Research Topics: Law Case Study

BUSINESS LAW OF AUSTRALIA

Question 1   <li class="MsoNormal" style="color: black; text-align: justify; line-height: 200%"> Adam sells the painting to Tania for ,500</li>   In this scenario, Adam functioned as an agent representing the artist, Pauline. He served as a third party to the principal, Pauline. To examine this set of circumstances, a closer look at the legal context of Australia is required. A huge part of the Australian legal system is based on common law system acquired from the English legal system. To this end, determining the outcome of this scenario may well be based on the principles of common law.   In the said case, Adam was commissioned to sell Pauline’s painting at between ,000 and ,000. However, the painting was sold for much lesser than what was indicated in the agreement between the principal (Pauline) and the agent (Adam). At this point, the painting was sold for ,500 which is considerably far from what has been earlier agreed on. Nevertheless, it has also been stated in the case that the principal seeks a speedy disposal of the merchandise and should be notified if an offer to purchase the artwork for much less than the minimum amount agreed on.   In looking at the said fact, the analysis would be based on the basic principles of agency law. At this context, it is assumed there was a contract between Adam and Pauline and that the directive provided by the principal that she be informed of an offer much lesser than the minimum of twelve thousand dollars is not followed by the agent. Specifically, there is no written approval of the said offer.   Based on the said information and assumptions, it appears that Adam has failed to comply with several elements of his part of the contract. This essentially entails a breach on the contract that both principal and agent have agreed upon. To elaborate much further, the agent failed to inform the principal of the low price offered by a Tania and eventually sold the piece of artwork to the said third party. He had done this despite the fact that the principal has not given him the authority to sell the painting for the said price. Adam has failed to provide the principal information that appeared to have been critical to the decision to sell the merchandise. In this context, the agent failed meet the standards of reasonable care, skill, and diligence required and expected from him by the contract. This places Adam in a position where he is liable to Pauline. In this manner, he may be answerable to the remainder of the amount they have agreed upon. This means that Adam is liable to pay Pauline the remaining ,500 in order to satisfy the minimum amount, given that Pauline sought legal actions on the misdeeds of his agent. It is also important to note that Tania, being the third party, has no legal responsibility to Pauline since it appeared that the third party has dealt only with the agent.                    <li class="MsoNormal" style="text-align: justify; line-height: 200%"> Adam buys the painting on his own account for ,000 and subsequently sells it for ,000 to Tom.</li>   The key information on this scenario is whether Adam has communicated his intention to purchase the said piece of art to Pauline. This is information critical on the case of Pauline considering the fact that she expects the piece of art to as much as ,000. Nevertheless, it has also been stated in their agreement that she is willing to accept an amount as low as ,000 since she needs the money. Assuming that Adam indeed communicated to Pauline his intentions of buying the painting himself, then he have already shown intentions to bind legal ties. If Pauline responds positively to this situation, then a totally different contract is on imminent. The principle of offer and acceptance should be highlighted in this category.   Offer and acceptance are among the initial steps in any transactions. For clarity and coherence, the concept of an offer will be discussed separately with the concept of acceptance. An offer should be unambiguous, comprehensive, and communicated to the other party. Thus, certain information disseminating materials that advertises the product to the public is not considered as an offer. An action that is deemed not an offer is portrayed in  (1893) wherein the correspondence is made through telegram. Moreover, the Privy Council noted that the offer was not binding since the mere statement of the lowest price to which the defendant was supposedly seeking to sell does not imply a clear indication of a contract between the two parties. The transaction was just a mere transfer of information. Moreover, once an offer is completed, it could still be withdrawn in any period before the acceptance. However, if the offer is under seal, it could never be revoked. Similarly, it is also possible for an offer to terminate provided that the cut-off date for the acceptance has transpired. On the other hand, an acceptance is the action that the other party undertakes in order to validate a contract. Thus, an acceptance denotes that the other party indisputably agrees with the terms of the contract. According to  (1992), the process of acceptance is twofold. The first one is the fact of acceptance and the other is the communication of acceptance. The offeror is able to dictate the stipulations of the acceptance. Offers could place precise conditions on acceptance and the acceptor is compelled to follow.   Based on the discussions above, it appears that the scenario implies that Pauline indeed sold the artwork to Adam, thus he did not commit any breach if she accepted the offer from Adam to purchase it at the minimum amount. The acceptance of offer releases him from any fiduciary duty from Pauline. The sale of the said artwork makes Adam the owner of the object and is allowed to sell is at any price. And in so doing, he ceases to be liable to Pauline.       <li class="MsoNormal" style="text-align: justify; line-height: 200%"> Adam sells the painting to Thea for ,000. Thea considers this to be a bargain price and happily gives Adam ,000 for himself</li>   The discussions in this scenario still revolve around the contract between the principal and the agent. A contract comprises a “meeting of the minds”. In this context, it is stated that before a contract is signed and enacted, both parties have already established their purposes for joining the contract. In this scenario, the agent has found a buyer for the piece of artwork, which is what is expected by the principal. It has been sold within the price range in which the principal has indicated to the agent. The problem in this setting is revealed when the third party decided to give Adam an extra thousand dollars for his services since she thought of it as a highly considerable bargain.   The relationship involving Pauline and Adam comprise a fiduciary relationship, it has its foundation in common trust and assurance. This means that any of the party involved should not take advantage of the other. And as stated to the agency principles, the agent considering his duties to the principal should not engage in activities that will compromise his loyalty to the principal. In this case, the acceptance of the extra money as a token of appreciation is considered a failure in the fiduciary duty of the agent. It is this seeming attempt to gain privately on the agency relationship that triggered this failure. With this failure of the duty, a breach of contract is present.   Similarly, the Fair Trading Act of 1992 has similarly taken into account such unconscionable acts. (Article 13.1) Specifically, Article 18 of the said piece of legislation particularly noted that offering gifts and other prizes to the parties involved as an unfair practice. In the context of the case, the offer of an extra thousand dollars should be accounted to the principal by the agent.   Question 2   <li class="MsoNormal" style="color: black; text-align: justify; line-height: 200%"> Albatross </li>   In the context of Albatross, they could well push through with their contract with Canary. Based on the facts on their situation with Budgie, it is indeed true that an offer was made. However, because of several circumstances resulting to the swift receipt of Albatross’ intention to create contractual relations, Budgie failed to reply in time. At this instance, it appears that the action relevant in here is the intention of Albatross to bind legal ties with Budgie. An offer was sent but the acceptance was too late.   In cases similar to this one, it is normally a general rule that the offer could be revoked any time the oferror wants to, provided that an acceptance has yet to be given. In this case, there has yet to be an acceptance on the part of Budgie since Albatross has sent the revocation of the offer fifteen minutes before the acceptance was sent in post. Albatross need not to worry about the issue of the Postal Rule considering the fact that they have communicated the withdrawal of the offer prior to the posting of the acceptance.   Moreover, Budgie could claim something against Albatross considering that they are covered by Electronic Transactions Act of 1999. According to Section 14 of the said Act, the message has indeed been sent to Budgie since the electronic communication they sent through fax has left the control of the sender and has actually been received in the information system of Budgie. In the said Act, Section14.4 clearly stated that the electronic communication will be received when it comes to the attention of the receiver. This means that the communication of the revocation need not be read by the receiver to be considered communicated in this context. This reveals that Albatross has indeed taken the appropriate actions to address their situation with Budgie.   On their situation with Canary, their agreement has been merely taken place through instantaneous messages. Though the agreement is theoretically complete with the communication of offer and acceptance, it is recommended to Albatross to seek a meeting with Canary in order to place their agreement in paper. In this manner, a more concrete representation of the agreement will be made. In the same manner, they could jointly agree on installing the specific stipulations in the agreement, aside from the initial offer of ,000 per annum. Moreover, it is also recommended that Albatross install specific clauses in the contract pertaining to the specific actions to be taken by both parties once a breach may take effect.        <li class="MsoNormal" style="color: black; text-align: justify; line-height: 200%"> Budgie</li>   The claim of Budgie appears to be very weak at its face value. Nevertheless, they may have a case if they do intend to acquire court actions against Albatross. In their perspective, it appears that they have acquired the offer at a late date. This is not their fault, as it was the responsibility of the offeror given that they have made considerable errors that became detrimental to the creation of the contract. The point of this matter is that an offer was indeed made and communicated to them by the offeror.   And being interested in the offer, the company sent a reply the instant it have viewed the offer on November 6. As was instructed in the offer, the acceptance was made through post. In looking at this situation, it appeared that Albatross was indeed expecting the acceptance to come through mail. And with this stipulation in the offer, the Postal Rule is applicable. The claim of Albatross that they have not heard from Budgie seems to be inconsistent considering it was only several days since the offer was made. Budgie could claim that there was no time limit stated as a stipulation in the offer. (  (1866) LR 1 Ex 109) Similarly, they could have used other means of communication to verify whether the offer was indeed communicated to them. In this manner, they could have been informed that their letter was misplaced in the mail. ((1879) 4 Ex D 216)   Another claim that Budgie could take is the termination of the offer. Though it is a general rule that the offeror could revoke the offer given that the acceptance has yet to be sent, ((1880) 5 CPD 344) the revocation was not properly communicated to Budgie. The company could also use the Electronic Transactions Act of 1999, particularly Section 14. Since the offeror have used an instantaneous means of communication to convey the revocation of the contract, Budgie could claim that they have not read the message after the acceptance has been posted. They could claim that the message may have been indeed sent through fax but they have failed to deal with it considering they were not expecting any message from Albatross from such medium. As stated in the said Act, it should come to their attention that a message was communicated. Given their situation with Albatross, they could not have reasonably expected the said company to make use of the fax machine as they have vehemently stipulated in their offer that communication must be made through post.                    <li class="MsoNormal" style="color: black; text-align: justify; line-height: 200%"> Canary </li>   As their Albatross had rejected their offer, Canary may have been forced to accept the counter offer of the Albatross. If they feel that they have been disadvantaged by the counter-offer or felt that they have been forced into the contract, they could claim for economic duress. ( (I [1989] 1 All ER 641)   Nevertheless, if they feel that the agreement may benefit them and felt that they have been treated fairly, they should set a meeting in order to establish specific conditions ( (1876) 1 QBD 410) and possible warranties for the implementation of the contract. ((1876) 1 QBD 183) In this manner, both parties’ interests are secured and specific courses of action are agreed upon once breach of contract take place.      References   Credit:ivythesis.typepad.com

