Introduction to Commercial LawAM 5103 Prepared by Soakai Vea Author Note Soakai Vea
Introduction to Commercial LawAM 5103
Soakai Vea, Department of Business, Tupou Tertiary Institute. This research was kindly supported by Fr. Saimone Fakahua. Correspondence according to this article should be addressed to Soakai Vea, Department of Business, Tupou Tertiary Institution, Fasi moe Afi, Tongatapu.
Contact: [email protected]
Table of Contents
TOC o “1-3” h z u Introduction to Commercial Law PAGEREF _Toc522880011 h 4Legal System PAGEREF _Toc522880012 h 4Statute Law PAGEREF _Toc522880013 h 6Case Law. PAGEREF _Toc522880014 h 9References PAGEREF _Toc522880015 h 12
Introduction to Commercial LawThis article clarify on facets of Commercial Law in terms of it system, I’ll be focusing on Legal system and certain Laws concerning with Statute Law and Case Law. I will be specializing ideas with cases concerning about Legal System, Statute Laws, and Case Laws.Legal SystemBeliefs…as to what amounts to acceptable conduct…constitute the “value system” of a society… and this value system will inevitably be reflected in the law…However what may be termed “value trends” appear from time to time and these can make themselves felt in the law”.
Mulholland J is suggesting that a society’s beliefs are not static but change over time and that the law will inevitably reflect these changes.
List two Acts of Parliament that support Mulholland’s view that the law must be seen in its “societal context”. Briefly explain why you have chosen the two Acts you have listed.
Human Right Act 1993: this Act deals with discrimination on a wide area including sex, religious beliefs, ethical belief, ethnic or national origin in comparison to Mulholland. J suggestion somehow the law must be seen in its societal context or society beliefs.
New Zealand Bill of Rights Act 1990: the act discovers the atmosphere change in New Zealand Law which it provides judges the means to interpret around different act to ensure interest.
Evaluate the following sentences, state whether you agree or disagree with reasoning
Ethics is about doing the right thing.
Agree, ethics is about doing the right thing or right decision in real life.
Law is a set of rules enforced by the State against the people of the State.
Agree, laws are those rules required to obey in a particular State or Country.
Morality are written rules about how to behave in a business context.
Disagree, morality represent the community views of the majority of society on certain forms of behavior in social matters.
c) (i) The law is often subdivided into civil law and criminal law. Briefly explain why this distinction is made.
– legal terminology this concern about to keep a very clear distinction between criminal and civil court cases as they have different purposes, outcomes and names of parties. In a Civil Law, it deals with disputes between individuals or between businesses in which compensation is awarded to the victim and Criminal law is a body of law that deals with crime scene and legal punishment of criminal offenses with case filed by the government and Civil law by private parties. For example, civil law is when a divorce proceeding or child custody proceeding and criminal law concern of theft and robbery, murder.
(ii) Sometimes the law is subdivided another way, private law and public law.
How does this subdivision differ from the civil/criminal distinction?
Private law is concerned with matters that affects the rights and duties of individuals among themselves which civil law is made up of different areas of private law, however, Public law is concerned with matters that affects the State as a community within New Zealand’s Internal law which criminal law is part of public law.
d) (i) What is Parliamentary Supremacy and where does the Judiciary sit in the relationship between Parliament/Legislature and the Judiciary?
– Parliamentary Supremacy as Parliament, the legislature, has unlimited lawmaking powers. It may, by statute, overrule laws made by the Judiciary and the Executives, but at the same time, its laws cannot be inspected or declared invalid by either of other government branches and presides the court judges.
ii) Explain how the introduction of MMP (Mixed Member Proportional) has helped to restore a greater balance of power between the executive and legislative branches of government.
The Electoral System- Mixed Member Proportional in fact is a “mixed member”, in terms, the House of Representatives is made up of 121 M. P’s, which the system is “proportional” because each party gets the number of seats in the House that is in proportion to its share of the party vote throughout New Zealand. Every voter gets 2 votes; the party vote is counted on a New Zealand wide basis & electorate vote which selects M. P’s on an electorate basis.
Although the New Zealand Bill of Rights Act 1990 forms part of New Zealand’s constitution, nevertheless, section 4 of the Act makes it clear the doctrine of parliamentary sovereignty remains in place. In this respect at least New Zealand’s constitution is fundamentally different to that of (for instance) the United States.
