Construction Law And Legislation

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Construction Law And Legislation

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Discuss about the Construction Law and Legislation.

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Introduction:

A law is defined as a rule that is made by the legitimate authority and is applicable to all. The laws are created to ensure that members of the society are aware of their obligations and their rights. The legal system of Australia considers all people as equal. The legal systems of the country ensure that every person is treated fairly in the eyes of law (McKendrick 2014).
The Australian legal system is derived from the legal system of United Kingdom and the foundation of the legal system is the Constitution of the Country. The laws in the country are made in the following ways:

Law passed by the Parliaments known as statutory laws;
Laws developed by the executives known as ‘delegated legislation’ which includes regulations, ordinances, rules etc that is authorized by the Parliament and the statute law;
Law made by judges or courts using precedents known as judge-made or common laws;

The source from which the laws of the country are derived is explained with the help of the following diagram:
In order to legislate laws, a bill is presented in the Parliament, which after being passed by majority in both the Houses of the Parliament becomes a statute. The citizens residing in the country elect members comprise the Commonwealth Parliament who passes the laws. The laws passed by the State/Territory government are elected by persons residing within that particular territory / state and are enrolled as voters. The local councilors who pass the by-laws, comprising the Local government, are elected by members who reside within the locality or own any businesses within such governmental area (Gardbaum 2014).

Delegated legislation refers to the law that deals with the details about the operation of the Act. The statutes passed by the Parliament often include certain parts that empower the Government Minister or another executive member to deal with the particular aspect of the legislation.
Common law system of law making came into existence before the incorporation of the parliamentary system.
Theoretically, the legal system of Australia is described as “nine legal systems and not one”, thus, comprising eight Territory/State systems and one Federal system. Since the legal system of the country has adopted the concept of separation of powers according to which the government is divided into three, separate branches- the legislative, executive and judiciary. The function of the legislative branch is to formulate the laws; the function of the executive branch is to implement those laws; the judiciary is conferred with the power to interpret the laws with a view to administer justice (Horan and Goodman-Delahunty 2014.).
The Constitution of the Country conferred power on the Commonwealth Australia to make laws in particular matters stipulated in the Constitution. Such matters include defense, external affairs, taxation, trade and commerce (Rosenbloom 2016). On the other hand, the States and Territories have been conferred with independent legislative power for the matters that is not dealt with by the Commonwealth Australia. Some organizations and people such as the courts and tribunals, government departments, Ministers and police plays a significant role in the legal system of the country.
The judicial system of the country comprises several courts that are conferred with the power to interpret the laws and administer justice. The hierarchy consists of various courts and tribunals at both the federal state and territory levels, with the High Court being the apex court in the legal system of the country.
High Court of Australia – In Australia, the High Court is considered as the apex court, which deals with matters related to the Constitution, and entertains appeal from the State or the Federal Courts.
Federal Court of Australia – the Federal Court of Australia comprises an appellate division and two divisions with original jurisdictions. The appellate division hears appeal from the division of the courts having original jurisdiction. It further entertains appeal from the State and Territory courts in respect of cases where the Federal Courts have exercised its jurisdiction. The two divisions of the original jurisdiction in the Federal Court include the General Division and Industrial Division. The General Division deals with matters related to the taxation, bankruptcy and the Industrial Division resolves Federal Industrial issues.

Family Court Of Australia – the Family Court of the country deals with maintenance of spouse and child, child custody, divorce cases. Several Family Court cases are resolved through mediation and counseling a service that is offered by the Court. The Full Court of the Family Court also deals with appellate matters.
There are three levels of courts that comprises in most State and Territories, which are as follows:
Lower Courts – the Lower courts deals with both civil and criminal matters and in some Territories and States, the courts deal with the criminal and civil matters separately. The courts deal with less serious crimes and the civil matters are limited by a dollar value specified by the Territory or State.
Children’s Court – the court has jurisdiction to deal with cases related to children other than the matters that involve serious criminal cases. A person is considered as a child if he/she is below 17 years and in criminal cases persons who are above 10 years old and under 17 years of age. The cases dealt with this court include car theft, child protection orders.
Coroner’s court- this court deal with matters that are related to unnatural fires and deaths. The Coroner is empowered to order an inquest for determining the cause of such death or fire and may subject a suspect to trial on the grounds of manslaughter, arson or murder.
Intermediate Courts- the intermediate state courts deals with cases that are of serious indictable nature, be it criminal cases or civil cases. Such cases are dealt with by the court depending on the range of dollar values.
Superior Courts- the state superior courts are known as Supreme Courts that deals with criminal cases and civil case. The original jurisdiction of the court deals with matters that are of most serious nature such as treason, murder etc. The Civil cases dealt with by this court are restricted to the specified dollar value. The Supreme Courts are known as Court of record and such records can be used for future references.
The Court of Appeal deals with appellate matters that are brought before it from the original cases in the lower courts and the Supreme Court.

