Criminal law/Contract law
Institution Basic elements of a contract
There are three basic elements of a contract; offer, acceptance and consideration. However, other elements which may be included in this list are consent, competence and legality of a contract (Thorpe, Bailey, 1999).
The stages of negotiation and areas of concern
A general contract negotiation has six stages and areas of concern. The first step involves evaluation of the eligibility of a contracting party; not be below the age of 18, otherwise, no negotiation may take place. The second stage involves familiarizing oneself with the contract basics; this implies that one must understand offer, acceptance, consideration and the intention of a contract to establish a legal relationship and apply the knowledge to negotiate the agreement. Third stage involves research into all the laws that apply to the contract so that the contract entered into will be legally enforceable (Thorpe, Bailey, 1999). Fourth, the contracting party sets priorities and decides what to concede so that the contract represents his best wishes. The fifth stage takes place at the negotiation table, whereby both parties present their positions and each applies the skills of negotiation so that the final consensus arrived at is freely willed by both parties and represents each party’s ultimate wishes. This is done to ensure that there is no duress or undue influence when negotiating the terms of the contract. Finally, the process of negotiation is completed through written agreement signed both parties (Thorpe, Bailey, 1999).
The implications if a contract contains provisions for performing illegal activities
If a contract contains a provision for performing illegal activities, it is not a valid contract. An illegal activity may be a provision that is prohibited by either common law or by the statutes. In such cases, the contract is entirely void and completely unenforceable by either of the parties. Consequently, none of the parties is liable for injunction, damages, specific performance or specific performance. However, there are four exceptions to this rule which include ignorance, statutory protected classes, undue pressure/ fraud/ oppression and when illegal purpose is not carried into effect (Suff, 2000).
Severability clause and its impact on a contract with unenforceable provision(s)
A severability clause is a clause in a contract which permits the terms of a contract to be independent of each other so that incase one term is deemed as being unenforceable through the action of a court of law, the entire contract will not be considered unenforceable all together (Bailey, Thorpe, 1999). Without the severability clause’s provision, one unenforceable term of a contract would otherwise result to unenforceability of the entire contract .When a contract contains at least one unenforceable term, the only such a term will be eliminated from the contract and made void or invalid while the rest of terms are performed and enforced fully. The aim here is to preserve the spirit of contracting as much as possible (Suff, 2000). References
Suff, M. (2000). Essentials of Contract Law. London: Cavendish Publishing Ltd.
Thorpe, C.P., Bailey J.C., (1999). A practical guide to deals, contracts, agreements and
promises: Commercial Contracts. London: Kogan Page Ltd.