Contracts in Family law and Commercial law essay

  (1)  Introduction

Both sale of goods and agency are special types of contracts and they form the foundational basis of the contractual law governing the sale of goods and services. The first section shall examine the special contracts that develop upon the transfer of property in the goods or services while the latter section of this paper shall look into the contract of agency and its applicability in the transfer of property.

A Sale of Goods Contract Defined

A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in the goods to the buyer for a money consideration called the price (Sec.2). According to the provisions of the Sale of Goods Act, the contract is established between the owners of the goods and the buyer. As such, the contact may either be absolute or conditional. Whereas under the contract of sale the property in the goods is transferred from the seller to the buyer immediately upon payments of the stated price, in an agreement to sale commonly examined in hire purchase contracts, the transfer of property in the goods is to take place at a future date, time or subject to some conditions to be fulfilled at a latter date.

A sale may be seen as both a contract andor a conveyance. In light of a contract of sale, the buyer becomes the owner of the goods. Ownership in the statutory sense means the collection of rights to use and enjoy property including the right to transmit it to third parties. It is the exclusive right of possession, enjoyment and disposal of possession involving as an essential attribute the right to control, handle and dispose. They constitute of the personal rights of the buyer against the seller which arise from the mere contract of sale. On the other hand, an agreement to sale is purely a contract. Ownership does not pass to the buyer till a later date.

  The Nature of a Hire Purchase Contract

Definition

According to John Ogller 1975,a person who wants to buy goods but do not have money consideration which is legally payable in monetary terms may enter into an agreement with the owner with a view to hire the goods and ultimately purchase the same at a later date in installments. A hire purchase agreement can therefore be defined as a contract whereby the owner of the goods hires them out to the hirer and gives him the option to purchase the goods. The option to purchase may or may not be exercised and there would be no contract unless such an option is exercised. It is therefore an agreement for the bailment of goods under which the bailee may buy the goods but the property in the goods may pass or may not pass to the bailee at a future date.

A hire purchase agreement is a high bride form of contract in the sense that it is not just a simple bailment or contract of sale but it combines elements of both sale and bailment. The element of bailment is present because it prescribes terms of the goods irrespective of whether the hirer ultimately decides to purchase them. It has an element of sale because of the right given to the hirer to acquire title known as option to purchase which can either be passive or active. In instances where there is an active option to purchase, the hirer takes the goods on hire for a specified rent and is granted an option to purchase the goods at the end of the hiring period upon payment of an initial sum called the option fee which is usually nominal.

In the second instance of passive option to purchase the price of the option to purchase is normally paid at the outset or included in the rent payable so that the property passes automatically to the hirer on completion of installments stipulated without the active exercise of any option to purchase.

The Nature of an Agency Contract

An agency contract merely entails the relationship which arises when one person is used by the other in order to perform certain tasks on his behalf. Agency is therefore defined as the relationship that exists between two p[persons when one called the agent is considered in law to represent the other called the principle in such a way as to be able to affect the principles legal positions in respect to the formation of contracts and disposition of property with third parties(Sec.19).

Two factors merit consideration in understanding the function and legal nature of agency relation; the consent of the parties and the authority of the agent’s e idea which is central in agency relationship is that the principle and the agent agree either in the form of a contract or otherwise that the agent represent the principle. The idea of consent was emphasized in the case of Garnac Grain Co. Inc V Faure &Fair Claugh 1962, where it was established that the relationship of a principle and agent can only be established by the consent of the principle and the agent. It is worth noting that such consent can either be in implied or expressed. With regard to the idea of authority, a person is considered to be an agent if they have express or implied authority which flows from the principle to the agent and thus his actions andor decisions bind the principle(Butteridge, 1984).

