Archive for the ‘Law’ Category
Contracts in commercial law must be in writing on paper or electronically. It is easier to uphold legally written business contract than an oral contract as reference can be made for the agreement. There are various specific features about written agreements which include; date of contract, details of parties involved, the services to be provided and the amount to be paid or received including the due dates and the penalties on late payments. The deadline for the services and the conditions are also given. Moreover, renewal terms where applicable are provided including termination conditions. The parties in the contract must clarify the specific issues without assuming the other party is aware of one’s conditions. The conditions must be well outlined during the negotiations. The laws must be well known by all parties incase one breaches the contract, he or she should be aware of the impacts. The fine prints must be well read to avoid assuming critical objects in the contract (Rath 2011).
A contract must contain precise statements as to avoid future conflicts. If the statements are less precise then the contract is less likely to be in a term (Poole, 2008). This can be illustrated in a case where a defendant stated in a negotiation for a plane lease that ‘it might even be more able to do 50 hours or maybe more. It was clear the defendant had a great deal of knowledge about the plane he was offering for lease and therefore the appellant relied on his knowledge about the plane. The petitioner eventually sued for extra hire charges that were a ledged to be pending under the oral contract. There was a statement in the contract which claimed that the written contract covered the entire contract, it was ruled that the verbal evidence by Nemeth was not admissible.
Moreover, the parties must consider the implied terms in the contract which must meet five conditions. These include; they must be reasonably fair, vital to provide business value to the agreement so that there will no term that will be implied if the agreement is efficient without it. The term should be so obvious that it should go without saying, and that it should be able to be plainly expressed and consistent with the terms expressed. From the case at hand, it was so obvious from the previous conduct of the parties that any company holding 40% share in the company is entitled to certain interests. This can be illustrated in a case where there was a written agreement that provided a claimant an option to buy 100000 more pieces of softwood. However, there was nothing said regarding the exact kinds or sizes of the wood in question and the manner of shipment. The claimant then attempted to exercise the contract but defendant a ledged the contract had been terminated. The jury held that the contract had not been terminated but the defendant claimed that the option was a contract to make a contract and that the statements were not described but were imposed (Macosx lectures notes). Hence it was ruled that the reasonable specification was not unclear enough as to negate the agreement. Barry’s case could not be termed as void.
Mr. Barry was right in the sense that, he can argue using promissory estoppels which is an equitable principle in some cases that is capable of stopping a person from going back on a pledge which is not held up by deliberation (Anson, 2002). This can be illustrated in a case where central London Property Trust had in its possession, a block of flats which was leased to High Trees for £2250 per year. The blocks came to be referred to as High Trees House. High Trees House intended to let the flats to private tenants. Nevertheless, the conflict implied that demand was floppy and High Trees bargained a reduction in the price of the lease to £1250 per year for the duration 1940-1945. After the combat, there was an increase in demand and the new tenants rented the entire flats. Central London property made an effort to convalesce the total rate of the lease as per the earlier arrangement making an allegation that no consideration existed from High Trees to back the arrangement for the down sized charges. A dispute was absent in the lack of consideration and basing on firm elucidation, of the common law on agreements, rights to total lease cost would have been imposed by Central London Property. All the same, the judge ruled that the agreement to cut down the rent was a pledge and High trees performed on that pledge. If Central London Property were permitted to impose their rights, then this implies that, the fact that High Trees Performed on that Pledge, it was a loss because they were liable to pay the total cost when the majority of the flats were not let. This meant that Central London Property could be completed focus to promissory estoppels.
Basing on the above case study, Barry was therefore in a position to enforce his rights against the oil company subject to promissory estoppels. This is because the Portland council had no right to refute the original agreement as it was still enforceable, whether the ownership had changed hands or not. Big Oil Company still held a 40 % share in the company and as a matter of fact it was entitled to receive the 50 % discounts as agreed earlier.
From Barry’s case therefore, to cure an obvious oversight, which if abandoned un-rectified will overcome the imagined objectives of the parties. In such cases, the court of law will entail terms into the agreement in order to defeat this oversight and provide effect to the rationale of the parties so that the business can be given efficacy. As illustrated in a case where the agreement for a ship known as Moorcock to offload its consignment at a dock possessed by the defendant in a tidal harbor, the ship was damaged when it submerged at the bottom of the mud. The defendant was sued by the owner for breach of contract claiming that despite the subject not being conversed the agreement contained implied term that the harbor bottom was sound for shipping. The performance was successful on the foundation that the term implicated was significant to provide the business efficiency to the agreement. Therefore with or without prior discussion between Barry and the council of Portland, there are implied terms that business efficacy must be maintained in the agreement. Hence the Council of Portland is liable to give Big Oil Company the 50% discount.
Beatson J. Anson’s (2002), Law of Contract.: Oxford University Press, Oxford
Macosx lectures notes provided Week 4-1
Poole, J. (2008), Casebook on Contract Law: Oxford University Press, Oxford.
Tiare Rath, 2011, Essentials of making a business Contract: The Legal ties that binds. Accessed
On 14th September, 2011 http://sbinformation.about.com/od/bizlettersamples/a/bizcontracts_2.htm
 Nemeth v Bayswater Road Pty ltd (1988) 2 Qd R 406
 Hillas & co Ltd v Arcos Ltd (1932) 147 LT 503
 Central London Property ltd v High trees (1947) KB 130
 Moorcock (1889) 14 PD 64 case
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Corporate insolvency refers to a condition in which business is no longer in a position to honour its debt commitments due to insufficiency investment capital in its cash flow. Insolvency processes that are applied bank on whether the shareholders would like to recoup the business or liquefy the firm after conforming to the ordinance of the court in regard to mandatory liquidation. Hopeless Ltd (Hopeless) has been placed in a liquidation order by the court. Theresa Care appointed as the liquidator is wondering whether it can recover the deposits made into Big Bank and with an overdraft of $ 140 000 pending. As a liquidator, Theresa Care must take into consideration that the law provides little guidance on the content of the reports to be given to liquidators for the meeting that will shape the company’s future. The content and quality of reports to the liquidators and information thereof about the course of action is normally inadequate.
General constitutional insolvency proceedings
Two flows of general statutory insolvency schedules in Australia are governed by the Corporate Act for companies and Bankruptcy for individual persons. The law that governs the company’s conduct are mainly set out in Chapter 5 of the Corporations Act. To ensure reports to liquidators are satisfactory; a check list of matters addressed in the section 439(A) report are to be prescribed in the statement setting out the terms of proposed deed. Theresa Care must also ensure that administrators include all their reports and other information that may be expected of it in its decision making.
Though Hopeless continued to trade while being insolvent there is a modified law of Business Judgement rule. This rule relieves directors the duty not to trade while insolvent. This provides a safe anchorage from the risk of personal liability. However, in this context Hopeless continued to trade even after an insolvent case had been filed. Hence Theresa Care can personally sue the directors for violation of this rule. Yet she can not withdraw the money in the deposit made by the debtor in Big Bank. As illustrated in McClellan, in the Stake Man Pty ltd V Carroll experts observes that it this was the first time the jury applied his power under the Corporation Act 2001(Cth) to grant a director a total relief from penalty following evidence of insolvent trading.
Priority amongst employees
Employees are normally protected in the event of insolvency of a company in most of the international jurisdiction. This is because employees are usually unable or less able to manage the risk of loss they might encounter in case the firm gets insolvent. The reason behind it is that shareholders can spread their investment portfolio to hedge the risk while creditors are in a position to widen their customer base or look for security. The employee is therefore exposed to due wages, superannuation or redundancy entitlements with less ability to hedge the risk. It is therefore required to give employees first priority in clearing their wages before clearing with the liquidator. Basing on this observation Theresa Care can not withdraw the money in the bank since it has to be used to clear employees’ outstanding wages Corporations Act 2001 (Section 556) (C Th). Employees rank after secured creditors; expenses appropriately sustained by liquidator, costs related to unintentional liquidation, expenses to be indemnified to administrator, appropriately incurred debts by official managers, audit fees and liquidator fees.
Moreover, as a liquidator Theresa Care is accountable for the entity’s operation by ensuring that any project operated by the entity is effectively dealt with proceeding to the liquidation finalization. Theresa Care has a number of options when dealing with Hopeless firm; the liquidator can take steps to halt the project. Considering the chapter 5C of the Act and Schemes’ constitution the liquidator can transfer any schemes to another entity. Theresa Care has no right to blame the auditors because the Act gives the firm authority to assess the Hopeless’ operation and determining what happens with each project undertaken. Theresa Care may also have applied court’s directions if it considered breach or conflict of duties in regard to Australian Security and Investment commission (ASIC 2009).
ASIC (2009) was given consultation paper 124 Directors’ duty to prevent insolvent trading: Guide for directors and 19 submissions in total. These were meant to enable directors to give directions to directors regarding insolvent trading prevention. The director must be highly aware about the financial dealings of the company and constantly evaluate the firms’ solvency. They should also take drastic measures in dealing with company’s ability to solve the difficulties in finance. The director must also seek advice and disclose all the information on the firms operation so as to minimize risk. Failure of which puts the company into deeper risks.
As illustrated in City of Swan V Lehman Brothers Australia Ltd (2009) FCAFC 130 and their appeal, Lehman Brothers Asia Holdings ltd (in liq) V. City of Swan (2010) HCA 11, ASIC probed for explanation from the supreme courts as to if a company’s deed arrangement (DOCA) can induce creditors to release third party from obligations. It was held by the high court that DOCAs trusses only to the extent creditors asserts relate to the company.
Similarly, in Q.B.I Corporation pty v Plantation Rise pty ltd (2010) QSC 102 a suite was brought by a creditor who was unsecured to put aside the resolution of the creditor to get into DOCA that an affirmation to be made that creditors avers were not doused off as per the execution date of DOCA and the plantation rise was to be wound up. Intervention and submissions were provided by ASIC regarding the questions of law emanating from the law applied. In the submissions ASIC put in mind the early effectuation of DOCA as opposing to the objectives and articles of part 5.3 A formulated to run damage to the whole creditors.
