The Law of Contract in Respect to Public Policy, Social Justice, Protection of Underdogs, Large & Small Enterprises
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The Law of Contract in respect to Public Policy
It is stated that majority of law scholars have over the years paid little attention to the fundamental judicial scrutiny of contract laws on matters pertaining to public policy invalidations (Hans, 1994). Little attention has been paid to systematic empirical approaches used in the course of exploring relevant gradation of public policy defenses. In cases touching on public policy defenses, law scholars have continued to put more effort to recommending correct remedies given the fact that it allows for more effective prevention of unfavorable behaviors between the involved parties (Hans, 1994).
Furmston taxonomical categorization of contract laws affecting public policies has five levels. The first level portrays laws, which are conducted legally, but whose level of enforcement are hindered by different considerations of public policy grounds. Second, there are those contract laws that are conducted for an improper action (Hans, 1994). Third, there are contracts law that depict improper trafficking in innate state. Fourth, there are contract laws that depict improper levels of tendency (Hans, 1994). Fifth, there are contract laws that depict a channel to be followed while supplying materials for impropriety concerns. Thus, with the aforementioned classification, scholars seem to be concerned with immense efforts needed to organize the defense of contract laws affecting public policies (Farnsworth, 1981).
According to the Harvard Law Review (2007), a taxonomical structure was developed in order to justify different conditions stipulated within the public policy defense mechanism in contract laws. The key purpose for this manner of justification entails ruling out elements of nature of the issue being analyzed by the contract at hand as well as in the provision of refraining mechanism of acts, which portray public policy structures as committing legal acts facilitated invalidated public policies themselves.
In contract law touching on public policy issues, different treatises have been formulated in order to provide significant categorization methodologies that can be used in application of the defense mechanism (Hans, 1994). It is stated that categorization mechanism is determined largely through establishing both the subject matter of the contract as well as the nature of the connection indicated between the perceived illegal act and the contract (Hans, 1994). In cases of comports with current perception on public policies, it is postulated that the contract is held unenforceable (Hans, 1994). In the course of deploying public policies, contract laws define dependence on the resourcefulness of subject matter, which is addressed in the specific case (Hans, 1994).
Furthermore, it is ascertained that there are challenging aspects that discourage issues arising from discerning public policies (Hans, 1994). Subsequently, there is a significant number of facets, which are met whenever the processes of weighing given public policies against their respective enforcement to the contract laws are made. The first is the immediate strength of the public policy as depicted by relevant legislations (Hans, 1994). Second, there should be a vast chance that there may be a refusal to enforce terms of contract, hence furthering the aforementioned policy (Hans, 1994). Third, there should be proof of a serious form of misconduct involved in the process and the resultant evaluation of the extent to which it is considered deliberate (Hans, 1994). Fourth, there should be an element of directness in the level of associations between any possible form of misconduct and the term of the contract (Hans, 1994).
In cases of restatement, it is ascertained that public policies can be enforced by the legislation process so that the public welfare is improved. This process, in turn, discourages elements of unfair forms of trade as well as impaired family relationships. For cases involved with public policies, the process of identification involves an extensive analysis in order to include both: the application defense processes as well as selection of relevant judicial perceptions to the defense case.
Contracting Counter to the Process of Licensure
This is a common happening in which a given public policy is possibly invoked. It includes scenarios whereby service of value that had been offered to a defendant is conducted in a contravening manner. The fundamental purpose of the contracting counter is to disapprove the argument enforcing contract laws of public policies operating in contrast to the stipulated statues.
For example, in the court case Halpern Vs Greene (2009), defendants challenged plaintiffs as being unlicensed boxing managers and thus entitled to profits made by Greene. Furthermore, defendants argued that there were no proper public relations stunts made, which could have provided a significant base for approval of the contract. On that note, the court in New York was forced to rule in favor of the defendant thus terming the contract invalid and without a legal contractual base. It should be noted that boxing managers provided immense amounts of resources to aid with activities of traiing, promotion, and publicity, which totaled to about $ 225,000.
They form a significant base of rationale behind which a court might refuse to identify a public policy defense. This is because they promote activities that violate criminal statutes.
The Law of Contract in Respect to Social Justice
Contract law is depicted as being conversant with social justice whenever it is ascertained that resource allocation, which is produced is justified by persons subject to these laws. Social justice, in Rawlsian conception, is subject to weighing the amount of resources particular social structures are able to access not as individual members of social structures but as a collective group.
Thus, contract law is placed at a fair position upon which it can vehemently address to sensitive reasons, which are reflected to the basic structure of the whole society. It is stated that fundamental social structure is composed of both facts and relationships, which affect deliberate relations of parties within the community in connection to such elements as employment terms and consumption processes.
There are different perceptions put forth in order to term a contract of law as having imminent connections with elements of social justice. The first intuition lies in historical preconditions set before the involved parties in order to facilitate individual-based transactional responsibilities assigned to them. Notably, this intuition also expounds on the manner in which institutions are allowed to undertake such transactions. Second, intuition ensures that historical preset conditions take into account such facets as community’s level of economic development as well as its social organization strata.
The level of economic development of a community ensures significant roles, which either of agents may consider in the course of typical form of transactions as well as in creating formidable relations necessary for the contract of law. Third, intuition ensures that parties of the contract, who are interested in modifying social basic structure to their respective advantage should provide relevant justifications for the changes made. This ensures that social structures as well as their immediate impacts on individual transactions attain certain levels of justification, hence standardized equality in that matter.
