English legal system is one of the complex legal systems in the world. It is therefore very important for any person interested in studying the English legal system to be very keen not to get confused by the complex legal system. This work analyzes some aspects of the English legal system and the application of international business law in a case study.
First of all, it is important to know that both criminal law and civil law are applied in the English legal system. However, the two laws do not play the same role in the legal system. It is therefore important to explain the role of the two laws and analyze their purposes in the English legal system. Criminal law is the kind of law that is used in the English legal system to punish those who act in a way that is against the interest of the society as laid down through a legislative process (Papachristou, 1999).
Criminal law is usually enforced by state security officers especially the police. The police department is the one responsible for investigations regarding violations of criminal law. The department is also responsible for arresting the lawbreakers and arraigning them in court for prosecution. According to criminal law, a crime is committed when a person acts against the law and the crime has a direct impact either on an individual or a society.
Examples of crimes that are dealt with under criminal law include murder and theft. The purpose of criminal law is to maintain law and order in society (Caenegem, 1992). People try to avoid committing crimes because the consequences may not be favorable once the criminal law is applied. Criminal law is used to punish criminals. It is also used to protect society from criminal activities by deterring people from committing crimes.
Civil law is any other law that is not considered criminal law in the English legal system. Civil law is a term usually used in legal systems in the entire European continent. In other words, civil law is not only used in the English legal system but the whole of Europe. However, the focus is on the use of civil law in the English system and therefore it should be analyzed in this specific context but not the whole of Europe. The role of civil law in the English legal system is to provide a platform on which civil disputes among citizens can be resolved by observing justice and the principles of fairness (Lord, (1996).
When due process of law is followed, the judge should avoid bias and favoritism in issuing judgment involving a civil dispute between two parties in a court of law. Breach of contract is an example of a civil case that can be resolved under civil law in the English legal system. The civil law is used to ensure that people live in peace and harmony by resolving their civil disputes amicably and where there is no understanding between parties, the civil courts should give a fair verdict (Lord, 1996).
A notable difference between criminal law and civil law is that are they dealt with in two different courts. Criminal law deals with criminal cases that are usually heard in magistrates courts. On the other, hand Civil law deals with civil cases that are usually heard in civil courts (Pollock & Maitland, 1989). This is because the two kinds of cases are very distinctive and therefore deciding which court to take a case is not really a problem.
A person who has committed a crime is in most cases held in police custody pending investigations or hearing of the concerned case. On the other hand, Civil law allows an individual to be free but attend court to answer charges against him or her concerning a civil case. The freedom of movement of a person is usually not denied because of a civil case as it is the case in a criminal case (Pollock & Maitland, 1989).
In the English legal system, common law and legislation have distinctive roles. However, sometimes legislation may be derived from common laws to ensure that laws that have loopholes are eliminated. Common law is the law derived from the traditions and customs of English people. Common law is a set of unwritten rules that aim at preventing people from causing harm to other people and their properties.
Common law helps to solve disputes between two or more parties in an amicable manner. This is because a common-law judge has to base the judgment on facts that are argued out depending on the law that has been broken. Both sides of the case must be heard before giving a verdict. It provides a platform for lawbreakers to give their points of view and defend themselves within the legal framework (Greenberg & Dratel, 2005). In other words, common law is not rigid but the judgment is arrived at after wisely making reference to other similar case studies.
Legislation is usually made under an act of parliament and its amendment may take a long time. The role of legislation is to provide a platform on which the nation is run. It states what each arm of the government should do and how public officers should act. Any person who acts against legislation should be made answerable in a court of law as required by law. Legislation is therefore used to protect the citizens, their properties and the entire nation from either internal or external interference (Greenberg, & Dratel, 2005). The legislation also outlines how the nation should relate to other nations in various fields.
It is through legislation that diplomatic relationship between England and other nations is formed. Unlike common law, legislation is a set of written rules that can be referred to in case a rule is broken. There are two types of legislation namely primary legislation and secondary legislation. Primary legislation is enacted by first presenting a bill in parliament for debate before being presented for assent by the monarch.
After the assent, it becomes an act of parliament upon which the government decides on a specific day for it to become a law. Amending primary legislation can only happen by enacting another act of parliament that contains the required amendments. Secondary legislation is the legislation formed by a specialist that has been given the power by an act of parliament to give fine details of law because the parliament may not have enough time to talk about them (Hallaq, 2005). The parliament has control over the process of making secondary legislation. The difference between common law and legislation is seen in the way they are formulated and their roles as described above.
A contract is an agreement but an agreement is not necessarily a contract. The difference between the two terms can well be understood by first giving their definitions. Any cross-reference between two or more people or parties is known as an agreement (Hallaq, 2005). An agreement can be oral or written but it does not have any legal obligation to be fulfilled by any of the concerned parties. An agreement can also be defined as a promise that all parties accept to fulfill (Hallaq, 2005). It simply relies on the trust of the involved parties. On the other hand, a contract is an agreement that has a legally binding aspect (Hallaq, 2005).