Her Honour Justice Wilson concurred with ASIC submissions that the directors’ efforts to evade the provisions of Sec 600A of corporation’s Act were an abuse to the Act. Therefore the resolutions were to be set aside as ordered by the court that DOCA that had earlier halted by action be set from the start.
Therefore, Theresa Care being the liquidator should look for away of dealing with the directors of Hopeless under the Act rather than looking for a way to withdraw the money deposited in the Big Bank.
Australia’s Corporate Insolvency Laws (2002)
Australia’s Corporations Act 2001
Australian Security Investment Commission Insolvency Update (2010)
Deed of the Company’s Arrangement,(DOCA,2009)
Parliamentary Joint Committee on Corporations and Financial Services: Improving
Australia’s corporate Insolvency Laws; Issue Paper (2003)
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Employment law is apprehensive with the rights that employers and employees are obligated to each other. All employees have obligations and accountabilities stemmed out of four sources. These include; Federal legislation, state legislation, awards, enterprise arguments and Australian Workplace Agreements and common law.
- I. Federal legislation
These are corporate powers enacted in 2006 by the Commonwealth to control agreements in employment which are formulated between foreign, trading or financial firms and their employees. These types of regulations cover about 60% of the Australian workforce. Preceding the commonwealth’s constitutional power to enact laws on employment and industrialized associations in 2006 issues emerged to be constrained to federal employees and those who worked in the boundaries and Victoria. Howard Liberal Government introduced work choices due to mainstream command over the House of Representatives and the senate in March 2006. As the first chief change since 1907 work choices was to be taken apart by Rudd Government, however, the necessary suggested modifications came into effect till 2010. These regulations contain among others court and tribunal decisions, law reports, awards, key publications and other relevant government sites that provide the federal government with guidelines in Labor laws (Australian Constitutional Law 2011).
- II. State legislation
There are no constitutional restrictions in regard to the States’ industrial relations authorities. Legislatures, industrial tribunals and commissions are normally liberal to undertake a broader and a less technical approach than the commonwealth approach. A common law award created by industrial relations tribunal is usually illegal in the federal system. Majorities of the awards which were still in place when the new government took power did not make any difference to the employees. The legislations also prescribe the workers compensation and safety and health laws. Other legislation which may affect the employment arrangements like disability services and equal opportunity are included in this legislation. Besides, common wealth legislation concerning Fair work Act 2009, Privacy Act 1988 and Social security Act 1991 are contained under this source.
- III. Awards, enterprise agreements, Australian Workplace Agreements
Regulation of pay and workplace settings through making and approving of awards was conducted by the Australian Industrial Relations Commissions and state commissions. This was a lawfully enforceable order produced by a federal or state industrial tribunal. These awards bind employers and employees to set pay rates and circumstances for a fixed period of time. This was an agreement made directly between an employer and employees for a determinable time period. The employees agree to be more fruitful efficient and flexible in exchange for higher pay and improved conditions. Some types of agreements under this source include; enterprise bargaining, fixed-term contract, individual contract of employment and award free contracts.
Enterprise bargaining is a course of action which employers and employees apply to agree on a set of rules and conditions at their place of work. These results into a work place agreement. Fixed term contract may be connected to a specific date or project conclusion. It may connote to employees covered by awards or contracts in specific conditions. It is supplementary commonly used for workers who are not covered by awards or contracts like senior management. In personal contract of employment state of affairs of employment and the rate of pay are agreed between the employer and employee. It pertains in situations where an employee is not covered by other categories of employment contracts awards or accords. This type of contract does not need to be registered with any particular industrial court however at the breach of the contract; application may be made to courts under common law. It also has some specific conditions for employment like annual leave, parental leave and long service leave (Henwood, 2002). This contract does not give less important privileges than those composed in an award if the employee’s employment is wrapped up by extra benefits. Lastly, in award free contract covers employment terms mutually agreed upon between employer and employee.
IV) Common law
This is a contractual kind of employment agreement between the employer and employee. The employees concur to input their labor and skills under the control of employer in reward for money. The terms must concur with the legislations, award or enterprise agreements. The obligations and entitlements are reasonably fundamental common intelligence. The employer must be able to give commands which must be obeyed by the employee without question unless the orders contravene his or her rights. Regular attendance at work on agreed times and obedience of instructions must be conformed to by the employee. The worker must show diligence, competency, loyalty to employer and the employer must embrace accountability and responsibility for honest mistakes and accidental breakages by employee (Harvey 2003). The workers must not make any secrets profits at the employer’s expense and they must not disclose all confidential information of their boss. Proper remunerations must be given to the employee in accordance to the quality and quantity of task performed. This common law also stipulates on implied terms that the law must be suitable and unbiased and necessary to give a business ethics to the contract such that the contract will be effective. The provisions must be clear of expression and must not contradict any expressed term of the contract.
Interaction of these sources of laws
Any modern award or enterprise accord must not exclude the national employment standards provided by the state. They might however include provisions dealing with the National employment standards contained in part 2-2 and regulations made for the purpose of section 127. The State employment standards have impact relating to terms included in modern award or enterprise award as prescribed in the section. Enterprise contracts might have inclusion of terms which have the same impact as provisions of the State employment standards. To avoid confusion they might contain the effects of requisites that provide a worker similar entitlements as described in the State employment standards.
The Fair work Act 2009 integrates universal protection necessities under unfair dismissal and liberty of alliance. These provisions have also been included in the work choices legislations. The fair work Act contains re-enacted unlawful termination provisions of work choices. Nevertheless, the Fair work Act stipulates that an individual may not submit an application for assistance against an unlawful dismissal if they are also entitled to dispute the termination under the universal safety provisions.
The universal protection provisions of the Fair Work Act give defense against unfavorable action because an individual has a workplace right. The proscription widens further than termination to encompass other types of unpleasant act. Such cases might include protecting an employee from acts by the boss where the boss harms the worker in his or her work, adjusts his or her location to the intolerance of the employee or show favoritisms against the employee.
Defense in opposition to adverse action also involve prohibition of unpleasant acts taken by the boss against potential employee, a principal against an autonomy outworker, an employee against employer, an autonomous outworker against a principal and an industrial union against an individual. Any individual who possess a work place privilege is that unrestricted to the advantage of, or have a function or accountability under a law or workplace instrument. These privileges are bound for conditions where a worker is dismissed preceding a request to be given payments in relation to the award entitlements or where a worker is needed to perform an overtime work or put in excessive pressure to obtain the desired outcomes or abide with inappropriate regulations.
The federal workplace Relations Act identifies unfair dismissal under two prime conditions; termination was inconsiderate, unjust or perverse. To file for claims against unjust dismissal the employee must be operating below the Federal award/ industrial agreement or earning below a particular income. Protection is given to employees against discriminatory grounds for unfair dismissal for rationales concerning as to whether the employee were notified of that reason.
Remedies for unfair dismissal
Under the common law, damages equivalent to pay for proper notice period and under statute restoration, re-employment or monetary reparation. The statutory regulation of work place covers major areas such as rights to work leaves, compensation schemes for workers, schemes related to occupational health and safety and mandatorysuperannuation offerings. It also entails equal opportunity legislation. The employees covered in the unfair dismissal laws are those who fall under the national work place relations system from the following locations:
v Victoria and the Northern Territory or Australian Capital Territory
v Workers hired by private firms in New South Wales, Queensland, South Australia or Tasmania.
v Workers working under the local government in Tasmania
v Workers working under a constitutional corporation in Western Australia
v Those working in the commonwealth or commonwealth authority
v Workers in waterside or marine time workers in overseas transactions.
The employee is reinstated through reappointment to the position he or she was before the dismissal. The person may also be appointed in another position on terms and situations no less favorable than which he or she was before the dismissal. Under this claim an Order to maintain continuity may be awarded by the Fair work Act which may require maintaining the continuity of the person’s employment subject to the person’s period of continuous service with the employer. Moreover, an order to restore lost pay may be issued under the subsection (1) of the Act which considers suitable to cause the boss to pay to the person a mount for the compensation lost or likely to have been lost by the individual through the dismissal. In estimating the amount for the objective of an order under subsection (3) the Act takes into consideration the amount of any compensation earned by the individual from employment during the time period between the dismissal and making an order for the reinstatement. The amounts of any recompense appropriately to be likely earned by the person during the time between making of the order for reinstatement and actual reinstatement.
The order is issued according to the time of dismissal’s equivalent pay in relation to reinstatement. It is determined under the following conditions: incase the effect of the order on the viability of the employers’ business. The person’s length of service with the employer, The remuneration that the individual would have gotten if he or she had not been dismissed, the person’s efforts to mitigate loss suffered by the individual due to dismissal, the amount of any income likely to be so earned during the time of compensation and actual compensation. Misconduct reduces the amount if it is satisfied that misconduct of a person contributed to the decision by employer to discharge the individual of his or her duties (Bhandari, 2003). The Fair work Act might reduce the amount of compensation on the account of misconduct. Consequently, shock and distress are disregarded as the amount ordered by Fair work Act to be given to the employee under subsection(1) must not be inclusive of a component by way for shock, distress or mortification or other equivalent harm caused to the individual by manner of his or her dismissal.
The total amount compensated includes the total amount of remuneration received by the individual or to which the individual was entitled for any duration of working with the boss during 26 weeks immediately before the dismissal. However, if the worker has to go without pay or without full pay, regardless of being employed during any part of that duration, the amount of compensation perceived to have been received by the worker for the duration of leave in respect with the regulations is awarded to him.
The parties and their bargaining representatives must fulfill the good faith bargaining necessity under the Fair work Act inclusive of: reasonable attendance and participation in meetings; disclosure of all appropriate facts in a timely conduct; providing authentic deliberation to the suggestions made by other bargaining agents and motives for any reaction to those suggestions; not conducting in a capricious or unfair way that undermines freedom of connection or combined negotiating and recognizing and bargaining with the other negotiating agents for the agreement.
