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"The transmission of such a price-list does not amount to an offer to supply an unlimited quantity of the wine described at the price named, so that as soon as an order is given there is a binding contract to supply that quantity. If it were so, the merchant might find himself involved in any number of contractual obligations to supply wine of a particular description which he would be quite unable to carry out, his stock of wine of that description being necessarily limited. I entertain, I confess, a very clear opinion that the Solicitor-General was quite right in arguing the case on the assumption that no sales were made in this country." Lord Herschell Just over one hundred years ago the above ratio-decendi was given in what was at the time a case concerned with alleged back taxes owed by Grainger & Son. Grainger & Son henceforth referred to as G&S were British wine merchants who as a side venture passed on the price lists of a French wine producer to their customers. G&S received a commission on any orders placed with said producer and paid tax on this commission. Gough claimed that tax was payable on the whole value of these sales not just the commission element. Monsieur Roederer henceforth Mr R was a wine producer located in France. He decided whether to accept orders the orders gathered by G&S or not. The reason for this being that the wine was shipped out ahead of any payment being received and Mr R wanted to vett his customers credit worthiness. The wine was shipped directly to the customer in the UK from France. Most customers settled their accounts directly with Mr R. A few customers instead made payment to G&S who would pass on to Mr R any amounts in excess of the commission they happened to be owed. In summary the flows of events are: Mr R, located in France, sends price list to G&S in Britain G&S distribute price list Customer places, for want a better word, an order with G&S for wine produced by Mr R G&S forward order to Mr R Mr R dispatches wine to customer Mr R dispatches bill for said customers wine to G&S for onwards transmission G&S forward bill to customer Customer sends payment to Mr R "“ occasionally made to G&S who forward this to Mr R Mr R sends receipt to customer G&S pay tax on commission received G&S maintained that they entered no contracts regarding Mr R's wine. Gough held the converse view that G&S entered contracts themselves and thus sold Mr R's wine. Our starting point must be to define what a contract under English law is. The Jurists Bentham and Austin have laid down that the "two main essentials of a contract are these: first, a signification by the promising party of his intention to do the acts or to observe the forbearances which he promises to do or to observe. Secondly, a signification by the promise that he expects the promising party will fulfil the proffered promise." More precisely to form a contract under English law the following elements are required i a valid offer has been proffered by the first party to another party or parties ii the offer has been accepted unchanged by the second party or parties and this has been communicated to the offerer . iii there is an intention by all parties to create legal relations when they entered into the contract and the parties have the capacity to contract iv the promises made within the contract are for valuable executive consideration and v the terms of the contract are certain. Did Mr R make an offer through the medium of his price list. Looking in Mozley and Whiteley"s Law dictionary an offer is "An expression of readiness to do something e.g. to purchase or sell". Mr R is saying that he is willing to sell wine. Based on this definition initial opinion would say that the price list does constitute an offer. Continuing with this line of thought G&S acted in an agency capacity for Mr R making an offer to the customers they approached and receiving the acceptance of any order. If the customers accepted G&S's offer made via the medium of the price list then Mr R merely shipped directly from France. The bills for said wine were sent to G&S who would then forward them on to the British customer. These points all suggest that the sale was made in the UK by G&S. The listing of Mr R, in the Post Office London Directory, as trading from G&S's establishment further hints at an agency type arrangement. Much of the argument supporting the invitation to treat viewpoint is by drawing analogies with cases involving auctions such as Payne v. Cave 1789 and Harris v. Nickerson 1873 in which both concluded that bidders make an offer which the auctioneer is free to accept or not. The bidder's offer being retractable until accepted by the auctioneer . The pricelist could be seen as statement of the minimum price at which Mr R would bewilling to sell wine drawing analogies with Harvey v Facey 1893. Mr R's supply of wine in any year is finite and demand could outstrip supply leaving an impossible back log of orders all demanding specific performance. Mr R could possibly, though extremely doubtfully, claim the defence of frustration as the things contracted for no longer exist. Add to this Mr R's option to reject any order makes it appear that his price list is an invitation to treat as otherwise it would be an offer that is subject to revocation without notice. Acceptance of an offer has to be communicated. At the time of this case, 1896, the only readily available methods of communication for distant parties were the postal system or telegram. The postal rule would apply to any customers acceptance sent via these mediums and hence any revocation of the offer would be impossible The final item to consider is the peculiar concept of consideration to be found in the English legal system and those derived from it The 1677 Statute of Frauds made consideration vital in any