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fandomhigh2006-03-21 05:59 pm
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Business Classes
Business Law - Period 1
"This week we start our exciting unit on Contracts," Lorelai says with a grin.
"A contract is a "promise" or an "agreement" that is enforced or recognized by the law. In the civil law, contracts are considered to be part of the general law of obligations. This article describes the law relating to contracts in common law jurisdictions."
Comparison of contract and tort law
The law of obligations has traditionally been divided into contractual obligations, which are voluntarily undertaken and owed to a specific person or persons, and obligations in tort which are based on the wrongful infliction of harm to certain protected interests, primarily imposed by the law, and typically owed to a wider class of persons. Recently it has been accepted that there is a third category, restitutionary obligations, based on the unjust enrichment of the defendant at the plaintiff’s expense. Contractual liability, reflecting the constitutive function of contract, is generally for failing to make things better (by not rendering the expected performance), liability in tort is generally for action (as opposed to omission) making things worse, and liability in restitution is for unjustly taking or retaining the benefit of the plaintiff’s money or work [Beatson (1998) Anson’s Law of Contract, 27th ed. (Oxford: OUP), pg. 21].
[edit]
Scope of common law contract law
Basic common law contract law addresses four sets of issues:
1. When and how is a contract formed?
2. When may a party escape obligations of a contract (such as a contract formed under duress or because of a misrepresentation)?
3. What is the meaning and effect to be given to the terms of a contract?
4. What is the remedy to be given for breach of a contract?
Contract formation: There must be an agreement which consists of an offer and acceptance, consideration (see also consideration under English law) and contractual intention for a simple contract to exist: i.e. it is not a deed - otherwise no consideration is needed.
Subject to the sine qua non of Contract Formation, other ingredients that make up a contract include:
* Form - In some cases, certain formalities (that is, writing) must be observed.
* Capacity - The parties must be legally capable of entering into a contract.
* Consent - The agreement must have been entered into freely. Consent may be vitiated by duress or undue influence.
* Legality - The purpose of the agreement must not be illegal or contrary to public policy.
A contract which possesses all of the above ingredients is said to be valid. The absence of an essential element will render the contract either void, voidable or unenforceable
In some situations, a collateral contract may exist.
Meaning and effect of contract terms: Many contract disputes involve a disagreement between the parties about what terms in the contract require each party to do or refrain from doing. Hence, many rules of contract law pertain to interpretation of terms of a contract that are vague or ambiguous. The parol evidence rule limits what things can be taken into account when trying to interpret a contract.
Privity: In general, only parties to a contract may sue for the breach of a contract.
[edit]
Validity of contracts
For a contract to be valid, it must meet the following criteria:
* Mutual agreement - (see main article offer and acceptance): There must be an express or implied agreement. The essential requirement is that there be evidence that the parties had each from an objective perspective engaged in conduct manifesting their assent, and a contract will be formed when the parties have met such a requirement. (Notice that the objective manifestation requirement means that one need not actually have assented so long as a reasonable person would believe that assent had been granted.) For a contract based on offer and acceptance to be enforced, the terms must be capable of determination in a way that it is clear that the parties' assent was given to the same terms. The terms, like the manifestation of assent itself, are determined objectively.
* Consideration: There must be consideration (see also consideration under English law) given by all the parties, meaning that every party is conferring a benefit on the other party or himself sustaining a recognizable detriment, such as a reduction of the party's alternative courses of action where the party would otherwise be free to act with respect to the subject matter without any limitation. Consideration need not be adequate, e.g. agreeing to buy a car for a penny may constitute a binding contract. (q.v. Chappell & Co Ltd v Nestle Co Ltd [1959] 2 All ER 701. (UK common law))
* Competent, Adult (Sui Juris) Parties: Both parties must have the capacity to understand the terms of the contract they are entering into, and the consequences of the promises they make. For example, animals, minor children, and mentally disabled individuals do not have the capacity to form a contract, and any contracts with them will be considered void or voidable. Although corporations are technically legal fictions, they are considered persons under the law, and thus fit to engage in contracts.
For adults, most jurisdictions have statutes declaring that the capacity of parties to a contract is presumed, so that one resisting enforcement of a contract on grounds that a party lacked the capacity to be bound bears the burden of persuasion on the issue of capacity.