Before the employees engage in industrial action for a proposed enterprise agreement the negotiating agent of an employee who will be covered by the accord must provide a notice in written form of the action to the employer of the worker. This is done through application made from Fair Work Australia to be provided a protected action ballot order. The appliance must have inclusion of the group of workers to be balloted and the kind of problems to be included. A duplicate of the request must be given to the employer and the suggested ballot representative. The period of the notice must be at least three working days or a period specified fit the purpose of the employee claim (Thompson 2003).
A notice of must not be given until after the results of the protected action ballot for the employee aver action has been confirmed. The negotiating agent of an employee covered by the accord must then give the written notice of the action to the employer. The employer must give a written notice of the action to each negotiating agent of the employee who is covered by the accord and take all the appropriate steps to alert the employees who are covered by the accord of the action before he engages in employer response action. The notice must then give details of the nature of action and the day of effecting the action. Fair work Australia will eventually make a consideration on the application if all the requirements have been fulfilled. Before the industrial action takes place a written notice must be handed to the boss who is then given three days to react to it. Failure to, implies the industrial action has to move on.
If the proposed action is not protected then it will not have immunity provision as the actions might lead to personal injury of the participants in the action. There will also be reckless destruction or damage to property or illegal use or taking of property. This may lead to action of defamation being brought against the participants in relation to the occurrence in the course of industrial action. Besides, the employer may refuse to make the required payments to the employees in relation to the period of the action.
Furthermore, the employer’s reaction action might affect the continuity of employment in such away that the employees who are not covered by the accord will suffer as the regulations prescribe. The federal courts may also consider it necessary to stop the remedy or effects of the contravention. In addition the Fair work Act might deem it necessary to stop the industrial action if it is not protected. There are certain payments that are normally made on industrial actions. These payments might not be made if the industrial action is protected. The payments include; payments relating to a case where the total period of industrial action on that day is at least 4 hours. Payments in relation to a case where an overtime ban to which it applies unless, there was a request by the employer to work for the overtime duration. The employee may have refused to work for the overtime duration of which it was contravening with the obligations of the employee under the modern award, enterprise contract or employment contract.
A protected industrial action is an employee claim action which is organized for the purpose of supporting claims in respect to the accord that are only about or reasonably believed to be a permitted subject. The proposed industrial action might be protected if it meets the common requirements set out for industrial action for a suggested enterprise accord. The enterprise accord must not be of a Greenfield concurrence or multi-enterprise accord. The industrial action will only be protected if the parties are trying to reach a genuine reason in the agreement and must abide with the orders that apply to them agreedduring the negotiating for the accord. The employee claim must be organized and covered in the concurrence by the agent of an employee who is also covered by the accord.
The employees must also be included in groups of employees specified in a protected ballot order for the industrial action. For the industrial action to be protected it must also meet the universal requirements set out in subdivision B of the Act and the additional requirements set out in the same section. The industrial action must not be in defense or support of unlawful terms in the accord. The industrial action must not be part and parcel of pattern bargaining in relation to the concurrence. If the industrial action is being organized by the negotiating agent it must not relate to a demarcation dispute. It must not be serving an order in respect to Division 6 terminating industrial action in connection to the concurrence. There should be no ministerial affirmation in respect to subsection 431(1) terminating industrial action in connection to the accord. Likewise, if there was a suspension order, notice of requirements after the suspension must be met. Finally for the industrial action to be protected discern of employee claim exploit must not be issued out not until the results of the ballot are confirmed.
Jill can bring a claim for both unjust and wrongful dismissal due to forced resignation. However any amount collected under one may still nullify the same amount collected under another claim. Nevertheless this kind of action prevents the employee from receiving double compensation. Jill qualifies for the unjust dismissal because she had been employed to work full time for 5 years and that her job ended the previous day which is less than three months stipulated by the Act. Besides, her employment was to run for more than 1 year that is, 5 years as required by the law. The legal repercussions in forced resignation are similar to dismissal impact. In the decision of Western Excavating v. Sharp. ICR 221
Sharp, an employee whose contract included flexible time format wanted to have an afternoon off to participate in a game for his team in a cards contest. The foreman denied him the permission on the assertion that too much work was available to be completed. Sharp went against the foreman’s warning and he received a two week’s job termination notice. Sharp made an appeal to an in-house review which reduced the suspension to five days ‘deferment without pay. When he went to the company’s welfare fund for his holiday pay due to his financial impairment, he was also denied the privilege. He then went to his manger to demand his holiday leave on a claim that the circumstances were forcing him to leave. He later on sought compensation from industrial tribunal which saw the employer’s conduct inappropriate hence they held that Sharp had been dismissed.
The court that originally took the case, maintained the decision of the industrial tribunal. An appeal was launched by the employer to the High court of justice. In illuminating the law of constructive dismissal the court held that to prompt the principle, the employer must act according to the conduct inconsistent with prolongation of the contract of employment and hence lapse the employment contract. The company had no responsibility to give financial help and that it had not taken any further steps which could be termed as refutation of contract. The employee himself terminated the contract
Moreover, Jill can sue for undue influence or pressure as the manager threatened her with the job loss incase she did not resign by herself. In way or another she was to lose the job and she opted to resign. Under section 344 of the Act she can sue for compensation under a civil remedy provision part 4-1. Therefore on the above foundation Jill can take the employer to industrial court where an order may be issued according to the time of dismissal’s equivalent pay in relation to reinstatement. It is determined under the following conditions: The effect of the order on the viability of the employers’ business. The Jill’s length of service with the employer, The remuneration that Jill would have gotten if she had not been dismissed, Jill’s efforts to mitigate loss she suffered due to forced dismissal, the amount of any income likely to be so earned during the time of compensation and actual compensation. The total amount compensated includes the total amount of remuneration received by Jill or to which Jill was entitled for any duration of working with the boss during 26 weeks immediately before the forced resignation. However, if Jill has to go without pay or without full pay, regardless of being employed during any part of that 5 year duration, the amount of compensation perceived to have been received by her for the duration of leave in respect with the regulations is awarded to her (Pickering 2010).
The prime strength of compensation being made on Jill is that she does not leave the employer to gain double award. This is because due to coerced resignation the employer will have gained by disposing her off and at the same time not paying for his actions. The employer will be in apposition to hire another competent worker who meets the prescribed conditions of the company that is, team player. This leaves Jill without any job at hand or reference for any job to sustain her. Besides, by using industrial tribunal, she stands a chance of being given compensation in relation to the time she had worked and loss of income. However, the company may prove her inefficiency and her inability to meet the standards of the firm which eventually reduces the amount of compensation to be granted. This may be determined by Fair work Act if it will be proved beyond doubt that there Jill carried out her duties with complete misconduct by refusing to be a team player then the amount to be reduced will be determined in relation to the type of business in operation. Besides, Jill will incur costs related to litigation which will cancel out the compensation awarded to her (Pickering 2010).
Australian commonwealth Constitutional Law
Bhandari, T, Work effectively in a business environment, Software Publications, Sydney 2003
Developing business skills, Level 2 activity book, Aspire training and consulting, Melbourne
Fair Work Act 2009
Federal awards, 2010,http://www.workplaceauthority.gov.au/
Henwood, B, Organize and complete daily work activities, Software Publications, Sydney, 2002
Harvey, S, Participate in workplace safety procedures, Software Publications, Sydney 2003
Michael Pickering, Employment Law – Unfair dismissals under the Fair Work Act – Remedies
and Entitlements 2010
NSW department of industrial relations, 2010, http://www.dir.nsw.gov.au/
Thompson, S, Communicate in the workplace, Software Publications, Sydney 2002
Developing business skills, Level 2 activity book, Aspire training and consulting,2002
 Interaction with state and territory laws p. 48-51 of Fair work Act 2009
 Part 1-3 division 2 of the Fair Work Act 2009 p. 48-52
 Part 1-3 division 2 of the Fair Work Act 2009 p. 48-52
Section 2 of the Fair work Act
Part 4-6 of the Fair work Act 2009
 Division 2 Protection from unfair dismissal Fair work Act p. 357
Michael Pickering, Employment Law – Unfair dismissals under the Fair Work Act – Remedies and Entitlements 2010
 Division 4 subsection 391 of the Fair work Act 2009 P. 362
Division 4 Remedies for unfair dismissal, Fair work Act 2009 P. 364
Thompson, S, Communicate in the workplace, Software Publications, Sydney 2002
Division 2 protected industrial action p. 373 Fair work Act
Subdivision B—Common requirements for industrial action to be protected industrial action P. 378 of the4 Act
NSW department of industrial relations, 2010
Western Excavating v. Sharp ICR 221
 Unfair dismissal P.355-362 of the Fair work Act
 Remedies for unfair dismissal p. 362 of the Fair work Act
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Tort of Negligence is the violation of a legal obligation to offer care resulting in injury to the plaintiff which was not wished by the defendant. It may also refer to omission to act reasonably directed by considerations which normally regulate the human affairs conduct or acting prudently and reasonably as illustrated in Blyth v Birmingham Waterworks co. (1856) where the defendant Birmingham Waterworks co. Installed water mains and fire plugs on the street where the plaintiff Blyth dwelled. 25 years past without problems and an unexpected cold frost resulted into freezing of the plugs opposite the plaintiff’s house. A large quantity of water leaked into plaintiff’s house caused by the damaged plugs. Blyth sued the water company based on the negligence. Blyth was a warded damage for negligence by the judge of which the water co. appealed; claiming the damages by the frost of 1855 was unpredicted. A person is negligent if his behaviour and care does not conform to the level determined by a reasonable person. In this case a prudent person would bear in mind the normal temperature variations in the past period and perform accordingly. At the same time a reasonable individual cannot be held responsible for unpredictable event.
