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MGMT 2021 - BUSINESS LAW I

The Nature of Law

• Positivist View
– “A set of commands imposed by a sovereign
body which is binding on those to whom it is
directed and for which some detriment is
suffered if those commands are not obeyed.”

The Nature of Law

• American Realist
– “whatever the judges do” (presumably in
court)

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The Nature of Law

• Our definition:
– “That body of rules whether formally enacted
or customary which a state or community
recognises as binding on its members or
subjects.”

• Laws govern all areas of our life - the work

place, marriage, divorce, succession
(death) education, sport, traffic &
ownership of property.
• For the purpose of this course we will
focus on such legal rules that have
developed in relation to the governance of
commercial activities and transactions.

Business Law
• “Those areas of law which form the legal
environment within which business entities
come into existence, enter into business
relationships, pursue their industrial and
commercial activities and achieve their
aims”

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Classification of Law

Domestic/International

Classification of Law - Domestic

n Applicable within the boundaries of a country
n The main objec8ves behind the enforcement of
these laws to ensure that the ci8zens of the country
are completely protected against violence/harm/
injury
n These laws contain the regula8ons which have
provisions for punishing the people who violate the
law
n Intended to safeguard the ci8zens of the country.

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Classification of Law - International

n Intended to establish and manage the
rela8onship between countries
n Major sources of the interna8onal laws are
trea8es signed by the various na8ons and
once incorporated into the domes8c law, the
provisions are binding on the countries.

Public/Private

Classification of Law: Public

• Relationship between the state
(government) & citizens
• Comprises specialist like constitutional law,
administrative law and criminal law
• A set of rules implied upon the Crown or
State
• Applicable to all the citizens

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Classification of Law: Public

• Consists of two major sections -
constitutional & administrative law
• Constitutional law relates to the
Constitution which is the supreme law of
the land
• The fundamental rights and freedoms of
the citizenry, organs of state etc. are all
set out in the constitution.

Classification of Law: Public

n Administra8ve law seeks to deal with (among
other things) abuse of power by government
departments or other bodies having a
fundamental impact on peoples lives. It deals
with maDers concerning the rights &
privileges of the execu8ve government &
public authori8es.

Classification of Law: Public

• Public law also encompasses the criminal
law which deals with the behaviour of the
society & any behaviour which causes
damage to the community.
• Industrial law deals with the management
of the relations between the employer &
employee.

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Classification of Law: Public

• Criminal law
– Is a self standing category of its own
– Considered a sub category of public law since
it is the Crown or State (which includes the
entire society) that is concerned with the
detection, prosecution & punishment of crime.

Classification of Law: Private

• Primarily concerned with the rights &
duties of individuals towards each other
• Also called civil law contrasted with
criminal law.
• The State’s role is to provide the courts &
other mechanisms necessary to resolve
the dispute.

Classification of Law: Private

n Major sec8ons:
n Contract law that deals with the formal
agreements between the different par8es
n Tort law that handles the disputes between
the behaviours which cause damage to others
n Family law that deals with property & other
issues within the family.

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Criminal/Civil

n It is important to understand the nature of the

criminal/civil division because there are
fundamental differences in the purpose,
procedure & terminology of each branch of
law
n Criminal law for example, is concerned with
forbidding certain types of conduct &
punishing those who engage in such conduct

Classification: Criminal
n A crime is regarded as a wrong done to the
State or the Crown. This is so despite the fact
that only an individual may be the vic8m of
that crime.

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Classification: Criminal
n The court proceedings are usually named,
accordingly, as:
n The State vs. Name(s) of Offenders (s), if the crime has
taken place in a Republic such as Trinidad & Tobago;
n The Crown vs. Name(s) of Offenders (s), wriDen as R. vs.
Name(s) of Offenders (s), if the crime has taken place in a
monarchy such as Barbados. (R. is an abbrevia8on of the
La8n words Regina & Rex, meaning Queen & King,
respec8vely. Depending on the context, R. thus refers to
either of the two.)

Classification: Criminal
• The sentences imposed by the Court of
Law are meant to act as both retribution
for the crime as well as a deterrent to
other persons/same individual from
committing similar/other offences.

Classification: Criminal
• In criminal trials there is a prosecutor who
prosecutes the individual “the accused”
charged with the crime. The trial is
referred to as a “prosecution”. If the case
is in the High Court, the State’s or
Crown’s case is led by the Director of
Public Prosecutions (DPP). If the case is
in the Magistrates Court, the prosecution
is led by the Commissioner of Police.

