Saturday, January 25, 2020

Representation of Client in Contract Law Case

Representation of Client in Contract Law Case THE INTRODUCTION Abstract from the question given, on the purpose to advice on Arnold, it is vital and crucial to find out whether or not a contract has been formed between the parties involved so the locus standi[1] of Arnold can be tracked. Hence, with the establishment of locus standi, Arnold may then can take action on issues he has encountered to the parties. It is simply indicating that, there must be a mutual agreement which is legally enforceable between parties involved. In another word, there must be an existence of consensus ad idem.[2] Whereby Lord Wilberforce a say on this issue in The Eurymedon as below:- [3] English law, having committed itself to a rather technical and schematic doctrine of contract, in application takes a practical approach, often at the cost of forcing the facts to fit uneasily into the marked slots of offer, acceptance, and consideration In summary, In order to claim remedies, a valid contract shall consist of offer, acceptance, and consideration whereby this ensu res and that gives locus standi to the claimant to carry out contractual action towards the defendant. The issue in this question would be seeking for an evaluation on whether the statement made is a term or representation. If it is a term, it may lead to breach of contract ; whereas, if it is representation, it is imperative to seek for remedies available for the claimant. Establish the Contractual Relationship with the claimant Therefore, it can be denoted that the claimant, Arnold must have prove his contractual relationship with the first defendant, William to uphold his claim on his misfortune incident since he considers the deal given by William a bad one. It is then submitted that, William can be categorised as an offeree whereby his enquiries is just merely an invitation to treat since he is just plainly making a request due to his needs. An invitation to treat, as per Treitel : When parties negotiate with a view to making a contract, many preliminary communication may pass between them before a definite offer is made[4] Based on the fact given, Arnold is indeed on the look out for a house in the newly built Kenwood Park and sought for Williams consultation who is a house broker. As a result, it is submitted that Arnold is making an Invitation to treat in lieu of an offer like what has been illustrated in the case of Gibson [5]. Whereas, on another hand, in the light of Storer v Manchester,[6] in acc ordance to offer as defined by Professor Treitel, William has expressly show his willingness by giving Arnold particulars of that house. [7] On the surface, contractual relationship thereby established. Determining the statement made is a term or representation Thus, It would be imperative to then applying Fletche LJs guideline as laid down in Heilbut Symons v Buckleton to find out possible contractual action.[8] It was held that a vague statement would amount to representation instead of a term. Whereby in Dimmock v Hallet that described the land as fertile and improvable is constitute to a representation. [9] Likewise, in this scenario, statement made by William that a hypermarket will be opened in about 3 months is said to be a representation. In a nutshell, the core issue in this scenario would be whether William as an representor has misrepresented the facts to Arnold, the representee which by any chance may give rise to liabilities and Arnold shall be advised on the ground of the probabilities for being granted for possible remedies. The onus to prove the offeror has misrepresented the facts It is advised that, in order to determine whether one has been misrepresented to the claimant, there are elements to prove an actionable misrepresentation. The representation made by the representor must be unambiguous false statement of fact which is addressed to the party misled and which includes that party to enter into a contract.[10] This also signifying that, there must be a false statement of existing fact or law, and it is addressed to the party misled which has materially induces the party to embark into a legally binding agreement. As such, if the statement made is held to be a mere puff, a party will not be blamed under contractual liabilities. Notwithstanding with that, If all the elements have been satisfied, misrepresentation then has successfully raised at the first glance and remedies is likely to be granted. Elements to be proved on each statement made Essentially, in order for a misrepresentation to be stand in this circumstance, the statement made must not be an opinion or mere puff. The defendant will therefore argue the statement made is merely an opinion; hence, the claim towards him will not be succeeded as laid down in Bisset v Wikinson.