BUSINESS LAW OF AUSTRALIA

Question 1 Adam sells the painting to Tania for ,500 In this scenario, Adam functioned as an agent representing the artist, Paul...

CASE REVIEW: LAWSUIT

I.                  Introduction   A contract is fundamentally composed of what is normally called a meeting of the minds of the parties involved in the agreement. In this context, it is settled that prior the signing of the contract and eventually implemented, both parties have previously recognized their reasons and intentions for adhering to the stipulations of the contract. ( 2003, 1189) This similarly indicates that the contracting parties are familiar with the provisions upheld in the contract and affirms that they will honour these passages. Furthermore, all parties signing the contract are supposed to be able to comply with these terms. It is a mutual quality and attributes to furnish parties the capacity to commit, on condition that their contracts are within the scale of their affirmed intent. (, 1995, 356) And to protect the individual parties from any abuse, both the legislative branch and the judicial branch of the government have instituted specific principles that instituted remedies and other responsibilities of the contracting parties. The case of  is a recent example of such cases that has made a considerable effect on the precedent of the contract cases among legal systems adhering to common law principles. This paper will be taking into consideration the effects of the said case on the different aspects of contract law. More specifically, the study will be focusing on the effect of the said case on the principle of mistake in contract law.      II.               Background of the Case   The case o fon involves a rouge who acquired the identity of a certain Mr. Patel. In using such an identity, the said individual then acquired a vehicle on hire purchase, a car to be exact. (, 2006) It was  that handled the credit of Mr. Patel. Being the hire purchase company, the car dealer then contacted the said financing agency in order to inform them of the intent of Mr. Patel to purchase a veinance then conferred with the details that Mr. Patel has provided them and eventually agreed on permitting the said transaction by financing the said hire purchase agreement.   In doing so, the setting consequently established a situainance purchased the vehicle with the expectation of Mr. Patel of renting it as an ultimate customer. And given the fact thate has been fooled by the rogue as to posing as Mr. Patel, the financing agency were in the impression that they were actually renting the said vehicle to the real Mr. Patel. The rouge then sold the said vehicle to a certain Mr. Hudson. This is what brought about the issues in the case, if the contract was deemed valid by the courts (and eventually voidable by means of misrepresentation), claimant may have a good title to the vehicle as stated in the Hire Purchase Act of 1964. On the other hand, if the courts deemed it to be void, the vehicle then continues to be a property of  , leaving Mr. Hudson no right to the car.   A.   Court of Appeals   When the said case was forwarded to the court of appeals, the petition of Hudson was eventually dismissed. This took place even though there is a presence of a dissenting opinion on againstg. According to the said opinion, there is a strong policy relating to the grounds to which Shogun Finance should be held liable for the loss of Mr. Hudson. The said justice’s argument basically took into consideration the logic that in the said situation, the dealer was putting up his/her merchandise up for sale face to face.  claimed that there is a rebuttable belief that the said individual is actually geared towards selling to the individual in front of him/her. He stated even further that the situation is the same even if the said individual is a rogue.   However, the other justices of the Court of Appeals () saw it otherwise. They claimed that the said issue is a matter of policy, and to some extent, was rather uncomplicated. They pointed out the Hire Purchase Act of 1964 where an individual is able to pass any form of title to a third party. The said justices indicated that the rogue was not in any way considered a debtor under the agreement, given the fact that he took on the identity of Mr. Patel. Consequently, the case was forwarded to the House of Lords.   B.   House of Lords   When the case arrived at the House of Lords, the said body took on the task to clarify the specific areas of law which may be used in favor of Mr. Hudson. Moreover, the House of Lords similarly made sure that a specific set of guidelines will be instituted such that any other case similar to this will be addressed systematically in the future. They have reviewed previous cases that have, to some extent, bear similarities to the situations in the said case.y [1972]) In the end, the House of Lords upheld the decision of the Court of Appeals regarding the claim of Hudson., 2006)   The opinion provided  related the case in the context of consumer credit transaction. He claimed that the identity of the consumer is vital to the transaction in general not only to verify that the said consumer will be able to comply with the terms of the contract, but also to take into consideration the credit rating of the said individual. (t, 2006) This means that the background check on the said individual precedes the actual acceptance of the credit company of the finance proposal provided by Mr. Patel. This indicates that if only the Shogun has done its job well enough, the said financing company would have not accepted the said proposal and in so doing prevented the customer from acquiring the vehicle.   The argument of further claimed that there was an error in the way Hudson has attacked the case. (, 2006) The said justice stated that the case was basically based on a written agreement. And the said agreement between Mr. Patel aun was the only pertinent contract in the case, given that there was no contract to begin with. It means that the contract between Mr. Patel and Shogun was void from the start. This is because there was no offer from the real Mr. Patel  to accept in the first place.   In looking at the said arguments presented by, it appears that the said case is concerned with the basic elements of contract la(w 2006) It dealt with the concepts of offer and acceptance, mutual agreement, written agreement and the legal principle of nemo dat non quod habet. ( 1991, 97) The opinion indicated that the claimant regarded his situation as a sale of merchandise, specifically the vehicle from Mr. Patel. He failed to recognize that he was dealing with a financing agency, thus, may well be a case arising from credit consumer transactions. The claimant essentially failed to recognize that it is a matter of basic contract law.   This contention was similarly upheld byr stating that the case was a matter of offer and acceptance. And with such instances, the court should address these issues in an objective mannerr argued that the contention of Hudson revealed that it held the case as a matter of face-to-face contract in relation to concepts of agency. (, 2006) This was seen as erroneous by the opinioer. On the other hand, provided dissenting opinion regarding the matter. They stated that in a situation where a couple of individuals who have dealt with each other regardless of the medium to which they have communicated formed a contract provided that they both consent to the terms of the contract. This means that their contention agrees that a contract is made between the claimant and the defendant notwithstanding that there is deception in the said dealing. And in so doing both are bound by the contract, however, the said contract should be voidable given the deception of the other party.  