(2)    There are the implied conditions annexed by trade and usage under section 14© which merely illustrate the general rule applied to all contracts that the intention of the parties must be ascertained from all surrounding circumstances and that where all the transactions are connected with a particular trade the customs for usage of that trade must be considered as part of the background against which the party contracted. The question that arises from the doctrine of caveat emptor and its exceptions is that of effectiveness. Sale by description constitutes one of the exceptions within the caveat emptor.

            Sale by description is a concept that promulgates that where there is a contract of sale of goods by description there constitutes an implied condition that the goods correspond with the description. If the sale is by description as well as by sample, it is not sufficient that the bulk of the goods correspond with the sample if the goods also do not correspond with the description (Sec, 21). Description applies to two different situations. In situations where the purchaser has not seen the goods but is relying on the description alone, it is regarded as a sale by description for future or unascertainable goods (Sec,22 s.o.g.act).

            The phrase also applies to cases where the buyer has actually seen the goods. Description in this case refers to the physical identification of goods and in a wider sense it connotes both the physical identity and the quality of the goods. A sale can be by even where the buyer has seen the goods. This was held in the case of Australian knitting mill vs. Grant (1963). The appellant dermatitis which is a skin inflammation of an external origin as a result of wearing a woolen undergarment which when purchased from the retailers was in a defective condition owing to excessive presence of sulphate.

            Lord Wright held that there was a sale by description even though the buyer bought a garment that was displayed before him on the counter. It is a thing sold by description as it is sold not merely as a specific item but as an item corresponding to the description.

A REPORT ON THE LEGAL PRINCIPLES AND RULES THAT GOVERN FAMILY LAW WITH SPECIFIC REFERENCE TO DIVORCE.

Introduction

This report is founded on the case of Wraggswell V Wraggswell (2008). It is grounded on an examination of

The formalities involved in creation of a marriage. An examination of whether it is a contractual relation that creates legal obligations or whether it’s merely a social agreement with no obligations at all is looked into.The prerequisite that must be established for a marriage to be annulled and or terminated is also examined.Finally the determinations of ancillary relief that result upon termination of the marriage are also examined as they form the foundational basis of financial statement.Definition of marriage

         The meaning of marriage and the legal implications of such union largely depends on personal laws of parties and the modes of celebration of the marriage. In the United States the meaning and legal effect of marriage depends on the formalities the couples underwent in the course of marriage.

         A statutory English marriage is expressly monogamous and the classic definition of such a union was established by Lord Penzance in Hyde V Hyde (1866) LR in the following phraseology “I conceive that marriage as understood in Christendom may be defined as the voluntary union for life of one man and one woman to the exclusion of all others.” This definition establishes several elements;

The marriage must be voluntary thus it can be annulled if there constitutes of no true consent on the part of one of the parties. In Baxter V Baxter (1948) ALL ER 386,it was established that since the respondent had not consented to the marriage the petitioner had failed to prove the case.It must be for life. As understood in Christendom, marriage resembles determinable life interest rather than a term of years absolute.The union must be heterosexual. This was considered in the case of Corbett V Corbett (1941) All ER 33 where the petitioner in the case was a man before the marriage he later underwent a surgical operation to remove his genital organs and placed for artificial female organs. The court held that the respondent who was male at birth was not a woman and the marriage was therefore void.It must be monogamous; this implies that neither spouse may contract another marriage as long as the original union subsists.The Nature of Marriage

       Quite apart from its abstract meaning –a social institution-marriage has two distinct meanings; the ceremony by which a man and a woman become husband and wife. The act of marrying and the relationship existing between a husband and wife or the state of being married. This distinction largely corresponds with its dual aspect of contract and status. Marriage can thus be viewed as an agreement by which a man and a woman enter into a certain legal relationship with each other and which creates and imposes mutual rights and duties. Hence marriage looked at from this point of view is a contract. It presents similar problems to other contracts for instance form or capacity.

       A marriage contract is however different from the normal contracts in a number of ways: the law relating to capacity to marry is different from any other contract, the marriage may only be contracted if only special formalities are followed, the grounds of void or voidable contracts are based on different grounds unlike other contracts.