Elements of Negligence claims
There must be a duty of care where the plaintiff must prove that the defendant was in a relationship of proximity between the petitioner and the defendant. The harm caused must be fair and just as reasonable to compel the accountability. As illustrated in Caparo V. Dickman (1990) where fidelity Plc Company which manufactured electrical equipments was a target takeover by Caparo industries, Fidelity was not performing well and in 1984 it gave a warning on its profit that had brought the price of its share to half. It was confirmed that the company’s position was worse when the share price fell again. At the time Caparo was buying the shares in large quantity. Later, Dickman the accountant to the company gave the annual accounts to shareholders inclusive of Caparo who had attained 29.9% shareholding in the company at which instant it made a conclusive offer for the shares remaining as per the city’s code’s regulation on takeovers. Caparo later discovered Fidelity’s status to be even worse than it had been revealed by the auditors. The company sued Dickman for negligence in the accounts preparation and vowed to recover the losses which were the difference in value as it had and what it would have realised if the accounts were accurate. As to duty to care the plaintiff was not successful in the first case but the court of appeal later found some evidence of duty of care. Similarly, in Lucy’s case being employed by the caring Hands Care Agency she had a duty of care towards Alf and so she was accountable in giving reasonable care to Alf as she had knowledge of her state of health as to her stroke. She was to act reasonably as to lift Alf with care considering he was disabled and morbidly obese and that she was likely to strain her back and panic. Likewise, in Winterbottom V. Wright (1842) in which the claimant Winterbottom had been hired by the postmaster General to drive the postmaster’s mail coach. Wright the defendant was instructed to keep the coach in a safe condition. The defendant was injured when the coach collapsed when he was steering. The claimant asserted that the defendant was negligent in his conduct. It was held by the court in the case that the claimant had no equalization. That now Wright had a duty of care in the agreement it could not be a duty of care in tort, therefore, manufacturers owed no duty of care to end users. The court ruled in favour of Mr. Wright since Winterbottom was not in a contract with Mr. Wright on the foundation of privity of contract principles.
There must be breach of duty where the defendant must be ascertained he/she owed a duty to the plaintiff. It should be settled on whether the duty breached was both subjective and objective. The defendant Lucy in this case failed to realize the considerable risk of loss to the petitioner Alf in which Alf was morbidly obese and disabled while Lucy who had recently suffered stroke tried to lift him unknowing of the potential risk of straining her back. In the case of Lucy and Alf, the risk was unforeseeable as she did not know the potential danger involved. As illustrated in Roe V. Minister of Health (1954) where Roe and another patient went through a surgery in a hospital under the management and supervision of Minister for Health, they were administered an anaesthetic consisting of Nupercaine by means of Lumbar puncture on entering the theatre . It was a normal tradition to store the anaesthetic in glass ampoules submerged in phenol solution for risk infection reduction. The phenol penetrated through the cracks unknown to the staff into the anaesthetic. This caused permanent paraplegia when it was used unto Roe. As per the law requirements for negligence to be attested there should be duty of care by the defendant and that duty must have been broken causing loss or damage to the plaintiff. It was ruled that the micro cracks were unforeseeable provided the knowledge of science at the time. Therefore, a prudent anaesthetist would not have stored the anaesthetic in the phenol as it was unreasonable to hold the management of the hospital accountable for failure to take preventive measure (Zipursky 2009). Not knowing she would strain her back and panic on carrying Alf though she had a duty of care towards him and the fact that she breached it by letting Alf to fall down she can not be held responsible. Similarly, in Bolam V. Friern Hospital management committee (1957) where Bolam a deliberate patient at the institution of mental health which was managed by Friern Hospital management committee agreed to go through electro-convulsive therapy. Muscle relaxant was not administered to him and that he was not restrained during the process. He violently whirled until the process was halted and he sustained some injuries including acetabula fracture. The committee was sued by Bolam for reparation where he alleged that they were negligent for not providing relaxants, not restraining him and not being warned about the possible risks. According to the experts it was not safe to use relaxant drugs and the manual restrains increased the risk of rupture. It was also a common procedure for the profession not to warn the patients of the risk involved unless asked. It was ruled that the ordinary procedure in a specific profession was highly appropriate to the level of care needed. If the individual refuses to act the way a reasonable man would in the particular situation then it is negligence. Therefore, profession acting according to the professional practice is not guilty of negligence. Hence the jury gave a ruling in favour of the hospital management committee.
There must be evidence of fastidious actions which caused the loss or damage protracted by the defendant to be held responsible. Sometimes the causations might be complicated and the functional test here is if the injury would have occurred before if Lucy did not breach the duty owed to Alf. If the breaching party increases the loss of injury to another party then the party breaching can be litigated for damages. As illustrated in Vosburg v. Putney (1891) where Vosburg suffered an injury just below the knee and before it healed a classmate Putney inflicted another kick on him at the same spot which later caused pain and further deterioration on surgery. The trial court awarded the plaintiff $28 000 but on appeal it was reversed to $ 25 000 where the defendant appealed. The defendant was accountable for damages as a result of direct wrongful actions and not they were unpredictable. In the case the actions were wrong as the event took place in the classroom and not in the playground. The facts still remain Lucy dropped Alf and he broke his leg so she is liable. Knowing very well that he was disabled and morbidly obese and she was not in a position to lift him up she went a head to lift him and willingly dropped him on the ground breaking his leg. Lucy is liable for the damages as to the breach of her duty under her care.
The legal causations or the distantness is another element to consider where realistic causation is differentiated from the lawful causations to prevent the risk of defendant being subjected to. Someone’s negligence may be too distant to another person’s harm if one would not prudently predict it happening. The issue of legal causation denotes to whether someone’s actions were foreseeable and preventable. As illustrated in Palsgraf v. Long Island Rail Road Co. The jury ruled that the defendant was not responsible for harm inflicted on a distant bystander. The claimant Palsgraf was knocked by scales from the train as she waited on the platform of the train. This occurred by a far away upheaval where a train conductor ran to give assistance to a man into the departing train. The man was in possession of a package which had fireworks in it as he jogged to jump into the train door. On mishandling the passenger the package fell and the fireworks caused an explosion on falling to the ground to travel through the platform. Palsgraf sued the train company because the scales fell on him. Several juries concurred that the defendant owed no duty to the plaintiff because he was not foreseeable (Jay 2010). As for the case of Lucy the legal causations were complicated as failure to drop Mr. Alf she would have strained her back but that did not give her the leeway to drop him just like that bearing in mind the impact of dropping him though she was in some sort of pain. This case might still give the judges a headache as some would still argue that Lucy owed a duty to Alf regardless of the predictability because she acted negligently.
The harm inflicted is another element to consider in tort of negligence. The plaintiff must prove that the defendant’s breach caused an economic injury. The plaintiff can depend only on remedy by the jury up to the instant that suffered loss is proved. In some instances the defendant may not argue about the loss but the prerequisite is important in cases where the claimant suffered a loss and the defendant can not refuse his negligence. Damages for non-pecuniary injuries can be recovered if the claimant can provide evidence of pecuniary loss for example emotional distress. The harm maybe physical, economic or both economic and physical or reputational where a defamation case is involved. The kind of damages Lucy can be sued for in this case may be special damages where she may be charged the cost of the medical bills if found accountable (Markesinis 2003)
It is therefore basing on the above elements and principles, Caring Hands Care Agency will be held liable for their employee’s actions considering that Lucy’s boss did not seek to establish the medical background of Lucy. Since the boss was too busy for that, it amounted to negligence of duty to take care. By good examination the boss would have found that Lucy suffered from stroke and that there was a potential danger in employing her to undertake the duty as a carer.
Basil Markesinis, Deakin Simon, Angus Johnston, Markesinis and Deakin’s Tort Law,
Oxford University Press 2003.
Benjamin C. Zipursky, Foreseeability in Breach, Duty and Proximate Cause, 2009 accessed
Feinman Jay, Law 101, New York: Oxford University Press, 2010.
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Law enforcement agents are officers or any public sector employee whose main duty comprise of ensuring there is law and order for a peaceful correlation. These people are vested by the legislature in the legal code enhance peace in the community. Security guards may not be termed as law enforcement officers since they do not have the power accredited to them to enforce specific laws. Law enforcement officers in U.S include police officers, constables and their deputies, prison officers, probation officers, sheriffs, game wardens, forest rangers, fire marshals, federal Bureau of investigation agents, drug enforcement agents, united secret service agents, Federal air Marshals, border patrol agents, District attorney and the prosecuting Attorney investigators, U.S coast guards, among others as stipulated by the constitution.
Law enforcement agents do not make decisions for anyone’s charges. The purpose of the law enforcers is to make recommendations. The prosecutor is the only individual who makes charges against a criminal or a person suspected for breaking the law. In this essay, the legal procedures that are involved from the time of arrest to the time when a person is prosecuted will be addressed. This will entail the correct procedures that must be followed including what a person needs to do or avoid when dealing with the cops.
The cops can detain someone if they really have levelheaded notion that one committed the crime. It implies that for those who are not arrested are not allowed to leave, which is supposed to last for a very short time period. During detention the cops are not allowed to search the detainee’s pocket unless they feel any presence of a weapon. Most detentions may lead to an arrest if the cops get information that one was involved in a crime even if the crime has nothing to do with the detention. Cops may detain someone if they want to arrest him or her but lack enough information yet to do it.
Realistic doubts and plausible grounds
Realistic doubts must be founded on more than a hunch. The cops must be in a position to put their doubts into words. For instance, cops can not just stop anyone and deduce that he or she looked like he/she was up to something fishy. The doubts must be specific such as the “suspect was the only person at the scene of murder holding a blood clotted knife beside the murdered victim hence suspicion of his or her hand in the murder.” The cops usually require more evidence to allege that they have realistic suspicion (Wrobleski & Hess, 2005).
The cops can arrest one if they have a possible cause that one is involved in a crime. During the arrest, the cops can search the suspect’s belongings like going through one’s car, house or residence. The law provides that the officer searching a suspect to the skin must be of the same gender as the suspect. The law enforcement agent intending to arrest a suspect must present a warranty of arrest to the person. If they have a search warrant, no resistance whatsoever for search must not be put applied because they have the power to force themselves in at all cost (Elias, 2009).
