Declined Bounces In The Binding Precedents - Free Essay Example

Mr. Justice Peter, high court judge, cant decline to be bound by the decision decided by the Court of Appeal in 2009. This is because the Court of Appeal is bounded by the High Court even if it is counted them are to be wrong. The High Court judges are binding the decisions of individual to the House of Lords and the Court of Appeal due to binding precedent. Binding precedent refers to existing law that created and is compulsory to be followed. Such precedent exists within common law jurisdictions that recognize judicially made law. Mandatory precedent or what we known as binding precedent is a binding authority that must be followed by all lower hierarchy courts under common law legal systems. Principles of stare decisis is where binding precedent relies on. Generally, it follow the principle of stare decisis, which means the High Court judges have to oblige and not allowed to alter the decisions that have been established by Court of Appeal or other higher hierarchy of the courts. It is to make sure the consistency and certainty in the application of law. The old binding precedents of the new situations by analogy are from the cases that applied inside the application. For a precedent to work we need three elements. At first, it needs to approved by the hierarchy of the courts and the law reportings efficient system. A balance must be strike between the require of one side for the prevention of undue restriction on the suitable development of the law and the other side is the legal certainty conclusion from the binding effect of prior decisions. However, if the lower courts wish to appeal the precedent established by the upper court, the lower court must be able to manifest that the conclusion is unjust in some way and is not fair. In case law, Young v Bristol Aeroplane Co Ltd [1944] KB 718, the Court of Appeals civil division held was enclose by its own previous decisions which is subjected to the following three exceptions : When there are two interrelated conflicting decisions, the Court of Appeal must be able to decide which one have to follow and which one have to reject. When a decision are made by its own was implied overruled by the authority of House of Lo rds. The prior conclusion was provide per incuriam which means it is misjudged or decided wrongly. In the criminal division of the Young exceptions, precedent is not following rigidly because a persons independence may be at risk. In Ru Taylor [1950] 2KB 368 the Court of Appeal held that if the law is whether been wrong applying or not understand then it must consider back to the earlier decision. In case law, Kleinwort Benson Ltd v Lincoln City Council (1998) An existing rule of contract law that if both parties on an agreement about a mistake as to what the law said but they are still bound by the contract this is because a mistake as to law has no effect. However, if the parties have misjudgment about the facts in some situations, then agreement would not be legally binding. This is not very logic until it was decided in the year of 1998 by H of L with majority votes of 3-2, to exterminate this rule about the error of law. One effect of that is it will turn to retrospec tive when the Judges are simply clarifying the law and not introducing a new law. In case law, Southwark London Borough Council v Mills (1999), tenants of a block of flats lodged complain about the ordinary usage of surrounding flats contributed to a nuisance because of weak sound insulation. The House of Lords rejected to lengthen the tort of nuisance, which is create the common law rules, because they act as a considerable decision will have major effects for councils all over the country because they may need to spend a great amount of money to prevent the sound insulation and so the decision should decided by Parliament. b.) What do you think are the strengths and weaknesses of case law as a source of law? Discuss. Case law, in other word calls as common law, it is a body or legal principles build up the decision from English Common Law courts, and essentially case law made by English judges. Case law in another words, is like we applies general laws to specific cases, mean that case law are use by judges to analyses and interprets the statutes and constitutions. Case law also essentially create this is because statute cannot conceive and cover all and every single situations, judges rely on common law to decides the cases. Court decision developed the case of how the law are going to apply it whether is in a set of ( precedent or stare decisis),and might change things only when there is a situation of facts as different requiring different outcomes. Case law judgments are the way to prevent precedent since the judicial precedent is flexible and it can change and adapt to the situation. There are numerous advantages and strengths of using case law are like consistency, certainty, efficiency, and flexibility. It is consistency because this is the fact that refers to the decide and judge