* Proper Subject Matter: The contract must have a lawful purpose. A contract to commit murder in exchange for money will not be enforced by the courts. It is void ab initio, meaning "from the beginning."
* Mutual Right to Remedy: Both parties must have an equal right to remedy upon breach of the terms by the other party
* Mutual Obligation to Perform: Both parties must have some obligation to fulfill to the other. This can be distinct from consideration, which may be an initial inducement into the contract.
* Intention to create legal relationship: There is a strict presumption for commerical agreements to be legally bound. Domestic and social agreements are usually unenforceable.
[edit]
Written contracts
Contrary to common wisdom, an informal exchange of promises can still be binding and legally as valid as a written contract. A spoken contract is often called an "oral contract", not a "verbal contract." Any contract that uses words, spoken or written, is a verbal contract. Thus, all oral contracts and written contracts are verbal contracts. This is in contrast to a "non-verbal, non-oral contract," also known as "a contract implied by the acts of the parties."
Courts in the United States have generally ruled that if the parties have a meeting of the minds (i.e., the same intent), consideration is paid or given by the parties, and they act as though there was a formal, written and signed contract, then a contract exists. However, most jurisdictions require a signed writing for certain kinds of contracts (like real estate transactions).
In the United States, a law setting out such requirements is typically called the Statute of Frauds; the name originates from an English statute that was for "the prevention of frauds." The point of the Statute of Frauds is to prevent false allegations of the existence of contracts that were never made, by requiring formal (i.e. written) evidence of the contract. Contracts that do not meet the requirements of Statute of Frauds legislation are unenforceable, but not void. However, a party unjustly enriched by an unenforceable contract may be subject to restitution for unjust enrichment. Statutes of Frauds are typically codified in state statutes covering specific types of contracts, such as contracts for the sale of real estate.
In Australia, for contracts subject to legislation equivalent to the Statute of Frauds, there is no requirement for the entire contract to be in writing, although there must be a note or memorandum evidencing the contract, which may come into existence after the contract has been formed. The note or memorandum must be signed in some way, and a series of documents may be used in place of a single note or memorandum. It must contain all material terms of the contract, the subject matter and the parties to the contract.
In England and Wales, the Statute of Frauds is still in force, but only for guarantees, which must be evidenced in writing, although the agreement may be made orally. Certain other kinds of contract (such as for the sale of land) must be in writing or they are void.
Furthermore, the existence of a written contract does not necessarily ensure its enforceability or validity. A contract can be deemed unenforceable if it requires a party to undertake an illegal act, if it was signed under duress or while intoxicated, if the disparity in knowledge between the parties is extreme and the weaker party was given onerous terms, etc. For example, a contract to sell heroin or engage in prostitution is unenforceable on the grounds that it is against public policy.
If the terms of a contract subject to Statute of Frauds legislation are to be varied, the variations must be noted in writing as well. However, the contract may be discharged orally.
If a contract is in a written form, then generally, you are bound by its terms regardless of whether you have read it or not (L'Estrange v. F Graucob Ltd [1934] 2 KB 394). However, this is tempered by the exception that if the terms of the contract are misrepresented, then the plaintiff is unable to rely on the terms of the contract; in addition, the document must be contractual in nature (Curtis v. Chemical Cleaning and Dyeing Co [1951] 1 KB 805).
Furthermore, if a party wishes to use a document as the basis of a contract, reasonable notice of its terms must be given to the other party prior to their entry into the contract (see Balmain New Ferry Company Ltd v. Robertson (1906) 4 CLR 379). This includes such things as tickets issued at parking stations.
[edit]
Void, voidable and unenforceable contracts
In general, there are three classifications of contracts that are not binding:
* Void: If a contract is held to be void, the contract has never come into existence. For example, a contract is void if it is based on an illegal purpose or contrary to public policy; the classic example is a contract with a hit man. Such a contract will not be recognized by a court, and cannot be enforced by either party.
* Voidable: A contract is voidable if one of the parties has the option to terminate the contract. Contracts with a minor are examples of voidable contracts.