[11] Nevertheless, contrary with the mentioned point, In Smith v Land Home Property Co. Ltd ,[12] It can be rebutted that the statement is however an existing fact as per Bowen LJ :[13] The one who knows the fact best involves very often a statement of a material fact It is nonetheless may be argued that, Arnold should have check the facts instead of relying on it; hence, it is not at fault of the defendant. On another hand, William as the house broker should have better knowledge than any ordinary person as he possesses a special skill as held in Esso Petroleum Co. Ltd v Mardon.[14] In addition, as Lord Evershead MR has uttered in Brown v Raphael[15] , where such a person were in a better position than the other party to check the facts to back up his opinion, but did not do so, such person will be liable for misrepresentation.[16] From the fact, William has described the Kenwood Park as Gated and Guarded and it was the most desirable property within the vicinity that turned out to be untrue. William as a house broker hold a better position than Arnold to ensure his opinion is true. Furthermore, he should have known the fact that Heavenly Homes is more popular since it is a well-known fact as compared to the Kenwood Park. Besides, it is of common knowledge that, guards must be employed by the residence but not the developers. William is therefore made a statement of fact and by possessing a special knowledge failed to check even he is in better position to do so. It can be said prima facie that he has misrepresented a statement of fact. In contrast, William may also raise an argument that, in general, a statement of a future intention will not constitute as a stateme nt of fact therefore it is of no effect for him to be liable under misrepresentation on the grounds of Lord Wilberforce in British Airways Board v Taylors.[17] It would not be just and fair as it is impossible for one to foresee the future and it is unpredictable and that binds the claimant. Indeed, William has mentioned that a hypermarket will be opened in about 3 months within Kenwood Park which amount to a statement as to the future. However, William cannot walk away based on that ground as Arnold may argue that a statement as to the future, can implicitly contain a statement of fact. In the light of Spice Girls Ltd v Aprilia World Service BV , It is illustrated that if the maker of the statement did not genuinely hold the intention or belief at the time of making it, he will misrepresenting the fact.[18] As grasped from the fact, it is opined that William did not hold the intention indisputably by the time making the statement but he was said it with full faith by stating a spec ific timeframe that a Hypermarket will be opened in 3 months within Kenwood Park,. Hence, it is argued that the statement given are not merely an intention since at the time of contract, he believes himself is making an existing fact which at a higher possibility that the hypermarket will be built and well-established within 3 months. As held in Edgington v Fitzmaurice, the statement made by William howsoever it may be controversial to be an intentional statement; it still amounts to a statement of fact.[19] Even so, William may still argue that, in his understanding, he does not know that the Kenwood Park will not be Gated and Guarded in which is a half true statement, therefore, it can be argued that part he has misstate was silent apart. Action shall not be taken towards him as he says nothing about that since it was held in Fletcher v Krell that silence or non-disclosure of fact does not give rise to liability.[20] Hence, William may not be liable under misrepresentation at this juncture. Notwithstanding with the above issue, Arnold can demolish that argument by claiming there is a set of exceptional rules whereby a half-true statement is deemed to be a misrepresentation as laid down in Nottingham Patent Brick Tile Co. v Butler.[21] Moreover, it is submitted that, there is a fiduciary relationship between both of them in which it is held that the party has the duty to disclose all the necessary fact to ensure a fair transaction under the light of Tate v Williamson.[22] By juxtaposing the law and the fact, it is a crucial factor for William to ensure all the necessary facts has been told since it might affect the transaction. As a result, silence in this scenario does give rise to liability at the first glance. In accordance to the ratio of With v O Flanagan, it can also be argued that, whenever there is any occurrence of changes in the circumstances, the party should have check so the existing fact would not be false and misled the party.