presentable. However, when a comparable is made, it is up to the offeror to decide the offer or not. When a counter offer is made by a person, the other person is at liberty to accept or reject the offer (Neumann, 2014). The party making the counteroffer cannot force the other party to accept the offer (Calliess & Buchmann, 2016).

In the present case, a counter offer has been made by Bernard to Alan. Alan had not expressly rejected or accepted the offer clearly. On 3 November, Bernard gives the payment to Alan and hosted an amount of $200 to him. The money was received by Alan and he delivered the textbook to Bernard. The poster who can be described as an exception to the rule related with counteroffer. Therefore, in view of the postal rule, when the money was posted by Bernard, a contract has been created between Alan and Bernard. But in the present case, Bernard was sure regarding his acceptance of the offer may dwell in regarding the book. Moreover, he paid for the book proposed and later on Alan also delivered the work (Zheng, 2013).

In this case the legal position of Bernard is vacant as there is no contract between him and Alan. The counteroffer made by Bernard was not accepted by Alan. For example, in Hyde v. Wrench, it was held by the court that in case of the initial offer made by the offeror, there is no legal obligation to accept the counteroffer. Hence it can be concluded in this question that a valid contract was not present between Alan and Bernard.

In this case, Charleen was the younger sister of Alan. She also wanted to purchase and read the book on commercial law. Therefore, she agreed to pay the money to Alan on November 6. Alan simply nodded his head when Charleen expressed her desire to purchase the book. At that time, Alan was thinking about his favorite football team. Hence, Alan was not in the proper sense when Charleen had expressed her acceptance of the offer.

The issue that arises in this case is if a valid contract has been created between Allen and Charleen. It can be assumed that Charleen was studying in O level, therefore she would not be more than 16 or 17 years old. Therefore, she was still a minor. The law of contract provides that a valid contract cannot be created with a minor. In Bowling v. Sperry , the court stated that the participation of a minor in a contract has to be treated as void even if an adult was also involved in such transaction. Similarly, in the present case, because Alan and Charleen were brother and sister, the court may consider that the contract was merely a social or domestic agreement, not enforceable by law. Therefore they cannot sue each other for the breach of contract. At the same time, return of the offer made by Charleen, Alan had only nodded his head to accept the offer but he was not in a good state of mind. He had merely nodded ambiguously, and there were no further negotiations. Hence, it can be resumed in this case that the agreement between Charleen and Alan was purely domestic in nature and as a result, a valid contract was not present between.

Damien was a friend of Bernard. He managed to get the phone number of Allen and made a counteroffer through SMS. Damien gave the price of the book to Allen on 4 November and on 7 November, Alan gave the book as well as the other notes to Damien. In the present case, this contract between David and Allen is a valid contract. It has all the elements required for a valid contract. The following elements have to be present in order to create a valid contract. These are offer, acceptance, consideration, invention and legal relation. As compare to Bernard and Charleen, only the agreement with Damien contains all the elements of a valid contract. Hence, it can be concluded that a valid contract exists between Alan and Damien. Because a counter offer was made by Bernard and it was not accepted by Alan at the view of the postal rule, the contract between them was not valid. Similarly, due to the reason that Charleen was a minor, she did not have the capacity to form a valid contract.

Bernard and Damien found on November 23 that the Commercial law book was provided free of cost by Kaplan. Another misrepresentation made by Alan in his initial offer was that he had secured a high distinction grade while in reality, he could only get ‘credit’ grade in the examination. Moreover, Alan also claimed that he will get the additional nodes with the book. But he did not gave the additional notes with the book to Bernard. Under these circumstances, Damien can take action against Alan for making misrepresentations regarding the cost of the book. As a valid contract was not formed between Bernard and Alan, he can only claim compensation from Alan. On the other hand, Damien may file a suit for damages on claim compensation from Alan.

The lock on it provides that if a party to the contract has breached the contract, in such a case the other party may file a suit and claim compensation or damages. The cost of the damage on the compensation has to be estimated, keeping in view the loss suffered by such party (Tepe, 2014).