* Unenforceable: If a contract is unenforceable, neither party may enforce the other's obligations. For example, in the United States, a contract is unenforceable if it violates the Statute of frauds. An example of the above is an oral contract for the sale of a motorcycle for US$5,000 (because in the USA any contract for the sale of goods over US$500 must be in writing to be enforceable).
[edit]
Uncertainty and incompleteness
If the terms of the contract are uncertain or incomplete, the parties cannot have reached an agreement in the eyes of the law. An agreement to agree does not constitute a contract, and an inability to agree on key issues, which may include such things as price or safety, may cause the entire contract to fail.
However, a court will attempt to give effect to commercial contracts where possible, by construing a reasonable construction of the contract (see Hillas v. Arcos Ltd (1932) 147 LT 503).
Courts may also look to external standards, which are either mentioned explicitly in the contract (Whitlock v. Brew (1968) 118 CLR 445) or implied by common practice in a certain field (Three Rivers Trading Co., Ltd. v. Gwinear & District Farmers, Ltd. (1967), 111 Sol. J. 831). In addition, the court may also imply a term; if price is excluded, the court may imply a reasonable price, with the exception of land, and second-hand goods, which are unique.
[edit]
Severence of unenforceable clauses
If there are uncertain or incomplete clauses in the contract, and all options in resolving its true meaning have failed, it may be possible to sever and void just those affected clauses. The test of whether a clause is severable is an objective test - whether a reasonable person would see the contract standing even without the clauses.
[edit]
Spy contracts
In the U.S., one unusual type of unenforceable contract is a personal employment contract to work as a spy or secret agent. This is because the very secrecy of the contract is a condition of the contract (in order to maintain plausible deniability). If the spy subsequently sues the government on the contract over issues like salary or benefits, then the spy has breached the contract by revealing its existence. It is thus unenforceable on that ground, as well as the public policy of maintaining national security (since a disgruntled agent might try to reveal all the government's secrets during his lawsuit).
[from here]
Discussion Question: What kind of contracts have you entered into or seen other people enter in to?
Human Resource Management - Period Six
"Still going off syllabus, this week we're going to cover Labor Law," Lorelai says.
"Labour law or employment law is the body of laws, administrative rulings, and precedents which addresses the legal rights of, and restrictions on, workers and their organisations. As such, it mediates many aspects of the relationship between trade unions, employers and employees. In some countries (such as Canada), employment laws related to unionised workplaces are differentiated from those relating to particular individuals. In most countries however, no such distinction is made."
The function and origins of labour law
Labour law arose due to the demands of workers for better conditions and the right to organise, and the simultaneous demands of employers to restrict the powers of workers' organisations and keep labour costs low. Employers costs can increase due to workers organising to win better wages, or by laws emposing costly requirements, such as health and safety or equal opprtunities conditions. Workers' organisations, such as trade unions, can also transcend purely industrial disputes, and gain political power - certain interests in society may be opposed to this. The state of labour law at any one time is therefore both the product of, and a component of the conditions for, struggles between different interests in society.
For example, workers' and trade union legal rights in the USA are relatively restricted, compared to most European countries, but relatively liberal compared to totalitarian regimes - many of which ban trade unions altogether.
[edit]
Important issues in labour law
There are two broad categories of labour law. That relating to employees' rights at work, and that governing the activity of trade unions and other workers' organisations. Matters relating to employees rights and obligations in relations to trade unions are best dealt with in the second category.
[edit]
Trade unions and workers' organisations
Trade unions (or 'labour unions') are the form of workers' organisation most commonly defined and legislated on in labour law. However, they are not the only variety. In the USA, for example, 'workers' centres' are associations not bound by all of the law relating to trade unions.
[edit]
Strikes
Strike action is the weapon of the workers most associated with industrial disputes, and certainly among the most powerful. In most countries, strikes are legal under a circumscribed set of conditions. Among them may be that:
* The strike is decided on by a prescribed democratic process.
* Hence, wildcat strikes are illegal.
* Sympathy strikes, against a company by which workers are not directly employed, may be prohibited.
* General strikes may be forbidden under pretext of public order
* Certain categories of person may be forbidden to strike (airport personnel, health personnel, police or firemen, etc.)