[23] On the fact, the plan for the hypermarket has been scrapped by the developers to make way for a man-made lake. Based on that, William was in fact, did not check and inform any changes to Arnold before signing the agreement. Also, another vital issue would be to prove whether or not has the statement of fact made by the representor has materially induced the represetee enter into the contract. As per Jessel MR has expressed in Mathias v Yetts: [24] if a man has a material misstatement made to him which way, form its nature, induce him to enter into the contract, it is an inference that he is induced to enter into contract by it. You need not prove it affirmatively. On the fact, The inducement has shown when Arnold actually became interested and gave 10% of the price of the house to William as a down payment after he listened to Williams statements where he described the property is gated and guarded, there will be a hypermarket opening in within 3 months and illustrated it as the most desirable property in the vicinity that is not wholly true. Attwood v Small.[25] Apart from that, William may, at this stage, argue that the statement made must be done directly by the representor to the representee in which the house owner is John whereas he is just merely an innocent third party. Hence, action could not be taken towards William. However, on the grounds of Conlon v Simms whereby it says, the statement made can also be done through an authorised agent.[26] Based on this sense, William as a house broker has acted on behalf of John to deal with William and the statement made by him has indeed misled Arnold to embark into a bad deal. Nonetheless, According to Smith v Chadwick, it is submitted that if the representee knows it is a representation statement, then, it shall not be taken action on misrepresentation.[27] However, it is argued that Arnold does not aware of the statements since he intends to discontinue with the agreement. Afterhe knows the facts told is not true. Henc e, it is prima facie that , in the light of Horsfall v Thomas, the claimant, Arnold can now take action towards William under misrepresentation as all the elements has been satisfied.[28] The next caveat would be to determine which type of misrepresentation can the claimant claim under and the possibility of Arnold to rescind the contract. Type of Misrepresentation It may be submitted that Arnold can claim for his rescission subject to the bars to rescission as he wishes to discontinue with the purchase. It is advised that, Arnold may seek for remedies under Fraudulent Misrepresentation or Negligent Misrepresentation which both has got different components to be proved and the burden of proof lies on the representee. First and foremost, in order to claim under Fraudulent Misrepresentation which is governed under the tort of deceit, it must be proven that the statement made knowingly, without belief in its truth, reckless whether it will be true or false as stated under Derry v Peek.[29] However, in this case, Fraudulent may not be successfully stand as William do not make the statement knowingly as the actual fact is, the plan for the hypermarket has been changed unbeknown to all parties by the developer. Therefore, the claim would unlikely to be successful under Fraudulent Misrepresentation as the standard of proof is rather high. The alternat ive way would be Negligent Misrepresentation under Negligent Misstatement in common law on the grounds of Hedley Bryne v Heller.[30] In order to claim under this type of Misrepresentation, it is needed to prove the existence of special relationship. On the fact, there is special relationship between them are on a dealing of Business. In addition, as laid down in William v Natural Life Health Food, special relationship can be tracked since he possesses special knowledge which in fact he is a house broker.[31] On the fact, it can be argued that, though William maybe believes all the statement made by him to be true, he has the duty to check. On this stage, it may be said that Arnold is at the higher chance to get rescission. William may claim that, there is one possible bar to rescission available which is the lapse of time as described in Leaf v International Galleries On the fact, Arnold has decided to take contractual action only on a week before signing the agreement which the lapse of time argument would not render rescission ineffective. Thus, rescission is still available where he can recover his paid down payment as well if he successfully claims under Negligent Misrepresentation. On another hand, Arnold may also take action against John as he is the owner of the house and do not disclose the defects of the property. On the fact, there have been a few cracks appearing in some parts of the house. However, it is said the representation is made between William and Arnold as a lawful authorised agent. Therefore, misrepresentation could not occur in this scenario. In a nutshell, Arnold as a representee is now at a higher to claim for remedies which are rescission and damages as William has made a false statement of existing fact and that materially induced and misled to Arnold to embark into the contract on the purchase of the property.

Friday, January 17, 2020

How Is Dramatic Tension Created in Act 2 Scene 2 of Macbeth?