Thus the said argument claims that the contract is not void for all purposes all though the period of its supposed existence.         III.            Consequences on Common Law   The case provided by  had several implications on common law doctrines. As stated in the decision of the House of Lords, the said case has tackled several issues on contract law. However, the fundamental concepts have taken precedence over the more complex arguments even relating legislation. This part of the study will be taking into account the effects of the case on the principles of mistake, offer and acceptance, and the disposition of non owners. The discussions on the said concepts are going to be based on the decisions made by the House of Lords. Moreover, the use of other similar cases will be used to establish the arguments in every section. A.   Mistake In the context of contract law, an underlying principle of caveat emptor still is generally accepted. However, there are still instances where parties involved in an agreement still takes place. A mistake is generally known as a concept that attempts to “negative or in some cases nullify consent.” ( [1932] AC 161, in , 2006) This shows that a mistake has the power to render an agreement null and void. However, there is the prerequisite that the mistake must be first classified as an operative mistake in order to make an agreement voidable. In the context of common law, for a mistake to be considered operative, the contract must then be void from the very beginning. This means that from the start of the contract or agreement, the properties that has been passed based on the agreement is already void, consequently the obligations that rise from that agreement may then be inexistent. In some instances, several judgments in the context of contract law reveal several conditions where a case may be void based on common law doctrines through the principle of mistake. Nevertheless, there are also instances where the contact is valid at law but may be voidable because of the condition of its equity. Thus, it is still voidable on the grounds of mistake. ( 1997, 112) There are several heads to which mistake is classified: common, mutual, unilateral, mistake to a person, mistake on documents. (, 2003, 829) In this part of the study, a focus on the mistake to the person will be provided given its close accordance to the cas. Moreover specific discussions on issues on face-to-face transactions and written correspondence will also be taken into consideration. In particular, there are issues presented by the case regarding the individual intended to be contracted to be the mistaken party, who the offer is intended to, or whether that individual is supposed to accept that offer.         1.     Unilateral Mistake The case of  is considered as a case of unilateral mistake. In this kind of case, a party is primarily mistaken with reference to the contract and the other party is conscious of the mistake. Similarly, the conditions are such that the parties involved may be believed to be or assumed to be conscious of it. In order for a unilateral mistake to be considered operative, the mistake by a party have to be as to a basic term of the agreement itself, instead of an mistake of judgment as to the value or quality of the product or merchandise. The dissimilarity is presented by a pair of cases. In the first case it was considered a mistake as to a condition of the contract, while in the second it was considered a mistake as to the value or quality of the product or merchandise. Is (1939) 3 All ER 566, the defendants tendered hare skins to the claimant at a definite value ‘per pound’ but had planned to offer them at the same cost ‘per piece’. (inl, 2003, 11) The price of a piece was a third that of a pound. The courts decided that the conditions were such that the claimants ought to have seen the defendants’ mistake which, as it entailed a condition of the contract. And therefore, the courts deemed the contract void. In the cases(1871) LR 6 QB 597), the defendant was revealed a taster of oats by the claimant. (ine, 1998) The defendant was led to belief that they were “old” oats. It must be noted that the defendant did not want “new” oats. However, the claimant gave new oats. The court’s claim was of the view that the mistake was purely as to the value of the merchandise or product and could not cause the contract to be void, even supposing the claimant seller is aware of the mistake. However, if the purchaser mistakenly supposed that the seller had guaranteed that the oats were indeed old and the seller was conscious of this mistake, the mistake would then be considered operative. If a sale of oats supposed by one party to be assured ‘old’ and not proposed by the other party to be so indicated, the contract may then be rendered void.   2.     Face-to-face   This concept is legally known as inter praesentes. (, 1996, 144) In this concept, there is an assumption that the mistaken party wants to be in contract with the other individual who is present physically, this means that the said individual is able to given an offer and the offer is able to be accepted by the said individual. The context of identity, regardless of its truthfulness may well be readily remedied. This is done by rendering the contract void due to fraudulent misrepresentation.  [1919] 2 KB 243, in , 2006)   However, there is this case stating that there is an addition requirement for a contract to be considered annulled. Specifically, in  (1863) 1 H. & C. 803, it stated that the mistaken party must have acquired the reasonable procedures to validate the identity of the other party prior to the actual implantation of the contract. (, 2006) This means that there is the inherent assumption in these types of cases that the one party has good knowledge of the authenticity of the other party. Thus, the said parties should have an identifiable individual to whom he/she intends to make contractual relations.   3.     Written Correspondence   Similarly, it is required in a contractual relationship that a written correspondence is made. This means that the mistaken party would want to create contractual relations with the individual named in the written correspondence. ( (1878) 3 App Cas 459   , 1996, 125) In the casce, it stated that the offer could only be accepted by the actual individual written in the said written correspondence. This means that on the occasion that forged materials and documents are given to the other party, the contract made consequently is considered void. This is because the said written correspondence has been done by a rogue, and thus, without any legal consent given by that actual person’s authority. In instances where there is no real individual in existence, it could be argued that there is no mistake of identity as seen in the case of  (1897) 14 TLR 98. To some extent, the mistaken party should be considered at fault on this context considering they have not done the necessary requirements in establishing an identifiable person to contract with.       4.     Mistake as to a Person In this context, a party makes contractual relations to a second party which the former believes to be a third party (or someone else for that matter). ( (1878) 3 App Cas 459 in, 1996, 125) In the case of Mr. Hudson, he should have considered the real Mr. Patel as a party to the agreement considering the said individual is named as part of the agreement. In the Hire Purchase Act, the purchaser is protected from the debtor. In the  case, Mr. Patel is deemed to be the debtor. However, he was not the one who sold the car to Mr. Hudson. This was carried out by someone posing as Mr. Patel, who have no right to the vehicle or even confer the title of the vehicle. In so doing, Mr. Hudson is legally responsible to the value of the car. The concept to mistake as to the identity is not regarded as an issue in the judgment of . He noted that the case was based on the construction of the written contract. Furthermore, the decision made in the said case reveals that a mistaken party is able to recover the goods, in this case the vehicle, from Mr. Hudson, the innocent third party. This means that in such cases, entities like the car dealer was secluded from the repercussions brought about by cases of fraud.      