The Issue of law It that for a reasonable contract to be established, whether the element of agreement required for the formation of a contract can be formed In parties. Step 2 A legally enforceable contract can be organized by three significant parts; there are intention, agreement and consideration. With regards to agreement, it means a discussion of the consensus on critical terms needed for a workable transaction. Generally, while the parties intended, an agreement is made to be legally bound. There are two main elements for the agreement, Offer and Acceptance.

Offer is a highlight indication of the terms upon, like people are prepared to be bound; as well as, acceptance Is receiving and agreeing the terms which have offered. Moreover, an offer Is made when people Is going to pay money for the Item. In the case of Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd, the Boots Cash Chemists shop was organized on a fundamental of “self-service” which sells drugs and medicines: as well as, those items were showed on shelves and price are marked on each goods.

Some dangerous substances are contained in these odds, they have to sold them under the supervision of a registered pharmacist. Consumers are able to pay for the goods which they selected to cashier. However the Pharmaceutical Society of Great Britain alleged that the drugs were being “sold” without the registered pharmacist service (Lamberts 2011, 240). The issue for that is whether there is an offer between customers and sellers before the consumer take goods to the cashier.

The decision is consumer had made an offer to purchase the goods, the cashier would accept the offer. The acceptance Is also being effective when offered receives the offer. In the case of Wentworth v Fraser, Fraser Is going to sell his houses to Wentworth, and give 14 days for him to accept the offer. Wentworth received offer and accepted it. Fraser received that before the letter of acceptance had been posted, another buyer sent a higher price offer to him and he wants to withdraw his offer to Wentworth (Lamberts 2011, 198).

The issue of law is whether there is an offer between Wentworth and Fraser before Framer’s attempt to withdraw it. The court found that the offer acceptance was effective when the acceptance was posted, as well as, this happened before the attempt to withdraw the offer. In terms of the Cargill v Carbolic Smoke Ball Co, the company created a new product “smoke ball” which can prevent Influenza and advertised it in the newspaper, and there is a reward of $100 for purchaser. Cargill got the reward but the company did not want to pay.

The legal Issue Is whether the offer of reward had been make between consumer and company as Cargill did not talk to company before catching Influenza (Lambs 2011, 165). In addition, the case of Brooklyn Ltd v Sthalwharenhandelsgesellschaft, a number of telexes were changed with each other, acceptance effective. And the court said that the acceptance was effective when the telex was received in Vienna (Lamberts 2011, 159). Step 3 Since an agreement is Just legally enforceable if the parties is legally to be bound while the agreement is made.

A fair estimate for this circumstance is needed to enforce in Sally, Peter and Burt. According to the case of Pharmaceutical Society of Great Britain v Boots Cash Chemists, the court said the offer was effective since the customer had selected goods as marker price, because the goods in a shop is not to be construed for an offer, only there is a motivation for consumers to choose and offer to buy them. The sale contract is made Just at the next stage, when customer’s offer to purchase is accepted.

Hence, Sally sells his bike on the internet, as well as, Peter and Burt want to buy it, and they sent emails to Sally that they are interested in that bike and give a price; moreover, Sally received emails from them. Therefore, Peter and Burt had made an offer with Sally. On the other hand, the case of Wentworth v Fraser, the offer was effective when the letter of acceptance was posted. Burt wants to pay $5000 for that bike, but Sally prefer to receive $5500, and finally Burt said the eke is not worth that much and he is no longer interested.

That means Burt do not want to pay $5500 for bike and there is no acceptance between two parties. With regards to the case of Cargill v Carbolic Smoke Ball Co, the offer was established even Cargill had never talk to the company, because he did the actions for purchasing and using the product, the offer was accepted at the time. The details on the internet is payment is upon delivery, and Peter also highlight that he needs Sally to arrange immediate delivery; Sally emailed Peter that she had organized immediate delivery, moment is due upon delivery as specified. Therefore, there is an acceptance between Sally and Peter.

