Essay on "Foundations of Business Law Australia"

Essay 4 pages (1502 words) Sources: 6

[EXCERPT] . . . .

Business

Foundations of Business Law in Australia

(a) In that case, the plaintiff and defendant were engaged to be married but the engagement had come to an end. Both parties asserted to be entitled to the diamond engagement ring given by the defendant, Mr. Sellar, to the plaintiff, Miss Cohen. No express condition came with the delivery of the ring. Unhappy differences soon arose between the two and the engagement was broken. The issue to be decided is whether Miss Cohen should return the engagement ring to Mr. Sellar (Lecture Five: Principle of Precedent, n.d.).

(b) The Action is set down for trial in High Court (King's Bench Division) before a civil jury. Sellar also sued Cohen in the County Court for return of the ring. This claim was removed to the High Court (UK) and made a counterclaim, so Cohen became the defendant in the counter claim. The jury found that Sellar had broken his promise to marry, awarded special and general damages to Cohen. The Counterclaim was then for the judge to decide (Australian Legal System Lecture 2 Case Law, n.d.).

(c) The judge held that the plaintiff (Miss Cohen) was entitled to keep the ring, because the defendant (Mr. Sellar) had breached his promise to marry her. This was the ratio of the case (Top 2 The Australian Legal System, n.d.).

(d) The judge remarked that in cases where the woman has refused to carry out her promise to marry, or an engagement is broken off by mutual consent, the woman is bound to return the engagement ring to the man. He also said that if the man, without a documented legal justification, refused to carry out his promise of marriage, he cannot insist on the return of the engagement ring. These statements by the judge were obiter dicta because they relate to hypothetical facts, rather than the facts in issue (Top 2 The Australian Legal System, n.d.).

(e) In the case of Lockyer v Simpson Mosely, it was conceded by the Attorney-General in that case that if the lady had refused to marry the man she must return the gifts delivered to her in contemplation of marriage. If a woman who has received a ring declines to fulfill the conditions of the gift then she must give it back. In other words if a man without legal justification refuses to carry out his promise of marriage, he cannot demand that the engagement ring be returned to him (Lecture Five: Principle of Precedent, n.d.).

(f) McCardie J. said that the apparent dictum to the contrary in Oldenburgh's Case Freeman's KB 213; 2 Mod 140, cannot be relied on at the present day. He said that by the slow growth of decisions the promise of marriage is today fixed with many of the legal characteristics of a commercial bargain. It is ruled largely by the principles of law applicable to ordinary contracts. The condi-tions which attach to a gift made in contemplation of marriage must be viewed in relation to the incidents which flow from the engagement itself (Lecture Five: Principle of Precedent, n.d.).

(g) Krell v Henry [1903] 2 KB 740 and Chandler v Webster [1904] 1 KB 493

(h) The judge stated that if the marriage actually takes place then the engagement ring or like gift will, in the absence of express agreement to the contrary, become, then the absolute property of the recipient, and that property will not, be divested by subsequent divorce. He went on to say that in any event in this case it would have been right that the plaintiff should keep possession of the ring so that she might be able to take it in execu-tion for the damages and costs awarded in her favor against the defendant (Cohen v Sellar [1926] 1 KB 536 at 546).

Question 2

(a) Yes, I think that the law regarding promises to marry should be regulated by the same legal rules as business promises. When two people set out to get married, there are a number of things that are set into motion. Most of these things cost money. If a person makes a promise to marry another and then does not follow through on that promise there should be laws in place that protect the other party from economic loss. The party that breaches the contractual promise should be held liable for any damages or losses that are incurred by the other party.

(b) The Federal Parliament has the power to make laws for the whole of Australia, but only in relation to specific subject matter. The Australian Constitution defines these powers (Australian Family Law, 2010).

(c) s111A of the Marriage Act states that a person is not entitled to recover damages from another person by reason only of the fact that that other person has failed to perform a promise, undertaking or engagement to marry the first-mentioned person. If this was applied to Cohen v Sellar it would it affect the decision that Miss Cohen would not be entitled to recover damages which is why McCardie J. allowed her to keep the ring, in order to sell it in order to recover such damages.

(d) s111A of the Marriage Act illustrates that Common law can be amended or repealed by Parliament.

(e) I think that the law and the courts should have a role in deciding disputes about the ownership of engagement gifts. These types of disputes would be great candidates for alternative resolution procedures. ADR comprises of dispute resolution processes and methods that are used as a means for disagreeing parties to come to an agreement short of going to court. There are four main types of ADR processes: negotiation, mediation, collaborative law, and arbitration (Alternative Dispute Resolution - Guide to Alternative Dispute Resolution Law, 2010). If parties were to undergo a form of ADR and could still not come to a resolution then there should be an option to pursue the matter in a court of law in order to come to an acceptable decision.

Question 3

When one looks at this case it is appears on first glance that Heathcliff would be entitled to the engagement ring. In the Cohen v. Sellar case the judge remarked that in cases where the woman has refused to carry out her promise to marry or an engagement is broken off by mutual consent, the woman is bound to return the engagement ring to the man. The judge also said that if the man, without legal justification, refuses to carry out his promise of marriage, he cannot demand that the engagement ring be returned to him.

In the case of Heathcliff and Catherine, Catherine was the one who broke off this engagement. After doing so, she promptly attempted to return the engagement ring to Heathcliff. He refused to take it back. He told her that it was gift and thus she could keep it. She had placed the ring on the table in front of Heathcliff and that is where it remained when he left.

In my opinion Catherine would be entitled to keep the ring. Applying the dicta of Cohen v. Sellar, since Catherine refused to carry out her promise to marry then she would be bound to return the engagement ring to Heathcliff and this is indeed what she tried to do. He insisted that it was gift and that she could keep it. He then proceeded to leave the premises without taking the ring with him. This would make a reasonable person presume that he intended for her to keep the ring. In order to be considered a legal gift, there are three things that must be present. The donor must have intention to give the ring as a gift, the donor must deliver it to the donee, and the… READ MORE

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