contracts not made under seal. G&S received no consideration for the wine therefore they could not be a party to the contract. [Transfer of title occurred only between Mr R and the customer]. That occasionally the payments for the wine were made to G&S instead of directly to Mr R was held to be equivalent to Mr R, for the sole convenience of his customers, operating a British bank account to receive payments. Graiger v. Gough was one of the major cases in the creation of the principle of invitation to treat. In order to explore this principle more fully the case will be re-examined as it occurred today. Once again the starting point is was the price list an offer or merely a willingness to deal. There are a number of variants on an invitation to treat these are: pre-contractional negotiations , shop displays and finally advertisements. G&S's supply of the price list to potential customers is a form of direct marketing and falls under the last of these three categories. To be classed as a unilateral offer the price list would have to show some intention to be bound by pro-offering a tangible benefit, in excess of sales puff, that could be accepted by performance rather than communication . Is there any similarity to Bowerman v. ABTA 1995 or Carhill v. Carbolic Smokeball Company 1892. If the answer to this is a negative then the next step is to determine where the act of offer & acceptance occurs. In a face to face situation such as a shop the customer offers to buy goods by presenting them at the till and the shop either accepts or rejects this offer to buy. The goods on the shelves are merely invitations to treat in keeping with the findings of Fisher v. Bell and Pharmaceutical Society of GB v. Boots Cash Chemists. The views of this in America and the European Community are slightly different. Although it seems odd that a shop would not want to sell its stock the English legal system is designed to achieve consistency even if it has to distort the persons actual intent. This produces oddities such as Partridge v. Crittenden 1968 where a newspaper advert to sell wild birds was found to be an invitation to treat not an offer to sell so the defendant escaped prosecution under the Protection of Birds Act 1954 . A key point in the original Graniger v. Gough was where was the contract made. Today the location of the act of contracting can be different depending on the mode of acceptance. The postal rule puts acceptance at the place of posting. Where both parties use a telex or nowadays facsimile machine the Court of Appeal decided in the case of Entores Ltd v. Miles Far East Corporation 1955 that the contract was entered into when and where the acceptance was received. Lord Denning confirmed, obiter" that the same principles also apply to acceptances by telephone. Answering machines and voice mail are assumed to at maximum delay receipt of the acceptance till the next working day rather than grant them an agent status capable of entering contracts. Faulty hardware, lack of link & paper or sloppy business practice, such as not checking the fax for days, does not stop or delay the acceptance of an offer. Public holidays and weekends however do delay acceptance till the next working day. E-mail contrary to popular belief is not always an instant form of communication. An e-mail may pass through a number of third parties networks & servers and could quite possibly be considerably delayed. Also the recipient has to actively retrieve their e-mail from their service providers or works mail server. The Uniform Laws on International Sales Act 1967 sets out that the acceptance of an offer becomes effective at the moment the indication of assent reaches the offeror . But is the offer accepted in the country of the readers computer or where the email server is hosted? If a person picked up the contents of their phones answer machine in a country different to that which said machine was in, where was the contract made. Within closed networks or Electronic Data Interchange systems mail delivery is more reliable and it may be possible to tag the e-mails so they generate a receipt message upon reaching their destination and upon being read. The EDI Trading Partner Agreements will also outline when acceptance takes place and which countries laws apply. If Mr R had a website that could receive customer orders would it be an invitation to treat or an electronic contracting agent ? A non-interactive site just listing his wines would most certainly be classed as an advert. This question is under consideration by may of the worlds legal minds. Unfortunately the Argos £2.99 television and recent Kodak £100 digital camera incident never made it to court so there is no precedent. The Kodak site took the customers order and issued an order confirmation which the customer was asked to retain for warranty service. Consumers would believe that having placed their order and given their credit card details and been told that the £100 will be charged to their card along with receiving an acknowledgement ,that their purchase has been made. This "clickwrap contract" is what the law calls a "contract of adhesion" -- a contract you didn"t really bargain over in any way, but which was presented as more of a take-it-or-leave-it offer . Kodak made such a bad bargain that everyone wanted to take it The only case on web based retail sales so far is American where the court stated "such an automated, ministerial act cannot constitute an acceptance" which does little to resolve the issue. As international web based commerce increases, instances similar to Gough v. Granger will become more common. Will the concept of invitation to treat expand outside of legal systems based around Anglo-American common law bringing some consistency to the dynamics of offer & acceptance or will the EU idea of its an offer until the stock runs out be adopted.