The common law in Australia is inherited from the English contract Law. A agreement that is entered in to by two parties with the legal intention to be bound by the terms of the agreement is considered to be a contract. A contract includes certain essential elements that renders a contract valid and make it enforceable in the court of law. Not all agreements are contracts but all contracts are agreements. Any agreement that is not enforceable in the court of law shall not be considered as a contract. The essential elements that must be present in order to render the contract to be valid are explained below:

Agreement- there must be an agreement between the parties as an unilateral contract cannot be considered as a valid contract.
Offer- a contract is said to be formed when an offeror makes an offer to the offeree and the offeree accepts such offer. An offer differs from an invitation to treat or offer. An offer may be made to any person, or a group of person or the world at large. An invitation to treat or an invitation to offer is a mere invitation where the parties to the contract are not legally bound by the terms of the contract. For instance, the goods displayed in the store is an example of an invitation to offer (Adriaanse 2016). An offer is a definite promise that binds the parties provided the parties accept the terms of the contract. An offer can be withdrawn before acceptance and in order to make such withdrawal effective, the person making such offer must communicate to the person whom the offer is made that the offer is being withdrawn.
Acceptance- when the party to whom the offer is made accepts the offer either by way of an act or by way of a statement, the offer is aid to be accepted. Such acceptance must be communicated to the offeror and must not be unequivocal in nature.
Legal intention- mere existence of an agreement and an acceptance of offer does not imply that a contract is formed. The parties entering into then contract must have legal intention to be bound by the terms of the contract.
Consideration- it is the value paid for the promise made by the other party. Consideration may include some money, interest, right, benefit. The presence of consideration is essential to determine the adequacy of the contract (Andrews 2015).
Capacity- the parties entering into contract must be of sound mine and legally competent to enter into contracts.
Certainty- the contract must be certain and the terms of the contract must be clear and comprehensible and must have a binding effect upon the parties to the contract.
Legal purpose- a contract in order to be valid must have a legal purpose otherwise, it shall not be enforceable in the court of law. For instance, contract-killing agreement is considered as an illegal agreement as the legal purpose of the contract is to kill a person, which is an illegal act.

Legality of contracts
Any agreement that violates the law and is forbidden by law is considered as void contract. An agreement that is illegal in nature cannot be enforceable in the court of law. A contract can be considered as illegal under the following circumstances: firstly, when the object of the contract is illegal and secondly, if the object of the contract is legal but the manner of creating the contract is illegal (Taylor and Taylor 2017). Any contract that is against the public policy is considered as illegal contracts and cannot be enforced in the court of law such as contracts formed to commit torts and crimes.
If one party fails to carry out his/ her part of the obligation, the person is said to have committed a breach of contract. The party who suffers loss due to the breach of the contract caused by the infringing party is entitled to the following remedies.

The aggrieved party may claim damages from the infringing party for loss suffered by him/her.
The aggrieved party may obtain a court order of specific performance that compels the infringing party to perform the obligation required by the contract.
The aggrieved party may obtain a court order to terminate the contract or amend any of the terms of the contract.