Last but not least, the case Brooking Ltd v Sthalwharenhandelsgesellschaft considered that the acceptance was effective while the telex was received in Vienna. For some reasons, messages may not reach on time and two parties will be read at a later time. However the contract was made when and where the acceptance was received. The time of Sally sent email to Peter is before COB and email entered the Pewter’s inbox is 4:45 (1 5 minutes before COB). Thus, the acceptance is existed. Step 4 In conclusion, the agreement is legally to be enforceable between Sally and Peter; but there is no contract with Sally and Burt.

A contract will be formed with both Sally and Peter. Question 2: The legal issue of law is what terms are expressly agreed with regards to sale of the bicycle between two parties. Provide yardstick by which performance of the contract is measured. The wholly oral contracts terms are established by evidence from parties or witness, they can be classified into wholly written and exception. There are three main elements are not being part of the contract: Puffs, Opinions and Representations. Moreover, terms can be organized by conditions and warranties and there are express terms and implied terms as well.

In the case of LAG Throne ; Co Pity Ltd v Thomas Forthwith ; Sons, Throne bought 50 drums of oil from Thomas Forthwith and Thomas give an example to Throne. After sign an agreement and oil was delivered, Throne found that the oil is not as good as the provided sample, he claimed that it should have been the same. The issue is whether there is an agreement that the sale was established related to the sample. The court found that there is no between two parties (Lamberts 011, 214). The case of Alley v Marlborough Court, Alley and his wife went to a hotel, after paying in advance and signing the register, they went to their rooms.

There is a saying on the wall that “The proprietors will not hold themselves responsible for articles lost or stolen unless hander to the office for safe custody. ” Then, they did not lock the door and his wife lost her furs. Alley sued the hotel to get the loss. The legal issue is whether the notice is effective and the decision is the notice is not a term of the contract (Lamberts 2011, 233). The case of Camel cigarettes, the company advertised that “blow in her face and she will follow anywhere”. A customer bought that and tried to do, but he failed.

He sued the company as well. The issue is whether there is a contract between two parties, and the court said the contract is not legally to be bound. In the case of secondhand car, buyer wanted to purchase a good car and seller recommended a car, and seller said this is the best car in my market, you will regret if you miss it. After buying the car, buyer found the car is not as good as the seller said, he wanted to return it back. The issue is whether the contract was established in both two parties and the decision is there is no contract between them.

In terms of Associated Newspapers v Banks, Banks is a cartoonist and he agreed to draw for Associated Newspapers. Company agreed to pay him money and publish the drawing on the front page. After 3 weeks, Bannock’s drawing was on the page 3. Banks wanted to sue the company. The issue is does the term is important to put on the first page, the court said the terms was significant (Lamberts 2011, 147). The case for Betting v Gee shows that Betting is a singer and she made a contract with Gee that she will sing and arrive there six days before the first engagement for rehearsals. However, she did not go early because of ill.

Gee wanted to terminate. The issue is whether she attend to rehearsals is a condition, and court found the term was a warranty (Lamberts 2011, 155) In the case of Lagrange v F Curaçao, Curaçao agreed to sell a cigarette vending machine to Lagrange. Curaçao said there is no implied warranties or conditions from the agreement and Lagrange signed it without reading. After delivery, the machine did not work. Curaçao argued with him. The issue is whether there is a contract between two parties and decision is contract is effective (Lamberts 2011, 213). Terms are expressly agreed when they have been identified in writing or oral. Comment. Peter signed the purchase agreement and bayed $4000 for the bike, therefore they had made a contract. Sally said that the bike is a Joy to ride, however Peter found the bike was not Joy to ride. According to the case of Camel cigarette, the court said the advertisement is puff and puff is not a term; Sally also said this model of bike is in short supply on the secondhand business, but Peter found many of the name bikes sell in his friend’s university; according to the secondhand car, the decision is the seller said were all in his view, it is an opinion, opinion is not a term as well.

Sally responded to Peter that “It also includes the refurbishment of the gears and replacement of any damaged spokes”, but it did show in the document and Peter found gear had not been sure and it was broken after 6 weeks. The document said “restored and refurbished with new tires and a new chain” but whilst the bike frame and spokes had been restored and refurbished. In the case of Newspaper, the session is that put the drawing on the first page is a condition; hence, those are conditions. Peter found color is not dashing green, it actually more of a murky greenish brown.