Shakespear wrote the play ‘Macbeth' in the 16th century and its set in the 11th century. The different themes explored in this play are Power, Fate, Destiny, Evil as well as the unnatural. The play is about Macbeth trying to gain power in ruthless ways because of the predictions the three witches made. Lady Macbeth plays an important role throughout the play too as a powerful elizabethan woman. In Act 2 Scene 2 Macbeth starts going insane due to the guilt and we see a change in his character right before this scene Macbeth's killed the king and now is dying out of guilt. This is a very pivotal scene in the play as I believe this is the turning point of the play as after this scene more crime is commited too. The scene begins with Lady Macbeth talking. The audience understands that Lady Macbeth is waiting for her husband to return from commiting the crime. Lady Macbeth seems to be thrilled and agitated, telling herself that its all going to be okay. She feels courageous and fearless, the audience gets this idea as she keeps repeating her plan over and over and over again believeing in herself feeling â€Å"bold† claiming she has â€Å"fire†. Lady Macbeth comes out as a very strong Elizabethan woman who believes in her own power to manipulate and control Macbeth the way she likes it. She first says â€Å"that what hath made them drunk, hath made bold; What hath quench’d them, hath give me fire† this is her saying she is excited as she believes that her husband is about to achieve greatness and become the king, his plans have made her passionate about the death of Duncan or is she trying to convince herself that she is right to plan the murder? A Shakespearian audience would start to believe that she is a witch as in Shakespeare times they strongly believed in witches. Reason why Shakespear wrote this play was due to King James the first's obsession with witchcraft. A Shakespearen audience would be very appalled as they would expect a woman in those times to be very obident and innocent. Shes meant to represent her husband however Lady Macbeth behaves much differently. This gives the impression that she is twisted as she sees murder as something so trivial and has no feeling of guilt whatsoever, to an extent of planning the death of the Duncan.. A king also in those times is said to be as a â€Å"messanger of God† therefore killing a God's messanger would be something that could lead upto death penalty. A modern audience would not be as shocked as a Shakespearn audience as society has now changed and such behaviour is very expected in a woman too but some might disagree and act surprised as women are seen to be the more vulnerable, helpless ones in society and would never expect them to behave in this manner. Macbeth enters when the crime is commited. Lady Macbeth makes sure to greet him. Dramatic tension first starts when Lady Macbeth says ‘the owl scream and the crickets cry’. To a modern audience, this has no meaning but during Shakespearean times these noises were signs of someone who has died/death. Also, something evil and unatural. Short sentences are used to build up dramatic tension. Both Macbeth and Lady Macbeth use one worded answers and ask short questions. For example: ‘When? ’ ‘Now. ’ ‘As I descended? ’ ‘Ay. ’ This builds up tension as the reader might believe Lady Macbeth and Macbeth are scared so the conversation is short and snappy. If this scene was re-enacted the actor would read this in a hushed voice and a quiet tone as they wouldn't want to get caught. The audience is aware that Macbeth has commited a sin. The audience would begin to feel cautious and tension builds up because what happens next is not predicatble, the audience is not sure if they would get caught or heard by someone. This is where things start to get a twist and this scene gets more interesting as we see a change in the characters. This is where Macbeth's madness starts as well as his guilt and the fear that people will discover what has happened. The theme of guilt is then built up throughout this scene. Lady Macbeth seems to keep her sentences short in this part of the scene as she thinks that Macbeth is starting to go insane. She says things such as â€Å"Consider it not so deeply† she doesn't want to confuse him furthur or wants him to feel any sense of guilt as this would blow her cover. Macbeth says â€Å"I had most need of blessing, and ‘Amen' Stuck in my throat† He wont say a holy word as hes gone against all of The divine rights of Kings which means he has also gone against God. The audience understands his guilt and feels however they know he did wrong and also went against his religion therefore it’s understandable that Macbeth should suffer with his guilt. Religion is shown at this point. Lady Macbeth takes notice of Macbeth's condition and tries to make sense to him For example ‘These deeds must not be thought, After these ways; so, it will make us mad’. She makes sure of herself and is assertive. The audience can see no signs of regret or guilt with her whatsoever. The theme of nature and guilt are constantly repeated throughout this scene. ‘Sleep no more! Macbeth does murder sleep’ which suggests that people will be in fear that Macbeth is left loose. Sleep is nature’s way of healing a person and Macbeth can't get any as he went against all the rules of