Do you consider this statement is an accurate summing up of a major difference between the constitutions of New Zealand and the United States?
Yes, in terms of New Zealand having an Unwritten Constitution, the constitution is not found in a single written documents as compared to the United States but is comprised of law from a number of diverse sources including New Zealand Acts, Court cases and Treaty of Waitangi.
Why is the New Zealand Maori Council V Attorney-General (1987) regarded as important landmarks in the law relating to the Treaty?
Because New Zealand Maori Council V Attorney-General (1987) is one of the leading cases that make up part of New Zealand’s Constitution and the very important decision of the Court of Appeal.
Statute Law1In 2007 the Crimes (Substituted Section 59) Amendment Bill was introduced into Parliament but not (as is usually the case) by a cabinet minister. The aim of the bill was to amend section 59 of the Crimes Act 1961 and it was successfully passed into law later in the year.
If it was not a minister, who would have introduced the bill into Parliament? Justify your answer.
Any member of Parliament not a minister somehow referred as Private Members they can introduce the Crime (Substituted Section 59) Amendment Bill into Parliament and are known to as Private Members Bill.
(ii) Describe the process through which the bill would have proceeded before it became law late in 2007.
Firstly, Bill is drafted: Private Member draw up Crimes (Substituted Section 59) Amendment Bill and introduce by Member of the Parliament to the House and bill is printed by Clerk and distributes copies of bill.
First Reading: theirs a 2 hours debate with maximum of 12 speeches not exceeding 10 minutes each on the general policy issues and whether the bill should proceed further and if the majority support it passing the First Reading, the bill is referred to the Select Committee nominated by the Minister or Private Members who introduce it.
Select Committee Stage: A Select Committee comprises 8 M. P’s drawn from different parties in the House. It hears submissions from the public and consider the bill clause by clause and may recommend changes to it then makes its report back to the House.
Second Reading: this are consideration of the bill as reported back from the Select Committee and again another 2 hours’ debate with 12 speeches with 10 minutes each, and if the bill passes this Stage it goes on to the Committee Stage.
Committee Stage: this is theoretically a committee of the House not exactly the House of Representatives sitting only or it is the Committee of the Whole House referring to all M. Ps’ had to attend, and again considered clause by clause of the bill, amendments may be made to improve the wording and change specific aspects, it then makes report back to the House.
Third Reading: this may be referring to as the last reading or the final reading in the House before in then transfer bill to the Governor- General, in this phase again 2 hours debate with the opportunity to vote down the bill although this hardly happens but normally not amended but errors and misprints may be amended typographical, if bill passed it then goes to the Governor General for signature or the Royal Assent.
Royal Assent: this varies to the signature of the Governor General on behalf of the Queen or somehow the Queen can sign a bill if she is in New Zealand. Once the Royal assent has been signed the Crime (Substituted Section 59) Amendment Bill becomes an Act but will come into force on specific date of Crime (Substituted Section 59) Amendment Bill to commence on.
Sarah has been charged under Section 13(2)(d) of the new Litter Act 2007 after she was reported for emptying a litre of used and unrecyclable engine oil into the gutter outside her house.
The long title to the Act reads, An Act to prevent the discarding of litter into any public place, in order to maintain a clean and healthy environment while Section 2(1) defines litter to mean bottles, tins, cartons, packages, paper, glass, or other refuse. The court is satisfied that the gutter constitutes a public place.
(i)Applying the purposive approach do you consider Sarah will be convicted? Establish one argument for each side and justify your answer.
– No, acquitted, as in Section 2, Sub-section 1, it defines litter to mean bottles, tins, cartons, packages, paper, glass and other refuse but in terms of Sarah’s case, she’s been charged for emptying an amount of 1Litre of used unrecycled engine oil.
-Convicted, as in long title of the Litter Act 2007, Sarah is found guilty for emptying the amount of 1Litre of used unrecyclable engine oil into the gutter outside her house in which the court fines gutter constitutes as a public place, in order to maintain a clean and healthy environment.
(ii) Would your answer be the same if Section 2(1) defined litter to mean bottles, tins, cartons, packages, paper and glass? Again, justify your answer.
– Yes, because section 2 sub-section 1 of the new Litter Act 2007, defines litter as means to bottles, tins, cartons, packages, paper and glass as Sarah is being charged of emptying a 1Litre of used unrecycled oil.
