Legislations

Source of obligation Contracts

Introduction What is “Law”? It is possible to describe law as the body of official rules and regulations, generally found in constitutions, legislation, judicial opinions, and the like, that is used to govern a society and to control the behavior of its members, so Law is a formal mechanism of social control. Legal systems are particular ways of establishing and maintaining social order.

- A civil suit involves a dispute between individuals involving either a breach of agreement or a breach of a duty imposed by law. The plaintiff's claim is grounded on the argument that the defendant did wrong to cause this harm.

- The law of obligations determines when a person must pay another compensation for harm wrongfully caused. Such an obligation may have its source in the law of contract, namely, in an action for a damages for a breach of contract, where the amount claimed is claimed as compensation for harm which the defendant has caused wrongfully, by breaking his word.

-. A contract is a promissory agreement between two or more parties that creates, modifies or destroys a legal obligation

A tort is any wrongful act, not involving a breach of an agreement for which a civil action may be maintained. Tort law establishes standards of conduct which all citizens must meet. It creates social duties among all members of society.

A contractual claim can rise only where there is a transaction of some kind between the parties, such as sale, employment, carriage and so on: if there is no transaction, but only a collision between strangers, then any claim must be in tort. Thus, a contractual obligation is voluntarily assumed, whereas a tort obligation is one imposed by law.

essence of contract law is the enforcement of a promise voluntarity made, liability requires no promissory or consensual relationship.

The law of torts

Torts and crimes Torts must be distinguished from crimes on the one hand , and from beaches of contract on the other. A crime is a wrong which , by means of punishment the state inhibits. A tort is a civil wrong which entitles a person who is injured by its commission to claim damages for his loss.

Torts and breaches of contract A breach of contract is , like a tort, a civil wrong; but it is different from a tort. Whereas contractual duties are imposed by the parties to the contract themselves, the duty to refrain from committing torts is imposed by the general law of the land, independently of the wishes of the plaintiff or of the defendant.

Trespasses and actions on the case A trespasses is a " direct and forcible injury". Actions " on the case- were actions for damage caused otherwise than " directly and forcibly" .They were called actions " on the case " because they were originally granted in certain cases where the plaintiff could show that, upon the facts of his case, he had suffered damage s the result of some act or mission of the defendant.

The differ between " trespass" and " case" may be illustrated The differ between " trespass" and " case" may be illustrated. If Jones hits Brown , he has committed a trespass. Smith negligently permits a fire that has arisen on his own land to spread, and to damage clark's crops the injury was neither " direct " nor " forcible" ,the injured party could sue the other by means of an action on the case.

Where a plaintiff's claim is founded upon a trespass, he need except where the trespass is one the person and arises from negligence – prove no actual damage, he is entitled to compensation as of right, upon mere proof of the trespass. In most other tortuous actions a plaintiff must prove that he has suffered some actual " special" damage, for damage was nearly always an essential element in the plaintiff's claim in actions on the case.  

Capacity

(1) General rule Generally speaking anyone of full age may sue and be sued in tort.

(2) Capacity minors *Minors –Although, as a general rule, minors enjoy no special exemption from tortious liability, the fact that a defendant is under age may have some effect upon it. *For instance , a child who is charged with negligence , will be judged , not according to the standards of a reasonable adult , but according to the standards of a child.

Minors have full capacity to sue in tort , though ( as in the case of all litigation) they require to be represented in the action by adult acting as “ next friend”.

(3) Capacity corporations Corporations are abstrations ; they are incapable of indulging in any activities; consequently they cannot commit torts. A corporation is regarded in law as the employer of its agents –from director to office boy- and employers may, as we shall see, be held “ vicariously” responsible for the torts of their agents acting within the course of their employment.