Weshould Review our Constitution

July 19th, 2009 at 02:57pm Under Constitutional Law

We should have a review of our Constitution.

Dalip Singh Wasan, Advocate,

Formerly employment Officer P.E.S. II.

E.Mail. dalipsinghwassan @ Yahoo Co.In.

We must accept that our Constitution had accepted all good items available in Constitutions of other countries and therefore, it is a comperhensive document and shall be guiding us for all the times to come. We have been conducting review and there had been some amendments in this Constitution. Still we need more amendments because uptil now we could not provide that only competent people should come forward in the houses. We could not provide maximum age uptil which they shall be in the houses. It would have been better if people who are more than 70 years age should not be present in the house and we should have abolished all the state level legislative assemblies because one Parliament is enough to represnt us. We are one country and we have got one types of our problems and the situations and conditions are also the same. We have got one nation and when we have a deep look, all the provinces have created so many problems for us. These units have given birth to religious and regional political parties and now these parties are taking more than due place in the centre too. Had there been one Parliament in this country, there were chances that there could have been two to three political parties there were chances that these parties would have taken competent people in them. All and sundary would not have been allowed to enter these two to three parties and there were chances that these parties would have adopted the path of giving us shadow cabinets and we, the people of India would have been given a chance to elect ministers direct. The present system of appointing ministers by the Prime Minister is not healthy because here we are obliged to appoint ministers as their share in the government and merit is no consideration. That is the reason there is no unity in the cabinet and they just work. Since ministers are not appointed on the basis of merits, they are not in a position to hold charge of people working under them. Rather they work under the bureaucracy and in most of the cases orders are passed by the bureaucracy and signed by the ministers. Such government cannot be called a

democracy.

We should think of establishing one Public Service Commission for the whole country and similarly there should be Subordinate Services Selection Board for whole of the country. We should see that the Employment Exchanges are also allowed to function and if candidates appointed through these agencies are found fit their services should be regularised without rooting them thrrough the Subordinate Service Selection Boards. Recruitment to all offices should be made through these agencies and even establishments in private sectors be invited to utilise the services of these organisations. We should not disturb and put into difficulties our unemployed people and they should be tested once and given job as per their performance in the competitive test.

We should abolish all schools and colleges which are estrablished on religious basis and there should be educational institutions as national institutions and none should be allowed to preach his own religion through these institutions. We should limit the religious institutions in the country their numbers be fixed by the state and the state must have an eye on these institution so that they may not be giving birth to fundamentalists who can cause danger to our unity and integrity.

We should have one law for the whole of India so that the people must be in a position to understand law and they also start believing that people of one part are not better placed. Whole of India must be open to all of us and none of the state be allowed to see that people of its own area are getting jobs under the state and people from other states are not allowed to participate in competitions.

We should ensure that each one of us has got proper education, proper training and proper adjustment at work from where each one is carrying adequate income with which he is able to run his family administration. We are more than 100 crore in number and therefore, we need a working force of about 40,00,00,000 and if such an assessment is carried out, we shall be short of workers. There had been some defect in our plannings that we could not develop such a structure in which each one of us should have been at work and none should have been dependant upon others.

We may allow to the people religious libirty, but time has come when we shall have to see that people who are living on charity should not be allowed to increase in number. even to day this number is on higher side and we must try to see that no one is allowed to live on charity alone and everyone should be at work because when a nation has got a large number of people living on charity, more and more people shall be joining this line and thus burdon on working people is increased and this is not a healthy sign. We should have an introspection and must see that this number is decreased.

We should see that people of one religion should not be allowed to concentrate on one place. They must be asked to disperse and locate themselves amongst people of other religions because people of one religion are located at one place, they start demanding something which our Constitution dies notallow. We should have one common civil code in which system of marriage and divorce should be one and similarly we should be having one succession law with us. We should see that the family should be bound to look after the infirm and old people and every child must get proper education and proper training. The nation must look after the child through his or her parents, but none of them should be allowed to go astray.

Till we have one spirit, we shall never become a nation and till we attain the status of a nation all these terrorism and riots shall be hampering our progress and we shall remain a backward country. Therefore, we should see that each one of us must get all these fundamental rightws automatically and is not is compelled to fight for these rights in Courts.

