“In family or social matters it is difficult to make contract because of the domestic arrangement’’
Introduction
A contract is a mutual agreement between two parties for doing something or for not doing something which is enforced by the power of the law (1). It can be business between the individuals, businesses, organizations or governmental agencies. In the contract terms and condition are mentioned. There can be written and oral contracts. Written contracts are preferred the most as all the things are clearly mention there. Oral contract can also be perfectly bindings. What is mainly seen is that the agreement between the parties creates a contract. If the agreement is made by both the parties make sure there was no breach of agreement (2).
In family or social matters it is difficult to make contract because of the domestic arrangement such as between husband and wife. Whereas in social situations there may be an offer, acceptance and consideration, to do something for something in return but there may not be anything that legally binds that agreement. In terms of Balfour v Balfour (1919), it was ruled that because husband and wife were living in amity, there was no legal intent when an agreement was made because of the domestic situation as husband and wife, and that their dispute should be settled without legal proceedings. In this case it was presumed that legal intent does not exist.
In terms of business a written legal contract is required for the future. There is legal intent in commercial agreements because this usually involves the exchange of money for goods and services. In the case of Carl ill v Carbolic Smoke Ball Co (1893) (3), the court decided that the contract would be enforceable and therefore sided with the consumer. Legal intent can be rebutted; a written clause in a contract with a rebuttal is called an honourable pledge clause.
(1)http://topics.wisegeek.org/topics.htm?legal-contracts#
(2) http://www.ehow.com/list_6079943_bad-effects-legal-separation.html
(3)see Carlill v. Carbolic Smoke Ball Co. [1893] Q.B. 256 (C.A.) Proceeding. www.lawnix.com/cases/carlill–carbolic–smoke–ball.html
(4)see. Intention – Lecture (PDF) – Law Teacher, www.lawteacher.net/PDF/Intention%20Lecture.pdf
There are 3 principles to be a contract those are:-
1. Agreement between both the parties
2. Offer is made and accepted by other party
3. Lawful consideration
Legal binding contract in family matters
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(5) http://www.faithnet.org.uk/A2%20Subjects/Ethics/socialcontracttheory.htm
(6) http://www.familylegacyasia.com/technical_doc/2009%2010%20Will%20they%20follow%20the%20rules.pdf?goback=.gna_3684599.gde_3684599_member_144276877
dowry can be taken. Although, this decisions are made based on family choices but government had to interfere into this issue as this things create problem in the future.
Separation:-
Separation is something when the couple can’t live together or share the same dwelling. But legal separation is beneficial for the couple. In the legal separation husband and wife separate from each other and in different country have different laws of separation. In Bangladesh when a man divorce his wife then the man has to provide certain amount of money to the wife as the amount was written in the marriage certificate. If the women give the divorce the women don’t get anything.
Raising children:-
In raising children different laws are imposed. When parents are divorced controversy rises as who will keep the children. This becomes a serious issue for the child life. This is a negative aspect of separation of the parent. Decision of parent in separation often ends up being used as bargaining chips in the separation agreement, and in some cases, custody disputes erupt when separation agreements regarding visitation are violated. They have to face the confusion of not having one parent in the household anymore and might act out as a way of expressing their frustration. They also might be confused about the permanence of father and mother figures if a separated parent chooses to date and the parent has other relationships. Children of separated parents also can struggle with feelings that they caused the separation or that they aren’t loved anymore by the parent who left.
Agreement in property distribution:-
In property distribution all the children should get equal distribution of the parent’s property. In Bangladesh very often it happens that a member of the family might take a greater portion of the property and give rest to the brother and sisters where no equal distribution occurs. In this sort of cases those brother and sisters who did not get an equal portion of the property can file a petition against the brother who took large portion of the property.
This is a costly method of solving problem. In most cases, since this is a family issue people of the family try to sit together and solve the problem then no law bindings come into the act. But when things go other way around they take the court option and goes on with it.
Disagreement in property distribution:-
When one member of the family have disagreement on property distribution in that case before filing a petition against the other member of the family they can all sit together and try to solve by themselves and if then still disagreement then one should file an petition against the other member of the family(7).
