Essay on "Gilbert's Summaries Contracts the Law"

Essay 18 pages (5347 words) Sources: 0

[EXCERPT] . . . .

Gilbert's Summaries

Contracts

The law of contracts represents society's attempt to formalize promises between parties. Promises are agreements between parties that are supported by consideration. Historically, consideration was described as a benefit received by one promisor or as detriment incurred by the opposing promisor. Modern legal theorists, however, describe consideration as being equivalent to a bargain, that is, an exchange of promises where each party views what he is giving as the price for what he gets. There are some limitations on this approach so other legal experts view consideration as anything that makes a promise or contract enforceable.

Promises or consideration take on various forms. There are promises that are mutual, promises that are unilateral, and promises that are subject to further conditions. Regardless of their type all must be free of evidence that they are unconsciousnable, or that the parties to the promise, that is, the contract lacked the capacity to contract. Additionally, there must not have been any indication of fraud or duress in the inducement to contract. The presence of any of these conditions will serve to render the promise/contract unenforceable.

All contracts are subject to the concepts such as accord and satisfaction, waiver and mutuality that change the obligation of the parties to the contract. Their specific application depends on the circumstances surrounding the promises and the formation of the contract.

The formation of a contract depends upon a determination of the mutual assent of the parties. Mutual assent is generally measured by the objective standard of determining what a reasonable person to whom a statement or offer is made would understand such statement to mean. This same level of objectivity is extended to the terms of the promise so that each party's reasonable expectations of what the terms are intended to mean is apparent.

In order for a contract to be formed there must exist mutual assent between the parties. Mutual assent is determined through the process of offer and acceptance. An offer is any statement or action that indicates the intent to be bound in an enforceable agreement that is tendered to another party. An offer remains open to acceptance until such time it is either accepted, formally withdrawn in an obvious manner similar to the way that it was offered, or expired due to a stated term. Correspondingly, an acceptance must be demonstrated and must be done so in a method that is clear and conspicuous. In making any determination as to whether a proper acceptance has been made the same objectivity that is used in accessing the existence of a valid offer is used. In demonstrating an acceptance, the accepting party must not change any term of the offer. If he does so, the attempted acceptance automatically becomes a counter-offer and the burden falls upon the party making the original offer to either accept or reject the counter-offer.

Litigation regarding the formation and interpretation of contract terms and application is extensive. Despite efforts to minimize such litigation through strict application of contract construction disputes still arise. The source of these disputes arise over indefiniteness of terms, mistake relative to the understanding of the parties, misrepresentation, nondisclosure, duress, or undue influence, or, simply, unconscionability. In any contractual situation the effect of these sources is considerable and must be afforded consideration. The presence of one or more of these conditions can serve to invalidate either the existence of or the application of a contract.

Problems can occur not only in the formation of a contract but also in its performance. This recognition has resulted in the development of a number of concepts governing the aspects of contracts as well. The law of contracts demands that the parties act in good faith not only in the formation of contracts but also in their performance. This requirement of good faith extends to the both the express and implied terms of all contracts. A failure by either party to act in good faith can result in a breach occurring which might invalidate the entire contract. If the contract is not totally considered breach, a partial breach might still occur that would alter each parties performance obligations under the contract. Not all breaches are deemed to be material to the degree that a contract would necessarily be invalidated. Each breach or potential breach must be examined on its facts with said examination again taking place from the viewpoint of an objective, reasonable person.

Remedies and damages in contract actions can be quite complicated depending on the nature of the contract and the expectations of the parties. Often, parties to a contract include damage calculations in the text of their contract. This inclusion can serve to clarify matters but, like at contract terms, can also be the subject of controversy as well. The basic measure of damages in all contract actions is determined by the expectations of the parties. In the case of a complete breach this would be the value of the contract while in a partial breach it would be a difference between what has already be received and the total value of the contract. Needless to say, both determinations are easier discussed in theory than in actual operation. In addition to this basic measure of damages there are other remedies available such as specific performance, liquidated damages and punitive damages. These additional remedies are available depending on the fact surrounding the performance of the contract and the relationship between the parties.

The law of contracts remains complicated. Attempts have been made to simply the law in this areas such as the publication of the Restatements by the American Law Institute and the adoption of the Uniform Commercial Code but the common law remains the controlling authority. As a result, it is necessary that the basic elements of contract law be understood and applied in any contractual situation.

Criminal Procedure

The laws and procedures involved in the area of criminal law have undergone a major transition in the last fifty years. Prior to the 1960s and the influence of the Warren Court, criminal procedure law was largely based on the common law that had developed under the English system of justice but beginning in the mid 1960s criminal procedure began to receive increased attention by the United States Supreme Court and, consequentially, the individual states as well.

The movement toward greater protection for alleged criminal offenders began with the increased application of the Fourth and Fifth Amendments to the U.S. Constitution. These two amendments address the issues of arrest and detention and the corresponding privilege against self-incrimination. In examining these two Amendments and applying their standards to the states through the Fourteenth Amendments Due Process Clause, the Supreme Court redefined the procedures to be used in the process of arresting offenders and their ultimate detention. In the process of this examination the U.S. Supreme Court defined the concepts of probable cause, the proper use of search and arrest warrants, set forth the proper procedure in seeking both type warrants, defined the use of information derived pursuant to an arrest, outlined what an offender may or may not do at the time of an arrest, and afforded all offenders facing possible incarceration the right to counsel. Each of these issues was largely left unstated prior to the Warren Court's activism. Since that time there have been some clarifications on each of the issues but the basic legal standards have been altered very little. Against the background of these legal standards the law of Criminal Procedure has developed.

Each stage of the criminal process is governed by the Rules of Criminal Procedure. Every jurisdiction in the United States has its own set of rules governing its criminal procedures but most are based, in some form, on the Federal Rules of Criminal Procedure. The Warren Court's use of the Fourteenth Amendment to apply its decisions to the states has resulted in most states modeling their rules in accordance with the federal rules.

At the pretrial stage, the rules of criminal procedure require that certain procedures be utilized in the identification process, that arrestees be afforded access to a preliminary hearing, the setting of reasonable bail, a listing of the charges being brought and proper reference to the applicable statutes, the right to a speedy trial, and the full disclosure of all evidence, both favorable and unfavorable. All of these rights were recognized in some form by the common law but through developing case law and codification these rights are now universally available and applied throughout all fifty states.

At the trial level the procedures in application have remained relatively unchanged through the years but each jurisdiction has codified the procedures by incorporating them into their respective rules of criminal procedure. Trial procedure, under the rules and common law, require that all defendants be provided with a fair and impartial jury. To ensure this the rules set forth the process for voir dire and seating of the jury. The rules also establish how and when defendants may be entitled to… READ MORE

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