Cassidy Purcell

Business Law 1
Mrs. McDonald
Assignment No.1

1. Describe the Doctrine of Judicial Precedent and how it relates to the Hierarchy of
the courts.
Judicial precedent stands on par with legislation as far as its importance as a source of law is
concerned. A vast majority of English Law is Common Law; the doctrine of judicial precedent is
one of the major distinctive characteristics of the English legal system and has built the body of
the English common law. In deciding matters of common law, the judiciary look to previous
cases to determine what the law is – the doctrine of stare decisis. Where similarity exists to
prevailing conditions the precedent may be followed; where there is little similarity the material
facts of the case must be distinguished in order to set the precedent aside. The ratio decidendi is
central to this process, for it comprises the material facts and rule of law applied to those facts to
subsequent cases. Not every statement of law uttered by the judge in a case is binding. To be
binding and amount to a ratio decidendi, the statement of law must be based on the facts as
found in the case. Other statements of law are superfluous and are called obiter dictum. Obiter
dictum, comments made ‘in passing’ during judicial review, are viewpoints on legal principle
and are not constrained by the facts of the case. Dissenting judgements arise where a number of
judges hear a case and one of them disagrees with the others. The majority judgement becomes
ratio decidendi and the dissenting judgements becomes obiter dicta. In Central London Property
Trust Ltd v High Trees House Ltd (1947), Denning J’s statement of promissory estoppel was
obiter since it applied to a set of facts which were not found to exist in the case. All decisions by
judges on questions of law are precedent, but the value and weight of a precedent relies upon an
assortment of components. The most significant of these components is the seniority of the court
which decided the case. The hierarchy of the courts and the rules of the doctrine of precedent are
central to the English legal system; for the system proceeds on the basis that decisions made on
questions of law by higher courts are binding on judges of lower courts. The hierarchy of the
courts is fundamental of precedent, without it the doctrine could not operate. Stare decisis can be
applied both vertically and horizontally.
Vertically – whereby precedent established in a higher court is binding upon those of lower
ranking according to the hierarchy, thereby, enabling them to override decisions made in
previous cases. At the very top of the court hierarchy is the European court of Justice; many laws
are not concerned with the European Union law. The House of Lords, which is the Supreme
Court, binds all other courts within the hierarchy. But it can overturn or reverse a previous
decision of its own or a decision made in a lower court (The Court of Appeal, Divisional courts,
High Court, Crown Court and Magistrates’ Court) in consideration of a particular case where it
appears right to do so.
Horizontally – whereby precedent set in one court is binding upon all other courts of similar
ranking, for example, the Court of Appeal has two divisions, the Civil and Criminal Divisions.
Both divisions are bound to decisions made by the House of Lords and the European Court of
Justice.

2. Explain the different classification of Law and the sources from which they are
derived.
Law are classified usually from two standpoints: Criminal and Civil law. It is important to note
that the nature of this classification is because there are major differences in purpose,
terminology, punishment, and burden of proof. Criminal Law can further be divided into
subdivisions which include manslaughter, murder, obstruction of justice, and assault. These
cases called prosecutions, are considered harmful to the society at large and are initiated by the
State on behalf of the nation to protect society and punish the offender. The prosecutions
persecute the accused in criminal courts, for example, the Crown Court and Magistrates’ Court.
The burden of proving the guilt of the defendant lies on the prosecution, who must prove the
particulars of the offence beyond reasonable doubt. Civil law can also be further divided into
categories such as breach of contract claims, tort claims, partnership etc. The civil law deals with
the private rights and duties which arise between individuals known as plaintiffs. The object of a
civil action is to correct the wrongdoings that has been committed by the defendant often by
compensation of some sorts which usually takes place in County Courts and High Court.
Judgement normally goes in favor of the particular party that has been able to prove its case
more successfully. If the claimant is not successful, the defendant will ne be made liable for his
actions.
Sources of law is a legal term that refers to the authorities by which law is made. There are a
number of different sources that are used to define the creation and force of law, though not all
are used equally. Some examples of sources include legislation, common law, and equity.
Legislation
The first important source is legislation. Legislation relates to the making of law by a competent
authority. The law is found in statutes enacted by Parliament and provincial legislatures, and by-
laws. It also relates to proclamations and regulations made by subsidiary bodies. There are three
main purposes legislation serves, Revision, Codification, and Consolidation. The Consolidating
Act puts the existing statue law into one act of parliament. This makes the law on a subject easier
to find as it will be all in one place. An example of consolidating acts are the Company Act 1985
and the Sale of Goods Act 1979. Whereas Codification consists of gathering existing case and
statute laws and codifying it into one act. An example of codification is the Offences Against the
Person Act 1861. Some Acts of Parliament delegate powers to institutions to make legislation,
this is referred to as Delegated Legislation may cause arrangement for Subsidiary Legislation to
be made and will to indicate who can make laws as such under that Act. Whereas Autonomous
Legislation is legislation made by the Crown or by other autonomous bodies within the State
under powers not necessarily delegated by Parliament.
Common law
Common law, which is often referred to as case law or as precedent, is law that is developed by
the judges through judicial decisions of the courts arranged in a hierarchical system. Over the
centuries it has became known as judge made law and has nothing to do with any laws created
and passed by Parliament. It consists of the decisions of the courts which are made because of
litigation and are recorded in the Law Reports.
Equity
Equity can be simply thought of as ‘fairness' and was a very powerful source of law as it
overcame any problems with the common law, because of the right justification it was thought to
give. It gave people a ‘safety valve' allowing them to seek different appropriate remedies and
counter the inefficiency or injustice of the common law. It supplemented the common law in
areas where it has failed to develop and to lessen the harshness of its application. Equity is
designed as a body of rules developed by the Courts of Chancery and can also be found in the
law reports.
 3. Today not all disputes will be settled by bringing an action in court. Thoroughly
explain the alternative methods used to resolve those legal disputes.
The Alternative Methods used to resolve a disagreement without recourse to any formal dispute
settlement agency are Tribunals and Arbitration, in addition to the traditionally recognized courts
of law. Many of these approaches include the use of a neutral individual such as a mediator who
can assist disputing parties in resolving their disagreements. The use of these methods help in
bringing justice to all people concerned with civil matters. Tribunals are a branch of the court
system established by Act of Parliament to deal with disputes between the citizen and the state or
between two individuals. An Industrial Tribunals are composed of three members: a lawyer
chairman sitting with two representatives, of employers and employees respectively. They are
generally distinguished from the courts by their less formal procedures, by the fact that they
operate in specialized areas, and also the decisions of tribunals are mainly concerned with the
rules of procedure laid-down in the Tribunals and Inquires Act 1971.