* Strikes may be pursued by people continuing to work, as in Japan or in hospitals
[edit]
Pickets
Picketing is a tactic which is often used by workers during strikes. They may congregate outside the business which they are striking against, in order to make their presence felt, increase worker participation and dissuade (or prevent) strike breakers from entering the place of work. In many countries, this activity will be restricted both by labour law, by more general law restricting demonstrations, or sometimes by injunctions on particular pickets. For example, labour law may restrict secondary picketing (picketing a business not directly connected with the dispute, such as a supplier of materials), or flying pickets (mobile strikers who travel in order to join a picket). There may be laws against obstructing others from going about their lawful business (scabbing, for example, is lawful); making obstructive pickets illegal. And in some counries, such as Britain, there may be court orders made from time to time against pickets being in particular places or behaving in particular ways (shouting abuse, for example).
[edit]
Boycotts
A boycott is a refusal to buy, sell, or otherwise trade with an individual or business who is generally believed by the participants in the boycott to be doing something morally wrong.
[edit]
Unofficial industrial action
Throughout history, workers have used tactics such as the go-slow, sabotage or just not turning up en-masse in order to gain more control over the workplace environment, or simply have to work less [1]. Some labour law explicitly bans such activity, none explicitly allows it.
[edit]
Trade unions and their members
The law of some countries place requirements on unions to follow particular procedures before certain courses of action are adopted. For example, the requirement to ballot the membership before a strike, or in order to take a portion of members' dues for political projects. Laws may guarantee the right to join a union (banning employer discrimination), or remain silent in this respect. Some legal codes may allow unions to place a set of obligations on their members, including the requirement to follow a majority decision in a strike vote. Some restrict this, such as the 'right to work' legislation in some of the United States.
[edit]
Rights at work
[edit]
Equal opportunities in recruitment, pay and treatment
[edit]
Minimum wages
There may be law stating the minimum amount that a worker can be paid per hour. Both Britain and the USA have a law of this kind, though the figure provided for in the USA is so low as to sometimes be insufficient for the means of a worker's subsistence. In response to this, Living wage ordinances have been passed by many city authorities in the United States, which define a minimum wage for employees of those authorities, and sometimes for the employees of companies with which the authority contracts. These, therefore, constitute law, albeit not law whch restricts businesses in general.
[edit]
Rights to consultation, fair treatment, and against unfair dismissal
[edit]
Hours of labour and holidays
Before the Industrial Revolution, the workday varied between 11 and 14 hours. With the growth of capitalism and the introduction of machinery, longer hours became far more common, with 14-15 hours being the norm, and 16 not at all uncommon. Use of child labour was commonplace, often in factories. In England and Scotland in 1788, about two-thirds of person working in the new water-powered textile factories were children ([1]).
The first law on the length of a working day was passed in 1833 in England, limiting miners to 12 hours, and children to 8 hours. The 10-hour day was established in 1848, and shorter hours with the same pay were gradually accepted thereafter.
After England, Germany was the first European country to pass labor laws; Chancellor Bismarck's main goal being to undermine the Social Democratic Party of Germany (SPD). In 1878, Bismarck instituted a variety of anti-socialist measures, but despite this, socialists continued gaining seat in the Reichstag. The Chancellor, then, adopted a different approach to tackling socialism. In order to appease the working class, he enacted a variety of paternalistic social reforms, which became the first type of social security. The year 1883 saw the passage of the Health Insurance Act, which entitled workers to health insurance; the worker paid two-thirds, and the employer one-third, of the premiums. Accident insurance was provided in 1884, whilst old age pensions and disability insurance were established in 1889. Other laws restricted the employment of women and children. These efforts, however, were not entirely successful; the working class largely remained unreconciled with Bismarck's conservative government.
In France, the first labor law was voted in 1841. However, it only limited under-age miners' hours, and it was not until the Third Republic that labor law was effectively enforced, in particular after Waldeck-Rousseau 1884 law legalizing trade unions.
[edit]
Health and safety
Other labor laws involve safety concerning workers. The earliest English factory law was drafted in 1802 and dealt with the safety and health of child textile workers. For discussion of modern workplace safety laws, see Occupational safety and health.