The cops are only permitted to get into the room the suspect goes into; hence they should not be given any opportunity to be alone in any room while searching. The suspect must not get back into the house for any reason during the arrest as the cops can use that opportunity to plant or frame anything into the premise and make allegations for it. The police should then avail an appropriate transport depending on the size of the arrest of which the perpetrator is expected to cooperate. It is normally advised that the perpetrator must not give out any information unless under the presence of his or her attorney, because the cops can use any given information to make charges against a suspect. A perpetrator has a right to remain silent and seek the services of the attorney and no law enforcer must force information from the suspect (American Civil Liberties Union, 2011).
At most times it is recommended that one should take note of what is said and who said it. The suspect is expected to know the names of the cops arresting him or her, their badge numbers and descriptions of any witnesses present at the time of the arrest. Everything that happens must be recorded even if it means using a tape recorder of which one must be careful not to get noticed. Observing the cops actions and documenting every action may prevent them from abusing the suspect or his/her friends. Sometimes the police might be aggressive especially when they intend to do anything illegal (Hess & Orthmann, 2008).
The cops take fingerprints and photos, extracts information about the identity and medical issues of the perpetrator; however the suspect is not obliged to sign anything. No any other information is supposed to be given other than the name, date of birth and the address. It’s normally legally safe to remain silent until one sees an attorney and the enforcers have the obligation of respecting a suspects’ rights which protects them from interrogation. There is no way one can predict the kind of information the cops might try to apply or how they are going to use against perpetrators in the court of law. The police can lie about one not being a suspect but only helping them to know the truth.
Anything said by the suspect can be used by authorities against the suspect and his or her friends in the court of law. One of the main tasks of the cops is to extract information from the people. They are trained to be manipulative, lie or sometimes use any form of scruples to get information. Any person must exercise care when dealing with the police at all times hence the strong appeal to all not give any information unless accompanied by an attorney. This requires one to know his or her rights when being arrested and interrogated (Bergman & Berman, 2011).
The cops can book one in a holding cell before booking, after booking or in the middle of booking. The suspect or the perpetrator is expected to cooperate or not to cooperate depending on the manner in which the law enforcers are respecting the suspect’s rights. Sometimes the cops are devious and they might try to coerce one into giving them information. This is normally common when they do not have enough evidence to hold a perpetrator. They might lie about the perpetrators’ friends cooperating and leaving one a lone (Bennell & Snook, 2011).
Some may threaten about having enough evidence to convict one in the court of law and hence accepting the responsibilities might impress the judge into giving a fair ruling. Incase any suspect talks; the rest of the group usually goes down without much resistance. The golden rule is usually never to trust any cop as most of them may make one believe into what they tell. Nevertheless, a lawyer must be present before any question is answered. This is the one of the non-negotiable right a suspect has which can protects him or her from unfair justice commonly known as the sixth amendment (Hess, Orthmann & Cho, 2010).
A suspect can be granted bail after the initial arrest which contains the specific amount of cash that permits the defendant to be out of jail waiting trial date. The suspect is expected to adhere to proper court dates without skipping of which conformity to such conditions will give the defendant an opportunity to be refunded the bail. In case the defendant does not conform to this, then a warranty of arrest may be reissued towards the defendant. The next stage is the arraignment in court for pre-trial hearing against the defendant and the setting of future hearings. The initial bail amount can be amended or not amended depending on the decision by the jury.
These are hearings that are conducted before the main trial. During this period, verbal and written legal arguments are made and decided on by the judge. At this level it helps a lot if one can provide documents to prove what a good, harmless person he or she is and the ties one has with the community. During pre-trials the suspect’s charges are read where in the presence of attorneys on both sides the suspect makes a guilty or no guilty plea. The judge or the jury will then examine and assess the strength of the witnesses and the evidence presented and makes a ruling as to whether there is a case to answer or not (LaFave & Israel, 2008).
The defense team and the prosecution team normally use the pre-trials to file motions before the judge. The motion is meant to address issues as to whether the court can suppress specific evidence, permit certain people to testify or if the charges can be dismissed for inadequate evidence for trial. However, if the court finds enough probable cause against the defendant, then he or she will stand a trial. The defendant’s experience together with the help from the friends and the counsel can help a lot to mount a meticulous defense (Gorman, 2011).
At the onset of the trial the criminal defendant is given further rights by the U.S constitution. In an effort to protect an innocent defendant from convictions at all costs, it is only permitted that the prosecution to prevail over the presumption of innocence by the defendant if they can prove defendant’s guiltiness past reasonable doubt. This is in contrast to civil trial’s much lesser standards in which the claimant must only prove an allegation by a prevalence of the evidence. In this way the innocent defendant is protected from unlawful prosecution and sentencing.
One particular right given to the defendant is the right to cross-examine the prosecution’s witnesses. This is derived from the Right to confront clause contained in the Sixth Amendment. This was taken by the U.S Supreme Court in Giles v. California (2008). In this particular case, after a domestic violence that led into the murder of a woman, a court’s admission of the murder victim’s declarations under the theory of forfeiture by wrong doing was overturned by the Supreme Court. This decision was reached by the Supreme Court because the framers did not realize the penalty exclusion to altercation clause at the time the constitution was found.
The same Sixth amendment assures a defendant the right to be assisted by a counsel during the process of trial. The State is obligated to offer attorney if the defendant can not afford one. Defendants of this category normally obtain legal representation from the Office of the Public Defenders. At every stage of the proceedings the defendant must have access to his or her counsel. The law demands that if the defendant calls for the presence of a counsel during police cross-examination, the police must immediately halt the grilling until the attorney is present.
Before the main trial there can be numerous pre-trial hearings depending on the intensity of the case. One can get a 6 to 12 person jury or the judge only depending on the jurisdiction and the probable sentences for the suspect’s charges. In a situation where the defendant insists on his or her right to speedy trial, the trial can take place within 30-90 days, depending on the weight of the case and whether one is in custody or not (U.S. Code: 18 U.S.C.,2011). The lawyer with the help of the defendant’s friends and own personal testimony, can help in research and investigation to gather evidence and display them in court to support the accused. Both sides offer opening and closing statements in turns after which a verdict is given by the jury or the judge.
Sentencing normally occurs immediately after the closing remarks by the prosecution. Minor infringements may include penalties, fines, probations, restitution to the victims, community service or alcohol and drug rehabilitation. In some serious violations the sentencing may be done by the judge alone while others usually enter sentencing phase trial with a new jury to determine the sentence for specific crimes. At this stage, the defense avails extenuating factors while the prosecution avails infuriating factors. The U.S constitution is interpreted by the U.S Supreme Court to safeguard the rights to a jury giving sentences for defendants due for capital punishment.
Prior to the issuance of the sentence by the judge or the jury, the defendant is allowed to make an allocution. This gives the defendant an opportunity to address the judge directly without the help of the attorney. At this moment the defendant may make a personal explanation of any unfamiliar facts, may plead for mercy or give an act of contrition for the unlawful conduct. The jury then announces the sentence according to the constitution as he feels appropriate to the case presented.
Making an appeal
In circumstances where the accused feels that the trial was not fair or just an appeal may be made to the Supreme Court. This is with the aim of overturning the ruling made during the trial. Sometimes appeals are made due to problems experienced in the trial and the accused feels that the sentence given was unfair. The appeal can also made by the claimant if he or she feels that the ruling made was not sufficient in relation to crimes or wrongs committed. During appeals, a group of juries or judges may be selected to evaluate the facts presented and the trial’s hearings and make their own verdict or sentences.
Many people deal with law enforcers like the cops and drug enforcement agents in different types of circumstances. As discussed in the essay, one must make an informed decision about how to interact with the law enforcers amicably. It is very important for one to know his or her rights when dealing with the law enforcers. In particular, it is advised that one must know how to decide and when to use the legal to protect oneself from harm. As mentioned also the law enforcers; the cops in this case may use different tricks just to make the suspect give them any tangible information to arrest him or her of which any person must be aware of them to ensure a fair legal proceedings.
On the other hand, serious issues have been discussed in the essay which requires consideration by law enforcement agents. The essay has addressed the cops in specific but this does leave other law enforcement agents. They are all mandated to provide peace in the co-existence of mankind but not create tension among the innocent. The Federal government must therefore ensure that the right procedures are followed in keeping peace and human rights protected accordingly.
American Civil Liberties Union, (2011), How to behave with Law enforcement, New York
City, Black Rock city IIc
Bennell C. and B. Snook, (2011), Police and Criminal Psychology, the Official
Journal of the Society for Police and Criminal Psychology, Vol. 26, no. 11896, pp.69-163
Giles v. California (07-6053) (2008), Federal Judicial Decisions, Supreme Court of
Henry M. Wrobleski & Karen M. Hess, (2005), Introduction to Law enforcement and
Criminal Justice, Connecticut, Cengage Learning
Karen M. Hess & Christine Hess Orthmann, (2008), Introduction to Law Enforcement
And Criminal Justice, Connecticut, Cengage learning
Karen M. Hess, Christine H. Orthmann & Henry Lim Cho, (2010), Police Operations:
Theory and Practice, Connecticut, Cengage Learning
Paul Bergman and Sara Berman, (2011), the criminal law handbook: know your rights,
Survive the system, Berkeley, Nolo
Stephen Elias, (2009), Legal Research: How to Find & understand the law, ISBN
9781413310528, Berkeley, Nolo
Thomas A. Gorman, (2011), Criminal defense, Arizona, Nolo
U.S. Code: 18 U.S.C., (2011), Crimes and Criminal Procedure, U.S. Constitution and
Federal Statutes, Washington D.C
U.S Constitution, (2011), Federal Rules of Criminal Procedure, Federal Court Rules,
Wayne R. LaFave & Jerold H. Israel, (2003), Hornbook on Criminal Procedure,
Minnesota, West Group
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Everyone can become an effective leader if he or she takes initiative to learn and grow effectively in order to be up to the task when handling issues that test the leadership capabilities held by the individual. Leadership is about influence. A leader influences others to use their skills and talents effectively in accomplishing specified objectives. For people to respond positively and effectively to the influence, the leader must posses certain competencies that would elicit positive and fruitful reactions from those they lead. A leader and his followers may be looked at as peers with each one of them playing a specific role. A leader takes initiative to find out what motivates and keeps the follower moving forward and productive (Zaccaro & Klimoski, n.d).