of the like basis and the deciding of the individual judge in the question of the case. The formal justice is important to the decision making of the particular case. Secondly it is certainty, as follow from previous judgment, indeed is presupposed. Particular legal question are able to predict and expect from lawyers and clients as from the experience of previous judicial decisions. Once the legal rule being established, people are going to be more behaving in their oriented behavior with regard to the rule by the case law. A third advantage is it performing efficiency. This particular advantage follows from the previous one. As a consequence, most disputes and cases are not to be re-argued before the courts. Thus, it saves them money and increases the efficiency. The fourth is performing flexibility. As judge are going to judgments due on different situation on different outcomes. Due to this way, is an opportunity to develop law due to different situation without waiting the time for the procedure made by Parliament to enact legislation. It should be noted that the advantage of flexibility at least potentially contradicts the alternat ive advantage of certainty, there are other disadvantages need to be considered. The first disadvantage is uncertainty. This refer to the facts of certainty provided by the doctrine of stare decisis is undermined by the absolute number of cases that have been reported and can be cited as authorities. Second is fixity. Refer to the possibility that law maybe ossify in relation to any particular area, this is because due to the unjust precedent, and also due to the previous injustices are perpetuated. Thirdly is because unconstitutionality. This saying that judiciary is in fact overstepping their theoretical constitutional role by actually making law rather than doing judgments. Nowadays, judges are in a common place that do laws, they use their power and authority to might be in impose values, overly exercise in might in bad effect to challenge the legislature. Question 2 On the 29th October, 2010 Steven advertised in the New Focus Paper, Yamaha Piano latest model, excellent condition, RM 15000, interested please call 016-1234567. On the 1st November 2010, Tanny after seeing the piano, offered RM 10000 to buy the piano. Steven said I will not sell it below RM 14000 and I will not sell it to anyone else before 7th November 2010. Tanny went to Australia for a few days and came back to Malaysia on the 7th of November 2010. On the 8th of November 2010, Tanny decided to post a letter accepting to buy the piano for RM 14000. Steven received this letter on the 11th of November 2010. Discuss the above issues and explain if Tannys letter of acceptance is valid. ANSWER: On the 29th October 2010, Steven advertised in the New Focus Paper, Yamaha Piano latest model, excellent condition, RM 15000, interested please call 016-1234567. This situation is an invitation to treat (ITT). An ITT is not a proposal but could be regarded as more communication passed at the stage of negotiations. It means Steven is inviting publics to make offer on his piano. Thus the person bidding for his piano act as the offeror and Steven as the offeree. In case Law: Payne v Cave the court held that the auctioneers request for bid is consider as an invitation to treat. The bid can be withdraw at anytime unless it was accepted. On 1st November 2010, Tanny offered RM 10000 to buy the piano from Steven. Based on section 2(a) of the Contracts Act 1950 states that when one person signifies to another his willingness to do or to abstain from doing anything, with a view to abtain the assent of that other to the act or abstinence, Tanny is said to make a proposal to Steven. So Tann y is the offeror and Steven is the offeree. However, Steven rejected Tannys offer which act as a termination of the offer. Steven then offer to sell the piano at RM 14000 to Tanny by 7th November 2010. This situation is counted as a counter offer, which operates as rejection of the original offer. In case law: Hyde v Wrench they exist no obligation of any sorts between both parties. So now Steven is the offeror and Tanny is the offeree. 7th November 2010, Tanny come back to Malaysia from Australia. No acceptance was made on that day by Tanny. 8th November 2010, Tanny post an acceptance letter to Steven to buy the piano at RM 14000, but the lapse of time upon expiration of the time prescribed in the proposal for its acceptance made on 1st November 2010 has expired. Steven received the acceptance letter on the 11th November 2010. In case law: Adam v Lindsell. Tannys section 2(c) acceptance letter is not valid because no acceptance was made before the deadline (7th November 20 10) and so the deal collapsed as no agreement or contract was made. The acceptance letter that received by Steven on 11th November 2010 from Tanny has now act as new offer letter. In case law: Scammel v Ouston; White v Bluett. So now, Tanny act as offerer has to wait the offeree, Steven, to accept the offer in order to create an agreement and contract.