Previous Decisions Made Judges Similar Case

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Previous Decisions Made Judges Similar Case

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Discuss About The Previous Decisions Made Judges Similar Case?

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Introducation

On 26th August 1928, the friend of Mrs Donoghue brought a ginger beer to her from the Wellmeadow Café. The bottle of the ginger beer was open and thus the contents of the bottle were not visible. After the consumption of half of the bottle of the ginger beer she poured the contents into the tumbler. She found the remains of the decomposed remains of a snail floated which resulted her in a state of shock and severe gastro-enteritis. She brought an action against the manufacture of the ginger beer (Stevenson).
The main issue that arose is whether there is duty of care that can be imposed upon the management which was violated and which resulted in negligence on the part of the manufacturer.
Meaning of Ratio Decidendi and ratio in the case
Ratio Decidendi is a Latin term which means the reasons for the judgments. These are the basis because of which the decision is reached by the court of law. It is the point that determines the decision of the case. In Donoghue v Stevenson, the ratio is that every person owns a duty of care against all such person who he can reasonably foresee and who is affected by the actions of the doer, thus, there must be presence of proximity amid the parties. (The Law Teacher, 2017)
Meaning of Obiter Dicta and Obiter in the case
Obiter Dicta is the expression of the judges that are given by the judges during the proceedings of the case but does not become the part of the judgment or is not considered as the reasoning of the judgment of the case. These are mere observations of the judges. In Donoghue v Stevenson, Lord Atkin submitted that ‘we must love our neighbor’ and that ‘reasonable care must be taken against the act which can be reasonable foresee and that might harm your neighbor’ are not the basis of the decision but are important statements that are made by the judge while pronouncing the decision. (Judicial precedent, 2009)
It is submitted that Mrs Donoghue would not have been successful sue the manufacturer (Stevenson) under the law of contract mainly because there was no contract that was made amid the manufacturer and Mrs Donoghue. Mrs Donoghue was not the party to the contract and thus there is lack of privity of contract amid the parties.
The present case was a civil case law and not the criminal case law. It is submitted that in order to marketing a criminal case mainly because in criminal case it is the case which is brought in by the state or federal government against the violation of law. But, in civil case, it is a private action that is brought against a private party in order to seek monetary damages. Mrs Donoghue cannot bring a contract law case as there is lack of privity of contract. But, she brought a case under the law of negligence as there was breach of duty on the part of the manufacturer which resulted in the loss sustained by Mrs Donoghue.
Representations
Prior making any contract amid the parties there are series of negotiations that took place. Some of the statements which are not promissory in nature are called representations. These are the statements which are normally made part of the contract and there is not much remedy in contract law. However, in common law it is submitted that if any statements are made which are not true and which are relied upon the parties prior making the contract then such statements are called misrepresentation and the aggrieved party has a right to rescind the contract and claim damages. The concept of representation is rightly held in Ellul and Ellul v Oakes (1972). (Clarke, 2012)
Conditions
Conditions are those terms that are part of the contract and are considered as the riot, heart and soul of the contract. These are the terms which are the fundamental of the contract. These terms are the reasons because of which the contract is established amid the parties. In Telford Homes (Creekside) Ltd v Ampurius Nu Home Holdings [2013] & Poussard v Spiers (1876) it was held that the foundation of establishing a contract is its conditions. But, if any of the party to the contract does not comply with essential terms then the essence of the contract is lost and the reasons because of which the contact is established ceases. Thus, the aggrieved party has every right to terminate the contract ad seek damages and compensation for the losses that are suffered by him. (Davies, 2017)
Warranties
When the contract is made amid the parties then apart from conditions (which are the essence of the contract) there are few additional terms that are made part of the contract and such terms supplements the main terms of the contract and are warranties. They are not essence of the contract but are required in order for the smooth functioning of the contract. however, if the warranties are not comply with by any of the party, then, the aggrieved party can only claim damages for the breach and there is no termination of the contract and is held in Bettini v Gye (1876). (Davies, 2017)