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"The transmission of such a price-list does not amount to an offer to supply an unlimited quantity of the wine described at the price named, so that as soon as an order is given there is a binding contract to supply that quantity. If it were so, the merchant might find himself involved in any number of contractual obligations to supply wine of a particular description which he would be quite unable to carry out, his stock of wine of that description being necessarily limited. I entertain, I confess, a very clear opinion that the Solicitor-General was quite right in...
bad bargain that everyone wanted to take it

The only case on web based retail sales so far is American where the court stated "such an automated, ministerial act cannot constitute an acceptance" which does little to resolve the issue.

As international web based commerce increases, instances similar to Gough v. Granger will become more common. Will the concept of invitation to treat expand outside of legal systems based around Anglo-American common law bringing some consistency to the dynamics of offer & acceptance or will the EU idea of its an offer until the stock runs out be adopted.

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Explain the role of recklessness in...Explain the role of recklessness in determining criminal liability. In everyday language, recklessness means taking an unjust risk. However its definition in law is different to its ordinary English meaning and careful direction as to its meaning in law has to be given to the jury. There are two types of recklessness, which exist, subjective recklessness, also known as Cunningham recklessness, and objective recklessness, which is also know as Caldwell recklessness. Caldwell recklessness only applies to criminal damage. For a defendant to be guilty under Cunningham recklessness he must have consciously undertaken an unjust risk. He must realize that there is a risk involved but if he continues to carry on with his conduct, then he is reckless. A case to illustrate this is R v Cunningham "“ Cunningham pulled a gas meter of a wall in a house intending to steal money. He broke the main gas pipe, releasing gas into the rest of the house which was inhaled by the old lady that lived there. The C/A quashed the conviction due to a miss-direction by the trial judge as to the word 'malicious' under S.23 O.P.A 1861-maliciously administering a poison "we wish to make clear that the test is subjective that the knowledge of appreciation that the risk of some danger must have entered the defendants mind even though he may have suppressed or driven it out". This case defined this type of recklessness therefore called Cunningham recklessness. Caldwell recklessness is different, firstly it only applies in cases of criminal damage. The case of MPC v Caldwell created new and much wider tests for recklessness. Caldwell was an ex-employee of a hotel and nursed a grudge against its owner. He started a fire at the hotel, which caused some damage and was charged with arson. This offence is defined in the Criminal Damage Act 1971 as requiring either intention or recklessness. On the facts there was no intention and, on the issue of recklessness, Lord Diplock stated that the definition of recklessness in Cunningham was to narrow for the Criminal Damage Act 1971. For that act, he said, recklessness should not only include the Cunningham meaning, but also go further. He said that a person is reckless as to whether any property would be destroyed or damaged if: 1. He does an act which in fact creates an obvious risk that property would be destroyed or damaged and 2. When he act he has either not given any thought to the possibility of their being any such risk or has recognized that there was some risk involved and has nonetheless gone on to do it. Thus there are actually two potential ways that Caldwell recklessness can be proved. The first way is very similar to the old Cunningham test: 'he does an act which in fact creates"¦a risk"¦and"¦has recognized that their was some risk; The second way is the important extension to the meaning of recklessness: 'he does an act which in fact creates"¦an obvious risk"¦and"¦he has not given any thought to the possibility of there being any such risk'. Without these types of