There are different types of relationships between social and family life that can organize or destroy our normal life if we do not follow the proper legal contract-Discuss
Introduction
The fundamental and natural unit of society is known as family and it also requires the full protection of the state. Human rights law is uphold by the positive right of all peoples to marry and form a family. Not only the marriages and families those are acceptable, there are many others types of social and family bindings all around the world.
The family and social matters can be legally binding contract. Marriage, separation, divorce, maintenance of kids, inheritance of property etc can be the agreement and legally binding contracts. These family issues have a huge impact on our society. Because the entire society is consist of many numbers of families.
Through the judiciary[1], to be called on to resolve disputes based on purely social arrangements and default, it is not practical to provide judicial oversight of every agreement entered into between people – social circumstances are many and numerous and it would be unrealistic for the state.
In the 19th Century the courts tended to approach the issue from the subjective standpoint – what was in the minds of the parties – the so called consensus ad idem or meeting of the minds – and give effect to that intention if it was clearly what both parties intended.
In this essay, it is discussed elaborately that, the social and family matters can be sometimes legally binding contract and sometimes cannot be. For this discussion, we need to discuss what family, society, agreement, legal bindings is and contract first.
Contract
A contract is an agreement having a lawful object entered into voluntarily by two or more parties, each of whom intends to create one or more legal obligations between or among them. The elements of a contract are “offer” and “acceptance” by “competent persons” having legal capacity who exchanges “consideration” to create “mutuality of obligation.”
The word promise can be considered as a legal synonym for contract, but it cannot express the full meaning of it. Because the meaning of promise is also includes the agreements which are without consideration.
Contract law varies greatly from one jurisdiction to another, including differences in common law[2] compared to civil law, the impact of received law. Contract law is based on the principle expressed in the Latin phrase pacta sunt servanda, which is usually translated “agreements must be kept” but more literally means “pacts must be kept”.
However, contract is a form of economic ordering common throughout the world, and different rules apply in jurisdictions applying civil law, Islamic law, socialist legal systems, and customary or local law.
A contract has several elements. They are:
1. Offer and acceptance: To be a contract, the first element is lawful offer and acceptance. A party has to offer another party and another one has to accept it directly or after some negotiations.
2. Intention to create legal relations: There must be an intention among the parties that the agreement should be attached by legal consequences and create legal obligations. Agreements of a social or domestic nature do not contemplate legal relations, and as such they do not give rise to a contract. Agreements between husband and wife also lack the intention to create legal relationship and it may not result in contracts.
3. Lawful consideration: The presence of ‘consideration’ is the third important element of a valid contract. Consideration has been defined as the price paid by one party for the promise of the other. An agreement is legally enforceable only when each of the parties to it gives something and gets
4. Capacity of parties: The parties of an agreement must be compatible to contract the contracting parties must be of the age of majority and of sound mind and must not be disqualified by any law to which they are subject (sec.11)[3].
5. Free consent: Another essential element of contract is free consent of all the parties. This concept has two aspects: (1) consent should be made and (2) it should be free of any pressure or misunderstanding. ‘Consent’ means that the parties must have agreed upon the same thing in the same sense (sec. 13)[4]. There is absence of ‘free consent,’ if the agreement is induced by (i)coercion, (ii) undue influence, (iii) fraud, (iv) miss-representation, or (v) mistake (sec. 14)[5].
6. Lawful object. It is also necessary for the formation of a valid contract that the parties to an agreement must agree for a lawful object. The object for which the agreement has been entered into must not be fraudulent or illegal or immoral or opposed to public policy or must not imply injury to the person or the other of the reasons mentioned above the agreement is void.
7. Writing and registration: According to the Indian contract Act, a contract to be valid, must be written and registered.
8. Certainty: Section 29 of the contract Act provides that “Agreements, the meaning of which is not certain or capable of being made certain, are void.” In order to give rise to a valid contract the terms of the agreement must not be vague or uncertain.
9. Possibility of performance: A valid contract must be capable of performance.
Section 56[6] lays down that “An agreement to do an act impossible in itself is void.
10. Not expressly declared void: The agreement must not have been expressly declared to be void under the Act. Sections 24-30 specify certain types of agreements that have been expressly declared to be void. For example, an agreement in restraint of marriage has been expressly declared void under sections 26, 27 and 30 respectively.
Agreement
As per section 2 (e): “Every promise and every set of promises, forming the consideration for each other, is an agreement.” We can see from this definition that a ‘promise’ is an agreement. The definition of promise can be found in section 2 (b) which defines the term.” When the person to whom the proposal is made signifies his assent thereto the proposal is said to be accepted. A proposal, when accepted, becomes a promise.” In other words, offer and acceptance together makes an agreement. Conditions of an agreement:
(a) Minimum two persons.
(b) Consensus-ad-idem. Each party has to agree with the same time with the same topic in a same sense.
All contracts are agreements but all agreements are not contract
We already know that a contract can also be defined as a legally binding exchange of promises between two or more parties which is enforced by law. An agreement is a form of cross reference between different parties, which may be written, oral and lies upon the honor of the parties for its fulfillment rather than being in any way enforceable.
All contracts are agreement because there must be mutual understanding between two parties for a contract to be formed. All parties should agree and adhere to the terms and conditions of an offer.
Every contract has to be an agreement first. Then it can be converted into contract by legal enforcement.
Contracts in family and social aspects:
Marriage
Marriage is a contract between two people. It can be broken as well. The persons have to be adult to get married. They have to sign in marriage certificates, have to pay fees and bound with some responsibilities as well. Offer acceptance and other elements of contracts are also being fulfilled in this agreement. So marriage is a contract. When two people get married, it makes a family. When so many married couples live in a certain area, it becomes a society. So a marriage is also a family and social binding as well.