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Classification: Criminal
• The consequences of being found guilty
are so serious that the standard of proof is
higher than in civil cases. Allegations of
criminal conduct must be proven beyond
a reasonable doubt: established in
Woolmington v DPP (1935) AC 462.
This does not mean proof beyond a
shadow of a doubt.

Classification: Criminal
• If the prosecution is successful the
accused is found guilty (convicted) &
punished by the court.
• Punishment includes death, imprisonment,
fines, community service or probation
depending on the nature of the crime.

Classification: Criminal
n If the prosecu8on is unsuccessful, the accused
is found not guilty (which is acquiDed). Once
acquiDed or convicted, the accused person
can never be tried again for the same offence.
This principle is called autrefois acquit or
autrefois convict.

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Classification: Civil
• Deals with the private rights & obligations
which arise between individuals.
• A civil trial is referred to as an “action”.
The purpose of the action in civil law is to
remedy the wrong that has been suffered
not to punish the wrongdoer.
• Enforcement of the civil law is the
responsibility of the individual who has
been wronged.

Classification: Civil
• In civil proceedings in the High Court - a
claimant sues a defendant. The
Claimant will be successful if s/he can
prove his/her case on the balance of
probabilities: this was established in
Miller v Minister of Pensions (1947)
citation 2 AER 372.

Classification: Civil
• If the Claimant wins his/her action the
defendant is said to be liable and the court
will order an appropriate remedy.
Remedies include damages, that is,
financial compensation or an injunction
(an order to refrain from doing a particular
act) or specific performance (an order
to adhere to a bargain). If the claimant is
not successful the action is dismissed.

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Classification: Civil
• Contract Law
• Law of Tort
• Property Law
• Company Law
• Family Law
• Law of Succession

• Many of the differences between civil &

criminal law are reflected in the trial
procedure.

n A criminal trial is • A civil trial in the High

commenced with an Court normally begins
indictment which names with the Claim Form &
the accused & gives the Statement of Claim issued
par8culars of the crime with by the Claimant. The
which s/he is charged. Statement of Claim
contains the claims made
against the defendant &
in some cases, the
amounts of damages or
the nature of the other
remedies being claimed.

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• Criminal trials in the • In civil trials in the

high court are high court the judge
conducted before a sits alone to
judge and jury. The determine the
jury makes the defendant’s liability.
determination as to In family matters
guilt or innocence. (such as divorce)
which fall under civil
law the judge sits in
Chambers.

n We are concerned mainly with the law of

contract as this directly pertains to the study
of management, accoun8ng etc.

Other Classifications

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• All of these additional categories involve

the term “common law” on the one hand
& another classification of law on the
other.

Meaning of Common Law

1. Common law as a source of law - in this
context, “common law” is contrasted with
statute law or legislation (law passed by
Parliament).
2. Common law as a legal system – in this context
it is contrasted with civil law (civil law in this
context is not the same as when compared
with criminal law).
3. Common law as a procedure – in this context,
“common law” is contrasted with a set of legal
rules called “equity”.

Common Law & Statute Law

n Common law refers to the substan8ve law &
procedural rules that have been created by
the judiciary, through their decisions in the
cases they have adjudicated.
n Statute law refers to law that has been
created by Parliament in the form of
legisla8on.

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Reception of English Statute Law

• The reception of English statute law was
incorporated into the Commonwealth
Caribbean territories in four main ways:
– Express extension by the British Parliament of
particular statutes, either generally to all
dependent territories or only to specifically named
colonies. The extension was made by the statute
itself.
– Adoption by repetition of the provisions (words
repeated verbatim) of the English statutes.

Reception of English Statute Law

n Adop8on through incorpora8on, by reference in
the Colonial legisla8on to the similar Bri8sh
legisla8on in the England.
n Statutes of general applica8on which allow for
recep8on into the region of all legisla8on in force
in Britain before the date of the statute of general
applica8on.

Common Law & Civil Law

n Common law in this context refers to all those
legal systems which have adopted the historic
English legal system.
n Civil law in this context refers to a European
con8nental system of law, which is derived
essen8ally from ancient Roman law. This type
of legal system is adopted by jurisdic8ons
such as Saint Lucia & Guyana (Roman Dutch
law).

