Analysis & explain the Scope of the law of contract & Civil obligation

Analysis & explain the Scope of the law  & Civil obligation

A contract may be defined as an agreement between two or more parties that is intended to be legally binding. The first requisite of any contract is an agreement (consisting of an offer and acceptance). At least two parties are required; one of them, the offeror, makes an offer that the other, the offeror, accepts. The elements of contract are:

The first step in a contract question is always to make sure that a contract actually exists. There are certain elements that must be present for a legally binding contract to be in place.

The there different types of acceptance of contract recognized by the court of law are:

  1. Express – a direct and absolute outward manifestation of agreement, such as, “I accept your offer.”
  2. Implied – the acts of the parties show that the offer has been accepted, such as when both parties to a contract begin to perform the terms of the contract.
  3. Conditional – acceptance is conditional on the happening of something, such as, “I accept your offer so long as you trim my tree in the next two days.” By its terms, a conditional acceptance is a counter-offer.

· A counter-offer is not the same as an acceptance. A counter-offer extinguishes the original offer: you can’t make a counter-offer and then decide to accept the original offer!

· A request for information is not a counter-offer. If you ask the offeror for information or clarification about the offer, that doesn’t extinguish the offer; you’re still free to accept it if you want.

The first two are the most obvious ones:

  • An offer: an expression of willingness to contract on a specific set of terms, made by the offeror with the intention that, if the offer is accepted, he or she will be bound by a contract.
  • Acceptance: an expression of absolute and unconditional agreement to all the terms set out in the offer. It can be oral or in writing. The acceptance must exactly mirror the original offer made.

[1] Law of contract:

A contract can be simply defined as a legally binding agreement. The parties to the agreement are generally free to agree whatever terms they wish and the court will seek to give legal effect to their agreement should it become necessary to resolve a dispute between them.

There are various ways to define a contract. One defines a contract as the follows:

(1)’A promise or a set of promises that a law will enforce’

(2)’a contract is an agreement giving rise to obligations which are enforced or created by law.’

Scope of the law of contract

· Contracts come in different shapes and sizes. Some involve large sums of money, other trivial sums. Some are of long duration, while others are of short duration. The content of contracts varies enormously and may include contracts of sale, hire purchase, employment and marriage.

· Professor Atiyah (1986) has stated that ‘there is no such thing as a typical contract at all’.

o Some contracts are not discrete but continuing (landlord and tenant relationship)

o Some are not two party but multiparty (the contract of membership in a club)

o Some are not commercial but domestic (marriage)

o Some are not executory (unperformed) but executed (fully performed)

o Some do not depend upon exchange, as in the case of an enforceable unilateral gratuitous promise.

Basis and confinement

· From the views put forward by professor Atiyah above, it proposes that law of contract is ‘increasingly merging with tort law into a general law of obligations’.

· Professor Andrew Burrows (1983) has pointed out that the law of obligations largely rests upon 3 fundamental principles:

1. Expectations created by a binding promise should be fulfilled (law of contract)

2. Compensation must be granted for the wrongful infliction of harm (law of tort). A tort is a civil wrong, such as negligence or defamation.

3. Unjust enrichment must be reversed (law of restitution).

· Contract, tort and restitution therefore divide up most of the law based upon these 3 principles and they prove a satisfactory division for the exposition of the law of obligations.

· This analysis separates contract from tort and restitution on the ground that contractual obligations are voluntarily assumed, whereas obligations created by the law of tort and restitution are imposed upon the parties by the operation of rules of law.

Civil obligations

· One of the non-lawyer’s inveterate errors is to suppose that the law is largely – even exclusively – concerned with the criminal law. In fact the law is divided into 2 great branches, the criminal and the civil, and of these much the greater is the civil.

· The distinction between the 2 resides, not in the nature of the wrongful act but in the legal consequences that may follow it. Where criminal law involves the state against individual, the civil law deals with disputes between individuals or organizations.

Obligations are divided into imperfect obligations and perfect obligations. Imperfect obligations are those which are not binding on us as between man and man, and for the non-performance of which we are accountable to God only; such as charity or gratitude. In this sense an obligation is a mere duty. A perfect obligation is one which gives a right to another to require us to give him something or not to do something. These obligations are either natural or moral, or they are civil.. Although natural obligations cannot be enforced by action, they have the following effect: 1. No suit will lie to recover back what has been paid, or given in compliance with a natural obligation. A natural obligation is a sufficient consideration for a new contract. A civil obligation is one which has a binding operation in law, vinculum juries, and which gives to the obligee the right of enforcing it in a court of justice; in other words, it is an engagement binding on the obligor. Civil obligations are divided into express and implied, pure and conditional, primitive and secondary, principal and accessory, absolute and alternative, determinate and indeterminate, divisible and indivisible, single and penal, and joint and several. They are also purely personal, purely real, and both real and mixed at the same time. Express or conventional obligations are those by which the obligor binds himself in express terms to perform his obligation. An implied obligation is one which arises by operation of law; for example, if I send you daily a loaf of bread without any express authority and you make use of it in your family, the law raises an obligation on your part to pay me the value of the bread.

A pure or simple obligation is one which is not suspended by any condition, either because it has been contacted without condition or having been contracted with one, it has been fulfilled. A conditional obligation is one the execution of which is suspended by a condition which has not been accomplished and subject to which it has been contracted.

A primitive obligation, which in one sense may also be called a principal obligation, is one which is contracted with a design that it should, itself, be the first fulfilled.

A secondary obligation is one which is contrasted and is to be performed in case the primitive cannot be. For example, if I sell you my house, I bind myself to give a title but I find I cannot as the title is in another, then my secondary obligation is to pay you damages for my non-performance of my obligation. A principal obligation is one which is the most important object of the engagement of the contracting parties. An accessory obligation is one which is dependent on the principal obligation; for example, if I sell you a house and lot of ground, the principal obligation on my part is to make you a title for it; the accessory obligation is to deliver you all the title papers which I have relating to it; to take care of the estate till it is delivered to you and the like.

Anson’s law of contract:

Giving people their rights to exercise over the parties and all these depend on the contract.

For example, Charles Fried’s claim that “since a contract is first of all apromise, the contract must be kept because a promise must be kept,”6 or Patrick Atiyah’s arguments that contract law is designed to compensate reliance-based harms and prevent unjust enrichment.

Another way to understand contract as a legal power, one that suggests an important difference between contract law and most power-conferring laws, and which expands our understanding of normative powers in general. The core thought is that it is possible for a law to anticipate and enable its purposive use without conditioning the legal effect of a person’s actions on evidence of her legal purpose. We suggest reserving the term “power-conferring” for laws that include validity conditions that sort for legal purpose, such as those discussed in the previous paragraphs.

Conclusion:

A contract normally is completed in there steps- the first being the offer of the contract, which means offering some one to do something in exchange of money or anything of value. The second step is other party’s acceptance of the contract, i.e. undersigning of the agreement by the other party/parties after understanding of each terms and acceptance. The last and final step is the performance of the contract that is to deliver the actual product/service in exchange of something of value. This was all about my project on ‘The law of contract confines itself to the enforcement of voluntarily created civil obligations.

[1] http://www.lawteacher.net/contract-law/lecture-notes/agreement-lecture.php <Date of access: 21/02/2013>

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