B.   Offer and Acceptance   Offer and acceptance are among the initial steps in any transactions. For clarity and coherence, the concept of an offer will be discussed separately with the concept of acceptance. An offer should be unambiguous, comprehensive, and communicated to the other party. Thus, certain information disseminating materials that advertises the product to the public is not considered as an offer. An action that is deemed not an offer is portrayed in  (1893) wherein the correspondence is made through telegram. Moreover, the Privy Council noted that the offer was not binding since the mere statement of the lowest price to which the defendant was supposedly seeking to sell does not imply a clear indication of a contract between the two parties. The transaction was just a mere transfer of information. Moreover, once an offer is completed, it could still be withdrawn in any period before the acceptance. However, if the offer is under seal, it could never be revoked. Similarly, it is also possible for an offer to terminate provided that the cut-off date for the acceptance has transpired. On the other hand, an acceptance is the action that the other party undertakes in order to validate a contract. Thus, an acceptance denotes that the other party indisputably agrees with the terms of the contract. According to (1992), the process of acceptance is twofold. The first one is the fact of acceptance and the other is the communication of acceptance. The offeror is able to dictate the stipulations of the acceptance. Offers could place precise conditions on acceptance and the acceptor is compelled to follow.   As seen in the decision of the  case, the issues with regards to mistaken identity and misrepresentation was considered. To this end, the inherent character of the offer in this case was deemed to be the key in resolving these issues. The fact of the case stated that the documents forwarded t  d are deemed to be forged by the rogue posing as Mr. Patel. For this matter, the said offer provided by the rogue may not be considered as a sufficient offer considering that it did not came from the actual Mr. Patel. Moreover, the said offer is not capable of acceptance on the part of.  And in taking into consideration the cited cases above, without a suitable offer and acceptance, or an actual consensus among the parties involved, a contract is inexistent.   C.   Disposition of Non-Owners     The Shogun case has similarly been considered in hire purchase cases. Specifically, the disposition of the non-owner is considered in this context. A purchaser is given the right to keep vehicles when a seller has acquired the goods in an agreement taking a hire-purchase arrangement. This is actually stated in section 27 of the Hire Purchase Act 1964. When taking into consideration of the effect of the case, it confirms the absence of face-to-face contact. This is brought about by the fact that the pretense made by an impostor posing as Mr. Patel deceived the garage sales staff. This consequently means that in similar cases, the rule posed in (1972) 1 QB 198 did not apply. ( 2006) This also entails that there was no contract to begin with. The hire-purchase contract is void considering the said offer was not accepted by the actual Mr. Patel.   In so doing, the court held that the Hire Purchase Act is not in effect considering there was no agreement. The court hheld  should be able to acquire the necessary damages corresponding to the actual price of the vehicle. On the other hand, Mr. Hudson is instructed to return the vehicle. To a certain extent, the decision made in this case is similarly relevant to issues relating to voidable titles.        IV.           Conclusion   The context of mistake as provided by thn case reveled to have been a spawn of a long debate on the said legal issue. The decision in the said case has considerably helped in indicating what is to be done in such cases where such contracts are existent. Though there is still considerable room for the development on the part of legislation, the effects of the case in the legal system has considerably been foreseeable.   To illustrate, the financial institutions will be considerably receiving such a decision from the case as something to work to their advantage. With the advent and rise of credit institutions and other financing companies, the decision made by the  could be used to combat any form of fraud brought about by perverse intentions from rogues and other organizations.   Moreover, there are still areas in society that has yet to be protected by the legal system, especially by then case. Given the dissenting opinionst, it appears that they are trying to change the law regarding the selling of goods. As discussed above, goods are either sold face-to-face or by written correspondence, with the opinions of the said justices, it appears that they want to take in hand the issues present in this sector. It is in these second hand purchasers that appear to be neglected on this case. And with constant review on the proposals made by the dissenting opinions of, it continues to be more appealing than the actual decision of the.   The research made on the case of  has been subjected to purely electronic research. The first step that the author took is to search for the actual transcript of the case as published by the House of Lords. In the said publication, it stated that the said decision upheld the decision of the Court of Appeals. This prompted the researcher to similarly look on the actual transcript published by the Court of Appeals on their decision on the similar case. This established the foundations and basic facts of the case. It also served as an introduction of the case on the part of the author.   Within the decision of the , the author then looked into the cited cases to which the decision of  and the other members are based on. It is in this search that the specific legal principles are recognized by the author. The search was done through the use of Google as its search engine. Given that the citations are presented in a complete manner, the search for the said cases was not complicated. The legal doctrines on offer and acceptance, mistake, and other concepts of contract law were acquired using that method.   On the other hand, the question appeared to have indicated that there is an actual effect on the laws pertaining to mistaken identity with regards to contract law. In looking at the said citations in the HL decision, it appeared early on that the decision was not focused primarily on the concept of mistake and mistaken identity with regards to contract law. The decision has basically indicated that in taking into specific cases, the arguments that the claimant should take must be more basic and specifically pertains to the agreement that took place. To illustrate, considerations issues pertaining to hire-purchase agreements, the researcher found out that in such cases, a debtor and a creditor is involved.   The consequent discussions then are based on the understanding of the author as to the effect of the said case not only in cases of mistaken identity, but in the entire legal system as a whole. To illustrate, the discussions similarly took on the impact of the said case on legislation. Specifically, it showed that certain legislation could deem particular contracts as voidable as shown in the context of Hire Purchase Act 1964 and other equivalent acts in other legal systems.   V.              References Credit:ivythesis.typepad.com

