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Contractual obligations 2 Essay

Contractual obligations 2

Dear Becky:

                Upon our full review of everything that you have told us, we were able to come up with strong opinions that you have a better chance of arguing against possible indictment that would be filed against you in court in connection with the different contracts you have entered into. In view of this, I would like to point out that there are some provisions of the law that might help you in case a complaint filed in court become a full blown court case.

As per our consultations with our lawyers, the provisions of ‘Duress’ and ‘undue influence’ might apply to the contract you have entered into with Roger. Apparently, Roger was well aware of your contract with Herman, and you informed him that you cannot accept any commitment anymore in view of your desire to finish the job at the given time. Upon realizing your firm stands not take on any job in favor on your contract with Herman, Roger used his undue influence to coerce you into signing a contract towards his project. In this case, unconscionability  might also be pertinent to the contract which Roger obliged you to sign given the duration of the

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project, and the amount offered £2000 which was far lower than the price that Herman has set for similar job. Roger knew that this amount was short of what is required to, but he obviously took advantage of your past case in order to insure you get the job which under normal circumstances, you might require more.

The contract with Nick might be tainted with ‘illegality’ and it might involve a crime while the restraint of trade clause might be ‘unreasonable’ but it would only be operative to the extent that you were an employee of LowLite and not an independent contractor. This letter therefore intends to give you full explanation about how this case could be possibly handled in court.

            Concerning duress and undue influence which could possibly be use as part of our argument, Keith Owens notes, ‘if a contract is obtained by undue pressure, the court may set it aside.’[1]  K. Owens explained that duress is a common law concept which originally meant ‘actual violence or threat of violence.’[2] In Pao On v Yiu Long (1980), the court held that in order to amount to duress there must be coercion of will so that there was no true consent. Thus in order for us to determine whether the contract which you signed with Roger amount to duress or not, I would like you to answer the following: 1. did you or did you not protest during the time you were coerced to sign the contact which Roger offered? 2. Do you have any alternative course of action such as sufficient legal remedy at the time you were coerced to sign the contact? 3. Have you received any advice from anyone about this thing? Did you try to avoid signing the contract? If you were not given any option with all these questions, your contract amount to duress which could be voidable especially in view of violence of threats. Donna Kline states ‘the law of duress requires that the pressure be exercised by means of threats….’[3] It covers not only violence or threat of violence, but also economic duress, that is, threats to property and business alike. Based on your story, it appears that the contract which Rogers and Nick offered you falls on the provision of duress and influence.

            Undue influence on the one hand was, as Salzedy Peter Brunner and Michel Ottley noted, developed as ‘a means of relieving a weaker party of the burden of a contract induced by undue pressure brought upon by the other contracting party or by the conduct of a third party.’[4] There have been two types of undue influence, one, is the actual undue influence, and the other is, the presumed undue influence. Salzedy, Brunner and Ottley explained that under actual undue influence, there is no ‘special relationship between parties and the person asserting that undue influence had been applied must prove that the contract was entered into as a result of the undue influence of the stronger party.’[5] Presumed undue influence on the other hand, arises ‘where there is relationship of trust and confidence between the parties of such a nature that it is fair to presume that the dominant party abused that relationship in procuring the weaker party to enter into the transaction.’[6]

            In order to further enhance your understanding about the provision of duress and undue influence, herewith are some of the court cases where duress and undue influence were applied. Atlas Express Ltd v. Kafco Ltd (1989). In this case, K was a small manufacturer that received a good order from retail chain Woolworth’s. S.B. Marsh and J. Soulsby states that K contracted with Atlas, a road carrier, to deliver the goods at an agreed fee, however, after the first delivery, Atlas realized it has miscalculated the cost of deliveries and told K it would not continue the delivery unless K double the price earlier agreed. Desperate to fulfill its commitment with Woolworth’s being unable to find remedy about the problem, K agreed but it later refused to pay the extra. The case later was concluded with the decision that K ‘was not liable for the extra charge, which had been extorted from it by duress.’[7] In William v. Bayley the court yielded the same decision.

Based on the provisions of duress and undue influence, I would like you to take a position that Roger clearly applied duress and undue influence to coerce you to sign the contract in view of your previous case when you joined the anti-war protest where you lye side by side with other protesters naked at the Trafalgar square. Roger knew exactly about your contract with Herman and upon realizing your commitment to that contract and that he could not persuade you to accept his terms on a casual or under normal circumstances, he reminded you of the nude demo and threatened to publicize your case. Based on the merits of this testimony, I would like to inform you that your contract with Roger could be voidable because it clearly involved threat.

Regarding your contract with Nick, there is quite evidence that it was tainted with illegality. I would like to point out to you that under English law, contracts that are tainted with illegality cannot be enforce and therefore void. In order to prove the contract you have with Nick is tainted with illegality, it should be subjected to public conscience test under the public policy called ex dolo malo non oritur action which means ‘no court will lend its aid to a man who founds his cause of action upon an illegal or immoral act.’ [8] It was quite obvious that the contract you have signed with nick has racist implication and therefore that contract has an immoral implication. The main focus of argument therefore centers on the public perception of the contract as well as the morality issues. Apparently, this is a strong point because racial discrimination and racism has been publicly and morally condemned issues. Thus what we are going to prove is the racist context of the contract which is against your principle.