recklessness there would be a large gap in the law in areas such as criminal damage, Caldwell recklessness. And in areas such as non-fatal offences against the person and rape and indecent assault, Cunningham recklessness. What are the problems associated with recklessness and discuss proposals for reform One problem with recklessness is the two tests. Having two different tests for the same word causes confusion and is unnecessary. As the law currently stands concern has been expressed that the higher Cunningham standard is applied to rape and the lower Caldwell standard is applied to criminal damage. This means property is better protected than people. Another problem is the adoption of Caldwell recklessness means that a mens rea generally considered less morally blameworthy than Cunningham recklessness is being applied to some serious offences. Lord Diplock argued that there were three good reasons for extending the test for recklessness. First, a defendant may be recklessness in the ordinary sense of the word, meaning careless, regardless or heedless of the possible consequences, even though the risk of harm had not crossed his mind. Secondly, a tribunal of fact cannot be expected to rule confidently on whether the accused's state of mind has crossed 'the narrow dividing line' between being aware of risk and not troubling to consider it. Thirdly, the latter state of mind was no less blameworthy than the former. A third problem is the Caldwell test has blurred the distinction between recklessness and negligence. Before Caldwell, there was an obvious difference: recklessness meant knowingly taking a risk; negligence traditionally meant unknowingly taking a risk of which you should have been aware. Caldwell clearly comes very close to negligence. There is also a problem with the lacuna, the case of R v Merrick has been criticized as unrealistic. In practice, replacing electrical equipment often creates a temporary danger which cannot be avoided, yet technically each time in criminal law the electrician is reckless. Another problem is the reasonable man test can be very harsh with defendants that are young or perhaps retarded. Elliott v C 1983 "“ A backward 14-year-old set fire to a shed. She was charged with arson and the court held the test of a reasonable man took no account of her particular characteristics. Coles 1995 "“ The C/A said the same thing when a 15-year-old boy set fire to a hay barn with others sitting on top of the hay. As you can see there are many problems associated with recklessness. Some suggestions for reform are the Law Commission draft Criminal Liability mental element Bill provides a redefinition of mens rea generally, and defines recklessness in subjective terms, in accordance with Cunningham rather than Caldwell recklessness. However, in 1996 when reviewing the law on manslaughter, the Law Commission confronted the issue of liability for consequences that are neither intended nor knowingly risked. It concluded that criminalizing the inadvertent causing of death where the risk of death or serious injury is obviously foreseeable and where the defendant has the capacity to advert to the risk. Another suggestion for reform is reversion to Cunningham alone. Smith and Hogan argue that a distinction should be made between someone who knowingly takes a risk, and someone who simply gives no thought to the fact that there might be a risk. They might both be blameworthy, but not, in Smith and Hogan's opinion, equally so. They recommend reverting to the stricter Cunningham definition for recklessness. The last suggestion for reform I am going to mention is including characteristics of the defendant. If the purpose of Caldwell is to insure that people do not get away with giving no thought to a risk of which they should have been aware, a fairer test of what constitutes an obvious and serious risk might be 'in the circumstances, should the defendant given such characteristics as age, or any mental incapability have realized there was a risk? This would ensure that blameworthy thoughtlessness would insure liability, but would exclude the unfairness of cases like Elliott. That was a few proposals for reform for recklessness. My opinion is that they should bring in the last proposal I mentioned because I feel the law is very unfair on people in cases such as Elliott.   