Every person is a leader in his or her own right. A person will always create an influence on others within his or her environment and this constitutes leadership. It is therefore important for every person everywhere to be aware of their surroundings in order to take advantage of leadership opportunities and make a positive difference in the immediate environment with every other person. The inner initiative that the individual makes will provide guidance on what to do and how to do it and if the initiative is clear with purpose then the individual will achieve the results embedded in that purpose.
To develop leadership, the elements that constitute good leadership by an individual are organized within the person. To begin with, the person must learn, practice and achieve self mastery because a leader cannot understand the followers if he or she does not understand himself. By considering self qualities that may hinder effective leadership, a person is able to act on areas that require improvement and therefore develop the good leadership qualities. Organizing the leadership elements follows after self consideration and mastery.
One of the most important qualities of a good leader is communication. Dialogue is the best way to achieve effective communication. A leader will create communication barriers if the mode of passing across messages involves asking questions that are closed in the sense that they elicit a yes or no response, stamps his authority in the way the message is relayed across, focuses on winning in arguments and defensively reacts to criticisms. To realize effective communication, a leader should set aside the authority in order to create an atmosphere that promotes partnership with the led. The leader should be interested in a genuine way to what others say and should listen actively and participate in the conversation with patience. In cases of disagreement, it should be portrayed as a difference in opinion (Fairholm, 2009).
Moreover, in organizing leadership skills, a leader should encourage others to have a good sense of belonging and enthusiasm. This can be projected through being friendly to others which will encourage them to share ideas. A leader should also show a good sense of understanding by being tolerant, constructive and tactful when making criticisms. The leader should treat others fairly by giving them equal opportunities where necessary. This encourages each one of them to make good efforts that are not biased by favoritism or discrimination. Leaders should also exercise integrity since followers will take all the activities of a task more seriously if the leader puts the goals of the group or organization before own personal interests.
Leaders are supposed to shape the environment of organizations and create a good interpersonal environment for others. This is achievable through a various qualities that should be exhibited by leaders. Such qualities entail being visionary in the sense that the leader has a clear understanding of the group or organization he or she leads and therefore can accurately and creatively predict the future of the organization. The envisioning should be focused on satisfying specific needs of the people and the organization.
According to Zaccaro and Klimoski (n.d) a leader should also be a good planner, that is, formally specify what should be done and how it should be done and by whom. Planning requires brainstorming, negotiations and resolution of conflicts in order to achieve good results. The leader should take charge of all these ensure it is adopted by all parties with enthusiasm. Planning should also involve coming up with objectives to be achieved as well as sensible steps that will ensure timely accomplishment and realization of the set objectives. In addition, the nature of leadership should inspire people to action such that once they have accepted the plan they should be internally motivated to have the desired results out within the set period of time. To maintain the motivation especially during challenging times, it is important that there exists a plan of rewarding effort. This will ensure the motivation remains at its peak and the tasks being undertaken will therefore have a higher chance of being accomplished within the specified timelines.
Evaluation of results is also a very important component in the success of leadership in order to be able to recommend and make relevant adjustments to the plan and determine reasons for celebration at after the accomplishment of a given objective. During the design of the plan, the evaluation criteria should be included as a necessary component of the plan. The evaluation criteria should be well defined, desirable and realistic with measurable ways of determining achieved deliverables. Regularly, the plan and its execution should be reviewed to avoid making false assumptions about the state of events in the execution process and to encourage the adoption of the most appropriate methodology in case one is needed in order to do the task better.
It is good note that in all settings and situations of leadership, every person exerts an impact on the situation and the people around them. It is therefore sensible that such a person uses respectful and positive power in order to have a more suitable and effective impact. Exercising leadership involves meeting some deeper need of the people being led. This means that even as the leader focuses on meeting set out objectives in the plan, there is the requirement to address human needs of others in terms of recognition and personal development which are essential components of motivation. There is also the need for being ethical, since people are inspired to follow a leader of high ethical levels. For example, people will not freely follow someone who is associated with vices such as embezzlement of funds, lying or other behaviors that are unacceptable by the society.
According to Fairholm (2009) good and transformational leadership does not just focus on immediate results but is more concerned about the long-term development and impact. It begins from deep within the values and beliefs of a person. It builds on the individual sense of purpose and mission of life. It is therefore important that a person sets vivid goals and endeavors to pursue them. In the process, the person will be able to realize great leadership experience since it comes from within. In setting the inner purpose, it is good to identify with a heroic figure that the person admires and who achieved in the same line of leadership in order to have a clear and practical sense of direction especially during challenging times.
Generally, a leader portrays several characteristics like envisioning the future, effective communication and is determined to develop a good future for self, others, and the group or organization. The leader develops a strong personal value system from which reference is made in times of crisis and also helps in making firm stands on issues to avoid being swayed by situations which may compromise personal values such as predictability. A transforming leader endeavors to have a well defined sense of purpose and strategy and intentionally seeks to understand other people in terms of their values and culture and is able to arouse the sense of enthusiasm in others about the contributions of the team to the organization and the organization’s contribution to the society (Zaccaro and Klimoski n.d).
In conclusion, leaders need to be in a good state of physical health to maintain resilience and the ability to handle stressful situations. Leaders should therefore ensure they are always on good nutritional and exercise programs. They should also have strong personal qualities such as self-confidence, high levels of concentration, strong mental agility and are of innovative minds to enable them keep ahead of their followers.
Fairholm, M. R. (2009). Leadership and Organizational Strategy. The Public Sector Innovation Journal, Volume 14(1), Article 3.
Zaccaro, S. J. and Klimoski, R.J. (n.d). The Nature of Organizational Leadership: Understanding the Performance Imperatives Confronting Today’s Leaders. Alexandria, VA: U.S. Army Research Institute for the Behavioral and Social Sciences.
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A jury is an avowed body of persons set up to give an unprejudiced judgment officially presented to them by a court. The current juries are found in the courts to determine the guilt or innocence in a given presented crime. Juries are made of jurors who have the obligation to find the facts. These groups of people are not professionals. Their work is to establish whether enough proof exists to put someone on trial. The juries exist in different types or categories; the trial jury who listens to pieces of evidence in a trial and after hearing the proofs they normally retreat to determine the verdict. Another type is the hung jury who is normally unable to reach to a verdict by himself hence they must be in a group of 12 jurors to make a verdict. This is normally a capital punishment verdict (American Judicature Society, 2009, p. 1). In this paper, the necessity of juries will be discussed supported by case evidence presentation to approve of their necessity or irrelevance.
The necessity of juries
The jury system contributes to reforms in the United States system of justice. Their experience in analyzing and checking the current system of laws is necessary as to balance the jury system. This is achieved through their constant interaction with the democracy and the effects of the justice system to the majority of the Americans and its society at large. Through the juries the constitutional rights are protected and safeguarded from malicious influential persons which are the main keystone of our sovereignty and righteousness.
Besides, the jury is the best method that can ever result into a fair outcome or judgment. This is attributed to the fact that the jury contains a variety of people who come from wide background diversity. It is for this fact that they can make the best judgment compared to a person who is acting all alone. Any traces or cases of favoritism are very minimal since they collectively deliberate on issues to make a common verdict based on consensus as noted by (Forsyth, 2010, p.31). Therefore quality work is enhanced to avoid further complaints or dissatisfaction among the parties involved. Those judges who issue very harsh sentences not respecting Jury’s decision, their sentences are always refuted compared to jury’s as illustrated in Ring V. Arizona, 536 U.S. 584 (2002) where the United State’s Supreme court made use of the rule in Apprendi V. New Jersey, 530 U.S 466 (2000) to issue a death sentence while giving evidence of the sixth amendment that stipulated of him to find infuriating reasons crucial to give a capital verdict. This overrode a jury’s verdict for life imprisonment. Other juries were indifferent with him as they noted that death sentence was supposed to be issued under procedural safeguards.
The service of jury is very meaningful to the individuals, the society and the State. Any verdict made by the juries has an impact on the individuals’ social rights, possessions rights and liberty rights including right to life. The fairness or impartiality wholly relies upon the integrity of the juries who are involved in the type of cases being presented. Therefore, the compliance of all the summoned parties is significant to make certain of their representation and impartiality from the juries. Notwithstanding those who may not be directly involved in the jury system help sustain the system of justice by making their appearance in court. In Australia the constitution stipulates that any trial on accusation of any crime against the commonwealth law shall be conducted by the jury. As illustrated in Cheng V. The queen (2000) 203 CLR 248 it was found that, it was in line with the constitution not to try homicide crime on mere accusations but assault could be tried on accusations. Many law experts saw this as a great mockery of the section depicting it as useless as noted by Bayer et al., (2010, p. 41)
Even though the service of the juries can cause inconvenience or anguish to some parties involved, it is worth of paying such a small price in return for the dispensations and fortification of our State. With liberties and freedom comes accountability. In emphasis though it is jury once-over is a duty owed to the citizenship which is similar to tax compliance and a right to vote. According to Simon (1999) these groups of people do take their work very seriously as important de3cision makers. Sometimes it may be difficult to ascertain the rationality of a jury either letting free a criminal or putting him behind bars. In this respect therefore, it is necessary to appreciate the services of juries in our State in order to enhance true patriotism. In United States; the States v. Moylan, 417 F.2d 1002 (4th. Cir. 1969), it was collectively decided that whether the jury has a feeling that under the existing law the accused is unjustly judged, then the jury has the power to through the actions justified for any purpose or reason that appeals to the normal and logical reasoning, the jury can let the person free and the courts must respect the decisions. This is found under the fourth circuit Court of appeal
Nevertheless, the juries are human just like any other person where they might be tempted to take bribes in order to compromise with some cases. This must be accepted to a particular level but not to the point of refuting the fact that juries are needed as such incidences rarely occur in the justice system. It is the duty of the society therefore to be watchful not to compromise with the decisions of the juries through issuance of bribes. Sometimes the jury’s are easily influenced by influential barristers who may make the real offender be acquitted of their crimes. This is normally seen in the negative perspective of the public contributing to the constant criticisms of the juries.
