Business Law - Nature & Origins of Law PDF

B U S 3 0 7 – B U S I N E SS L AW NATURE & ORIGINS OF THE LAW  Nature of Origins of the Law A universal feature of human society is conflict Law is a system for resolving disputes amongst individuals and disputes between the individual and the State  Law is...

B U S 3 0 7 – B U S I N E SS L AW NATURE & ORIGINS OF THE LAW  Nature of Origins of the Law A universal feature of human society is conflict Law is a system for resolving disputes amongst individuals and disputes between the individual and the State  Law is … … a rule or set of rules governing a person’s conduct  It is enforced by police or individuals themselves through the authority of the courts or, in certain circumstances, specially appointed administrative tribunals  Accompanied by the imposition of a sanction against anyone who fails to comply  i.e. jail or monetary damages  Nature of the Law Body of law is interpreted and enforced by the Courts  It represents values and concerns of the people in the jurisdiction in which it arose Peacekeeping function Predictability vs. flexibility  Predictability vs. Flexibility Balance uniform application of law so that everyone knows what the law is at any point in time with the flexibility to meet society’s changing needs Flexibility is achieved by:  Judicial interpretation of the laws  Parliament passing statutes to replace existing common law or statute law  Purpose of Law Protection of people, property, & goods Upholding public morals Regulate business Protect the ruling class Resolve conflict  Origins Where did the laws which presently govern us originate & how do they continue to develop?  Origins - Sources  Civil code  Quebec  Common law (Case Law)  All of Canada (excluding Quebec)  The Constitution  Statute law  Custom  Legal texts  Civil Code Civil law system  System of law found in Quebec & France  All of the rules are “codified” (written down)  Contrast with common-law  Common Law A.K.A. Case Law: Judge-made law Based on a System of Precedent Judges develop principles of law, which are followed in subsequent cases  Common Law If the facts fit, the principle is applied. If not, the principle may be extended Gradual & constant change Decisions are reported and bound  Common Law Strength of precedent depends on several factors:  Jurisdiction  # of cases stating the principle  Stature of Court  New case vs. old case  Nature & subject matter of case  # of judges involved  Unanimous or dissent  Presence of counsel  Stage of proceedings  Common Law Predictability  Stare decisis – to stand by things decided  Similar cases should bring similar results Flexibility  Sometimes a case has slightly different facts so judges have discretion  Common Law Judges can “distinguish” a case from other cases Ratio decidendi The principle that the case was decided upon Obiter dictum a judge's incidental expression of opinion, not essential to the decision and not establishing precedent. Other comments made by a judge in reaching his/her decision A judge may restrict the ratio of a case by saying facts are different or a certain point was obiter dicta  The Constitution  Basic law from which all other laws draw their power  The Constitution Act, 1867 (Canada)  “Higher law” by which all other laws are judged  Division of powers  Charter of Rights and Freedoms  Freedoms – Religion, assembly, opinion/expression (s. 2)  Legal rights – life, liberty and security (s. 7); unreasonable search/seizure (s. 8); No arbitrary detention (s. 9); to be informed of reason for detention (s. 10(a)); to Counsel (s. 10(b))  Equality Rights – age, religion, race, color, nationality, sex, disability (s. 15/28)  The Constitution Government regulates/controls business environment through legislation  If legislation is unconstitutional = invalid E.g. Lord’s Day Act  Required business to remain close on Sundays  Forced non-Christians to honour a Christian practice  Held invalid for violating s. 2 of the Charter  Statute Law Legislation - made by Federal, Provincial and municipal governments  Doctrine of paramountcy - where there is a conflict between valid provincial and federal laws, the federal law will prevail and the provincial law will be inoperative to the extent that it conflicts with the federal law Overrides all common law on same point! Regulations  Statute Law Why have statute law when we have case law?  Codification  Change existing common law  Update the law when its evolution is too gradual to keep pace with the modern world  Custom & Legal Texts Custom  Originally all law based on custom  e.g. law of merchant, postal acceptance rule Legal texts  Well known authorities are often quoted in the Courts for their interpretation of the law, sometimes followed & legal principles consequently develop  Division of the Law The law can be divided into 2 basic groups:  Substantive law  Cases and statutes specifying a person’s rights and duties e.g. the right to vote, to own property, contract, etc.  Procedural law  The process by which rights are protected and duties enforced e.g. appeal rights, arbitration  Precedent  A agrees to shovel B’s driveway for $100.00.  2 weeks go by and the driveway is not shoveled. B is late for work because he gets stuck in his driveway as a consequence.  A shows up later to perform the contract but B refuses to pay.  A sues B for the $100. Decision:  The Judge decides that since the parties did not agree on the time that the contract was to be performed, a reasonable time will be implied. Because A did not perform the substance of the contract (shoveling) after a couple of weeks had passed, A is not awarded payment under the contract.  Judge also says that in all cases of snow shovelling, the shoveling should always take place within three days of the agreement.  RATIO: A’s substantial non-performance of the contract excuses B from his performance of his obligations (paying A).  OBITER: shoveling snow contracts must be performed within three days.  Example Questions Example #1  C agrees to shovel D’s driveway during the winter months for $200.00.  There is no snow that winter and no shovelling is done but C has already been paid.  D sues to recover his $200.00.  D’s lawyer relies on the case of A v. B. to argue that C was obliged to shovel within 3 days and that failure to do so constitutes substantial non- performance.  The Judge dismissed D’s case. Why?  Example Questions Example #2  E agrees to salt F’s driveway and sidewalk for $50.00.  4 days go by and E does not salt the driveway and sidewalk.  F slips and falls on his sidewalk as a result.  E shows up to perform the contract but F refuses to pay.  E sues F for the $50.00.  How should the Judge rule? Why?  Example Questions Substantive or Procedural Law? A law that sets out that murder is illegal A law that sets out that the appeal period for a conviction is 30 days A law that states an application to the Court of King’s Bench is required to bring a claim for declaration of interest in land  Example Questions Example The Federal law says the minimum punishment for littering is 3 days in jail. The Saskatchewan law says the punishment for littering is 4 days in jail and a fine of $100. Billy is caught littering in Saskatchewan. What punishment will be imposed on Billy? Questions