Some of the different dispute resolution methods available to the parties include mediation, arbitration and conciliation as well as litigation. In case of the process of mediation, an unbiased third party assists the parties to the dispute to reach a voluntary settlement of the dispute. In this way, mediation provides an informal, confidential and a friendly way to settle the dispute between the parties (Peng, 2013). This method helps in resolving a conflict, whether it is commercial or personal. In this method, the mediator presides over the proceedings. Mediator also helps the parties in communicating with each other, which allows the parties to find a resolution to the dispute. The mediator also helps in exploring the practical and legal solutions available to the parties and finds the solution that is acceptable to both.

The process of arbitration is more formal. In case of arbitration proceedings, the rules of evidence and trial are generally relaxed and flexible. An arbitrator presides over the proceedings between the parties. The arbitrator also delivers his decision in writing. The decision is binding for the parties to the dispute (Rosen, 2014). In case of arbitration, if the is not binding, an appeal may be filed by the parties in the trial court for settling the dispute. The method of arbitration is most notable in cases where the parties do not want lengthy and expensive proceedings like a trial (Hurst, 2012).

Another method, generally used by the parties to resolve disputes, is that the litigation. Litigation takes place in a court. It is a formal process where a suit is filed by the plaintiff against the defendant. Legal advisers are hired by both plaintiff and the defendant to present a set of rules and evidence in support of their case before the jury. The verdict of the court is final and is binding for the parties. However, the party that has lost the case may file an appeal in a higher court. It is generally considered that litigation is time-consuming and costly method. But at the same time, it is also the most transparent and fair method. The parties are bound by the decision given by the court. However, it is recommended that first of all the parties should try to resolve the dispute by using alternative dispute resolution methods before going for litigation (Huang & Tseng, 2014).

References

Ayub, M. (2012). A Comprehensive Glossary of Terms in Islamic Commercial Law–Business, Banking, and Finance. Journal of Islamic Business and Management Vol, 2(2)

Beckers, A., Kornet, N., Oosterhuis, J., Akkermans, B., Hage, J., & Smits, J. (2015). Who does what in commercial law? The case for a multi-actor and multi-level approach to regulating business transactions. Who does what in European private law?, 125-175.

Bowling v. Sperry, 133 Ind. App. 692, 184 N.E.2d 901 (1962).

Calliess, G. P., & Buchmann, I. (2016). Global Commercial Law between Unity, Pluralism, and Competition: The Case of the CISG.

Frisch, D. (2014). The Commercial Law of Intellectual Property.

Henkel, C. (2014). Personal Guarantees and Sureties between Commercial Law and Consumers in the United States. American Journal of Comparative Law, 62(Supplement 1), 333-359.

Huang, M. J., & Tseng, W. R. (2014). Taiwan’s National Report: Codification in East Asia: Commercial Law. In Codification in East Asia (pp. 131-136). Springer International Publishing.

Hurst, J. B. (2012). De Facto Supremacy: Supreme Court Control of State Commercial Law. Virginia Law Review, 691-728.

Hyde v Wrench [1840] EWHC Ch J90

Liao, Z. (2012). Book Review: Understanding commercial Law.

Neumann, T. (2014). International Commercial Law from a Nordic and Baltic Perspective: Status and Current Challenges. Nordic Journal of Commercial Law, (2).

Peng, S. O. N. G. (2013). COMMERCIAL INTERPRETATION AND APPLICATION ON ARTICLE 72 OF THE CORPORATION LAW. Journal of Yunmeng, 4, 035.

Rosen, K. (2014). Company Law and the Law of Succession Droit Commercial/Commercial Law. American Journal of Comparative Law,62(Supplement 1), 387-405.

Tepe, B. (2014). Intermediate Appellate Review of Commercial Law Decisions in Turkey. EMAJ: Emerging Markets Journal, 4(1), 59-71.

Yau, B., & Johnstone, A. (2014). Focus grouping attitudes towards commercial law in three legal communities: comparing attitudes of professional legal training students to those of undergraduates and early career commercial lawyers.

Zheng, C. (2013). On the Reform of the Course of Science of Commercial Law in the Undergraduate Law Education: Taking the Reform of the Course of Science of Commercial Law in He’nan University of Technology as an Example. The Science Education Article Collects, 8, 018.

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