Advantages of Tribunals
Tribunals hold many valuable assets in aiding the justice system.
a) They are cost effective as tribunals do not charge a fee, and each party pays their own
costs compared to the courts where the loser pays for the legal fees of the winning party.
b) The speed at which disputes can be resolved. Unlike the court system tribunals have
specified dates that are not subjected to variances of the ordinary court system.
c) The procedures of tribunal are simpler than the court system, therefore, legal
representation is not necessary, and parties are encouraged to represent themselves.

Disadvantages of Tribunals
a) The discretion of a tribunal is sometimes so wide as to make decisions inconsistent and
unpredictable.
b) It is suggested that the judicial ability of the ‘experts’ is limited. Certainly, many are
incapable of acting impartially or of sifting the facts
c) Tribunals are sometimes held in private and their decisions often lack the publicity given
to court decision.
Arbitration on the other hand is a basic model of trial that has limited detection and the rules of
evidence are simplified. Both sides under dispute appoint the arbitrary panel members, who
regulates and make the final decision. The two sides may decide to appoint one person to serve
as an arbitrator. Arbitration is mostly used in place of business and commercial courts here there
exists a general reluctance to call on lawyers and the courts for the solution of contractual
disputes. This is often because of the time and expense involves in court action and because of
the damage that can be caused to business relationships and confidence by protracted legal
action. This process is gaining popularity and more people are adopting it to solve their disputes.

Advantages of Arbitration
a) Unlike in court, parties can select an arbitrator with an appropriate degree of practical
experience.
b) It is often faster than litigation in court, and a time limit can be placed on the length of the
process.
c) Arbitration can be cheaper and more flexible, more commercial and less formal than
court.
Disadvantages of Arbitration
a) Unknown bias and competency of the arbitrator unless the arbitration agreement set up
the qualifications or the organization that administers the arbitration, has pre-qualified the
arbitrator.
b) An arbitrator may make an award based upon broad principles of “justice” and “equity”
and not necessarily on rules of law or evidence.
c) Arbitration awards must be enforced by the courts as arbitrators have no powers to
enforce the awards they make.

4. Bush Medicine Limited placed on advisement in the morning paper which read as
follows:
“$1,000.00 reward will be paid by Bush Medicine Limited to any person who
contracts Pink Eye after using or new magic potion Eminus P four times daily per
one week.
$5,000.00 is deposited with the Scotia Bank Freeport for this purpose.
 Ginger having had her first attack of Pink Eye and seeking to prevent a second
attack purchases a bottle of Eminus P, uses it as prescribed and still contracts Pink
Eye. Advise her.
This contract was a unilateral contract, made between Ginger and Bush Medicine Limited.
Unilateral contracts are where one party, the offeror, makes an offer. It could be an offer to the
general public or to a specific person. This type of contract is not made by a promise; instead, it
requires the offeree to perform an act that the offeror requests. Once an offeree starts a physical
performance of the contract, the offeror cannot revoke a unilateral contract. The very fact that
$5,000.00 was deposited with Scotia Bank is proof of Bush Medicine Limited’s sincerity in the
matter. The acceptance of which creates a contract. First, the advert says ‘will be paid’ which
seems to indicate an intention to be bound such wording amounted to an offer, the offer being the
whole world. It was contended that it is not binding. It is said that it is not made with anybody in
particular. In point of law this advertisement is an offer to pay $1,000.00 to anybody who
contracts Pink Eye after using Eminus P four times daily per one week. Ginger’s performance of
purchasing and using the Eminus P as prescribed and still contracted Pink Eye is the acceptance
of the offer. A use of the magic potion by the public will react and produce a sale which is
directly beneficial to Bush Medicine Limited. Therefore, it is apparent that out of this transaction
emerges an advantage to them which is enough to constitute a consideration. Consideration must
also be present for a legal contract to be formed. The essence of consideration is that a party
receives some kind of benefit in return for his promise. Consideration may consist of money,
goods, or a promise to-do or not do something.