Case Law Assignment: Answers Based in Legal Situations (Research Paper Sample)

Case law assignment
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Question 1
Case law refers to the decisions made by judges in a court of appeal as well as other courts with new interpretation of law making it a precedent to other decisions that will be made by other judges in future(Keenan and Smith, 2001). The judges will make a ruling based on interpretation of other existing laws on a case that has appeared to the court for the first time. Any similar case to be presented to the court of law will be based on the decisions made in this case(Keenan and Smith, 2001). A judge can distinguish from a case even if the facts of a new case are very similar to an old one.For instance, in 1932, Mrs Donoghue had gone to a café together with a friend who bought her ginger beer and ice cream(McIntyre & Company, 2015). The bottle containing the beer was opaque and the contents were not visible. As Donoghue was pouring the content into a glass, she noticed a snail emerging from the bottle and as a result she decided to sue the beer manufacturer. The court held that it was the responsibility of the manufacturer to ensure that the consumer products were safe(McIntyre & Company, 2015).
Statute law refers to the written laws which have been enacted by the legislature(Bennion, 1980). They are passed on federal state level. Statutory laws act as subordinate to constitutional laws that have been established in the land. The law is used to give directions on given acts and it may also forbid some acts(Bennion, 1980). It can make declarations on the given land as well as set up mechanisms to be adopted by the government to assist the society. This law is established to be used at specific circumstances, for example, the compensation scheme in the UK established under article 10(1), (3), (4) and (5) of the Fire services which provides guidelines for compensation of the fire-fighters (Shepley, Streetly, Voyce&Bamford, 2009).
Privity of contract holds that the contracting parties possess both the rights and liabilities concerning the given contract(Keenan and Smith, 2001). The contracting parties may sue one another according to the terms and conditions of the contract. A third party has no such rights.The third party may experience problems with suing anyone in this case even when it is clear that the enforcement of the law will be beneficial to them. For instance if A promises B to move for a certain fee and fails to give the fee, only the two parties can sue each other and not a third party(Keenan and Smith, 2001).
Ratio decidendiis Latin term meaning ‘the reason’ or ‘the rationale for a decision’. This refers to the explanation given after a case has been ruled(Keenan and Smith, 2001). It gives an explanation for the reasoning behind the ruling that has been passed. The decisions made by the ruling party are majorly based on legal, political, moral and social principles of that particular region(Keenan and Smith, 2001) and has proved to be one of the most important tools that lawyers use. Ratio decidendimay hold a given case to allow cases in future to which it will build on to make a decision. In this case the decision will be made by citing a precedent(Keenan and Smith, 2001).
The battle of the formsis a situation that exists whereby two parties are willing to enter into a contract and each party want the contract to be governed by their terms and conditions(Keenan and Smith, 2001). This is commonly experienced in construction contractssuch as the case involving two companies, Pro-Duct (Fife) Ltd and Specialist Insulation Ltd in 2010, which entered into a contract where Pro-Duct supplied ductwork to Specialist Insulation.Each party demanded that their terms could apply in the contract(Scotcourts.gov.uk, 2015).This kind of situation implies that neither of the parties is aware of the terms and conditions that are in use for the given contract which normally involve very strict rules(Keenan and Smith, 2001).
Question 2
Construction documentation involves the preparation of a plan that specifies all the requirements necessary for a construction project(Charlton, 2005). It gives a detailed outline on which procedures and methods are going to be applied in the construction process. It acts as a bridge between the design of the building and the final building itself(Charlton, 2005). The documentation services to be provided will depend on a number of factors such as the size of the project and the client requirements(Charlton, 2005). The documentation takes into consideration work approaches of all the firms involved in the construction. The documentation reviews the contract and purchasing orders by focusing on the clauses that are likely to limit therecovery of additional costs that may come as a result of a claim(Charlton, 2005). It also reviews the bid documents. These are necessary to enhance professionalism and accuracy of the cost plans(Charlton, 2005). It also provides project diaries representing daily entries of the events during the construction(Charlton, 2005). The document provides the legal measures that should be considered in the construction process. Since the construction process is always dangerous, there have been established health and safety regulations to enhance the quality of life(Charlton, 2005).
The regulations require the managers to conduct an assessment of health risks likely to occur as a result of the construction. This is aimed at coming up with correct strategies to prevent the risks and thus protect the workers against the risks(Bull, 1996). The regulations provide a hierarchy of the measures to be adopted, both protective and preventive. Prevention is considered the best option. The managers are tasked to come up with comprehensive plans, monitoring and reviews programs for the health and safety of the workers with regard to the Safety Policy provided by the Management of Health & Safety Regulations 1999.(Bull, 1996).The regulations also require the managers to conduct health surveillance in cases where risk assessment identifies such cases as a serious health conditions related to the particular work that is being done(Bull, 1996). According to the regulations, it is the responsibility of the managers to ensure that only sufficient people are allowed to approach dangerous sites. These include fire or bomb explosions(Bull, 1996). The employers are required to give out necessary and accurate information with regard to the any threat to their health and safety, preventive and protective measures, and the measures available to tackle dangerous situations.They should also give information about the people in charge of the health and safety in the site(Bull, 1996). This therefore requires the management to ensure they have proper understanding of the situation at the ground and verify facts so as to get equipped with accurate information as required. In case two people share a work place, the regulation requires cooperation among them by in sharing any information concerning health and safety issues. This can be achieved through enhancement of good working relations among the workers in the construction site.(Bull, 1996). The regulation requires the document to consider new and expectant mothers. They (pregnant mothers), however, required to notify the employer through writing so as the employer can include the information of any safety measures in the risk assessment(Bull, 1996). The regulations also protect young people against some tasks regarded as dangerous including exposure to certain chemical agents(Bull, 1996).In such cases, the management needs to ensure they have verified the documents of their workers, particularly their age, to ensure they are not infringing the law.
Question 3
Arbitration
This is a process identified in conflict resolution whereby two conflicting parties present their case to a neutral third party. The third party will examine the arguments of the conflicting parties, with regard to the evidence they provide before making a decision for them (Doherty and Guyler, 2008). This case is normally a win-lose. This implies that it comes up with decisions that prove one party wrong and another one right(Doherty and Guyler, 2008). This is contrary to the court based adjudication where everyone comes out as a winner. In this case, the conflicting parties seem to act as opponents against each other. This process of case resolution is commonly used in settling cases relating to business disputes(Doherty and Guyler, 2008). Several international organisations have adopted this system of conflict resolution to solve emerging conflicts. This is a good approach especially when the parties are angry and do not cooperate(Doherty and Guyler, 2008).
Adjudication
This is legal process whereby the conflicting parties present their case to the judge who is an expert in conflict resolution(Doherty and Guyler, 2008). The judge reviews all the tabled evidence from both parties as well as the legal provisions before making a ruling. The type of cases solved by this process may include those between individuals and public bodies and officials(Doherty and Guyler, 2008). The decisions made in this case are binding to both parties which they must agree on prior to the commencement of the case. This process helps to solve cases immediately therefore saving time(Doherty and Guyler, 2008). However, if one party in not contented with the decisions, the unsolved issues can be tackled on another level such as the court on a special request (Doherty and Guyler, 2008).
Expert determination
This provides procedures to solve disputes that are technical in nature (Doherty and Guyler, 2008). In such cases, anexpert is used as a third party who makes the final decisions. The expert gets appointed on contract through established procedures in legal agreements. For instance, in 2003, two neighbours disputed over land ownersh...