However, any act that does not amount to a valid contract or is unenforceable in the court of law shall not be considered as valid. If the either parties to the contract fails to perform his/her part of the obligation that was required by the contract, such party cannot sued for non-performance and no recourse can be taken against such parties when the contract is illegal and unenforceable (Burrows 2016).
In the given article, the woman Christine Ryder alleged that Kevin Reeves had committed a breach of contract the purpose of which was to hire a hit man and kill Christine Ryder. The court held that Reeves is entitled to pay compensation to Mrs. Ryder.
In order to determine whether there was a breach of contract on part of Kevin Reeves, it is essential to assess whether there was a valid contract between the parties to the contract. As discussed earlier there are certain essential elements that must be present to render a contract as valid.
Offer and acceptance- Mrs. Ryder made an offer to Reeves for hiring someone who killed her as she was too depressed any wanted to end her life. Reeves accepted the offer made by the claimant. This implies that there was an offer made which was accepted by the defendant.
Consideration- Mrs. Ryder paid £5000 to Reeves who promised to hire a professional killer who would kill her. The other party paid a monetary value to the claimant.
Certainty- the claimant was very clear that she wished to terminate her life and wanted to hire a professional killer who could help her in ending her life.
Capacity- both the claimant and the defendant were under treatment for their mental problems so it could not be ascertained that they were legally competent to enter into the contract. Legal capacity includes majority and soundness of mind.
Legal objective- the legal objective of any contract is essential to render it as a valid contract. If the purpose of the contract is against public policy, it shall be considered as an illegal contract. In the given scenario, the purpose of the contract was to kill Mrs. Ryder, which amounts to a crime and is against public policy. The act of killing someone in exchange of money is an offence and is against the public policy, therefore, a contract that purports to kill someone and is against public policy cannot be rendered as valid and is unenforceable in the court of law.
Legal intention- the legal intention of parties is essential in forming a valid contract, as the parties to a contract must be legally bound by the terms of the contract. The binding effect of a contract upon the parties to a contract is evidence that the parties will perform their respective obligations. In the given scenario, Mrs. Ryder has been paying the claimant for getting herself killed but the claimant instead, usurped her money promising her to kill on the subsequent date. The conduct of the defendant establishes the fact that he had no legal intention to kill her neither he wanted to hire any hit man to kill her. Lack of intention is another essential element that must be present in order to make the contract enforceable in the court of law (Goldberger 2016).
Thus, from the above discussion, it can be inferred that there was no valid contract formed between Mrs. Ryder and Kevin Reeves as there was no legal intention on part of Reeves to be bound by the terms of the offer made by Mrs. Ryder. Further, legal object of the contract was illegal, hence, not enforceable in the courts of law and Reeves may use the defense that he cannot be held liable for non-performance of a illegal and invalid contract.

Reference List
Adriaanse, M.J., 2016. Construction contract law. Palgrave Macmillan.
Andrews, N., 2015. Contract law. Cambridge University Press.
Burrows, A., 2016. Illegality as a Defence in Contract. Browser Download This Paper.
Cameron, S., 2014. Killing for money and the economic theory of crime. Review of Social Economy, 72(1), pp.28-41.
Cartwright, J., 2016. Contract law: An introduction to the English law of contract for the civil lawyer. Bloomsbury Publishing.
Crompton, C., Dunwoody, D. and Tigar, H.J.S., 2015. Asserting or Defending Claim That Contract Is Illegal, Contrary to Public Policy, or Unconscionable. MB Practice Guide: CA Contract Litigation, 2.
Curtin, J., 2016. Australia. European Journal of Political Research Political Data Yearbook, 55(1), pp.14-21.
Dellinger, M., 2016. Trophy Hunting Contracts: Unenforceable for Reasons of Public Policy. Colum. J. Envtl. L., 41, p.395.
Forbus, J., 2015. Contract Killing in the Information Age. Lulu Press, Inc.
Gardbaum, S., 2014. Separation of powers and the growth of judicial review in established democracies (or why has the model of legislative supremacy mostly been withdrawn from sale?). The American Journal of Comparative Law, 62(3), pp.613-640.
Goldberger, J., 2016. An overview of developments in key areas of Australian contract law. Commercial Law Quarterly: The Journal of the Commercial Law Association of Australia, 30(1), p.17.
Goldberger, J., 2016. The restitutionary remedy in Australian law. Commercial Law Quarterly: The Journal of the Commercial Law Association of Australia, 30(3), p.14.
Horan, J. and Goodman-Delahunty, J., 2014. Challenging the peremptory challenge system in Australia.
Hughes, W., Champion, R. and Murdoch, J., 2015. Construction contracts: law and management. Routledge.
Jain, S., 2015. Types of Contracts: General and Specific Contracts.
MacIntyre, D., Wilson, D., Yardley, E. and Brolan, L., 2014. The british hitman: 1974–2013. The Howard Journal of Crime and Justice, 53(4), pp.325-340.
McKendrick, E., 2014. Contract law: text, cases, and materials. Oxford University Press (UK).
Poole, J., 2016. Textbook on contract law. Oxford University Press.
Radin, M.J., 2017. The Deformation of Contract in the Information Society. Oxford Journal of Legal Studies, p.gqx001.
Rosenbloom, D.H., 2016. 3 Public Administration Theory, the Separation of Powers, and the Constitutional School. The Constitutional School of American Public Administration, p.57.
Smits, J.M. ed., 2017. Contract law: a comparative introduction. Edward Elgar Publishing.
Taylor, R. and Taylor, D., 2017. Contract Law Directions. oxford university press.
Willmott, L., Christensen, S., Butler, D. and Dixon, B., 2013. Contract law.
Wright, T., Ellinghaus, M.P. and Kelly, D., 2014. A Draft Australian Law of Contract.

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