[from here]
Discussion Question: "Do you think unions make things better or worse by picketing, striking and boycotting?"
"This week we start our exciting unit on Contracts," Lorelai says with a grin.
"A contract is a "promise" or an "agreement" that is enforced or recognized by the law. In the civil law, contracts are considered to be part of the general law of obligations. This article describes the law relating to contracts in common law jurisdictions."
Comparison of contract and tort law
The law of obligations has traditionally been divided into contractual obligations, which are voluntarily undertaken and owed to a specific person or persons, and obligations in tort which are based on the wrongful infliction of harm to certain protected interests, primarily imposed by the law, and typically owed to a wider class of persons. Recently it has been accepted that there is a third category, restitutionary obligations, based on the unjust enrichment of the defendant at the plaintiff’s expense. Contractual liability, reflecting the constitutive function of contract, is generally for failing to make things better (by not rendering the expected performance), liability in tort is generally for action (as opposed to omission) making things worse, and liability in restitution is for unjustly taking or retaining the benefit of the plaintiff’s money or work [Beatson (1998) Anson’s Law of Contract, 27th ed. (Oxford: OUP), pg. 21].
[edit]
Scope of common law contract law
Basic common law contract law addresses four sets of issues:
1. When and how is a contract formed?
2. When may a party escape obligations of a contract (such as a contract formed under duress or because of a misrepresentation)?
3. What is the meaning and effect to be given to the terms of a contract?
4. What is the remedy to be given for breach of a contract?
Contract formation: There must be an agreement which consists of an offer and acceptance, consideration (see also consideration under English law) and contractual intention for a simple contract to exist: i.e. it is not a deed - otherwise no consideration is needed.
Subject to the sine qua non of Contract Formation, other ingredients that make up a contract include:
* Form - In some cases, certain formalities (that is, writing) must be observed.
* Capacity - The parties must be legally capable of entering into a contract.
* Consent - The agreement must have been entered into freely. Consent may be vitiated by duress or undue influence.
* Legality - The purpose of the agreement must not be illegal or contrary to public policy.
A contract which possesses all of the above ingredients is said to be valid. The absence of an essential element will render the contract either void, voidable or unenforceable
In some situations, a collateral contract may exist.
Meaning and effect of contract terms: Many contract disputes involve a disagreement between the parties about what terms in the contract require each party to do or refrain from doing. Hence, many rules of contract law pertain to interpretation of terms of a contract that are vague or ambiguous. The parol evidence rule limits what things can be taken into account when trying to interpret a contract.
Privity: In general, only parties to a contract may sue for the breach of a contract.
[edit]
Validity of contracts
For a contract to be valid, it must meet the following criteria:
* Mutual agreement - (see main article offer and acceptance): There must be an express or implied agreement. The essential requirement is that there be evidence that the parties had each from an objective perspective engaged in conduct manifesting their assent, and a contract will be formed when the parties have met such a requirement. (Notice that the objective manifestation requirement means that one need not actually have assented so long as a reasonable person would believe that assent had been granted.) For a contract based on offer and acceptance to be enforced, the terms must be capable of determination in a way that it is clear that the parties' assent was given to the same terms. The terms, like the manifestation of assent itself, are determined objectively.
* Consideration: There must be consideration (see also consideration under English law) given by all the parties, meaning that every party is conferring a benefit on the other party or himself sustaining a recognizable detriment, such as a reduction of the party's alternative courses of action where the party would otherwise be free to act with respect to the subject matter without any limitation. Consideration need not be adequate, e.g. agreeing to buy a car for a penny may constitute a binding contract. (q.v. Chappell & Co Ltd v Nestle Co Ltd [1959] 2 All ER 701. (UK common law))
* Competent, Adult (Sui Juris) Parties: Both parties must have the capacity to understand the terms of the contract they are entering into, and the consequences of the promises they make. For example, animals, minor children, and mentally disabled individuals do not have the capacity to form a contract, and any contracts with them will be considered void or voidable. Although corporations are technically legal fictions, they are considered persons under the law, and thus fit to engage in contracts.
For adults, most jurisdictions have statutes declaring that the capacity of parties to a contract is presumed, so that one resisting enforcement of a contract on grounds that a party lacked the capacity to be bound bears the burden of persuasion on the issue of capacity.