Property rights, sexual relationships, crimes, domestic abuse, privileged communication, same sex marriage etc are the facts under marriage contracts.
On the other hand, marriage is may not be a legal contract. Because love, caring, affection, sharing cannot be limited within a piece of paper only. These things do not even require any legal bindings or agreements or contracts.
Maintenance for children
Both parents have a responsibility to support their children financially. This applies to all parents, whether married, separated, living together or if they have never lived together. The parent with custody of the children has to take care of them and look after their day-to-day needs. The parent who does not have custody usually has to pay money to the parent with custody. This is to help cover the costs of taking care of the children.
The rights of children to parental care are specifically protected in children’s rights treaties and govern the obligations of states to ensure children are not separated from the parents without a due judicial process, and to provide support for the parent and family unit. Provisions governing maternity rights no doubt stem from the basic principle that the fundamental bond between mother and child should be supported. A number of treaties emphasize the need to states to provide extra provision for pregnant women, to allow them maternity leave before and after childbirth which is either paid leave or leave with adequate social security benefits.
Human rights law lays down a number of standards governing the treatment of children who do not have parents and covers such issues as fostering, adoption, inter-country adoption. At the heart of these principles is the need to ensure the best interests of the child are met and to guard against the exploitation and abuse of this especially vulnerable category of children. The duty of parents to ensure provisions are made for children at the dissolution of a marriage is also prescribed.
Separation
If a married couple or civil partners can agree the terms on which they will live separately, they may enter into a separation agreement. The essence of a separation agreement is that it is an agreement. Both parties must consent to the terms of the agreement.
The agreement is a legally binding contract setting out each party’s rights and obligations to the other. The terms of the agreement are usually reached either through mediation or negotiation through solicitors. If agreement can be reached reasonably quickly between the parties and a separation agreement drawn up, it is cheaper and less stressful than taking a court case. Many couples formalize their separation in this way.
Legal separation is not the ending of marriage. It just separates the spouses but they still remains married.
Divorce
A divorce is a legal action between married people to terminate their marriage relationship. It can be referred to as dissolution of marriage and is basically, the legal action that ends the marriage before the death of either spouse.
Divorce is the legal termination of a marriage. If the divorce is executed in a state where it is effective to terminate the marriage, this potentially affects the status and capacity of the spouses so that they are then free to remarry. Within the conflict system, the enforcement of foreign judgments is a reasonably well-regulated area. But this form of divorce is only quasi-judicial at best, so it falls outside the normal rules.
Conclusion
Basically contracts are agreements based on legal terms and conditions. Family and social matters can be legally binding contract. In some other sense, it also may not be bonded with legal terms. These legal contracts are formed in family, and then it affects the whole society. So as a result, for these contracts and bindings, the society has a great impact. Some contracts can be broken with mutual consent which creates another form of contract. On the contrary, the contracts, offer and acceptance etc are derived from individual’s willingness which is beyond legal boundaries. So there can be social matters without legal entity as well.
Bibliography:
1. Chriss, Margaret J. 1993. “Troubling Degrees of Authority: The Continuing Pursuit of Unequal Marital Roles.” Law & Inequality Journal 12 (December).
- Ewan McKendrick, Contract Law – Text, Cases and Materials (2005) Oxford University Press ISBN 0-19-927480-0
3. Hartog, Hendrik. 2000. Man and Wife in America: A History. Cambridge, Mass.: Harvard Univ. Press.
4. http://en.wikipedia.org/wiki/Contract
7. http://www.thefreedictionary.com/judiciary
8. [1] http://www.duhaime.org/LegalDictionary/C/ConsensusAdIdem.aspx
9. http://legal-dictionary.thefreedictionary.com/Husband+and+Wife
10. http://www.hrea.org/index.php?doc_id=425
11. Keane, Thomas M. 1995. “Aloha, Marriage? Constitutional and Choice of Law Arguments for Recognition of Same-Sex Marriages.” Stanford Law Review 47 (February).
12. Nickles, Don. 1996.”Defense of Marriage Act.” Congressional Record 142.
- P.S. Atiyah, The Rise and Fall of Freedom of Contract (1979) Clarendon Press ISBN 0-19-825342-7
- Randy E. Barnett, Contracts (2003) Aspen Publishers ISBN 0-7355-6525-2
15. “Same-Sex Marriages and Civil Unions: On Meaning, Free Exercise, and Constitutional Guarantees.” 2002. Loyola Law Journal33.
- Scott Fruehwald, “Reciprocal Altruism as the Basis for Contract,” 47 University of Louisville Law Review 489 (2009).
17. The right to family.
http://www.hrea.org/index.php?doc_id=425
18. (2013 February). Magazine insite law. Intention to create legal relations. http://www.insitelawmagazine.com/ch2intention.htm
19. Waggoner, Lawrence W. 1994. “Marital Property Rights in Transition.” Missouri Law Review 59 (winter).
20. Wanamaker, Laura H. 1994. “Waite v. Waite: The Florida Supreme Court Abrogates the Doctrine of Inter spousal Immunity.”Mercer Law Review 45 (winter).
[1] http://www.thefreedictionary.com/judiciary
[2] http://www.thefreedictionary.com/common+law
[3] http://www.scribd.com/doc/38929993/Capacity-of-Parties
[4] http://wiki.answers.com/Q/Business_law_notes_free_consent
[5] http://www.scribd.com/doc/24184911/Free-Consent
[6] http://chestofbooks.com/business/law/Handbook-Law-Of-Contracts/Possibility-Of-Performance.html#.USY37enLow0