CASE REVIEW: LAWSUIT

I. Introduction A contract is fundamentally composed of what is normally called a meeting of the minds of...

COPYRIGHT – ANTI-PIRACY

Copyrights And Copywrongs Copyright legislation drafted back in the horse & buggy days of the movable type printing press and wax audio recordings are woefully inadequate for the digital era, and some of the band-aid workarounds being proposed and imposed in hope of patching this leaky basket are utterly unsatisfactory solutions to deal with the paradigm shift. Canada’s federal Heritage minister  dropped a big lump of coal in a lot of Canadians’ Christmas stockings in December with the Copyright Board of Canada’s announcement of rates for her new “levy” on recordable media, which is intended to fund a compensation plan for recording artists whose financial estate is alleged to be harmed by people pirating copyrighted music off records, tapes and CDs The Canadian government insists that the new charge is a “levy,” and not a tax, because it is not collected by any level of government. However, when the government mandates confiscation of your money by force of law, in most people’s books that’s a tax, whatever euphemism the lawmakers choose to tack on it. The Independent Canadian Recording Media Coalition (ICRMC), an alliance of small, medium and large businesses as well as individuals, churches and religious organizations who are collectively opposed to ‘ levy/tax on recordable media argues that it unfairly penalizes millions of Canadians who never tape any music, and is unfair, unjust, and quite likely unconstitutional. Indeed Ms. ‘ legislation appears to abandon the principle of “innocent until proven guilty,” by presupposing that everyone who purchases blank tapes and CDs is a thief. This constitutes a fascinating new innovation in jurisprudence; levy the fine presumptively before the crime. In fact, making copies of copyrighted material for private use is legal under Canada’s copyright legislation, so the new tax/levy is a penalty placed on legal activity in many cases of copying — and is actually a quid pro quo enacted to get the industry to agree to the “private copying legislation.” However, I don’t recall any notable public demand to make private copying legal, so who is this law meant to serve? One suspects that few private individuals ever felt any more inhibited by copyright law from, say, taping copies of their LP records onto cassettes, than they would from photocopying pages from a book or magazine — and virtually EVERYBODY I know does that without the slightest ethical pang. No, as Canada’s Copyright Board concedes, while copying any sound recording for almost any purpose infringed copyright prior to the private copy legislation, in practice, the prohibition in terms of private-use copying was for all intents and purposes unenforceable due to today’s copying technologies. Recognizing this, the recording industry convinced the government to set up a straw man in the form of making legal the private copying many people were doing anyway, and then demanding payback in the form of the recordable media levy/tax. “The tax on recordable media will only serve to further pad the wallets of high- profile artists and will do little to assist struggling, up-and-coming musicians,” says the Canadian opposition Reform Party’s Heritage critic . Every individual who uses audio cassettes (except for very short ones) to record church services, speeches, meeting minutes, voice letters, secretarial dictation, or other non-music content will have to cough up cash to fatten the wallets of needy folks like Bryan Adams, Shania Twain, Celine Dion, and Alanis Morrisette. The ICRMC contends that this tax/levy will actually hurt rather than help young startup bands, music students, and working professional musicians who consume large amounts of blank recording media, and who will see their costs for these products increase, without compensation from the revenues raised. Indeed this scheme may have consequences its authors never envisioned. When told about the levy/tax, a young acquaintance of mine who owns a CD-burner commented: “I guess this means that it’s now OK to pirate all we want.” Another issue is whether it’s fair to pick exclusively on the cassette and CD industries. Certainly there are many other sorts of computer media from hard disks to Zip drives that can be used to store pirated material, including the big business music industry’s latest nightmare — MP3s. The US recording industry’s anti-piracy organization, the Recording Industry of America Association, Inc. (RIAA) concedes that staying ahead of technologically advanced pirates presents a greater challenge than ever. “Cyberspace poses unparalleled opportunities for the industry — and unparalleled difficulties in copyright protection,” says a RIAA statement “It’s estimated that more than 100 million computers worldwide are connected to the Internet and most of them can download and store pirated copies of recorded music.” The RIAA says it is channeling most of its anti-piracy resources to Internet piracy, these days, and its weapon of choice is the lawsuit, which is arguably an even more obnoxious workaround than Canada’s recordable media tax scheme. In December, the RIAA filed a contributory copyright infringement lawsuit against California-based Napster, developers of a software product that combines an MP3 player with Web search, FTP and chat facilities, alleging that Napster “is operating as a haven for music piracy on the Internet.” “Napster is about facilitating piracy, and trying to build a business on the backs of artists and copyright owners,” said , Senior Executive Vice President and General Counsel, RIAA. The RIAA alleges in its filing that Napster is responsible for making millions of MP3 files widely available to countless Napster users around the world. As alleged by the RIAA in its complaint, the overwhelming majority of those recordings are pirated, and pirated copies of the recordings of every artist on the current Billboard charts can be located and downloaded from Napster. Napster, says the RIAA, provides its users with all the facilities and means to engage in massive copyright infringement. “No other service on the Net has generated as many calls of outrage from artists, managers and artists’ representatives and others representing the music community’s interests,” said Mr. Sherman. I have no doubt that all of the statements by the RIAA and Mr.  are true. Like this was a big surprise? Anyone who is even casually familiar with the MP3 phenomenon knows that it is being driven to a large extent by piracy. Ever been to Hotline? Without piracy, I suggest that we wouldn’t be seeing another new MP3 player application being introduced every week or so. The developers of Napster claim that since they host no MP3 files, they are not responsible for what people do with their software, pretty much the same stance adopted by Toronto-based Hotline Communications Inc., whose software is used to access what amounts to the Spanish Main of cyberspace. “We do not, and cannot, control what content is available to you using the Napster browser,” says a company statement, . “Napster users decide what content to make available to others using the Napster browser. Therefore, it is the users’ sole responsibility to comply with all applicable federal and state laws applicable to such content, including copyright laws.” Yes, Napster obviously does a more efficient job of seeking out MP3 content on the Web, much of it pirated, but you can do the same thing less conveniently with a standard browser or ftp client. It is a matter of degree and not kind. The operative question here is: should a company that makes software that may be used in the commission of illegal activities, but that also has legitimate and lawful uses, be held liable for what individual users do with it? There are those who argue that gun manufacturers should be held legally liable for crimes committed with the weapons they make. I profoundly and vehemently disagree with this line of rationalization. If the gun-maker is held responsible for, say, a bank robbery committed with one of its weapons, why not the manufacturer that made the getaway vehicle? After all, infamous depression-era bank robber Clyde Barrow (partner of Bonnie Parker) once wrote a letter to Henry Ford telling him what a great getaway car the Ford V-8 made. . Apparently undeterred by the RIAA’s lawsuit against Napster, Blackhole Media announced late last month a preview release of Macster — a port of Napster for the MacOS. Like Napster, Macster allows users to search and download music from participating music groups, as Blackhole puts it: “offering a revolutionary way for upcoming bands to broadcast their music in MP3 format to millions of users…. Macster will allow Macintosh users to demo new and upcoming music from all over the world.” The Macster release was received enthusiastically by the Mac online community.  