All parties entering into an agreement or a contract must do so willingly after understanding all the terms and conditions involved. Once a promise or an offer is made and an acceptance of the offer is made, this becomes an agreement but when legal enforcement is made to it, it becomes a contract (Hallaq, 2005).
One party can get out of the agreement at will even without fulfilling the initial promises. One party cannot sue others for not honoring the terms of the agreement. On the other hand, one party can only get out of a contract after fulfilling the agreed promises. However, there are legal processes that must be followed when a party wants to get out of a contract before the end of the contract (Haggerty & Von, 2006). At the same time, a contract is considered an agreement because the involved parties can agree to simply end the contract through a consensus without necessarily going to court.
A contract is made valid when the acceptance and the offer are made lawful and therefore resulting in mutual agreement between the concerned parties thus qualifying a contract to be an agreement (Haggerty & Von, 2006). A contract is also made valid when the involved parties agree to have legal relations thus implying that a contract must first be an agreement that is later enforced by law.
Free consent of parties is another aspect that makes a contract to be valid. This means that all the terms and conditions must be discussed among the parties concerned and if all of them willing agree with the conditions and terms discussed, a contract is formed. After making an agreement, the involved parties can decide to put it in writing and register it so that in case of disagreement or dispute, the written document can be referred to (Haggerty & Von, 2006). This also just shows that a contract is an agreement that has to be fulfilled.
Certainty is also an aspect that makes a contract to be valid. The terms and conditions of an agreement can be made certain so as to qualify the agreement to be a contract (Ichniowski & Wood, 1995). This shows that a contract is just an agreement with terms that are certain. An agreement sometimes may be vague and uncertain so if the promises are not fulfilled nothing can be done. On the other hand, what should happen when the terms and conditions in a contract are not honored is put down in writing and thus all the concerned parties have an obligation to fulfill their promises (Ichniowski & Wood, 1995). A contract is therefore an agreement that has been made binding by law. An agreement on the other hand is not a contract but it can be qualified to be a contract after including legal considerations.
Kingsley has purchased the building bricks from Brick-for-All Company, which is a supplier of building materials. Unfortunately, the materials (bricks) were in good condition and acceptable standard for construction purposes but they did not serve the purpose for which they were purchased to do. Brick-for-All Company had a range of bricks and it was the responsibility of Kingsley’s manager, Mr. Paul to describe the type of bricks he wanted and the type of work they were intended to do. In other words, it would have been appropriate for Paul to describe the area where the construction site was intended to be.
This could have helped the sellers to suggest the appropriate bricks to be used. However, it must be understood that a seller can advise a buyer on what is appropriate but cannot decide for the buyer which material to purchase. I this case, the problem seems to have been caused by Mr. Paul for not describing the construction site, there is very little legal action Kingsley Limited can take against Bricks-for-All Company. If there was no contract between the two companies regarding the sale of bricks, then there is no legal action that Kingsley Limited can take against Bricks-for-All. The management of Kingsley Limited should consider the advice below so as not to repeat the same mistake made when purchasing ‘Sparkling Bricks’.
Convention on International Sales of Goods (CISG) deals with purchase of goods internationally (Ichniowski & Wood, 1995). It provides an appropriate framework on which the parties involved in the sales of goods can enter into a contract. CISG gives freedom to the parties involved in a sale contract to specify the terms and conditions they want to include in the contract (Ichniowski & Wood, 1995). Kingsley Limited should enter into a contract with Brick-for-All Company or any other company that can supply the required bricks. This is a sure way of avoiding losses because in case of a loss due to the fault of a seller, Kingsley Limited will be able to get compensation. However, this can only happen if Kingsley Limited follows proper contracting procedures.
Under price specifications, the contract becomes valid when the description of how the price of goods is arrived at (Heazeltine, & Grime, 1986). The buyer will then decide whether to enter into a sales contract with the seller or not. The buyer should specify the requirements before entering into the contract. Kingsley should therefore specify its requirements to an international sales agent and enter into a sales contract with it if all the requirements can be met. Acceptance of the goods will occur once the goods have been delivered to Kingsley Limited. The management of Kingsley Limited Company needs to keep all the copies of the contract document so that in case the delivered bricks do not meet the agreed standards as specified in the contract document, legal actions can be pursued for compensation.
The management of Kingsley Limited should understand that CISG does not favor either of the parties involved in a sale contract and therefore all the terms in the sales contract must be well understood. This is to avoid misinterpretation that may arise later in case there is a dispute. Kingsley Limited Company must make an agreement with the seller in all aspects regarding the transactions before appending its signature on the agreement. The company should appoint someone who understands international business law to be the representative who will sign all the relevant documents on behalf of the company.