The decision of Betting v Gee is coming for rehearsals is a warranty, according to that case, the color of bike is a warranty. The document said any guarantee to goods is limited to the first 30 days, but the bicycle was broken after 6 weeks which is more than days. According to the case of f Lagrange v F Curaçao, the court said the contract is effective even Lagrange did not read the agreement. Therefore, while Peter has signed the document, the contract was made in both two parties.

Step 4 In conclusion, Peter cannot ask help from Sally because the contract had made when Peter signed the document. The express term is the document which they made include additional clause; the condition is whilst the bike frame and spokes had been restored and refurbished, as well as gears were not sure; the warranty is the color of the bicycle. Part B Judges are able to look outside an Act of Parliament for assistance in interpreting legislation. With the world develop in an amazing speed, a variety of cases are added to solve in the court.

Congress (currently $75,000). The so-called citizens may include companies incorporated or doing business in different states or a citizen of a foreign country. However, note that the federal courts traditionally refuse to exercise their diversity jurisdiction over cases involving domestic relations and probate. Diversity Jurisdiction exists only when the amount in controversy is over $75,000 and there is complete diversity of citizenship between the parties. For example, diversity Jurisdiction exits when a citizen of Pennsylvania is suing a citizen of Minnesota and claiming $76,000 n damages.

In cases with more than two parties, complete diversity requires that there not be colleens of the same state on different side of the litigation. For example, diversity ]relocation exists If a citizen of Pennsylvania sues a citizen of Minnesota and a citizen of New York in the same suit, but does not exist if the Pennsylvania citizen attempts to sue a Minnesota citizen and another Pennsylvania citizen. 2. What is the reason for having exclusive federal Jurisdiction in issues such as bankruptcy, copyright and patent and trademarks?

Those cases are heard in federal routs of limited Jurisdiction, such as US Bankruptcy Court, Court of International Trade, etc. , because they primarily involve federal laws. The United States Court of Appeals for the Federal Circuit is the appellate court for patent and trademark cases; bankruptcy cases are appealed in US District Court. Huh Federal Question- Federal courts have Jurisdiction over cases that arise under the U. S. Constitution, the laws of the united States, and the treaties made under the authority of the united States.

These issues are the sole prerogative of the federal courts and include the following types of cases: * Bankruptcy-?The statutory reoccurred, usually triggered by insolvency, by which a person is relieved of most debts and undergoes a judicially supervised reorganization or liquidation for the benefit of the person’s creditors. * Patent, copyright, and trademark cases * Patent-?The exclusive right to make, use, or sell an invention for a specified period (usually 17 years), granted by the federal government to the inventor if the device or process is novel, useful, and non-obvious. 2) Copyright-?The body of law relating to a property right In an original work of authorship (such as a literary, casual, artistic, photographic, or film work) fixed In any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work. (3) Trademark-?A word, phrase, logo, or other graphic symbol used by a manufacturer or seller to distinguish its product or products from court? The trial court tries the facts to determine a verdict, the Jury making the decision on facts if the defendant doesn’t ask for the Judge to hear the case.

Appeals may begin in the trials court and then move to appeals courts. Those courts ill initially see written arguments on the legality of the Judges actions and rulings on the law or the prosecutor’s, the effectiveness of the defense attorney, maybe even the Jury’s conduct, new evidence of innocence (rarely effective claims), and if any of those things changed the outcome of the trial. If a defendant can put an issue into constitutional terms, he can continue in the federal courts, once he’s exhausted the state courts.

At some stages, some appeals courts may hear oral arguments from the attorneys or even a hearing with witnesses, but most of it is on paper. Each appeals rout can refuse the appeal, send it back for retrial for verdict or sentence only, or back to the lower appeals court for rehearing. But once it’s into appeal, the State can also appeal the appeals court rulings before anything else happens, and that makes it different from the trial where the State can’t appeal a not guilty verdict. 4. Explain the process that takes place in the pleadings portion of the trial.

