F. Fact scenarios Flashcards
A. Extra pay or not?
Thirty-six seamen signed on a ship headed from the UK to Bombay and back. Each agreed:
“…to be paid 40 pounds per month (and in exchange) to do all they could under all the
emergencies of the voyage (…) until the voyage should be completed.”
In Bombay, 17 seamen refused the return voyage arguing the voyage, which went around the southern trip of Africa, was too dangerous this time of year when the weather was bad in the southern hemisphere and given the extra heavy load. They were arrested and sent to prison. The captain promised the remaining 19 to divide the wages of the 17 if they would crew the ship back to London. They agreed.
In London, the shipowner refused the extra pay arguing that they were bound under their
original contract. The seamen argued their original contract was unenforceable and therefore the new contract was indeed enforceable.
Is there an enforceable contract?
The extra pay promised by the captain to the remaining 19 seamen is likely unenforceable
because they were already obligated under their original contract to complete the voyage, and thus, provided no new consideration. This follows the legal precedent set in Stilk v. Myrick
(1809), which states that a promise to perform an existing duty is not valid consideration for a
new contract.
In Hartley v. Ponsonby (1857) is said that a sailor is excepted to complete a voyage in
emergencies. In this situation, there was no emergency, there the ship was in port and was
only unseaworthy due to the insufficient number of crew members. Therefore, the plaintiff was justified in refusing to set sail. By agreeing to undertake the work, the plaintiff provided fresh consideration, making the new contract valid.
B. Guilty or not?
A train lost its brakes, broke through a barrier, and is gaining speed towards three men who
are working on the rails. The switch operator had the opportunity to switch the train from the track with three men to a spur track with only one man working. In either event, someone would be killed.
The policies and procedures for the train company did not address this. The switch operator did not know who the men where, nor really why they were on the tracks. He acted
instinctively and threw the switch diverting the train and killing the lone worker. The law
states: “Whoever shall willfully take the life of another shall be punished to death.”
Should he be put to death under a naturalist approach to interpreting the law? Is your
argument the same or different under a positivist approach?
Under a naturalist approach, the switch operator should not put to death, as natural law emphasizes moral principles behind actions. The operator acted instinctively to minimize the overall loss of life, by prioritizing three lives over one.
Conversely, under a positivist approach, the operator should be put to death, because the
law explicitly says that willfully taking a life is punishable to death. The only consideration
under this approach is, that the operator´s action, resulted in the death of a worker.
Like in the Speluncean Explorers Fictional Case, in which four explorers killed and eaten the
fifth one to survive, the naturalist v. positivist approach standing in a conflict. Just under
positivist circumstances the four explorers should also be put to death by the law.
In Conclusion, the switch operator should be put to death, because the statute is clear and
must be applied by the judiciary, without involving moral principles. But i/we recommend
clemency by the executive branch. To prevent a lack of separation of power, this clemency
has to come clearly from the executive and not from the judiciary.
C. Property or privacy?
Anne and Jan, a committed couple, want children, but not now. Since Anne is close to 40, as a precaution they have fertilized eggs frozen for future use. Anne und Jan later are separating. Both want custody of the frozen fertilized eggs. Jan argues that he has a property interest in them as they were conceived during marriage.
Anne also claims a property interest in the frozen fertilized eggs, and alternatively argues that she should be awarded the fertilized eggs as they have constitutional rights and Jan would
destroy them because he can always father with other women. She also claims rights as the
“mother” of the eggs and that they are her only hope of becoming a mother, due to her age.
There are too few eggs to give both parties some, as the experts will testify that the number must be preserved to enhance the likelihood that at least one of them will produce a child.
Are the frozen fertilized eggs under state law property to be awarded to one party or
another, or an entity with constitutional rights?
Under state law, frozen fertilized eggs are now after LePage v. Center of Reproductive
Medicine Center, included in the definition of “minor child”. The legislative intent is to
protect unborn life and to impose criminal sanctions for example murder of an unborn child. Courts typically aim to balance the interests of both parties.
Given the complexities involved, it is advisable for courts to consider both Anne´s reproductive rights and Jan´s property claims, potentially favoring the party whose
fundamental interests are more significantly impacted by the decision.
Without a clear prior agreement, Anne´s argument that these embryos are her only chance at being a mom might win out, especially if Jan can have kids in other ways.
D. Tort or not?
A short, nine-hole golf course was built on the outskirts of town. As the area grew, the golf
course was eventually surrounded residential areas. In an effort to contain errant golf balls
off the ninth tee, the golf course (owner) erected nets along the side of the tee. Nonetheless, balls landed in the neighbor´s yards frequently. When they landed it was usually with force
such that if it hit someone, it could injury the person. The homeowners sued. The golf course
owner claimed the nets met his duty to act as a reasonable person.
Was there a tort and, if so, whether the golf course was liable?
Yes, there is potential for a tort in this scenario, specifically a tort of negligence. The golf
course owner has a duty of care to ensure that the golf course is safe for nearby residents,
given the foreseeable risk of harm from errant golf balls.
While the owner took some measures to contain errant balls by erecting nets, the fact that balls continued to frequently land in neighbor´s yards indicates that these measures may not have been sufficient to discharge the duty of care.
If the court determines that the nets were not adequate to prevent harm to neighboring
residents, the golf course owner may be held liable for negligence. The outcome would
depend on various factors, including the effectiveness of the nets, the foreseeability of harm, and whether the owner took reasonable steps to mitigate the risk.
E. Private or not?
A famous parliamentary minister in charge of a programme for drug addicts was secretly
himself an alcoholic. He was attending Alcoholic Anonymous (AA) meetings. Publicly he denied any problems and preached that those addicted to substances were weak and needed
the help of the state. He was photographed through a window attending an AA meeting. The photo was published and he lost his position as a minister. He sued.
Had he a cause of action?
Yes, the parliamentary minister potentially has a cause of action, particularly for invasion of
privacy or breach of confidentiality. The publication of a photograph taken through a window while attending an AA-meeting without his consent could be considered an invasion of his privacy, as AA-meetings are intended to be confidential and anonymous.
Additionally, if the minister can demonstrate that the publication of the photo led to his loss of position as a minister and subsequent damages, he may have a case for defamation or wrongful termination.
In this special case, publishing this photo could be in public interest, based on Reynolds.
Times Newspapers 1999, because the parliamentary minister is in charge of a program for drug addicts and was himself an alcoholic. Liability would only arises if the publicator knew the photo was not original made.