However, I recommend that Kingsley Limited should purchase the bricks from the international company only if there is no reputable local company that can supply it with the bricks. This is because solving an international dispute is more complicated than just solving a local dispute. Disputes do not always arise when business transactions take place but as a measure of safety, they have to be considered during the planning stage (Heazeltine & Grime, 1986). In addition, purchasing goods from the international market is in most cases more expensive than purchasing them locally because of customs duties and other charges imposed on the goods. However, if the local dealers sell goods that they have imported, the cost is even higher. It becomes cheaper if the goods are locally manufactured and sold in the local market.
By considering the situation that has occurred to Kingsley Limited, it seems they just made a sale agreement without considering the legal aspects. I, therefore, suggest that from now onwards, major business transactions should be made by considering the legal aspects so that the law can be pursued to ensure compensation in case the seller decides to act against the agreement. This will prevent future losses that may arise due to business transactions.
However, the current loss that has been caused by the demolition of the houses cannot be compensated by Brick-for-All Company because there was no contract between the two companies. Even if there was a contract between the two companies, still compensation would not have been possible because a seller cannot be held responsible for negligence or misrepresentation by the buyer as has been the case between Kingsley Limited and Brick-for-All Company. This incident has occurred and the way forward for Kingsley Limited is to act in ways that prevent the recurrence of the incident.
I am also recommending that Mr. Paul be fired from his current position as the Kingsley’s manager because the mess started with him. When a buyer goes to purchase an item, the seller may display all the types of the same item that are available. It is upon the buyer to choose the type of item to purchase depending on the needs and the cost (Honnold, 1999). Paul should have asked the sales representative at Brick-for-All to explain to him the differences that existed among different types of bricks and where they should be used. A new manager to be hired should be able to consider most aspects of the Sale of Goods Agreement (SOGA).
Under the Sale of Goods Agreement (SOGA), goods are first identified by a potential buyer (Greenberg & Dratel, 2005). The goods to be purchased by Kingsley Limited have already been identified as bricks. The next step is to identify a willing seller of the identified goods. After Kingsley has identified a willing seller that can sell the required bricks, the next step is the consideration of price of the goods and mode of payment. The next step is the identification of goods to prove that they are the goods being requested for and that they are in good condition. After the identification of goods (bricks) has been done and both Kingsley’s representative and the seller agree on the quality and quantity of the goods, payment is made as Kingsley’s representative receives the goods on behalf of the company.
According to SOGA, risk of loss of goods is under the responsibility of the seller until the goods have been delivered to the buyer (Greenberg & Dratel, 2005). Once the goods have been handed over to the buyer, any risk of loss is no longer under the responsibility of the seller but under the responsibility of the buyer. It is on this SOGA provision that that I base my argument that the loss of bricks should not be blamed on Brick-for-All but on Kingsley Limited Company because the goods had already been delivered in good condition to Kingsley as the buyer.
The goods (bricks) were in custody of Kingsley Company and there is no way Brick-for-All Company could have been held responsible. However, Brick-for-All Company could have been held responsible if the bricks were damaged because of poor quality that is different from the quality stated in the agreement between the two parties.
SOGA also states that the buyer has the right to inspect the goods at the time of reception (Greenberg & Dratel, 2005). This is done in a case where the goods are supposed to be delivered by the seller to the buyer. The representative of Kingsley Limited Company should always inspect the goods on arrival to ensure that the goods received are the ones that were ordered and that they are in good condition. Lastly, receipts should always be issued to Kingsley once payments for goods have been made.
This is because receipts can be used as evidence to prove the payment for goods in case a seller claims that payment has not been made. If the management of Kingsley considers the advice is given above, which is in line with the Sale of Goods Agreement, future losses and damages arising from the purchase of building materials will be avoided.
Reference List
Caenegem, R. (1992). Judges, legislators and professors: chapters in European Legal history. Cambridge: Cambridge University Press, p. 197-231.
Greenberg, K. & Dratel, J. (2005). Prevailing manner of enforcing international law is still essential. New York: Cambridge University Press, p. 23-28.
Haggerty, K. & Von, E. (2006). The New Politics of Surveillance and Visibility. Toronto: University of Toronto Press, p.141-147.
Hallaq, B. (2005). Introduction: The Origins and Evolution of International Law. Cambridge: University Press, p.68-71.
Heazeltine, H. & Grime, J. (1986). EU law substituted for international law. International Law Journal, Vol. 10, pp. 60-83.
Honnold, J. (1999). Uniform Law for International Sales under the 1980 United Nations Convention, 3rd ed. The Hague: Kluwer Law International, p. 145-164.
Ichniowski, T. & Wood, P. (1995). There’s not claims crisis now: International Commercial Arbitration. A Journal of Business Law, Vol. 183, pp. 22-39.
Lord, W. (1996). Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales. London: HMSO Publishers, p. 57-78.
Papachristou, T. (1999). The Sociological Approach of Law: Sociology of Law. Athens: A.N. Sakkoulas Publishers, p.31-36.
Pollock, F. & Maitland, W. (1989). History of English Law. Cambridge: Cambridge University Press, p. 209-257.