In social matters there can be legally contract bindings
People are a social being. Everyone who lives in a place and together with other settler consist of society. In society who lives in each and everybody have responsibility toward the society. It is not a group task it is individual task of the every person lives in the society to make it a better place to live. So in society there are social contract which is a hypothesis explaining how society originates as well as the presumed relationship between its members, how they incur responsibilities, and their rights. Early proponents of the social contract, like Hobbes (1985) and Locke (2003), differed in their views and both have been surpassed by Rousseau whose influential 1762 treatise, The Social Contract, has made him synonymous since its publication with the theory of the social contract (8).
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(7)http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Property+and+Money+Matters/If+you+don%E2%80%99t+agree+about+property+and+money/
(8)see:SocialContractTheory.www83.homepage.villanova.edu/…/theories/social%20contract.htm
If we try to look for more detailed or easy answer of social contract we can define it as like that “social contract” means that people are willing to give up some of their own personal freedoms “for the greater good”. In practical terms, you need to get everyone to think carefully about the benefits of working together as a united family group. For example, working together might hold up the value of the family-voting bloc (9).
Social contract is difficult to understand. Not all the people have capability to understand the social contract. Some people goes for not caring about the social factors whereas, they are a great part of the society.
Conclusion:-
In family and social matters there exist legally contract bindings. In family it is not necessary to have legal contract binding. It is also difficult to relate legal bindings with the family or social issues. In family matters are of different types where things do not need to have contract bindings. Still there are some sort of issues when things cannot be solved by family members then people can take the support of the law to make it a law bindings. Issues like marriage when different terms need to be maintained. In separation, custody of children, agreement of property distribution, disagreement of property distribution etc. can take the support of the law to make it a lawful act. Similarly, social matters are vast things to understand not all social matters are required to have social bindings. In every society there are different social norm that is followed and being a social being it becomes everyone responsibility to maintain or follow those norms. When things goes other way around that someone is not following the norms then there can be legal bindings for those who not follow the norms. We can say that in family or social matters there can a legal binding contract and in some cases there may not depending on the issues which cannot be solved by the family or the socially accepted members.
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(9) The Family Business Constitution – Family Legacy Asia. www.familylegacyasia.com/…/…
REFERENCES
1. http://www.ehow.com/list_6079943_bad-effects-legal-separation.html
2. http://www.lawyer.ie/family-law/irish-family-legislation
3. www.familylegacyasia.com/technical_doc/2009 10 Will they follow the rules.pdf?goback=.gna_3684599.gde_3684599_member_144276877
4. http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Property+and+Money+Matters/If+you+agree+about+property+and+money/
5. http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Property+and+Money+Matters/If+you+don%E2%80%99t+agree+about+property+and+money/
6. <href=”#Ch1023Se226634″>http://www.lsc.sa.gov.au/booklets/print/ch01.php#Ch1023Se226634
7. Social Contract Theory.htm
8. http://www.gpo.gov/fdsys/search/pagedetails.action?granuleId=&packageId=GPO-STYLEMANUAL-2008&fromBrowse=true
9. http://www.aresearchguide.com/7footnot.html
10. %20er%20jibon/laww%20200/net%20theke%20neya/binding%20legal%20definition%20of%20binding.%20binding%20synonyms%20by%20the%20Free%20Online%20Law%20Dictionary.htm
11. http://topics.wisegeek.org/topics.htm?legal-contracts
12. http://legal-dictionary.thefreedictionary.com/separation+agreement
13. http://www.wisegeek.com/what-is-a-social-contract.htm
14. http://www.onefamilylaw.ca/doc/FLEW_legal_EN_05.pdf
15. http://www.humanservices.gov.au/customer/services/child-support/child-support-agreement
16. http://en.wikipedia.org/wiki/Contract
17. http://www.onefamilylaw.ca/doc/FLEW_legal_EN_06.pdf
18. http://www.ehow.com/list_6079943_bad-effects-legal-separation.html
19. http://en.wikipedia.org/wiki/Child_support