* Proper Subject Matter: The contract must have a lawful purpose. A contract to commit murder in exchange for money will not be enforced by the courts. It is void ab initio, meaning "from the beginning."
* Mutual Right to Remedy: Both parties must have an equal right to remedy upon breach of the terms by the other party
* Mutual Obligation to Perform: Both parties must have some obligation to fulfill to the other. This can be distinct from consideration, which may be an initial inducement into the contract.
* Intention to create legal relationship: There is a strict presumption for commerical agreements to be legally bound. Domestic and social agreements are usually unenforceable.
[edit]
Written contracts
Contrary to common wisdom, an informal exchange of promises can still be binding and legally as valid as a written contract. A spoken contract is often called an "oral contract", not a "verbal contract." Any contract that uses words, spoken or written, is a verbal contract. Thus, all oral contracts and written contracts are verbal contracts. This is in contrast to a "non-verbal, non-oral contract," also known as "a contract implied by the acts of the parties."
Courts in the United States have generally ruled that if the parties have a meeting of the minds (i.e., the same intent), consideration is paid or given by the parties, and they act as though there was a formal, written and signed contract, then a contract exists. However, most jurisdictions require a signed writing for certain kinds of contracts (like real estate transactions).
In the United States, a law setting out such requirements is typically called the Statute of Frauds; the name originates from an English statute that was for "the prevention of frauds." The point of the Statute of Frauds is to prevent false allegations of the existence of contracts that were never made, by requiring formal (i.e. written) evidence of the contract. Contracts that do not meet the requirements of Statute of Frauds legislation are unenforceable, but not void. However, a party unjustly enriched by an unenforceable contract may be subject to restitution for unjust enrichment. Statutes of Frauds are typically codified in state statutes covering specific types of contracts, such as contracts for the sale of real estate.
In Australia, for contracts subject to legislation equivalent to the Statute of Frauds, there is no requirement for the entire contract to be in writing, although there must be a note or memorandum evidencing the contract, which may come into existence after the contract has been formed. The note or memorandum must be signed in some way, and a series of documents may be used in place of a single note or memorandum. It must contain all material terms of the contract, the subject matter and the parties to the contract.
In England and Wales, the Statute of Frauds is still in force, but only for guarantees, which must be evidenced in writing, although the agreement may be made orally. Certain other kinds of contract (such as for the sale of land) must be in writing or they are void.
Furthermore, the existence of a written contract does not necessarily ensure its enforceability or validity. A contract can be deemed unenforceable if it requires a party to undertake an illegal act, if it was signed under duress or while intoxicated, if the disparity in knowledge between the parties is extreme and the weaker party was given onerous terms, etc. For example, a contract to sell heroin or engage in prostitution is unenforceable on the grounds that it is against public policy.
If the terms of a contract subject to Statute of Frauds legislation are to be varied, the variations must be noted in writing as well. However, the contract may be discharged orally.
If a contract is in a written form, then generally, you are bound by its terms regardless of whether you have read it or not (L'Estrange v. F Graucob Ltd [1934] 2 KB 394). However, this is tempered by the exception that if the terms of the contract are misrepresented, then the plaintiff is unable to rely on the terms of the contract; in addition, the document must be contractual in nature (Curtis v. Chemical Cleaning and Dyeing Co [1951] 1 KB 805).
Furthermore, if a party wishes to use a document as the basis of a contract, reasonable notice of its terms must be given to the other party prior to their entry into the contract (see Balmain New Ferry Company Ltd v. Robertson (1906) 4 CLR 379). This includes such things as tickets issued at parking stations.
[edit]
Void, voidable and unenforceable contracts
In general, there are three classifications of contracts that are not binding:
* Void: If a contract is held to be void, the contract has never come into existence. For example, a contract is void if it is based on an illegal purpose or contrary to public policy; the classic example is a contract with a hit man. Such a contract will not be recognized by a court, and cannot be enforced by either party.
* Voidable: A contract is voidable if one of the parties has the option to terminate the contract. Contracts with a minor are examples of voidable contracts.