In conclusion, the juries have a legal obligation to all the citizens, society and the State hence they have a duty to service derivatively. The critics of jury system have something to think about as this system wholly depends on the interests of all to contribute to the nation building. Any one involved in a court proceeding will command integrity and honesty from the jury. Anyone who ignores the summons by the jury might easily get fined or jailed and the person will be doing injustice to themselves. The juries assures of certainty subject to the reforms in the justice system. Hence it is the responsibility of the public to accept the jury’s decisions.
American Judicature Society, (2009), importance of Jury systems, American Judicature Society
Australian Commonwealth constitution, Cheng V The queen (2000) 203 CLR 248,
Forsyth, D.R. (2010), Group Dynamics, 5th Edition, Belmont, CA: Thomson Wadsworth.
Patrick J. Bayer, Randi Hjalmarsson, Shamena Anwar, (2010) “Jury Discrimination in Criminal
Trials” (September 2010) Economic Research Initiatives at Duke (ERID) Working Papers Series No. 55
Simon, R. J. (1999). The jury: Its role in American society. Lexington, MA: Heath
United State’ Constitution Moylan, 417 F.2d 1002 (4th Cir. 1969)
United State’ Constitution, Ring V. Arizona, 536 U.S. 584 (2002) United State’ Constitution
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Substantial performance provides the principles that are appropriate when the contractor, not by his will or making in some inequity means has completed a large percentage of the contract but the owner is denying the contractor the payment agreed upon. A friend of mine (Charles) who owns a contracting building firm was engaged in a written contract to erect a bungalow worth $ 50,000 for Lakers union Club. He did work valued at $35,000 and he claimed that he was short of funds to complete the bungalow. He had already been paid part of the money for the contract. Later the Lakers completed the building using the materials Charles had left behind. Charles wanted to sue for the outstanding balance. In regard to this case, the ensuing paper will address the legal issues concerning the case in relation with the six elements of contracting to have a deeper understanding of the law of contract. Some case studies will be used to analyze the case at hand in predicting the possible ruling by the judge.
Substantial performance is a scenario in which the breaching party does not manage to complete a small part of the contract due to shortage of materials. In this case act by a contracting party that moves away only to some extent from absolute performance. On the other hand, inferior performance takes place when a party is unable to execute express or implied contractual duty that damage or destroy the heart of the contract. In a scenario where there is a substantial performance and a minor breach the individual not breaching may kindly request the breaching party to complete his/her performance in exchange for a higher performance. The nonbreaching parties may also less, the costs incurred to repair the contract and give the remaining balance to the breaching party. The nonbreaching party has also the right to sue the breaching party to recover the costs of repair. In the mitigation of damages, the nonbreaching party is under a legal obligation to avert or lessen damages commensurate to the contract breach (Daniels, 2001).
In recovering the damages the nonbreaching party has various options to take: he or she may sue to recover costs, he or she may also seek for consequential damages. In case the breach is foreseeable the nonbreaching can sue to recover lost profits. Besides the nonbreaching party can cancel the contract and return the consideration to the position before the contract was made. This is commonly known as rescission and restitution. The nonbreaching party might seek legal counsel when the breaching party is claiming to be compensated for the contract in consideration to the agreed amount (Gordon, 2010). In this case the court must establish that the party breaching the contract left the contract or did not execute the contract as agreed upon without any choice. In so doing the nonbreaching party must ascertain to the court the costs incurred in completing the unfinished job.
The damages awarded as mentioned earlier include consequential damages which concerns foreseeable breach. In this case the circumstances were known beyond the particular contract hence entitled to recovery of lost profits. Liquidated damages where both parties make an agreement for the measure of damages. Nominal damages are awarded for losing unfavorable bargain while punitive damages are considered for law of torts as opposed to contracts. As illustrated in Cutter V Powell (1795) which was an English contract law relating to substantial performance. In the contract Mr. Cutter made an agreement to sail with Powell from Jamaica to England. The contract required of the party pay the Cutter upon successful end of voyage. However Cutter died before the journey ended. The ship captain refuted to pay and Mrs. Cutter sued for damages to recover loss of wages. It was held that the claimant was entitled to recover part of the wages during which the deceased had seen to obtain. On consideration no term currently exists to outdo the current claim (Donnince and Anthony, 2010). This implies that the wages can not be forfeited in such cases since the contract constituted a substantial performance.
From the discussion above it is clear that in substantial performance the non breaching party has various rights and ways to recover the costs of repair and seeking damages from the breaching party concerning the breach of contract. In inferior performance, the owner has a right to sue for the whole amount of the contract plus the profits accrued to it. The owner has also a right of cancelling the contract in anticipatory breach which prevents further damage. Nevertheless the nonbreaching party has the duty or obligation to give the breaching party the remaining costs to the contract after deducting the repair costs for the unfinished work. From the discussion it can be noted that the breaching party has also a right to be reimbursed the costs incurred in the contract in consideration to input in the contract.
Anthony L. L and Joseph o.Donnince, (2010), essentials of business law, McGraw hill publishers
Ashley Gordon, (2010), six elements of a contract, Ezine reviewed Article journal
Robert H. Daniels, (2011), Business Law, Administrative services, Robert H. Daniels publishers
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Eagle County Outfitters Rod Caster
Eagle county outfitters
Colorado-Fork River Area
Date: 2nd November, 2011
From: Rod Caster
Subject: Purchase Gone Wrong
Flies have been our largest sales for a number of years. Nevertheless, the Eco’s reputation has been going down and you have been losing a lot of customers of late. There are no valid reasons as to the roots of low inventory management. There are claims of location contributing to the low supply and selling of inventory to the last drop without replenishing. I hereby terminate my services to purchase trout flies from you and I therefore demand for a real property as equity as a cover according to our agreement and kindly look for another source of credit. I will not be called upon to transact any business whatsoever with the firm and from on you are on your own.
Caster did breach the contract between him and Wade on the ground that, the agreement stipulated that the stock sold to Wade was to be paid within eighteen months. Besides, the contract contained an agreement of employment for Caster to be in progress as ECO’s consultant for ten years on a yearly salary of $ 36 000. As an employee, Cater should have given prior notice of resignation since the employer had not breached anything on the contract. The abrupt resignation of Mr. Caster highly affects the income of the firm hence Wade’s returns will be adversely interrupted. Since the ten years were not yet over, it amounts to breach of agreement.
Wade can protect her from unpaid purchase price on the ground that she was not given prior notice of a possible resignation. However, she can only have delay for the payments until she obtains a good financial base as to warranty paying the remaining price over the agreed period. She is not compelled to pay the amount in arrears after that short notice. And incase Caster sues her, and then she will be in a position to defend present evidence of lack of appropriate notice into the sudden resignation of Caster. As a matter of fact, she can sue Caster for breach of contract and loss of profits and income (a total of $ 65000) due to his resignation because the grounds for the act were very unclear. If she sues Caster, she would sue for loss of revenue as said earlier since prior notice of resignation was not given considering he held the license for the ECO’s business (Delaware Code, 2011).
Mrs. Wade can also sue for loss of goodwill and business customers. Caster had a contract with Wade to serve as an employee in the position of a consultant of which he held the business brand. His resignation was uncalled for without giving any prior indications of quitting. He held the business permits for fishing trips and as a result the guides went away due to absence of business. This affected the customers who ran away during the summer season. This was quite untimely and hence Wade has a right to sue for loss of goodwill and customer. She should not wait for Caster to sue her but she should go a head to file a suit against Caster.
As a defense mechanism Wade should have deployed the following ways in protecting herself from the possible business downfall; she should have patented the business under her name but allowed Caster to offer consultation services. This would protect her from loss of key customers. In addition, she should have negotiated with Caster on the terms and conditions for the contract that if one breaches what actions the other party should take. Moreover, Wade should have asked for the immediate transfer of the licenses to her name but still allow Caster to be the consultant of ECO, in this manner, the permit would not have been revoked when Caster made his resignation. The process of renewing the permit was too long and costly for her to have avoided it.
Question Two; Answer
By hiring the tour guides, Wade has to meet certain regulations as laid down by the federal State. These may include compliance to taxation, payment of wages, overtime and other different work rules. Some of the benefits she will have to pay include social security and Medicare, workers compensation insurance and other payments which may due according to the regulations. These are costs which may lower down her returns considering she is recovering from a fall in business. However she might benefit by securing employee loyalty and highly motivated employees hence increasing the output level. She might also retain the best tour guides hence increasing the reputation of the business. On the other hand, if she resorts to Hiring independent contractors she might lower down the costs of doing business hence increase on the rate of returns. She can also achieve staff flexibility hence help her in fluctuating workloads hence no possibilities of legal suits due to firing or layoffs. This will put her in a position to recover fully from the previous fall.
Nevertheless, the independent contractors can still work for others and at the same time perform a shoddy job. Such guides contracted may not work diligently because their work is determined by deadlines which do not specify how the job is to be done, so long as it is done. Moreover, the guides might never be identified with the business hence customer and employee loyalty might never be delivered. This is due to less control she has towards the guides and some of the injuries encountered will be wholly met by her since they are not covered by the worker’s compensation scheme. In addition risks of government audits may be on the increase and inability to hide the trade secrets as employees will come and go having known some of business secrets. The service brand will eventually rise to the position it was originally placed as a result of attracting and retaining the best guides and meeting the ethical standards required of her (Washington State Department of Labor & Industries, 2010).