Nullity of marriage.

        We carried out an elaborate study on the distinction between;

The difference between a void and voidable marriage.In instances of a void marriage, can it be effected.The marriage act contains rules relating to void and voidable marriages. In Dereneville V Dereneville (1946) it was established by Lord Greene that a void marriage is one that will be regarded by every court in any case in which the existence of the marriage is in issue as never having taken place and can be so treated by both parties to it without the necessity of any decree annulling it. A voidable marriage on .the other hand is one that will be regarded by every court as valid subsisting marriage until a decree annulling it has been pronounced by a court of competent jurisdiction. If a marriage is void, it is so defective on the social and public policy grounds that it does not exist. A marriage is void on the following grounds:

Where the parties are within a prohibited degrees of relationship provided under the Marriage Act.Either party is under age of 16 at the time of celebrating the marriage.Where the parties are married in disregard to certain requirements as the formation of marriage under the Act provides that a marriage shall be null and void if both parties knowingly and willfully acquiesce in its celebration; in any place other than in the office of the registrar or a licensed place of worship, under false names and without a registrar’s certificate of notice or minister’s license.With regard to voidable marriages, a husband or wife may present a petition to the court praying that hisher marriage be declared null and void on the following grounds;

That either party was permanently impotent or incapable of consummating the marriage at the time of the marriage. This was established in the case of Pettit V Pettit (1962) where it was held that consummation means that the parties must be able and willing to have sexual intercourse at the date of the marriage.That the marriage has not been consummated owing to the willful refusal of the respondent. In S V S(1963) Probate 162 the wife had a physical deformity which made consummation impossible. It was established that the husband would petition for a decree of divorce. It is however note worthy that there will be no willful refusal where the marriage was between elderly persons for companionship only Morgan V Morgan (1959).That the parties are within the prohibited degrees of consanguinity or affinityThat the former husband or wife of either party was living at the time of marriage with a previous husband or wife then in force.That the consent for marriage was obtained by force, mistake or otherwise.Termination of Marriage

        We looked into the various ways in which a marriage may be legally ended and looked into;

·         The grounds for divorce

·         The restrictions and bars to a petition of divorce

·         Judicial separation

Marriage may be terminated only by the death of one party or a decree of dissolution or divorce pronounced by a court of competent jurisdiction. Decrees of nullity terminate voidable contracts. A decree of divorce can be granted if the petitioner can prove that the marriage has broken down. The grounds for divorce are fault based.

§  The petitioner has to prove that he or she has not condoned or connived the facts alleged by the petitioner,

§  That he or she has not colluded with the respondent,

§  That he or she has not been accessory in the case of adultery.

Restriction on Petition

        According to the Matrimonial Causes Act, it is provided that no petition for divorce shall be presented to the court unless at the date of presentation three years have passed since the date of marriage and the case is one of exceptional hardship suffered by the petitioner or of exception depravity on the t of the respondent.

     Under such circumstances the petitioner must apply to the court for leave to present the petition. The petitioner must also be domiciled in the United States and have permanent residence in the country.

Ancillary Relief

       The breakdown of a marriage in most cases results in divorce and the majority of disputes concerning finance and property between the parties and in respect of children are dealt with in consideration of the contribution of the parties in the course of marriage and the best interest of the beneficiaries. The court may make orders for maintenance pending suit. This would involve the either party to make periodic p[payments for his or her maintenance and for such terms beginning not earlier than the date of presentation. In Aggett V Aggett (1962) the husband was irresponsible and unconcerned about providing for his wife. Periodical payments were secured on the husbands only valuable assets; his house.

References

  • Brownlie G.(2003)Case Book on Family Law and Succession,Butterworths,London.
  • Butteridge, H.C.(1984)Contracts and Commercial Law,Macmillan,Cambridge
  • The Sale of Goods Act
  • The Hire Purchase Act
  • The Matrimonial Act.