* Unenforceable: If a contract is unenforceable, neither party may enforce the other's obligations. For example, in the United States, a contract is unenforceable if it violates the Statute of frauds. An example of the above is an oral contract for the sale of a motorcycle for US$5,000 (because in the USA any contract for the sale of goods over US$500 must be in writing to be enforceable).
[edit]
Uncertainty and incompleteness
If the terms of the contract are uncertain or incomplete, the parties cannot have reached an agreement in the eyes of the law. An agreement to agree does not constitute a contract, and an inability to agree on key issues, which may include such things as price or safety, may cause the entire contract to fail.
However, a court will attempt to give effect to commercial contracts where possible, by construing a reasonable construction of the contract (see Hillas v. Arcos Ltd (1932) 147 LT 503).
Courts may also look to external standards, which are either mentioned explicitly in the contract (Whitlock v. Brew (1968) 118 CLR 445) or implied by common practice in a certain field (Three Rivers Trading Co., Ltd. v. Gwinear & District Farmers, Ltd. (1967), 111 Sol. J. 831). In addition, the court may also imply a term; if price is excluded, the court may imply a reasonable price, with the exception of land, and second-hand goods, which are unique.
[edit]
Severence of unenforceable clauses
If there are uncertain or incomplete clauses in the contract, and all options in resolving its true meaning have failed, it may be possible to sever and void just those affected clauses. The test of whether a clause is severable is an objective test - whether a reasonable person would see the contract standing even without the clauses.
[edit]
Spy contracts
In the U.S., one unusual type of unenforceable contract is a personal employment contract to work as a spy or secret agent. This is because the very secrecy of the contract is a condition of the contract (in order to maintain plausible deniability). If the spy subsequently sues the government on the contract over issues like salary or benefits, then the spy has breached the contract by revealing its existence. It is thus unenforceable on that ground, as well as the public policy of maintaining national security (since a disgruntled agent might try to reveal all the government's secrets during his lawsuit).
[from here]
Discussion Question: What kind of contracts have you entered into or seen other people enter in to?
Human Resource Management - Period Six
"Still going off syllabus, this week we're going to cover Labor Law," Lorelai says.
"Labour law or employment law is the body of laws, administrative rulings, and precedents which addresses the legal rights of, and restrictions on, workers and their organisations. As such, it mediates many aspects of the relationship between trade unions, employers and employees. In some countries (such as Canada), employment laws related to unionised workplaces are differentiated from those relating to particular individuals. In most countries however, no such distinction is made."
The function and origins of labour law
Labour law arose due to the demands of workers for better conditions and the right to organise, and the simultaneous demands of employers to restrict the powers of workers' organisations and keep labour costs low. Employers costs can increase due to workers organising to win better wages, or by laws emposing costly requirements, such as health and safety or equal opprtunities conditions. Workers' organisations, such as trade unions, can also transcend purely industrial disputes, and gain political power - certain interests in society may be opposed to this. The state of labour law at any one time is therefore both the product of, and a component of the conditions for, struggles between different interests in society.
For example, workers' and trade union legal rights in the USA are relatively restricted, compared to most European countries, but relatively liberal compared to totalitarian regimes - many of which ban trade unions altogether.
[edit]
Important issues in labour law
There are two broad categories of labour law. That relating to employees' rights at work, and that governing the activity of trade unions and other workers' organisations. Matters relating to employees rights and obligations in relations to trade unions are best dealt with in the second category.
[edit]
Trade unions and workers' organisations
Trade unions (or 'labour unions') are the form of workers' organisation most commonly defined and legislated on in labour law. However, they are not the only variety. In the USA, for example, 'workers' centres' are associations not bound by all of the law relating to trade unions.
[edit]
Strikes
Strike action is the weapon of the workers most associated with industrial disputes, and certainly among the most powerful. In most countries, strikes are legal under a circumscribed set of conditions. Among them may be that:
* The strike is decided on by a prescribed democratic process.
* Hence, wildcat strikes are illegal.
* Sympathy strikes, against a company by which workers are not directly employed, may be prohibited.
* General strikes may be forbidden under pretext of public order
* Certain categories of person may be forbidden to strike (airport personnel, health personnel, police or firemen, etc.)
