“In family or social matters there can be legally binding contract” -Illustrate” explain
Introduction:
Man is born free but everywhere he is in chains .One thinks himself as the master of others, and still remains a greater slave than they are.
As long as people is compelled to obey, and obeys, it does well, and as soon as it can shake of the yoke, and shakes it off, it still does better; for the regaining its liberty by the same right as it took it away, either it is justified in resuming it, or there is no justification for those who took it away. But the social order is the sacred right which is the basic of all other rights. Never the less this right does not comes from nature like family rights and must therefore be founded on conventions.
But the most ancient of all societies, and the only one that is natural, is the family. Where they remain united not naturally but voluntarily; and the family itself is then maintained only by the conventions.
Social Contract & Domestic Contract:
The origin of the term social contract can be found in the writings of Plato.The social contract can be seen as a device both for justifying not only rule itself but a particular type of rule, and demonstrating that the political obligations can indeed be demanded.This means that the people give up some of their rights to a government in order to receive protection and social order. According to Hobbes’ theory, “without society, we would live in a state of nature .where we each have unlimited natural freedoms.” The downside of this general autonomy is that it includes the “right to all things” and thus the freedom to harm all who threaten one’s own self-preservation; there are no positive rights, only laws of nature and an endless “war of all against all ” or we can say the ‘social contract’ confers benefits at the cost of constraints upon free will which validates the State as the representative of the people & its power to punish
In family law, a contract between people setting out their obligations towards and expectations of each other.Domestic agreement is an agreement between husband and wife. The assumption here is that there is no such intention. But there are exceptions and the true meaning and intention will depend on the context where there may be found such an intention. All that is being said is that if the evidence of intention is so strong then the courts will depart from the assumption.Types of domestic agreements include: marriage contracts, cohabitation agreements, Paternity agreements and separation agreements.
Important Issues in Social Contract:
Soverienghty:
Sovereignty should be considered as an institution analogues to private property,which changes in its scope of application and in the range of its activities allowed within its domain,but not in its core meaning.
Legitimate Political Authority:
Someone legitimate and sure rule of administration, taking men as they are, and laws as they can be
Important Issues in Domestic Contract:
A contract is viable for domestic matters if the three primary elements of the contract is present,which are 1) an offer2) acceptance and 3) consideration A domestic contract is an agreement reached between two people living in a family relationship, which outlines their particular rights and responsibilities. These agreements are legally binding. You should be prepared to respect the promises made in your contract. the presumtioms maybe rebutted by the evidence of the real intentions of the parties.Following factors are relevant:
1.what parties said to each other either orally or in writing 2.the context in which the statements were made 3. the conduct of the parties.
Difference Between Social, Domestic and Commercial Contract:
A distinction is traditionally made between contracts of commercial flavor and those of a social flavor, it being that there is a rebut table presumptions of fact that the first class are the subject of joint intentions of legally bound and, while those in the second class attract an opposite assumptions. A presumption is a principle of evidence, pursuant to which juries or other tribunals of facts are encouraged to or compelled to come to a conclusions of fact, upon proof of another fact. [1] In business agreements the presumtion is that the parties intend to create legal relationship and made a contract.This presummtions can be rebutted by the inclusion of an expressions statement to that effect in the agreement.Problems in Social and Domestic
Conra
When a agreement arises in social or a domestic context or a family/domestic one,the presumtions is to the opposite effect,that is,that the parties did not intend to legally binded relationship.This is beacuae of the subject matter of the transaction,it is being supposed that closness of the relationship and presumed affection in it,implied that the parties were content to treat the matter as on of trust,and indeed,would be discomforted by the thought that their arrangement should ever become the subject of litigations Again, the presumption is to be justified by the experience of mankind.
In many domestic agreements, for example those made between husbands and wives and parents and children, there is no intention to create legal relations and no intention that the agreement should be subject to litigation. that can be found in one case like, A husband returned to Ceylon to take up his employment and promised his wife who could not return with him due to healthy problems, that he would pay her $30 per month a maintenance. When the marriage later ended in divorce the wife sued for the promise maintenance. It was held that the parties had not intended the original promise to be binding in law and therefore it was not legally enforceable.
Thus in a case it is found that, In spite of the fact that the agreement had been entered into while the couple were still married and could be seen to be similar to a case[2] the court held that the agreement was enforceable . In the circumstance the parties had to enter into a legally enforceable agreement and the usual presumption was rebutted.
Many social agreement do not amount to contracts because they are not intend to be legal binding.The ordinary example could be where two parties agree to walk togeather,or there is a offer and acceptance of hospitality.Similarly it has been held that the winner of a competition held by a golf club could not sue for his pize where ‘noone concerned with that competition ever intended that there should be any legal results flowing from the conditions posted and the acceptance by the competitor of those conditions.
Similar issues of contractual intentions can arise between parents and children.An informal promise by a parents to pay a child an allowance during study is not normally a formal contract, though it may become one if.for example, it is part of the of a bergain made to induce the child to to give up some occupation so as to enter on some particular course of study.
The major disadvantages involve questions about whether the social contract ever had a basis in history and how it addresses non-participants in the contract. More recent defenders of the social contract are clear about the fact that the social contract does not necessarily refer to a real historical event. The point of the social contract is to act as a test for the justification of moral principles. Also, it can be said that were implicitly participate in such a social contract by acting cooperatively in our social arrangements. We vote and those who don’t tacitly assent by going along with the outcome.