Explain the role of recklessness in determining criminal liability. In everyday language, recklessness means taking an unjust risk. However its definition in law is different to its ordinary English meaning and careful direction as to its meaning in law has to be given to the jury. There are two types...

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Death penalty-to be or not to...Death penalty-to be or not to be? Sometimes crime cannot be punished enough. Sometimes crime is so cruel that there is no realistic punishment for it. There are too many victims out there, that suffered and their attacker gets a simple painless death. I am saying painless comparing to murders that happen every day that are simply horrifying. As Paul A. Winters says "If a person commits a uniquely gruesome murder, he deserves to be put to death" Winters et al. 154. So many murderers are convicted of the crime of murder and they only get years in jail. Their victims feel the pain, but imagine the pain and sorrow that the families of the victims feel, and that pain lasts for the rest of their lives. If someone from my family was killed, I wouldn't think a second what to do with the murderer. I would want him dead. Most of the families feel this way and the best way to stop the pain is to get rid off the cause of the pain. Death sentence is effective because it deters crimes, but many people argue that life without parole is much harder to serve for the person who committed the crime, "Abolitionist claim there are some alternative to the death penalty, they say that life without parole serves just as well" Guilmette 2. I agree that putting away the murderer is effective, but just isn't enough. Laws change, so do parole boards, and people forget the past. As long as the murderer there is a small possibility that he could strike again. Capital punishment is the most effective weapon against the murderers; because no executed murderer has ever killed again. You cannot say that about those sentenced to prison. Death sentence also depends on the case. I am not saying that everybody who commits the murder should be placed on the death row. There are different types of the murder and every murder that was planned or intentional should be severely punished. As Hugo Adam Badeu says, "Despicable crimes should be dealt with realistically" Badeu et al. 131. I have no mercy for the killers, and nobody should have any mercy for anybody who does harm to another human being. Who gives a right to anyone to commit crime anyway? Michael Kronenwetter says, "The death penalty has always been considered especially appropriate for the crime of murder" Kronenwetter 6. Murder is the biggest crime and biggest offense, and it should be treated like that. Over the years, public safety has become a meaningless thing, not worth defending anymore, and the death penalty has been persecuted for just that reason. Every country in the world is ready and willing to kill thousands, even millions of human beings in brutal, merciless way to defend their nation from the aggression of other countries. I don't see why public safety doesn't deserve as much respect and protection as a nation's national security does. In fact, it can be argued that supporting armies and war is far more barbarous than the death penalty is. The whole reason why nations and government exist is to defend their citizens from vicious criminals. When it fails to do that, they become of little use to its citizens. I think that the people in all the nations will soon realize that capital punishment, like the military or police force and even taxes is an unavoidable consequence of every civilized society, and it will no longer be the question of whether or not a nation should have the death penalty, but rather how it should be used. "According to polls, more than 70 percent of Americans feel that murderers deserve the death penalty" Winters et al. 168. What can you say to the parents of the kids that were killed in Columbine High School, their kids will never come back, and their killers were kids, too. What can be done about juvenile murderers? "President Clinton proposed that the age at which penalty could be applied should be reduced from 21 to 18" O'Rourke 1. I agree with that and if that law could be put in place, no killer would be protected. Everybody who is mature enough to the consequences of the things they do should be equally punished as everybody else. Most of the people don't agree with this, but that's just the way it is. As I said laws change and convicted could be out on the streets again, and they could strike again. Those who advocate the abolition of capital punishment have supported their cause with many arguments. They have claimed that some have been wrongly sent to death row, while other decisions have been unfairly applied to minorities and the poor. Others argued for the sanctity of human life, as well as the expense involved in capital punishment. But those who believe in the opposition of the death penalty are often misled. They should consider the following cases that underlie the support for capital punishment, for it is certainly the only way to deal with the cruelty of crime that has infected our society. Capital punishment was once supported by the theory of deterrence, yet studies have shown weaknesses in this argument. Although the death