According to Kraus (2009), fundamental social structure of most communities is formulated in a manner that allows different parties to enter into distinctive types of transactions by assuming given definitive roles so that they can secure their immediate welfare calls. In addition to this, it allows to formulate significant disparity measures among parties who have already been assigned different roles.
In relation to social justice, contract law also strives to disseminate transactional options as well as profits and challenges across distinctive structure of parties (Markovits, 2004). Thus, its philosophy is perceived to be concerned with developing different reactions on pre-conditions set for contact and immense cooperation between individual parties within the community with respect to both subject matter and time (Markovits, 2004). In this case, contract law principles are formulated in order to respond to the rationale behind implementation of social justice.
Contract law has been used as a resourceful channel, which affects necessary alterations in the fundamental social composition in a consequential manner (Markovits, 2004). This means that social justice influences the manner in which sustainable impacts distribute resources. It should be noted that successful social justice impacts contract whenever some elements are met. For instance, it should be made clear that parties to a transaction choose to engage in the activity on voluntary terms (Markovits, 2004).
Second, transactions partaken should be conversant with specific types of agents in order to eliminate the possibility of transferring resources to wrongful parties (Markovits, 2004). Third, the resultant volume of transactions conducted should be vast and structured fairly in a manner which can improve structural placement of the aforementioned types of parties (Markovits, 2004). This step should be taken to avoid consequence of random placement of either party involved directly with the agreement (Markovits, 2004).
In a course of conducting business, the option which is assumed in order to invoke implementation abilities of institutions in respect to certain clauses within one’s transactional choice is considered to be a resourceful element, which encourages the fairly placed party to conduct the activity under advantageous terms and conditions (Markovits, 2004). Furthermore, the alterations, which are witnessed in due course of executing contracts portray necessary changes in the immediate bargaining power of the parties involved.
Individual parties to contractual transactions are required to embrace the matter of preserving social justice of the basic structure in two ways. First, they should ensure that stipulated requirements to the contract do not over-burden either of parties with increased transaction costs.
Transaction costs will prevent them from accessing necessary information about the structural placement of the other party involved. In addition to this, either of parties is likely to incur prohibitive costs, which are deemed impossible to cover for either of the parties involved given the fact that they are incurred in a single transaction.
Second, the parties involved should ensure that they conduct social justice by making necessary alterations to individual-based voluntary business activities in order to allow a vast deal of partiality, which the parties can easily associate with in the course of executing transactions.
The aforementioned conditions can be met through formulation of a plausible strategy in which collective responsibility is upheld in order to promote social justice within social structures while at the same time leaving individual parties to conduct transactions which are deemed advantageous.
The Law of Contract in Respect to Protection of the Underdogs
The underdogs, in most cases, are consumers in particular market who need protection from over-exploitation and other forms of infringements. Governments, as formidable policy-makers, should ensure that the terms of the contract in which underdogs participate are clear, distinctive, and reasonable in that matter.
Protection of the underdogs should be based on the principles of freedom of contract as well as on the immediate market system mechanism in that matter. Contractual terms involving exchange of either goods or services should be able to meet justifiable expectations of final consumers.
It should be made possible for consumers to enjoy a wide variety of choices as well as possibilities involved with exerting influence in order to ensure there is vast variety of high-quality commodities, which they can purchase at competitive prices. It is stated that whenever governments embark on facilitating a favorable conduct, the underdogs will be able to pay sellers a price, which is determined by the fundamental market structure put in place. Notably, a copyright system is proposed to be implemented in order to prevent unnecessary infringements in the course of executing a contractual term.
In the United States, the right-to-work regulations are perceived to be laws put forth to infringe contractual rights of the underdogs given that their respective pay is considered to be less than the amount of work done. Consequently, the aforementioned contractual laws postulated by the tops dogs are an imminent cause of destruction of unions. Labor laws are considered to be effective whenever they allow for room to win for fair wages, welfare as well as working conditions of the underdogs commonly referred to as workers.
The Law of Contract in Respect to Large & Small Enterprises
A small business firm is one that operates at a lower level of activities. It is also composed of a limited capital base and employees in that matter. A large enterprise is one which performs an extensive amount of business activities. Furthermore, a large firm possesses a substantial amount of capital base and employees. It should be noted that unlike small businesses, large firms have a wider asset base and, therefore, they are involved in larger operational projects (Waddams, 2000).
This form of discrepancies in the manner of operations is also witnessed in the manner in which contractual agreements are conducted. It is stated that due to their limited capital base small businesses undergo challenging situations upon which they are not allowed to enter into larger contracts (Waddams, 2000). Larger contracts are those that involve complicated terms and conditions. Furthermore, they involve extensive amounts of resources and, therefore, need the participating firm to deploy its resources without limitation.
In the course of government procurements, it is expected that both small and large firms present their credentials in order to apply for projects. It is expected that both large and small business will be treated equally in contract law and thus, discrepancies are not allowed. Government agencies are expected to formulate rules and policies in order to prevent over-exploitation of small companies by bigger ones in the course of tendering. Justice is needed in the event that procurement is marred with intense bias and fraud.
For instance is the case concerning the EyakTek in which the government was duped into paying for the conspirators BMW’S Carter watches. Even though the company was not implicated in committing any breach charges were brought forth against its contracting head, which had involved itself in illegal sanctions for small-business operations in the course of applying for contracts (Waddams, 2000).
Eyak had a responsibility of executing the SBA’s 8(a) program. The program was intended to assist small businesses, which were perceived as having been operating under disadvantageous environment and owned by minorities’ access opportunities for easier bid contracts (Waddams, 2000).
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