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Common Law & Equity

n Legal rules may be classified according to
whether they form part of the common law or
part of equity.
n The dis8nc8on between these two systems of
law is rooted in history & can only be
understood properly by examining the origins
of English Law which cons8tutes the
founda8on of Caribbean Law.

Common Law & Equity

• Unified English legal development can be
traced back to 1066 when William of
Normandy seized the Crown of England.
Some legal scholars argue that before the
arrival of the Normans in 1066, there
really was no such thing as “English Law”.
The Anglo Saxon legal system was based
on the local community customs. Each
area had its own court in which local
customs were applied.

Common Law & the Doctrine of

Judicial Precedent
• After the Norman Conquest of 1066 in
England, the Lords went around to each
parish & compiled the law which was
common to all the people.
• After this, the common law developed on
a case by case or ad hoc basis.

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Common Law & the Doctrine of

Judicial Precedent
• The system eventually grew to be very
rigid, where established principles were
simply repeated in new cases, with no
allowance made for new situations.

Common Law & the Doctrine of

Judicial Precedent
• The Doctrine of Stare Decisis or
Judicial Precedent is the means by
which the applicable legal rules & norms
were handed down through these judicial
pronouncements.

Common Law & the Doctrine of

Judicial Precedent
• This created a coherent system of rules as
well as a procedure through which new
legal principles could be made. The
Doctrine of Stare Decisis or Judicial
Precedent developed, whereby the
decision was made to stand.

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Common Law & the Doctrine of

Judicial Precedent
• The assumption is that where there are no
applicable statutes on a particular legal
issue, the judge must look at the case law,
that is, cases previously decided on a
similar issue, to find the relevant law upon
which to base the decision. Not every
element of a decision is binding on a
subsequent judge.

Common Law & the Doctrine of

Judicial Precedent
• Two types of Precedents.
– Binding Precedents - the judge is bound to
apply the principles found in such law in
subsequent cases.
– Persuasive Precedents - merely offer
guidance to the judge. S/he is not obliged to
follow such decisions.

Common Law & the Doctrine of

Judicial Precedent
• The ratio decidendi of a case is
– the principle or rule of law on which the
decision is based.
– statements of the principles of law applicable
to the particular legal problem disclosed by
the facts.
– the legal reasons that the judge gives for his/
her decision in a particular case.
– These are binding on subsequent judges.

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Common Law & the Doctrine of

Judicial Precedent
• Distinguish ratio decidendi from the
obiter dicta of a case which:
– Are not binding
– Do not form part of reasoning on which the
decision is based
– E.g. a judge may give analogies to
hypothetical situations or even make other
arguments based on the facts of the case
itself.

Equity
• A separate distinct body of English law
which evolved as a result of the rigidity of
the common law in the doctrine of stare
decisis (“let the decision stand”).
• Based on rules of conscience, fairness,
flexibility, justice or what is morally just.
• Created new principles e.g. the doctrine of
part performance; trust law & remedies,
such as injunctions & rescission.

Equity
• The British society became commercially
complex & unlike the common law equity
was able to change with society & its
needs.
• Citizens were able to appeal to the
Chancellor who was the keeper of the
King’s conscience.

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Equity
n Some popular maxims which arose are:
i. Equity looks on that as done which ought to be
done
ii. Equity will not suffer a wrong to be without
remedy
iii. He who comes to equity must come with clean
hands
iv. Equity will not assist a volunteer
v. He who seeks equity must do equity

Equity: Equitable Remedies

• Specific performance: an order that the
defendant does what s/he contractually
agreed to
• Injunction: to abstain from wrong doing
by imposing either a positive or negative
obligation

Equity: Equitable Remedies

• Rectification: to alter a document in
which there is a mistake that would
operate to the detriment of one of the
parties, so that it reflects the parties ‘ true
intentions’
• Rescission: to restore the pre-contract
status quo in circumstances where the
contract has been breached, is void or is
no longer capable of being performed

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International Law
• This body of rules and principles exert a
great influence on the region’s municipal
legal systems e.g. CSME. Be sure to
familiarise yourself with basic provisions of
the CSME
• Caribbean states are expected to maintain
minimum international standards in human
rights imposed by the international
community e.g. United Nations

International Law
n There is no formal enforcement as with
domes8c law but there are economic, social &
poli8cal sanc8ons
n Interna8onal comity requires that trea8es and
interna8onal obliga8ons be complied with.

Ayanna Young Marshall

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