In nominate terms
When the contract is made then there are terms which are not easy to categories as a condition or a warranty. These are those terms which take the shape of a condition or warranty depending upon the circumstances in which they are breached. If the circumsttbces revel that the terms become the essence of the contract then they are treated as condition otherwise they are treated as warranties. The damages so claimed also vary depending upon how the term is treated by the When any person (principal) appoints another person (agent), then such an agent must carry out his tasks as per the directions provided by his principal. The acts that are carried out by the agent are the acts that will bind the principal. However, the acts of the agent will only bind the principal provided they are carried out within his authority. Thus, the authority of an agent can be categorized as:

Actual authority – The actual authority are of two kinds:
Actual express authority – This is the kind of authority that is specifically provided by the principal to his agent. It is the authority that is provided by words, oral or written or by conduct.
Actual implied authority – It is the kind of authority that is provided to an gent by the principal under the implication of law. It is the authority that is supplementary to the actual express authority. This authority which is possessed by an agent under the implication of law, custom, usage and are inevitable for the performance of the tasks that are assigned to the agent, then, such are implied authority (Hely-Hutchinson v Brayhead Ltd [1968].
Ostensible authority – The authority which is possessed by an agent not by an express or implied means but when the principal makes a representation in front of the third party which portrays an image that the agent does possess authority to bind the principal, then, any act that is undertaken by the agent within such ostensible authority is binding upon the principal. However, the outsider with whom the agent is dealing must be acting in good faith Union Bank of Australia Ltd v Rudder (1911).

Thus, an agent when acts within his authority results in the binding relationship amid the principal and the third party.
Further, section 129 of the act provided the right to make assumption upon the outsider. As per section 129 an outsider can assume that the officer with whom he is dealing on behalf of the company has been duly authorized to carry out such transaction. As per section 129 (3), the outsider can assume that the person with whom he is dealing has been duly appointed. As per section 128 (4), the outsider can business-law presumptions of section 129 only when he is acting in good faith. If the agent exceed his authority but if the outsider is acting in good faith then the transaction is binding upon the principal.
Application of law
Greg appoints Meg for the purchase of certain equipments. An express authority is provided to Meg to purchase the equipment only up to the extend $ 80,000. However he purchase the machinery for $ 90,000 from the oversea manufacturer.
Now, Meg has violated his express authority. However as per section 129 the manufacturer has an authority to make assumption that Meg would have been carrying out the task within his authority provided by Greg , provided, he is acting in good faith.
Conclusion
Thus, the contract by Meg with the manufacturer is biding upon Greg.

Reference List
Bettini v Gye (1876)
Donoghue v Stevenson (1932).
Ellul and Ellul v economics (1972).
Hely-Hutchinson v Brayhead Ltd [1968].
Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1961].
Poussard v Spiers (1876).
Telford Homes (Creekside) Ltd v Ampurius Nu Home Holdings [2013].
Union Bank of Australia Ltd v Rudder (1911).
Davies (2017) The Good, the Bad and the Ugly? Conditions, Warranties and Innominate Terms (Online). Available at: https://www.daviesanddavies.net/construction-industry-news/the-good-the-bad-and-the-ugly-conditions-warranties-and-innominate-terms. (Accessed on 9th October 2017).
Julie Clarke (2012) Terms of a contract (Online). Available at: https://www.australiancontractlaw.com/law/scope-terms.html. (Accessed on 9th October 2017).
Judicial Precedent (2009) (Online). Available at: https://www.drsr.org/materials/conffiles/sallyrussellconf2009.pdf. (Accessed on 9th October 2017).
The Law Teacher (2017) Previous Decisions Made By Judges In Similar Cases (Online). management at: https://www.lawteacher.net/free-law-essays/judicial-law/previous-decisions-made-by-judges-in-similar-cases-judicial-law-essay.php. (Accessed on 9th October 2017).

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