noted that its crew had “been salivating” over Windows-only Napster since its debut, and posted some thoughtful musings on MacSter’s significance, observing that “The whole reason for Macster’s existence is to effortlessly pull a dynamite MP3 collection together,” while acknowledging that “some of the files you most probably will be downloading are copyrighted, and are not legal authorized copies.” The piece further notes that “here at PowerPage World HQ you might occasionally see an eye patch here and there…. North Americans… are independent folk that like flying the Jolly Roger from time to time.” PowerPage says it tends “to side with Napster on [the RIAA suit]. Merely making something available is not a reason for the shooting the messenger strategy RIAA seems to advocate. The Internet would be shut down as just one big porn site using this logic… Macster and Napster are not the problem.” On December 30,  reported that a judge in California had denied a request from movie industry interests to order the removal from certain Web sites of information and links to a software program that can reportedly facilitate making high-quality digital copies of movies. Santa Clara County Superior Court Judge  ruled that the Websites may continue linking to other Web sites that include the source code of this movie “cracking” program, called DeCSS, as well as posting information about the program’s use. The DVD Copy Control Association (DVD CCA) a trade association for movie distributors and manufacturers of video CD-ROMs similar to the RIAA had filed a lawsuit claiming that the Websites in question had posted “trade secrets” and “proprietary information” on defeating anti-piracy measures that inhibit copying movies. The lawsuit also cited hundreds of “John Does” globally that have posted information about the piracy software online. The DVD CCA bases its argument on alleged the financial and commercial harm that the piracy information might cause the DVD industry. The defendants argue that the lawsuit is an attempt to abrogate free speech. Speaking for the defendants,  of the Washington-based online rights group Electronic Frontier Foundation is quoted by Mr. as saying: “Although this is only a temporary victory, as we do have a long road ahead of us, it’s great to know that we have stood united and strong and that we have not been suppressed by the DVD industry and the actions that they taking to try to shut down certain aspects of the Internet,” Mr.  himself was named in the lawsuit, since his Web site includes an extensive list of information and links about the software program. The DVD CCA’s legal complaint reportedly claims that making information about the movie pirating software available is harming the DVD industry and its ability to protect its intellectual property. Again however, as with the RIAA’s claims about Napster, the DVD CCA seems to be asserting a right to censor and control technological knowledge, rather than addressing the much more difficult task of going after people who are committing actual copyright crimes using the technology. In this instance, it would seem that the DVD CCA might have a stronger case against the Websites than the RIAA has against Napster, since Napster actually does have legitimate and lawful uses. It would be a big stretch to say the same about a crack that allows people to make pirate copies of DVD movies. It will be interesting to see how the respective cases play out. Last month, MacWorld has published a comprehensive look at the MP 3 phenomenon by , who says that the MP 3 audio-compression format is “the biggest musical shift since the CD” Mr.  notes: “the idea that unsecured, highly transportable, high-quality audio files can be swapped across the Web is a daunting reality for many record-company executives who fear losing both money and control over distribution, and he acknowledges that MP3 music files have been placed on the Web in violation of copyright laws — uploaded by individuals who have no legal right to distribute them, and that downloading these files is illegal as well. Mr.  shares my skepticism that the recording industry will ultimately be able to fend off the MP 3 tidal wave. ÒThe genie is out of the bottle, and the efforts of all the massed legal departments of the record companies canÕt put it back,Ó he writes, further noting that some Òmajor recording artists who understand the promotional value of free music are beginning to release selected cuts-or portions of cuts-in the MP3 format.” “MP3,”  concludes, “is here to stay.” I fully understand why the established recording industry is even more unhappy about the MP3 revolution than they are about private copying, the fact remains that it IS a revolution, and I am skeptical that they will ever be able to effectively fight it. The Internet and MP3s have “democratized” the dissemination of music as well as other forms of intellectual property, and as I noted at the beginning of this article, copyright legislation as we have known it is no longer adequate to deal with the new technological realities. These musings are not intended as advocacy or endorsement of music, software, or literary piracy. I am a producer of copyrighted material myself, and I don’t dispute that piracy is illegal. I am merely observing what I believe to be fact. Tight legal control over ownership of intellectual property is no longer possible in this digital age. It really hasn’t been since Xerox popularized the photocopier.  of The Register reported this week that 40% of schools in the UK are pirating software, according to a survey by Microsoft. Apparently half of British primary schools and one quarter of secondary schools claimed ignorance of the fact that it is illegal to make multiple copies of software without buying licences for each computer. Ms.  says that UK Software piracy blamed for over £400 million in industry losses annually. The operative issue is not whether or not making copies of copyrighted material is a crime. Under existing copyright legislation it is — unambiguously. However, there is a common law aspect to the development and evolution of legal conventions, and when schoolteachers and college professors routinely photocopy copyrighted material to use in class, and advise their students to do the same; when ministers of religion routinely photocopy copyrighted material to distribute in church services; when everybody and their dog photocopies stuff from magazines and library books for personal reference or to hand out to their friends (not to mention all the stuff that gets scanned into computers and distributed over the Internet); I submit that the law is no longer working or workable. According to a recent report in the ‘s, an estimated 40 per cent of business software in use last