At this point Wade might consider hiring the employees. The stage of her business recovery requires a lot employee and customer loyalty which is critical to recovery of the brand name for the services offered. This will enable her to supervise the work being done and monitor the employee output considering that the work is very significant to the business. This kind of hiring will enable her to safeguard the secrets of the business from potential competitors due to high employee loyalty. In case of employee injury, they may be covered through worker’s compensation scheme which protects her profits in the business (Fisherman, 2011). This option should be the best she can take as to revive her business to the maximum.
Question Three; Answer
Ways within which Gunnison can use Intellectual property to build value for ECO
Under Intellectual property, owners of a business or invention are granted exclusive rights to their intangible assets as to prevent counterfeit or copy right issues. Some of the common intellectual property rights include; trade secrets, patents, trademarks and copyrights. Under this arrangement Gunnison can make use of trade secrets and trade marks which prevent potential competitors in copying the secrets he uses for ECO. If Gunnison can substantially prove the social value of his business invention he will be granted full protection from potential threats (Raysman et al., 2008). In particular Gunnison will have financial incentive which will allow him to have to benefit from ECO through creation and investment in the trade secrets.
Besides, by use of trade secrets, Gunnison will be better place to control the services provided and the products produced. His newly invented trout flies and clothes will be highly safeguarded by intellectual property in building value for the product. This is one of his potential rights he has over his invented design of which even the largest producer or competitor has neither right nor jurisdiction to copy the design. Customer loyalty to Gunnison’s line of Angler Wear design will be enhanced giving him an opportunity for further research and creativity. If he wishes not stay married to Wade he can still use intellectual property rights to protect his business as a separate entity.
He may have a patent separate for his business if he so wishes not to share the business with the wife. At this juncture the property will be owned not as joint ownership but as individual ownership. The relation between the two will be business partners and not Husband and wife co-ownership. Conversely, Gunnison’s business opportunity may be owed to the wife’s business in the sense that through the recovery effort of Wade for the business, he was able to have his new invention in place for better marketing. Therefore, an agreement may be reached between the two parties on how the business will be conducted including the terms and conditions.
Delaware code, (2011), Commerce and Trade: Contracts, LexisNexis
Richard Raysman, Edward A. Pisacreta and Kenneth A. Adler, (2008), Intellectual Property
Licensing: Forms and Analysis, Law Journal Press
Stephen Fisherman, (2011), working with Independent contractors, Berkeley, Nolo Inc
Washington State Department of Labor & Industries, (2010), a guide to hiring independent
Contractors in Washington State, Department of Labor of the United States of America
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Under the full faith and credit clause, it should be given in each state to the Act of the public and proceedings of the judiciary in any other state. Nevertheless the congress has to approve the manner in which they have to apply and the effect they have thereof. Therefore it should be same in all the states within United States courts as provided in every State to the Acts, Records and judicial proceedings concerning the public. The congress therefore should be in a position to give the way to prove such records, proceedings and Acts. This is in relation to foreign custody and determination of visitations under the Full Faith and credit clause.
Virginia does not approve of same sex marriage. Such marriages are null and void and if done in other states, they will not be recognized in Virginia. However, to the issues present the Virginian courts have to consider the full faith and credit clause. In the defense of marriage Act Prashad presented an argument Virginia had no need of extending full faith and credit to the orders of custody however the congress did allow the States to make their own decisions which implies that the State may not consent to same sex marriage despite it being allowed in other states. The main aim of the Act is safeguard the traditional marriage between partners of opposite sex and to defend the American’s rights regarding acceptance of same sex marriage. Therefore it has the powers set aside to the States demanding that, no State to be forced to accord full faith and credit as in licensing marriages which is provided by another state
That full faith and credit should be granted to orders of custody, and verified of the decision by the trial court to have the custody orders registered in whole. Basing on the above analysis therefore it will be appropriate for Virginian law to extend full faith and credit to the Vermont in determination the custody of Terry’s partner-Carlos.
RICHARD JOHN BAKER AND ANOTHER V. GERALD R. NELSON NO.43009
The main dispute in this case is whether same sex marriage is permitted by the statutes of the State and if not does the constitutions compel such authorization. Same sex marriage in Virginia is illegal and anyone found in contempt of the rule is sued as violating the law under Minn. St. c. 517. In one way or another, the statute 20-45-3 of the Virginia Code constitutional and does not violate the 14th Amendment, ninth, eighth nor the first amendment. The two appellants, who are both male adults, submitted their application to defendant Gerald R. Nelson; Hennepin County clerk to district Court for marriage license issuance in respect to Minn.st.517.08.
At the trial court, it was affirmed that the defendant was not allowed to give a marriage license to appellants and that the license was not to be issued to them. This was on the basis that there was no express statutory prevention against same sex marriages and hence the legislature had the authority to issue or not to issue. In connection to Minn. St. c.517 the term’s marriage is applied to mean union of persons of the opposite sex. Hence it was described that the term was of contemporary importance as for the current statute to emphasize on heterosexual marriage as bride and groom.
According to Minn. St. c. 517 such marriage could not be allowed however, the appellants disputed that it was unconstitutional to interpret the clause in that manner alleging that they were being denied their fundamental right as provided by the ninth Amendment to the constitution of the United States. This they claimed that was applicable to the states by fourteenth amendment. The other reason provided against the case was that marriage was a union for procreation as mentioned in the holy bible’s book of Genesis. Hence marriage was significant for the existence and survival of a generation. Besides, amendment is not permission to restructuring of the legislation by the judicial. And collective fortification of the fourteenth amendment is not affronted the clarification of the State concerning individuals permitted to marry. Hence the court had a jurisdiction to interpret such condition that same sex marriage is not allowed.
The Virginian Law says that one of the basic civil rights of rights of man is the right to marry and hence to rebuff such a right was not supported on the foundation of racial grouping connected to equality principle as contained in the main part of the fourteenth amendment. The laws further indicate that there is a clear cut difference between restriction to marriage based on race and fundamental distinction in sex. The court then held that Minn. St. c. 517 does not affront the 1st, 8th nor 9th amendments of the United States constitution. Marrying must be based on the Individuals’ freedom hence they must be respected. As such the State must respect and give full faith and credit to other States jurisdiction. Terry must be allowed to refer the case to Vermont or be recognized as the sole married partner to have the authority to make decisions on behalf of his partner
LOVING ET UX. V. VIRGINIA
The power of marriage as a communal relation is constrained by Fourteenth amendment commands. Besides, the concept of application of equal miscegenation does not prevent statute without racial discrimination from the responsibility of a large weight drawn behind the fourteenth amendment which necessitates statutes of state to be drawn according to race. In considering whether the classifications should be drawn on a statute arbitrary and invidious discrimination then equal protection clause is mandated. Moreover, the there has been constant denial by the Supreme Court about restriction of the freedom of citizens on the accord of race since it violates the prime implication of equal protection clause. All races were created by God and placed on different continents of the universe.
A motion was filed by the Loving to depart from Virginia on the basis the statutes convicted were repugnant to the fourteenth amendment. The appeal may be effective in the sense that the statute 20-45-3 of the Virginia Code is unconstitutional and violates the 14th Amendment.
The United States Supreme Court received an appeal which held that Virginia Statute went against the equal protection rights as mentioned in the fourteenth amendment. Stewart J., seconded the ruling on the basis that it is invalid for a law showing criminality of a performance to highly rely on the race of the actor. The Supreme Court of Appeals then ruled the unconstitutionality of the act miscegenation statutes.
All interracial marriages are void without decree of legal confirmation in the State of Virginia hence no one can be issued with a license until the officials are satisfied that it is not an interracial marriage. The Supreme Court supported the validity of the laws in an effort of upholding the constitutionality of the provisions as they referred to Naim v. Naim where the State applied the reasoning of preserving the integrity of the races and prevention of blood corruption in their effort to endorse the white Supremacy they had to prevent interracial marriage. In its defense of equal protection clause; the State gave reasons that all races will be punished equally hence reliance on racial classification does not make up to invidious discrimination.
Another reason is on the equal participation theory which claimed that the question should be whether there is a basis in treating other marriages form interracial marriages. Therefore there was lack of strong basis to deny individuals of their freedom to marry on the basis of racial classifications that is against the real meaning of equal protection clause. Justice Stewart had to concur with the judgment on the ground that it was not possible for a State law to be applicable under the American constitution which makes the acts of races to be of criminal degree. On this ground therefore, Virginia laws must have a proper interpretation of equal protection clause, hence must grant Terry the right to have a say over his partner whether it supports same sex marriage or not.
JANET MILLER-JENKINS V. LISA MILLER-JENKINS
The case analysis
According to the marriage affirmation Act a civil union partnership agreement between individuals of the same sex intending to affirm the rights of marriage is prohibited. Such civil union is allowed in other states; that is marriage of the same sex. Though such jurisdiction is voidable in Virginia they should not apply in relation to full faith and credit clause. The Marriage affirmation Act (MAA) has full faith and credit placed on child’s determination of custody where each shall be applied accordingly. In this case, the Act stipulates that a sister State shall enforce the custody of a child determination in line with the consistency of the provisions of the Act. For this to happen the State must have jurisdiction under its own law and meet five stipulations put down in code § 1738A(c) (2). The child in the case lacks a home State hence for the best interests of the child the child has to assume authority. Contrary MAA contains all preempts all the confusion in relation to full faith and credit applicability especially on child custody.
Lisa’s arguments are based on the inability of Vermont to issue a parent child contact to Janet since there was no determination if Janet was the parent. She stressed on the issue of civil union dissolution and that IMJ was her biological child while he was adoptive to Janet. The court argued that Lisa made no citation of authority that may have convinced the court that another State’s court failed to interpret their own laws particularly with child’s custody. Therefore Vermont court rejected Lisa’s contentions. However Virginia could deny the kind of relationship that was between Lisa and Janet since the State does not accord of it. Such marriages are prohibited in Virginian State. It is for this reason therefore that Virginian would not extend full faith and credit to Vermont court order.
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