Suggestions:
Those who are well off have no need of welfare, public education, and government assistance in general. So, on the face of it, it is not in the interests of these people to pay taxes in order to support government assistance. But the social contract is supposed to be in everyone’s interest. For this reason, conservative social contract theorists sometimes argue that a social safety is not
part of the contract.But some forms of government assistance are in everyone’s interest. Even the wealthy are advantaged by the existence of public education; they may not go to public schools, but they benefit from living in a society with a high level of education
National sovereignty should be respected, within the constraints of promoting human capabilities.
We should cultivate a thin, decentralized, yet forceful global public sphere. There is no reason why a thin system of global governance, with at least some coercive powers, should not be compatible with the sovereignty and freedom of individual nations.
A wide range of international agreement and treaties that can be incorporated into the nations systems of law through judicial and legislative action needs to be incorporated.
The family should be treated as a sphere that is precious but not “private”. The world community should protect the individual liberties of people, which includes their right to choose to marry and form a family, and various further rights associated with that.
Conclusion:
If a social contract is for a given society, then it applies only to its members. Those in other societies would be outside of its bounds. If our world is to be a decent world in the future, we must acknowledge right now that we are citizens of one interdependent world, held together by mutual fellowship as well as the pursuit of mutual advantage, by compassion as well as self-interest, by a love of human dignity in all people, even when there is nothing we have to gain from co-operating with them. Or rather, even when what we have to gain is the biggest thing of all: participation in a just and morally decent world.
To be enforceable, domestic contracts should be in writing, signed by both parties, and witnessed. Each of the parties should have received independent legal advice. As well, each party must provide complete financial disclosure of assets and income. It is very important to get both legal and financial advice before entering into a domestic contract as each jurisdiction may have different rules and regulations.
Bibliography:
Andrews, N. (2011) Contract Law. New York: Cambridge university Press, p.170.
Atiyah, P. (1979). The Rise and Fall of Freedom of Contract.London: Clarendon Press
Ackerman, B, A. (1980). Social justice in the liberal state. New Haven : Yale University Press
Balfour v. Balfour [1919] 2 KB 571
Court.nl.ca (n.d.) Glossary of Terms | Supreme Court of Newfoundland and Labrador. [online] Available at: http://www.court.nl.ca/supreme/family/glossary.html#dt55 [Accessed: 21 Feb 2013].
Csus.edu (n.d.) Social Contract Theory. [online] Available at: http://www.csus.edu/indiv/g/gaskilld/ethics/sct.htm [Accessed: 17 Feb 2013].
C. NUSSBAUM, M. (2003) Beyond the Social Contract: Capabilities and Global Justice.. [e-book] London: Carfax publishing. p.7. [Accessed: 17th Feb].Gillies, P. (2007) Concise Contract Law. Sydney: The federation press, p.58.
Carlyle, R. W. A History of mediæval political theory in the West. Edinburgh London: W. Blackwood and sons, 1916
Collins v. Godefroy (1831) 1 B. & Ad. 950.
Curtis v. Chemical Cleaning and Dyeing Co [1951] 1 KB 805
McKendrick, E. Contract Law – Text, Cases and Materials (2005) Oxford University Press
Harrison, Ross. Hobbes, Locke, and Confusion’s Empire: an Examination of Seventeenth-Century Political Philosophy. Cambridge University Press, 2003.
Hobbes, Thomas. Leviathan. 1651.
J. Browne, K. (2012) Introduction to the social contract theory. [e-book] helium. p.4. Available through: www2.econ.iastate.edu http://www2.econ.iastate.edu/classes/econ362/hallam/Readings/SocialContractHelium.pdf [Accessed: 19th feb 2013].
J. Biersteker, T. and Weber, C. (1996) State Sovereignty as Social Construct. Melbourne: Cambridge University Press, p.14.
J. W. Gough. The Social Contract. Oxford: Clarendon Press. 1936.
Joseph Kary, “Contract Law and the Social Contract: What Legal History Can Teach Us About the Political Theory of Hobbes and Locke”, 31 Ottawa Law Review 73 (Jan. 2000)
Monahan, G. (2001) Essential Contract Law. 2nd ed. New South wales: Cavendish publishing, p.18.
Mulcahy, F. and Tillotson, J. (2004) Contract Law in Perspective. 4th ed. London: Cavendish Publishing, p.98.
Merritt v. Merritt [1970] 2 All ER 760; [1970] 1 WLR 1211; CA
Pettit, Philip. Republicanism: A Theory of Freedom and Government. NY: Oxford U.P., 1997, ISBN 0-19-829083-7, Oxford: Clarendon Press, 1997
Riley, Patrick. The Social Contract and Its Critics, chapter 12 in The Cambridge History of Eighteenth-Century Political Thought. Eds. Mark Goldie and Robert Wokler. Vol 4 of The Cambridge History of Political Thought. Cambridge University Press, 2006. Pp. 347–375.
Pufendorf, Samuel, James Tully and Michael Silverthorne. Pufendorf: On the Duty of Man and Citizen according to Natural Law. Cambridge Texts in the History of Political Thought. Cambridge University Press 1991.
Quentin Skinner, The Foundations of Modern Political Thought: Volume 2: The Age of the Reformation (Cambridge, 1978)
Stilz, A. (2009) Liberal Loyalty: Freedom, Obligation, and the State. oxfordshire: princeton university press, p.60.
Shadwell v. Shadwell (1860) 9 C.B.N.S. 159.
Unknown. (2013) Untitled. Available at: http://www.court.nl.ca/supreme/family/glossary.html#dt55 [Accessed: 18th Feb 2013]
Wilmot et al, 2009, Contract Law, Third Edition, Oxford University Press, page 34
Whitlock v. Brew (1968) 118 CLR 445
[1] See Gillies, P. (2007) Concise Contract Law. Sydney: The federation press, p.58.
[2] See Balfor vs Balfor [1919]2 K.B.571,578