year in Canada was pirated, and about 25 per cent of business software in the United States. While few people will outright candidly admit to being pirates, my son operates a small Mac repair and consulting business, and I can’t recall one computer I’ve watched him work on, including those belonging to clergymen, lawyers, and schoolteachers, that didn’t have pirated software on its hard drive. The workaround rationalization among some of those who fly the Jolly Roger in cyberspace, or in other venues of software piracy, is that “all software ought to be free,” which is easy to say when you aren’t the one writing the code or paying big bucks for someone else to write it. And while it may soothe the pricks of one’s conscience to mutter “How rich does Bill Gates need to be?” the fact is that 60 per cent of the Software & Information Industry Association’s 1,400 members have yearly revenues under million. Nevertheless, last fall when I interviewed an informal panel of Hotline users for an article the appeared here on Applelinks, they forcefully insisted that piracy actually helps, rather than hurts the software and music industries. The RIAA notes that: “The downloading of an unauthorized MP3 file constitutes copyright infringement. It is equivalent to going into a record store and taking a copy of a single (or album) without paying. It deprives artists, writers and producers, among others, of compensation for their creations.” Well, not quite equivalent. For one thing, literally millions of people who would never dream of shoplifting a book, album, or packaged software item, seem to have no ethical qualms about photocopying, and making unauthorized music or software copies. How do we explain this? I think one reason is that going into a store and pocketing a tangible piece of physical property is perceived as something quite different from copy piracy. Another is that in the case of shoplifting, the author or recording artist does still get paid — it is the retailer who gets ripped off, so the RIAA’s analogy is faulty. Yet another is that the human mind finds the concept of intellectual property considerably more abstract, slippery, and nebulous than the concept of physical property. I think it would be accurate to suggest that when most consumers buy a book or CD recording, their gut perception is of having purchased a physical item, more than the concept of its intellectual content. Of course, with say, a CD, the cost of the physical medium represents a small fraction of the purchase price, but that gut-perception is still that property is something one can touch, even for people who intellectually know better. Which is why I have to shake my head when I hear software and recording industry spokespeople talk about “educating” the public to understand that piracy is wrong. Perhaps repeating this to themselves makes them feel better, but they’re whistling past the graveyard. How dumb do they think people are? My guess is that most people know that software/music/whatever piracy is illegal, but I’m not going to hold my breath waiting for Microsoft and the RIAA, et al., to succeed in making vast numbers of people feel guilty about it. As for hardball tactics, the RIAA may or may not succeed in making an example of Napster. They played the litigation card unsuccessfully in 1998 against Diamond Multimedia, alleging that Diamond’s Rio portable MP3 recording device violates the Audio Home Recording Act (AHRA). The RIAA did manage to convince a federal court to grant a 10-day temporary restraining order to enjoin sale of the Rio device, but at a subsequent hearing their request for a preliminary injunction against Diamond was denied. The judge concluded that although the Rio is likely to be covered by the Act, the absence of serial copyrighting technology — the feature designed to prevent unauthorized duplications — was merely a technical violation and the Rio would likely be certified by the Secretary of Commerce as complying with the AHRA. The RIAA and other industry interests have since filed an expedited appeal; Diamond has filed a countersuit against the RIAA. As with the photocopying issue for print publishers, it’s hard to imagine how the music recording industry can ultimately win this one, however much the letter of the law is on their side. They might succeed in getting a US court to rule against a pipsqueak company like Napster, but even if they do, other Napsters will spring up in its place in areas outside US jurisdiction. Ditto for Websites and/or Hotline sites that archive pirated MP3s. The US courts do not and cannot control the entire Internet. It’s kind of like prohibition. A lot of legitimate-looking Websites and Hotline sites operate like speak-easies did in the ’20s and ’30s, with a “dry” restaurant operating as a front, and an illicit bar in the back room or basement. Similarly sites are set up with only innocent and legitimate content visible to the casual visitor, but vast libraries of pirated MP3s and computer software available to insiders. Just as the full weight of government enforcement proved impotent to stop the bootleg liquor trade, it is likely to meet with about the same degree of success against music and software piracy, and for the same reasons. As with the photocopying situation, the question must be asked: when lawbreaking reaches levels like this, is the law workable anymore? The RIAA concedes that “the Internet culture of unlicensed use means that theft of intellectual property is rampant… Unauthorized Internet music archive sites using compression technology such as MP3 provide illegal sound recordings online to anyone with a personal computer. They can be downloaded and played indefinitely, without authorization of or compensation to the artists… What is certain is many individuals see nothing wrong with downloading an occasional song or even an entire CD for their personal use, despite the fact it is illegal under the recently enacted NET Act.” Given these practical dynamics, the RIAA seeking to bust the chops of little startup companies like Napster, out of all the suppliers of software and hardware products that facilitate piracy, with its bizarre reported demand for 0,000 damages for each song pirated using the software, seems more than a little like spiteful and vindictive bully tactics against little guys with shallow pockets. As  of The Register observed: if “Napster can be declared guilty of contributory copyright infringement on the basis of what other people do with its software… then the manufacturer of every tape deck, floppy drive, CD-R unit is equally culpable.” One has to ask, why is the RIAA not suing Microsoft? Doubtless a lot more people download pirated MP3s with Internet Explorer than with Napster. One gets the distinct impression that the RIAA and its industry members would like nothing better than to turn back the clock to the days of LP records and factory-recordable only CDs, when they had *control.* However, that’s not going to happen. You can’t uninvent technology, as desirable as that would be in some cases. The real conundrum is how to come up with a way to ensure that creators of intellectual property can be fairly compensated for their work given the technological realities of our time. If I had the answer to that question, I would likely not be writing this column. However, I do know that taxing recordable media and suing software developers because it is impossible to get at the actual pirates is not only not the answer, it is unjust and plain wrong. Perhaps the orientation should be to abandon the futile fixation on prohibiting unauthorized private copying and think of more innovative means of compensation and protection. As I said, I haven’t got the answer, but it surely isn’t the tactics and strategy being pursued by the Canadian government, the RIAA, and the DVD CCA. Credit:ivythesis.typepad.com