penalty may not have an effect in deterring crime, it protects society from the threat of the same criminal committing a violation again when they are set free. A notable example is the case of Ali Agca, who attempted to assassinate the Pope after he had previously been tried and convicted of murder. Opponents may often refute this by suggesting a life sentence without parole, yet research has shown that the crime rates in prisons are gradually increasing. What happens when a person sentenced with life imprisonment kills another inmate or guard during that time? This brings about reconsideration for those who advocate sentences without parole instead of capital punishment. A second way to look at the validation of capital punishment is the concept of retribution. Retribution cannot be confused with the concept of revenge. It is society"s right of intolerance to heinous crimes that bring about the need for death row. Criminals have not only injured their victims but also the important values that govern society, which is the respect for life. Society has a responsibility to protect its citizens, doing what is necessary and appropriate to those who break the laws. Thus, capital punishment is necessary to ensure the priceless value of human lives. Thirdly, some people urge to abolish the death penalty because of their concern for the sanctity of human life. That is precisely the reason why this form of crime prevention should be maintained. Capital punishment is different from murder because the person being executed had committed a crime and was tried and found guilty. An execution carried out after a trial cannot be compared to a murder committed by a criminal. Lastly, it is suggested and often proven that the death penalty discriminates against the poor and minority groups. One must see that this problem does not concern the justification of the penalty, but the unfair way in which it is distributed. This problem may be improved by properly reviewing the cases, imposing decisions without regard to race or class. This can be achieved so that all defendants receive equal protection ground. Capital punishment has proven to have good benefits upon the country in determining the consequences that criminals deserve. This is needed to ensure the safety and moral values of society. If this is the case, there is no need for us to consider the expenses involved in the death penalty. Certainly human lives are more important, for it may easily be yours. We should not abolish capital punishment, but hold our country accountable for properly exercising the death penalty upon those who deserve it. Many criminals don"t fear the judicial system. They know that they will get out in ten years if they murder someone. They are not afraid of jail or their punishment. How can we force them to stop killing or stealing if they are not afraid of the punishment we give them. Most rational men are afraid of death. They don"t want to die. There are also men that don"t fear death, but enjoy killing. They must be controlled, but if they are sentenced to life they are soon free to kill again. Again, I am not saying we should kill all the men in jail and any other criminal in the world. That is not the answer either, but we must have the death penalty as an option so that they will be afraid to break the law, and to control those who don"t fear death but love to break the law. What do you do with men who do not fear the loss of their life? One criminal of America, Carl Panzram was quoted in saying, "In my life I have murdered 21 human beings. I have committed thousands of burglaries, robberies, larcenies, arsons and last but not least I have committed sodomy on more than 1000 male human beings. For all of these things I am not the least bit sorry. I have no conscience so that does not worry me. I don"t believe in Man, God nor devil. I hate the whole damned human race including myself" Panzram 1. Men like this who do not care for any law and do every unthinkable act are being supported in some jails around the world. What do you do with people who only want to kill and cause chaos? There is very little you can do, especially if they do not care if they are imprisoned. Panzram cares for nothing. He doesn"t mind his fifteen years in prison, or even his twenty-five. Panzram was executed and can no longer bother man kind, but there are others like him. Australia has abolished the death sentence. They can no longer control the men like Panzram. Martin Bryant shot and killed 35 innocent people in Tasmania. He is now being supported by the people of Australia. There is one option, which Australia no longer has. They cannot put this man to death, they are not allowed. This cannot be the case in other countries, so that those criminals like Panzram and Bryant, will be able to do what they want and not be executed for it. We must keep the death penalty for the people like this; people who like to kill and that don"t fear imprisonment. The death penalty should be maintained"¦   

Death penalty-to be or not to be? Sometimes crime cannot be punished enough. Sometimes crime is so cruel that there is no realistic punishment for it. There are too many victims out there, that suffered and their attacker gets a simple painless death. I am saying painless comparing to murders...

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