nature – â€Å"Sleep no more; Macbeth shall sleep no more†. Macbeth says ‘I heard a voice cry’. This suggests hes going insane as he begins to hear other voices in his head. The constant repetition of referal to nature and religion emphasizes his guilt and regret; He knows he did wrong and repeating it reminds him of that. Macbeth feels confused and helpless as his insanity gets difficult to deal with. Lady Macbeth starts to take notice of Macbeth's madness and tries to take control of it. Themes of guilt and regret are still carried on. Lady Macbeth tries to inforce her words on him, For example ‘Infirm of purpose! As if shes telling him to accept the facts and move on. Lady Macbeth still shows no signs of guilt or regret. She is frustrated and almost shouting at him, forcing him into believing the way she does. Her tone of voice and use of language is harsh which attacks Macbeth's pride and ego as a man. She mentally manipulates him into thinking her way. Lady Macbeth takes control and is motivated by the need to not get caught and by the greed of power so then she can become the queen. The audience can once again see her manipulative side and feels sympathetic towards Macbeth. She tells Macbeth to hand her the daggers; she makes Macbeth feel useless and little as a person, directly attacking his pride as a man. Macbeth's madness continues to get worse. Lady Macbeth says â€Å"My hands are of your colour; but I shame To wear a heart so white† She makes him feel that he done the same crime as her but shes perfectly fine but hes acting like a coward, she keeps attacking his pride so that she gets what she wants out of him. As during Shakespearean times, pride and honour meant a great deal of importance. Macbeth doesn’t show any of this now. Becoming the queen is the most important motivation for her currently. Shes driven by her need and greed for power. Use of language is used to build tension, Shakespeare uses a hyperbole to express Macbeth’s guilt and the theme of regret. For example ‘Will all great Neptune’s ocean wash this blood clean from my hands? ’ This tells me that Macbeth feels really guilty hes comparing what he did as big a deal as the whole ocean saying Macbeth would need an ocean so big for him to be forgiven or to wipe away the evidence of his crime and wash this crime, this blood off their hands. Also ‘The multitudinous seas in incarnadine, making the green one red’. This imagery of blood and red is repeated and exaggerated which then again links to guilt and the theme of blood. Short sentences and noise such as ‘Knocking’ is used repeatedly to build up tension, the fear that anyone will find out keeps them anxious. Dramatic tension is created throughout this scene by the use of language, short sentences, hyperboles, repetition and imagery. This scene is an important one in the play as this is where we see a change in the characters and theres a twist in the story. This creates suspense and makes it unpredictable so the audience wants to know what will happen next and keep them interested and wanting more. Hyperboles emphasize the crucial themes in this scene like how Macbeth needs the oceans to describe his guilt and regret. Repetition makes the action continuous and seem important as its being repeated a several times and short sentences speed up the pace of which the actions happen at and help build up tension.

Thursday, January 9, 2020

Ethnic Minorities in America Essay - 2219 Words

Ethnic Minorities in America In the United States the term minority often infers membership within an ethnic or cultural minority group. However, this term also encompasses other groups that lack equality, such as women, homosexuals and people with disabilities. By definition, the hearing majority classifies Deaf people as minorities because of their inability to hear. Yet linguists and social scientists argue that the basis of Deaf peoples status as a minority group is not one of disability, but as a cultural and linguistic minority (Lane, Hoffmeister and Bahan: 1996: 335-6). In order to assert that Deaf people are a linguistic and cultural minority in America the characteristics of a minority group must first be defined.†¦show more content†¦(Humphrey and Alcorn, 1995: 85) Unequal treatment and the lack of power are phenomena Deaf people have endured throughout time because of their inability to hear. Historically hearing people viewed deafness as a defect of the mind and body and they did not afford the Deaf the right to an education, own property or sign contracts. Deaf people have long been subjugated by hearing people in all areas of life. The most blatant act of audism occurred in the education of Deaf children. From 1880 until today hearing people have dictated that the method of education utilized should be one that enables the Deaf to more readily assimilate into the mainstream society. In order to achieve this goal, Deaf children were forced to wear auditory trainers (machines that supposedly allowed them to listen to teachers voices) and were slapped with rulers if they attempted to sign or gesture out of frustration. (Graybill video) The focus of Deaf education was not about teaching Deaf children material appropriate to grade level but altering behavior and improving speech ability. 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