COPYRIGHT – ANTI-PIRACY

Copyrights And Copywrongs Copyright legislation drafted back in the horse & buggy days of the movable type printing press and wax au...

Abortion Case Study

Abortion and Contraception   Introduction             One of the relevant issues present today in different communities, regardless of religion and social status, is the issue regarding abortion and contraception. More often than not, teenagers are the ones being involved in these issues nowadays, and most of the time, parents have no consent on the decisions being made by their children regarding this issue, for the fear of being scolded or grounded. Different laws have been passed worldwide against abortion in accordance to the laws of the Church and for preserving human life. This in accordance to the campaign of the Church to preserve the lives of many infants, as many opts for abortion than to proceed to having the baby, than risking their career and “happy” life. In relation to abortion, the issue of using contraceptives also becomes relevant, for its use to prevent pregnancy is a good source of debate. For the Church, contraception is not allowed for they consider pregnancy to be a blessing from God. On the other hand, most citizens, especially the officials from the government support the use of contraceptives, so as not to significantly increase and affect the nation’s population. This is also to promote responsible family planning, for reasonable reproduction and allocation of resources to children.               These two issues are related with one another, as abortion is somehow dependent on the use of contraception. Many believe that if contraceptives will be used during sexual intercourse, then pregnancy will be avoided and in turn, abortion will be prevented. This issue is most relevant to many couples who are not yet ready to have a child. In this paper, the issue of abortion and contraception under the age of 16 without the consent of the parents will be discussed. It will also analyze the legal case behind the Gillick v West Norfolk Area Health Authority or the House of Lords in 1986. This paper also includes the cases, which somehow influenced the judges to decide that to advice abortion and contraception is not illegal.   Case Study             The Gillick case in 1985 became a basis in different move regarding contraception and abortion in different parts of the world. The case disputes the fact that doctors are allowed to prescribe contraceptives to children under the age of 16 without the knowledge or consent of their parents (1999). At the time, it was envisaged that in the majority of cases, the doctor would be able to persuade the child to inform her parents, and only in exceptional cases would a prescription be given without their knowledge (1999). The judicial process, stirred by Victoria Gillick against the local authority having the power to prescribe contraceptives to her daughters, was remarkable in that of the nine eminent judges involved, through the Appeal Court and the House of Lords, five judges was found in her favor and four judges opposed (1999). Lord  judgment stated that a doctor can overrule the parent’s rights and duty only if he is satisfied that the girl can understand his advice (1999). Lord Scarman said this understanding must include moral and family relationship questions as well as long-term problems associated with the emotional impact of pregnancy, its termination and the risks of sexual intercourse (1999). The case has stirred debate in different parts of the world, as this issue becomes a crucial issue whether or not contraception advice could be given to girls under the age of 16.             From this, the data regarding the trend of teenage pregnancy is essential to know for it is related to the issue of contraception, for without contraception, pregnancy can happen. Live births for ages 16-19 year olds in England and Wales in 1983 resulted to 56.3% and were registered outside of marriage, but increased to 87.8% by 1993 (2006). It has been reported that trends over the last two decades, the introduction of free contraception in 1974 led to a decline in teenage pregnancy rates, for in 1973, the total contraception rate per 1,000 teenagers in England and Wales was 9.2 for 13-15 year olds and 75.2 for 15-19 year olds (2006). Ten years later, the raters were 8.3 and 56.0, of which just over half were terminated for the 13-15 age group and a third for the 15-19 age groups (2006). Thereafter, rates increased until a peak in 1990 (2006), which was probably brought about by different factors.             First factor is the Gillick’s case, which caused a great deal of confusion over teenagers’ access to confidential help and advice ( 2006). Second is the onset of economic recession, which led to a decline in young people’s job opportunities (2006). Lastly were the cuts in family planning clinics, which restricted access to services (2006). These factors contributed to the increase in the number of pregnancy cases and in abortion as well. It follows that if many become accidentally pregnant, then a solution to unwanted pregnancy would be abortion. The increased cases of abortion are alarming, so it would be better to seek contraceptive advice from doctors. This phenomenon would not actually encourage sexual experimentation on the part of the teenagers, but would inform them of engaging into safe sex. Although, it is still a given fact that teenagers are still under the responsibility of their parents until the time they become matured enough to decide for their own. With the increasing incidences of teenage pregnancy and abortion in the United Kingdom and in other countries around the world, it would be also better if many teenagers and members of other age groups would seek advice from doctors and other specialists, to obtain information and safety measures.     Reasons behind the Law             It has been reported that having regard to the reality that a child became increasingly independent as it grew older and that parental authority dwindled correspondingly, the law did not recognize any rule of absolute parental authority until a fixed age ( 1985). Instead, parental rights were recognized by the law only as long as they were needed for the protection of the child and such rights yielded to the child’s right to make his own decisions when he reached a sufficient understanding and intelligence to be capable of making up his own mind ( 1985). Accordingly, a girl under the age of 16 did not, merely by reason of her age, lack legal capacity to consent to contraceptive advice and treatment by a doctor ( 1985).             These statements became the basis for the decision of judges to allow girls under the age of 16 to seek advice and treatment from a doctor regarding the use of contraceptives. These just mean that the court of United Kingdom trust the judgments of children, as long as they are capable of thinking for themselves and caring for their body. From these statements, it can be deduced that most adults or parents in the United Kingdom trust their children very well and let them decide on such delicate issues, such as sexual intercourse at a very young age, pregnancy and contraception. In addition, parents give their children the right to make responsible decisions, as in relation to the mentioned issues. This means also that parents can allow their children, especially their young daughters to engage in sexual relations, and to seek advice from doctors regarding contraception and abortion.             Moreover, it followed that a doctor had a discretion to give contraceptive advice or treatment to a girl under 16 without her parents’ knowledge or consent, provided that the girl had reached an age where she had a sufficient understanding and intelligence to enable her to understand fully what was proposed, that being a question of fact in each case ( 1985). It also followed that the department’s guidance could be followed by a doctor without involving him in any infringement of parental rights or breach of the criminal law ( 1985). From these statements, it can be understood that doctors can give advice and treatment to young girls even under the age of 16 regarding contraception, given that the girl understands the consequences of her decision and has the proper knowledge regarding her situation. If the doctor decides to give advice to the girl, then the doctor will not be held responsible for any offense and will not be blamed for anything that has happened to his or her patient, as a result of the doctor’s advice.             In accordance to other laws, such as the Child Care Act of 1980, this law has also made special considerations regarding contraceptive advice on girls under the age of 16. It has been reported that members of the medical profession should exercise ‘special care’ so as not to ‘undermine parental responsibility and family stability’ in advising persons under the age of 16, will always seek to persuade the child to involve the parent or guardian, and will proceed from the assumption that it would be most unusual to provide advice about contraception without parental consent, other than in exceptional cases ( 2006). However, doctor or patient confidentiality was not to be abandoned for children under the age of 16 ( 2006). Another law is the Children Act of 1975, which states the right of a child to be taken care of through adoption (‘The Children Act 1975 and the Adoption Act 1976’ 2000). It also follows that the new parents of the adopted child has the responsibility to guide the child in making decisions. However, when the time comes for the adopted child to decide on her own, it will still be in the discretion of the doctor to advice the child regarding contraception. Lastly, the Family Law Reform Act of 1969 states that bodily samples and scientific tests can be done to children even under the age of 16, except for children with disability, such as mental disorder and incapable of understanding the nature and purpose of scientific tests (1969’ 2006). This means that if these three other laws will be made as a basis, giving medical contraceptive advice to girls under the age of 16 will not be sanctioned as illegal. This is also in accordance to the Fraser Competency, where a medical professional can examine or treat a patient under the English law if and only if there is a doctor to disclose relevant information regarding the intervention, the patient is competent enough to make a decision, and the patient decides voluntarily (2006). The Fraser Competency Rule requires that any child below the age of 16 can give consent when they reach the necessary maturity and intelligence to understand fully the advantages and the disadvantages of their decision (2006). However, even the child is considered to be Fraser competent, doctors should still encourage the child to inform their parents (2006) regarding their decision.             Given the fact, that doctors’ advice to teenagers regarding contraception and other medication is just as important as seeking for treatment, the responsibility of parents over their children should still be upheld. Although the child is covered by the Fraser competency, the consent of the parents for her to be advised by the doctor regarding contraceptives must still be given. This is to guide the child in her decisions, as her parents are already experienced in these matters. Furthermore, although the doctors are given rights to give contraceptive advice to teenagers, they should still be responsible enough to only give information and treatment to teenagers regarding safe sexual intercourse and not encourage teenagers to engage in sexual experimentation. This should become a safety precaution for many teenagers, although intelligent and have sensible moral standards (1999), could be greatly influenced by their friends, and could be a stimulating factor for them to become interested and engaged in premarital sex. Their friends or peers could also be the persons who could influence them to result to abortion.   Conclusion               Contraception and abortion are two different concepts and issues, which present consequences. With the cases and statistics stated in the paper, it could be deduced that both of these issues present significant effects in the society and in the population. Contraception and abortion have a connection. Contraception facilitates the kind of relationships and even the kind of attitudes and moral characters that are likely to lead to abortion (1993). The contraceptive mentality treats sexual intercourse as though it had little natural connection with babies; it thinks of babies as an “accident” of pregnancy, as an unwelcome intrusion into a sexual relationship, as a burden (1993).             It is evident from the statements that the relationship of contraception and abortion presents negative effects to the society. Although some may claim that positive effects can be achieved, deciding to use these methods greatly affects the morality of individuals in the society. Thus, it is just right to become more responsible in actions, for these can affect many things. It would be appropriate to take responsibility over our actions to create a pleasant society.   Credit:ivythesis.typepad.com

Abortion Case Study

Abortion and Contraception Introduction One of the relevant issues present today in different communities, regardless of...