Essay: Business law assignment

1. A contract in Scots Law is a voluntary agreement between at least 2 parties (can include up to and including 22 people). Contracts are only concerned with legal matters and not social matters, with the exception of Robertson V Anderson (2003) in which the two friends had a verbal agreement to half any winnings they had at Bingo and when Anderson won and refused to half her winnings she was taken to court by Robertson who wanted to claim her half. Her claim was successful on the grounds that Robertson told so many people about their agreement that the court regarded it clear that there were intentions to create legal relations which made it binding. Those who enter into a contract must be aware of the fact they are entering into a contract and must have the capacity to do so (e.g. children and the legally insane for example drunk people are protected by the law when entering into some contracts). A contract must be specific and cannot be too far into the future for example, a contract formed for 20 years from now can be dismissed as too vague. Entering into a contract means there is a ‘meeting of the minds’ (consensus in idem) which means all parties entering into the contract know what is being contracted. Contracts are formed by the offeror making an offer to the offeree, who is then able to decide if they will accept or decline this offer until the offers time frame has ran out (if such a time frame does exist). If the offeree accepts the offer, then a contract is formed. The only person who can revoke the offer is the person who made the offer, and they can only do this up until the offer has been accepted. The offeror cannot take back the offer once it has been accepted because the contract has already been created, if the offeror tries to do this the offeree is protected by the law. An offer is a “specific proposal to give or do something” the key word being “specific”. When you make an offer, you are intending to be legally bound by the offer as you are hoping it will lead to a contract, therefore offers must be serious. An acceptance has to be unconditional and absolute and is irrevocable. Acceptances can be communicated in a various number of ways including through words, actions and in writing. The communications must be made with the offeror as if they are unaware their offer has been accepted a contract cannot be established and it is key to know where and when these communications took place as this is the origin of the contract and relevant law can take over if it has to. A contract is made where the offeror becomes aware of acceptance and at the time offeror becomes aware of acceptance. The offeree can assume their acceptance has been communicated once it has left them. Contracts are, in summary, made up of an offer and an acceptance, this is the basis of any and all legal agreements in the law of Scots contract law.
2. An invitation to treat and a promise are 2 different things. An invitation to treat in summary says “make me an offer” and is a sort of pre-negotiation ‘offer’ and is often confused as an offer. Well known examples of invitations to treat would include shop displays, advertisements, quotations on property and so on. Fisher V Bell (1961) explains how items in shop displays are merely invitations to treat as it was illegal to offer flick knives to people but as it was in a shop display it was technically an invitation to treat, which shows when consumers enter supermarkets they are offering to the supermarket to buy their produce, supermarkets are not offering their produce to the consumer, all the items are invitations to treat. Popular examples also include price surveyors, if you were looking to have a job priced which you may potentially wish to have carried out then this would be an example of an invitation to treat as there are no formal offers being made. A promise is similar to a contract, however, a promise does not need to be accepted meaning only the promiser has any obligations as can be seen in the case of McFarlane V Johnston. Promises are legally binding in Scot’s Law if they are made in a business context or if they are written down and signed by the promiser.
3. No, not all people can enter into a contract, the law will protect people who enter into contracts when they do not have the legal capacity to do so. Any contract which someone has entered into without the legal capacity to do so, will be void. Common groups of people would include the legally insane and children. Children can enter into contracts which are suitable to them for example buying sweets in a sweetshop, but they cannot enter into adult contracts e.g. buying a house. Children aged 16-18 can enter into contracts for adults but will be protected by the law more than someone over 18 would be. The legally insane are also protected when they enter into contracts and this includes people who are extremely intoxicated as they are incapable of understanding and remembering said contract. The law does not let anyone plead intoxication in order to escape a contract, there must be sufficient evidence that the individual was not in their right mind or able to communicate their thoughts knowingly, as can be observed in the case of Pollock V Burns where Pollock agreed to pay Burns some money as Burns has previously purchased a horse from Pollock. Pollock pleaded intoxication claiming he had been drinking heavily in the days leading up to the incident, but was made to pay the money to Burns as he was able to sign the document and help Burns with his coat on his way out. A contract will also be void if someone was forced to enter it with the use of fear, as this means they were unable to use their free will to make the decision to enter into such contract. To successfully void a contract on grounds of force and fear, reasonable evidence must be presented that there was an illegal threat made to the victim which to an unrelated person to the case or either parties would be deemed threatening enough to the point that they did not enter the contract on their own free will.
4. The difference between civil and criminal law is the most important means of classifying law and there are some types of misconduct which can attract action from both criminal and civil courts. Civil law aims to provide a solution and to compensate for a wrong for example a breach of a contract committed by A against B. It provides a system of civil courts through which B can proceed against A. B is known as the ‘pursuer’ and A the ‘defender’. The purpose is not to punish A but to recover from him the losses he has caused B. Criminal Law is interested looks to disallow certain kinds of behaviours and punish it where necessary. There is a system of criminal courts in which the state will take action against the person accused of misconduct which has been viewed by the courts as criminal. Criminal conduct is dynamic and changes in how society views certain behaviours create these changes e.g. sexual behaviour, drug use, smoking, alcohol, possession and use of weapons, abortion, euthanasia. There are two types of procedure in criminal cases, the first being summary procedure in which there is a judge and no jury and therefore the judge makes the decision. The second being solemn procedure where there is a judge and a jury of 15 people and the jury are responsible for listening to the evidence put forward to them and making a decision based on the facts. There are numerous people involved in the criminal courts. The Lord Advocate is the head of COPFS, and leads the system of criminal prosecution and the investigation of deaths and is appointed by the Queen on the recommendation of the First Minister in agreement with the Scottish Parliament. The Lord Advocate is the primary legal advisor but all of his decisions are separated from any other peoples. The Prosecutor Fiscal is the person whom local police reports of criminal offence investigations are submitted, these reports are then reviewed and decisions on whether the case will be taken forward is made with public interest taken into consideration. When considering whether to go forward with criminal proceedings or not in a case there must first be enough evidence, and then the prosecutor fiscal takes into consideration who the offender is and if they have a criminal background, how the local community is affected by this individual and their actions, how serious the crime they have allegedly committed is, how long ago the alleged crime took place and if there were any other witnesses and who they are in relation to the person and what could they want.