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Have Liberals Finally Stretched the Constitution Too Far?

July 19th, 2009 at 08:56am Under Constitutional Law

Baseball may be America’s favorite pastime, but liberals have a favorite pastime of their own; stretching and warping the Constitution. They’ve been at it so long that it has become a sport which they excel at and one at which daily practice is strongly encouraged, if not already mandated, for any aspiring leftist.

Of course, they only succeed in this pursuit when discussing the Constitution amongst themselves. When they journey out into the real world they run into people like myself who have spent a lot of time discussing how they distort and down right lie about what is in the document that established our current government. When they try to engage in their favorite sport with normal Americans who are not willfully blind as to what the Constitution says and have a grasp of the English language beyond that of a first grader, they fail miserably with their spin which always leads to interesting, if not ignorant, slogans, rants and shout-fests.

Rep. John “Cut and Run” Murtha may just be finding out that he and his liberal brethren have stretched the Constitution as far as the Constitution is willing to stretch even with a healthy suspension of logic, history and basic English however. Last week, U.S. District Judge Rosemary M. Collyer ordered Rep. Murtha to give a sworn deposition in the case brought against him by Marine Staff Sgt. Frank Wuterich relating to his unwise, ignorant and self-serving comments about the marines in Haditha participating in “cold-blooded murder and war crimes”. It is important to note that the case against these Marines has fallen apart.

Murtha’s defense, which was rejected so far by the judge, was that Murtha was immune from prosecution and even questioning about the incident because those comments were made while acting in his official role as a United States Representative. This is an apparent reference to Article I, Section 6 of the Constitution and his “interpretation” of what it says which might get by people unable to actually read the Constitution. But since I actually can, it isn’t going to fly with me and apparently not with the judge either.

For the record, Article I, Section 6 states in it’s entirety: “The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

The long and the short of this section is that if you are an elected representative of the United States in either house of Congress you cannot be arrested while the Congress is in session, nor can you be arrested while traveling to or from said session. It also grants immunity from prosecution for any “speech” or “debate” that takes place on the floor by saying that they “shall not be questioned in any other Place”. Which would include a court of law. The exceptions to this are of course given as when the Representative or Senator commits a Felony, Treason or “Breach of the Peace”.

Notice there is no exemption for acting in your “official role” beyond these limited descriptions. It is important to note at this time that John “Our Troops Are Murderers” Murtha made the statements with regards to our soldiers and promulgated his charges at places other than during a “speech” or “debate” in the House such as at press conferences and on Chris Matthew’s television program.

So is he immune? Should he not be questioned? Should he just be free to continue to make these assertions? Not unless you really, really stretch the meaning of the Constitution and read between the lines by inserting language that isn’t there. Making such statements during Speeches and Debates in the House may be deplorable and anti-American in as much that they were made without evidence and to prejudice the case against the Marines to promote John Murtha’s delusions, but his despicable acts would be protected. However once he steps out of the Halls of Congress he has no more protection.

He is not being arrested either. This is a civil suit, not a criminal matter. So again, Article I, Section 6 does not apply. Now, if he refuses the order to comply he could be faced with an arrestable offense such as contempt of court. In such a case, he had better convince the House to remain in permanent session and always be in a constant state of travel to and from the Capitol when it is to avoid arrest.

You could also make a strong case that his words provided aid and comfort to the enemy since the Haditha incident was used by our enemies against America and freedom seeking Iraqis. And since Treason is a clear exemption to this clause as well as the first amendment I certainly would be looking over my shoulder if I were Mr. Murtha.

But it’s just the Constitution. Right? And since when do liberals actually care about what the Constitution actually says? Since when do Congressmen care that their power is not unlimited? So I am sure that John “Where’s My White Flag?” Murtha will continue to whine and twist and squirm in an attempt to avoid the truth.

