concept essays Flashcards
Concept essays- balancing conflicting interests- paragraph 1- intro
In law, there will always be conflicting interests and the law should ensure that all interests are considered and balanced. The courts will try to ensure that the rights, obligations and responsibilities of both parties are managed and judged fairly. For example, if a claimant suffers loss due to the defendants breach, their interest lies in receiving compensation. The D will be responsible for paying an amount that is reasonable. This balances the interest of both parties. The law must balance both the claimant and defendants conflicting interests to produce a just result.
Concept essays- Balancing conflicting interests- Paragraph 2- Marx
Karl Marx believed the only way to achieve justice and fairness was to balance conflicting interests in society. If interests are not balanced, society will be oppressive- meaning if the law is too strict in that it removes our rights an liberties, it will not be in our best interest.
Concept essays- Balancing conflicting interests- paragraph 3- Bentham
Jeremy Bentham believed in the principle of maximising human happiness and diminishing pain. He believed that achieving maximum happiness could only take place by balancing the different interests that exist in society.
Concept essays- Balancing conflicting interests- Paragraph 4- Von Jhering
Von Jhering suggested that society needed law to regulate the conflicts that would inevitably arise between the many different interests and argued that law acted as a mediator between these various competing interests.
Concept essays- balancing conflicting interests- paragraph 5- Roscoe Pound
Finally, Roscoe Pound believed that the law should act as an engineering tool to balance the interests between conflicting parties. However, he believed that private interests should never be balanced against public interest because public interest will always prevail.
Concept essays- freedom to contract- Paragraph 1- Intro
Freedom to contract allows parties to decide not only who to contract with, but the specific terms they wish to contract with. Freedom to contract allows parties the choice of whether to enter the contract or not.
Concept essays- Freedom to contract- Paragraph 2 - Explanation part 1
Freedom to contract allows individuals and businesses to freely negotiate and establish terms without government or court interference. A party is entitled to contract on any terms if they enter the contract voluntarily, this will be upheld in court
Concept essays- Freedom To contract- Paragraph 3- Explanation part 2
Freedom to contract is often associated with the term “Laissez-faire”, which translates to mean “Let it be “. This policy refers to how the courts and government should not interfere with a persons economic affairs.
Concept essays-Freedom to contract- Paragraph 4- generic examples
One example of freedom to contract is the ability to negotiate salary, working hours and responsibilities in employment contracts. Additionally, and individual and businesses are free to negotiate terms when entering different consumer and commercial contracts. Finally, a further example of freedom to contract is evident in real estate contracts as a person can freely negotiate the price of a house sale and whether the house comes furnished or not.
Concept essays- Freedom to contract- paragraph 5- Judge/ Theorist/ Academic arguments
Sir George Jessel argued that freedom to contract is essential as individuals should have the utmost liberty to enter into any agreement they wish and this should be upheld by the courts- it is not for the courts to intervene. Additionally, Nozick also advocates for the principle of freedom to contract as he agrees that it is an expression of individual autonomy and a fundamental aspect of a minimal state. However, Atiyah argues that although freedom to contract was evident in the 18th and 19th century, there has recently been a decline in the principle due to increasing regulations, such as the introduction of the consumer Rights act 2015.