Pleading Stage * Filing a Complaint – In civil proceedings the complaint is the official engagement of the plaintiff with the defense regarding the proposed “injustice” caused by the defense. This is a formal document submitted by the plaintiff to the court having jurisdiction over the complaint. * Summons – Notification by the court in which the complaint is filed as an action being brought against the defense. Service of the summons typically requires a response from the defense within a 30-day period. No response from the defense can trigger a default Judgment for the plaintiff. Motions to Dismiss – These are the defenses response or answers to the plaintiffs complaint. The responses are typically filed as motions and are intended to dismiss the claims expressed in the complaint. Motion for Judgment – Following the defendants response to the plaintiffs claims, the parties can either choose to settle or request a Judgment based on the evidence presented, or the court can decide to continue toward resolving conflict at trial. If there is no Judgment made, the case proceeds to the pre-trial stage. 5. What are the differences between conciliation, mediation and arbitration?

Arbitration is a method where the disputing parties involved present their disagreement to one arbitrator or a panel of private, independent and qualified third party “arbitrators. ” This method is more adversarial. The arbitrator(s) determine the outcome of the case. By employing arbitration, the parties lose their ability to participate directly in the process. In addition, parties in arbitration are confined by traditional legal remedies that do not encompass creative, innovative, or forward-looking solutions to business disputes.

Mediation is a method where a neutral and impartial third party, the mediator, facilitates dialogue in a structured multi-stage process to help parties reach a conclusive and mutually satisfactory agreement. A mediator assists the parties in identifying and articulating heir own interests, priorities, needs and wishes to each other. Mediation is a “peaceful” dispute resolution tool that is complementary to the existing court system and the practice of arbitration.

Conciliation is another dispute resolution process that involves building a positive relationship between the parties of dispute, however, it is Conciliation is a method employed in civil law countries, like Italy, and is a more common concept there than is mediation. While conciliation is typically employed labor and consumer disputes, Italian Judges encourage conciliation in every type spite . The “conciliator” is an impartial person that assists the parties by driving their negotiations and directing them towards a satisfactory agreement.

It is unlike arbitration in that conciliation is a much less adversarial proceeding; it seeks to identify a right that has been violated and searches to find the optimal solution. 6 In a case that involves diversity Jurisdiction, why would one of the parties prefer a state court to a federal court or vice versa? If both parties are diverse, meaning the are residents of different states at the time of the proceedings removal to federal rout from state court might be better because there may be bias in the locale whew the case is being heard.

If a case is removed to federal court from state court, the federal courts will follow the state law from where the case originated assuming it’s a state issue. This is known as the Erie Doctrine. The other answers regarding this are incorrect. Huh There are several reasons for this! Federal Judges are appointed for their lifetime. State Judges are ELECTED. This means that a State Judge is much more likely to rule for a party from his or her state (as a political move). State processes are often fasts and less expensive to litigate.

The winnings at the federal level are usually MUCH larger for the Plaintiff on a Diversity matter because the Amount In Controversy mum be GREATER than $75,000. Previously, Forum Shopping was a problem. When challenging in federal court the procedural and substantive laws are different. Now due to something called the Erie Doctrine, this is MUCH harder. If there is a conflict Procedural Rules, the Federal rules win in a federal court. However, if there is a conflict of substantive law, the STATE law governs. People used to sue in Federal Court for tort actions where their state had put a cap on damages, so that they cool get more $$$.

Now, they can’t do that. 7. Consider a television or a radio advertisement and indicate how commercial speech is protected to a lesser degree than individual speech in our society. Because commercial speech is less core to the functioning of a free society than political speech 8. What is the difference between substantive and procedural due process? Difference between substantive and procedural due process: A. Procedural due process permits government to take action that may have grave consequences for a errors or group as long as it follows fair procedures.

Example: The Fifth Amended requires that one may not be deprived of life, liberty, or property without due process. B. Substantive due process prevents the government from taking some actions against an individual regardless of the procedural protections provided. Huh Substantive Due Process * Substantive due process protects substantive rights of individuals including those in the Bill of Rights by requiring the government to afford an individual due process before depriving her of a fundamental right, such as the freedom of speech ere exercise of religion and the right to privacy.