Case Law.a)The following statements are sometimes made about New Zealand’s hierarchy of courts. In each case explain what the statement means:
(i)The Disputes Tribunal is not a court of law.
-Dispute Tribunal is a division of District Courts, the tribunals have a different focus as to settle claims of low value quickly, informally and inexpensively and are presides over by a Principal Disputes Referee in fact referees do not have to be legally qualified but they undergo trainings.
(ii) Unlike other courts in the hierarchy the jurisdiction of the High Court is both original and appellate.
-With original has original jurisdiction which covers diverse claims cannot be heard in District Court and Appellate, this is the jurisdiction to hear appeals.
(ii)Appeals to the Supreme Court are not an automatic right.
-Appeals maybe heard only by leave of the court via application which are heard by two judges.
b)In both Balfour v Balfour (1919) and Merritt v Merritt (1970) a wife sued her husband for breach of contract and in Merritt the defendant cited Balfour – where the court held Mr. and Mrs. Balfour did not intend their agreement to be a binding contract – as a precedent. However, the court in Merritt held that a contract did exist and ordered Mr. Merritt to transfer ownership of their house into Mrs. Merritt’s name. Clearly, Mrs. Merritt was able to convince the court that the material facts in her case differed from those in Balfour – in other words the earlier case was not a binding precedent.
Indicate three material facts in Merritt which distinguish this case from the Balfour case. Justify your answer.
-House Mortgage: the defendant (husband) was ordered to transfer the house ownership to the plaintiff (wife).
-Legally Binding Contract: this refer to the arrangement was a legally binding contract.
-Intention: to bound between the Husband and Wife does not apply when they are separated or about to separate, husband and wife are then dealing “at arm’s length”.
c)Page 462 (6th edition) or pg. 439 (7th edition) of your set text contains information about a case called Ryland’s v Fletcher. Read this information and then read the two sentences below which are taken from the judgment delivered in Ryland’s. When you have read the sentences indicate which contains the ratio decidendi and which obiter dicta. You must justify your answers.
Obiter Dicta: He can excuse himself by showing that the escape was the consequence of vis major, or the act of God; but, as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. – obiter dicta: this contains statement of varying legal importance and interest often in a form of similarity and theory, it can be convincing at most, but at high standard.
Ratio Decidendi: We think that the true rule of law is that the person, who for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. – ratio decidendi: this is the majority decision of an appeal that contains the all necessary legal principle that decided the result in facts the judges are expected to justify their decisions and the reasons to provide a basis of appeals in which it is the only part of a judgement that can be “binding”. A minority of the court can also be reported and appears as a dissenting judgement, it may still be valued but justified and defended in a higher court in a later case.
Appellate Jurisdiction. Retrieved on 3rd August, 2018 from http://www.fedcourt.gov.au/law-and-practice/guides/appeals/from-courts/appellate-jurisdiction.
Important Element for Formation Contract Law. Retrieved on 8th August, 2018 from https://www.lawteacher.net/free-law-essays/contract-law/consideration-is-important-element-for-formation-contract-law-contract-essay.phpJudicial Precedent. Retrieved on 11th August, 2018 from http://lawatpendleton.wikidot.com/judicial-precedentNew Zealand Legislation. Retrieved on 17th August, 2018 from https://store.lexisnexis.co.nz/product?product=the-new-zealand-bill-of-rights-act-a-commentary-2nd-edition-ln-red-book&meta_F_and=BONZRED0SUParliament and the Judiciary. Retrieved on 4th August, 2018 from https://www.gov.uk/government/speeches/parliament-and-the-judiciaryRyland’s v Fletcher. Retrieved on 15th August, 2018 from https://googlemei.wordpress.com/2012/01/16/strict-liability-in-rylands-v-fletcher/Ryland’s v Fletcher. Retrieved on 11th August, 2018 from https://djetlawyer.com/rylands-vs-fletcher/Tribunal Administrative Law. Retrieved on 7th August, 2018 from https://www.lawteacher.net/free-law-essays/administrative-law/what-is-a-tribunal-administrative-law-essay.php.
Understanding differences Act of God. Retrieved on 12th August, 2018 from https://www.lawctopus.com/academike/understanding-differences-act-god-force-majeure/