            We could not further advice you on this matter because this case might lead to a criminal case in view of the racist nature of the contract. That is, if you wish to explore further this issue for a counter lawsuit, you can critically evaluate whether the contract was really racist in nature just as Tabani has found it. If this was the case, then you can come with us for further evaluations of the contract. In the meantime, it appears that the contact was loaded with illegality. An article entitled “The Law Commission Illegal Transactions: The Effect of Illegality on Contracts and Trusts” noted that in the English law courts, a transaction or contract could involve the commission of a legal wrong when it breached a statutory provisions[9]. The article explains that a contract may me unenforceable if its formation ‘involves the commission of a statutory criminal offence criminal offense.’[10]

Given what Tabani has found, the formation of the contract involves the commission of legal wrong in view of its racist implication. The image painted on the mural which was that of the Klu Klux Klan was definitely a white supremacist images. The Klu, Klux Klan were a white organization during the part of the century which were brutal to the Blacks and other non-White people during the earlier period. It was therefore immoral to make a public display of such images and those who dare to do so must be advocates of white supremacist and must be racists. I would like then to point out that your contract with Nick could be unenforceable. But of course, this has to be argued in court. What I am simply telling you is that based on the given explanations, we have strong argument that you can win this case.

            Pertaining to the restraint of trade clause, this law was already void in other countries particularly in the New South Wales in Australia, because it limits freedom of contracts. D. Campbell and S. Cotter defines this clause as ‘a covenant in restraint of trade is an agreement voluntarily made between an employer and an employee restraining the employee from carrying on business with a competing firm or a firm likely to compete with the business carried on by the employer for a stated period of time….’[11]While this definition seemed to establish relevance of trade restraint, restraints in trade has been viewed as illegal. Campbell and Cotter notes that restraints in trade is illegal citing that ‘all interference with individual liberty of action in trading, and all restraints of trade of themselves, if there is nothing more, are contrary to public policy, and therefore void. However, Ian Smith and Gareth Thomas argued that restraints of trade are a legal device and that the law protects both the employers’ interests and employees’ rights. The debate on the validity of restraints of trade clause according to Smith and Thomas could be found in Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co to which the House of Lords resolve that a restraint clause is to be considered void unless the party alleging its validity ‘can prove that it is (a) reasonable as between the parties and (b) in the public interest.’ [12]

            Given this notion, the clause in the LowLite               contract which states that ‘No ex-employee shall work for any competitor or purveyor of a similar line of business within a 100 mile radius of the city of London for a period of 6 years’ can be viewed as illegal as it interfere with your liberty of action in seeking for employment. Apparently, you are not terminating the contract to start a new business that would compete with your previous employer, but to give your self a break after moths of emotional struggles. Besides as an employee, the public policy principle affirms that employees should be free to “sell” and use their skills and talents as they wish. That means that for a restraint of trade provision to be reasonable there must be a need to protect the employer from something more than mere competition.

            Finally, the restraints trade clause clearly applies only in the context of employee employer relationship. That is, if you practice your skills as an independent contractor, based on the principle of public policy, you should not be deprived of your right to make a living by using your skills.

            To outline our argument against all these; first we will argue based on the merits of the previous cases where duress and undue influence were applied. There is clear evidence that the contract you have signed with Roger was laden with undue influence and therefore we have a very strong argument against him. He has obviously committed serious violation of the provisions of the law by exerting pressure on you to sign a contract against you will.

Second, on your contract with Nick, it seemed that the contract he has offered you to was racist in nature. You were not simply aware of it because it does not concern you. You simply wanted the job for income sake. But for people who the project was directed, that project was offensive. Thus, Tabani who was a black woman was enrage and broke with you upon seeing the copy of the contract. We will therefore argue on the moral aspect of the project particularly on its racist implications. The contract was obviously tainted with illegality as it was offensive to other race.

Finally, on the restraints trade clause on the contract which you have signed with LowLite we will argue on the merits of the public policy principle as well as on the reality that what is being contested in the said restraint clause was the employee employer context. That is, she can freely practice her own skills as an independent contractor. Given all that we have explained above regarding the different contract you have and the different provisions of the law relating to those contracts we would like to assure that our law firm can handle your cases well.

Bibliography

Campbell , D & S Cotter Comparative Law Yearbook, Volume 18; Volume 1996 Kluwer, Kluwer

Law International, UK, 1996

Illegality in Contract

sunzi.lib.hku.hk/hkjo/view/15/1500655.pdf

Kline, D Dominion and Wealth: A Critical Analysis of Karl Marx’ Theory of Commercial Law

Reidel Publishing, the Netherlands, 1987

Owens, K Law for Non-Law Students Cavendish Publishing, Great Britain, 2001

Salzedy, P. Brunner, & M. Ottley Briefcase on Contract Law Cavendish Publishing, Great

Britain

Smith, I. G Thomas Smith and Thomas’ Employment Law  Oxford University Press, New York,

2008

The Law of Commission Illelegal Transactions: The Effect of Illegality on Contracts and Trusts

http://www.lawcom.gov.uk/docs/cp154.pdf

[1] K. Owens Law for Non-Law Students Cavendish Publishing, Great Britain, 2001, p. 163
[2] Owens, p. 163
[3] D. Kline Dominion and Wealth: A Critical Analysis of Karl Marx’ Theory of Commercial Law Reidel Publishing, The Netherlands, 1987, p. 107
[4] Salzedy, P. Brunner, & M. Ottley Briefcase on Contract Law Cavendish Publishing, Great Britain, p. 201
[5] Salzedy, Brunner, & Ottley, p. 201
[6]Salzedy, Brunner and Ottley p. 201
[7]S.B. Marsh & J. Soulsby Business Law McGraw-Hill, Great Brirain, p. 132
[8] Illegality in Contrast, p. 30
[9] The Law Commission, p. 2
[10] The Law Commission, p. 3
[11] D. Campbell & S. Cotter Comparative Law Yearbook, Volume 18; Volume 1996 Kluwer, Kluwer Law International, UK, 1996
[12] I. Smith & G. Thomas Smith& Thomas’ Employment Law Oxford University Press, USA: p.2047

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