* Strikes may be pursued by people continuing to work, as in Japan or in hospitals
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Pickets
Picketing is a tactic which is often used by workers during strikes. They may congregate outside the business which they are striking against, in order to make their presence felt, increase worker participation and dissuade (or prevent) strike breakers from entering the place of work. In many countries, this activity will be restricted both by labour law, by more general law restricting demonstrations, or sometimes by injunctions on particular pickets. For example, labour law may restrict secondary picketing (picketing a business not directly connected with the dispute, such as a supplier of materials), or flying pickets (mobile strikers who travel in order to join a picket). There may be laws against obstructing others from going about their lawful business (scabbing, for example, is lawful); making obstructive pickets illegal. And in some counries, such as Britain, there may be court orders made from time to time against pickets being in particular places or behaving in particular ways (shouting abuse, for example).
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Boycotts
A boycott is a refusal to buy, sell, or otherwise trade with an individual or business who is generally believed by the participants in the boycott to be doing something morally wrong.
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Unofficial industrial action
Throughout history, workers have used tactics such as the go-slow, sabotage or just not turning up en-masse in order to gain more control over the workplace environment, or simply have to work less [1]. Some labour law explicitly bans such activity, none explicitly allows it.
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Trade unions and their members
The law of some countries place requirements on unions to follow particular procedures before certain courses of action are adopted. For example, the requirement to ballot the membership before a strike, or in order to take a portion of members' dues for political projects. Laws may guarantee the right to join a union (banning employer discrimination), or remain silent in this respect. Some legal codes may allow unions to place a set of obligations on their members, including the requirement to follow a majority decision in a strike vote. Some restrict this, such as the 'right to work' legislation in some of the United States.
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Rights at work
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Equal opportunities in recruitment, pay and treatment
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Minimum wages
There may be law stating the minimum amount that a worker can be paid per hour. Both Britain and the USA have a law of this kind, though the figure provided for in the USA is so low as to sometimes be insufficient for the means of a worker's subsistence. In response to this, Living wage ordinances have been passed by many city authorities in the United States, which define a minimum wage for employees of those authorities, and sometimes for the employees of companies with which the authority contracts. These, therefore, constitute law, albeit not law whch restricts businesses in general.
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Rights to consultation, fair treatment, and against unfair dismissal
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Hours of labour and holidays
Before the Industrial Revolution, the workday varied between 11 and 14 hours. With the growth of capitalism and the introduction of machinery, longer hours became far more common, with 14-15 hours being the norm, and 16 not at all uncommon. Use of child labour was commonplace, often in factories. In England and Scotland in 1788, about two-thirds of person working in the new water-powered textile factories were children ([1]).
The first law on the length of a working day was passed in 1833 in England, limiting miners to 12 hours, and children to 8 hours. The 10-hour day was established in 1848, and shorter hours with the same pay were gradually accepted thereafter.
After England, Germany was the first European country to pass labor laws; Chancellor Bismarck's main goal being to undermine the Social Democratic Party of Germany (SPD). In 1878, Bismarck instituted a variety of anti-socialist measures, but despite this, socialists continued gaining seat in the Reichstag. The Chancellor, then, adopted a different approach to tackling socialism. In order to appease the working class, he enacted a variety of paternalistic social reforms, which became the first type of social security. The year 1883 saw the passage of the Health Insurance Act, which entitled workers to health insurance; the worker paid two-thirds, and the employer one-third, of the premiums. Accident insurance was provided in 1884, whilst old age pensions and disability insurance were established in 1889. Other laws restricted the employment of women and children. These efforts, however, were not entirely successful; the working class largely remained unreconciled with Bismarck's conservative government.
In France, the first labor law was voted in 1841. However, it only limited under-age miners' hours, and it was not until the Third Republic that labor law was effectively enforced, in particular after Waldeck-Rousseau 1884 law legalizing trade unions.
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Health and safety
Other labor laws involve safety concerning workers. The earliest English factory law was drafted in 1802 and dealt with the safety and health of child textile workers. For discussion of modern workplace safety laws, see Occupational safety and health.
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Discussion Question: "Do you think unions make things better or worse by picketing, striking and boycotting?"