Substantive due process requires Laws that restrict or deprive a person of a substantive rights must serve a compelling government interest, such as public health and safety and prevention of crime. Procedural Due Process * Procedural due process ensures fundamental fairness in all legal and administrative proceedings. It protects the individual’s rights by placing restrictions and requirements on how a government may proceed in an action to deprive him of any right. A person is entitled to notice, and an opportunity to present his case, fore the government may take any action that adversely affects a right. . In your opinion, how far should freedom of speech go? Should advertisers be allowed to express opinions that disparage competition? Should satire be protected to the degree where it is crude or obscene in some opinions? It should be limited only if it directly threatens life. The prohibition of “shouting fire in a crowded theatre” is a worthwhile exception. That is the funny thing about free speech, it is either free or it isn’t. There is no limit. 10. Several states have enacted statutes allowing for the medical use of marijuana.

The federal government has (thus far) a clear policy against allowing cannabis clubs and the like to distribute the drug. Can the federal government overstep a state initiative? If so, under what authority? The federal government has more power over state government. Amendment 10 – Powers of the States and People. Ratified 12/15/1791. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people The federal government has the power to create laws over riding the laws of a state.

This was actually the cause of the US Civil War (not slavery). When the US passed laws outlawing slavery, the southern states withdrew from the Union under the slogan, “State’s Rights If that state initiative is in direct conflict with an existing federal law, then yes they can overstep the state under the 9th amendment, which states that in the event of a conflict between federal and state or local law, then the federal law shall supersede. 1 1 . What are the reasons that a court can review and set aside an administrative agency decision? Give an example of two ways that an agency decision might be overturn.

Agencies can investigate potential violations of the law within their jurisdiction. They may make use of a full range of investigative tools, including inspections, tests, reconsidering and reporting requirements, and others. If agency personnel detect violations of the law, they may be able to take legal action in a manner parallel to that of a prosecutor. Agencies, of course, must follow the law; to the extent that agencies overstep legal boundaries, courts have the authority to set some of which will be discussed in much more detail in subsequent chapters.

But, by ay of overview, there are three principal sources of legal restraints on agencies. No single entity – not the President, Senate, House of Representatives, state Governors, nor anyone else – has the power to overturn a US Supreme Court ruling. Supreme Court decisions cannot be nullified by other parts of government. However, if the Supreme Court strikes down a federal law, Congress can always modify the law until it is such that the Supreme Court does not consider it to violate the Constitution, then pass it again. Supreme Court decisions can only be overturned in two ways: Legitimate Methods .

The US Supreme Court reverses a decision on an earlier case by making a contradictory decision on a current case. 2. Congress and the States can overturn a decision by amending the Constitution. Illegitimate Methods (Passive Resistance) 1 . Sometimes the Executive Branch obstructs or fails to enforce a decision. 2. Sometimes Congress rewrites legislation to bring it into compliance with constitutional guidelines. 3. Sometimes Congress strips the Supreme Court of its appellate Jurisdiction over certain types of cases to deprive them of the ability to overturn a law or policy. 4.

Sometimes states pass laws that clearly violate Supreme Court decisions, forcing someone with standing to challenge the new law’s constitutionality. Meanwhile, the law can be enforced even if violates established civil rights. State legislatures do this with the hope of overturning, or slipping around, precedents set by earlier Courts. Contributor’s Example Don burns the US Flag on the steps of a state capitol. The state arrests him because the state amended its own constitution to make this illegal. However, the US Supreme Court ruled that flag burning is protected speech, thereby making flag burning lawful ender US law.

If the case is appealed to the US Supreme Court, it would rule that the state constitutional amendment violates the US Constitution (which is superior) and strike down the state amendment. The state then writes a law that Don has to buy a permit to burn the flag in any form of protest. The US Supreme Court might uphold that law (if challenged) as long as it fulfills a legitimate government purpose, but does not: 1) discriminate in who the permits are issued to, or 2) make the cost or time involved in issuance of the permit unbearable. Sometimes such laws are deemed unconstitutional, and sometimes not.