All the while his fellow members of Congress can continue to their smoke screen to cover their own failures. They can run cover for him and promulgate abuses of their power by waging a dog and pony show over things Rush Limbaugh didn’t even say with regards to our troops who are serving bravely over in Iraq and slamming General Patraeus and calling our troops NAZIs, stupid and anything else that they can think of. All for what? In order to try and further convince moonbats who naively believe that the troops really do agree with their stance on the war? Despite the fact that they are continually signing up and even re-upping to serve in a time of war for a mission the liberals detest so much?

Perhaps we are finally getting to a point where the Constitution has been stretched as far as it can be by the left to support their ideas and goals. But even if it has, I doubt they will stop trying to stretch it even further. At which point it is only a matter of whether it will snap back like a rubber band and leave a massive welt or completely break.

God help us if it is that latter

We Should Have a Review of our Constitution

July 19th, 2009 at 02:56am Under Constitutional Law

We should have a review of our Constitution.

Dalip Singh Wasan, Advocate,

Formerly employment Officer P.E.S. II.

E.Mail. dalipsinghwassan @ Yahoo Co.In.

We must accept that our Constitution had accepted all good items available in Constitutions of other countries and therefore, it is a comperhensive document and shall be guiding us for all the times to come. We have been conducting review and there had been some amendments in this Constitution. Still we need more amendments because uptil now we could not provide that only competent people should come forward in the houses. We could not provide maximum age uptil which they shall be in the houses. It would have been better if people who are more than 70 years age should not be present in the house and we should have abolished all the state level legislative assemblies because one Parliament is enough to represnt us. We are one country and we have got one types of our problems and the situations and conditions are also the same. We have got one nation and when we have a deep look, all the provinces have created so many problems for us. These units have given birth to religious and regional political parties and now these parties are taking more than due place in the centre too. Had there been one Parliament in this country, there were chances that there could have been two to three political parties there were chances that these parties would have taken competent people in them. All and sundary would not have been allowed to enter these two to three parties and there were chances that these parties would have adopted the path of giving us shadow cabinets and we, the people of India would have been given a chance to elect ministers direct. The present system of appointing ministers by the Prime Minister is not healthy because here we are obliged to appoint ministers as their share in the government and merit is no consideration. That is the reason there is no unity in the cabinet and they just work. Since ministers are not appointed on the basis of merits, they are not in a position to hold charge of people working under them. Rather they work under the bureaucracy and in most of the cases orders are passed by the bureaucracy and signed by the ministers. Such government cannot be called a

democracy.

We should think of establishing one Public Service Commission for the whole country and similarly there should be Subordinate Services Selection Board for whole of the country. We should see that the Employment Exchanges are also allowed to function and if candidates appointed through these agencies are found fit their services should be regularised without rooting them thrrough the Subordinate Service Selection Boards. Recruitment to all offices should be made through these agencies and even establishments in private sectors be invited to utilise the services of these organisations. We should not disturb and put into difficulties our unemployed people and they should be tested once and given job as per their performance in the competitive test.

We should abolish all schools and colleges which are estrablished on religious basis and there should be educational institutions as national institutions and none should be allowed to preach his own religion through these institutions. We should limit the religious institutions in the country their numbers be fixed by the state and the state must have an eye on these institution so that they may not be giving birth to fundamentalists who can cause danger to our unity and integrity.

We should have one law for the whole of India so that the people must be in a position to understand law and they also start believing that people of one part are not better placed. Whole of India must be open to all of us and none of the state be allowed to see that people of its own area are getting jobs under the state and people from other states are not allowed to participate in competitions.

We should ensure that each one of us has got proper education, proper training and proper adjustment at work from where each one is carrying adequate income with which he is able to run his family administration. We are more than 100 crore in number and therefore, we need a working force of about 40,00,00,000 and if such an assessment is carried out, we shall be short of workers. There had been some defect in our plannings that we could not develop such a structure in which each one of us should have been at work and none should have been dependant upon others.

We may allow to the people religious libirty, but time has come when we shall have to see that people who are living on charity should not be allowed to increase in number. even to day this number is on higher side and we must try to see that no one is allowed to live on charity alone and everyone should be at work because when a nation has got a large number of people living on charity, more and more people shall be joining this line and thus burdon on working people is increased and this is not a healthy sign. We should have an introspection and must see that this number is decreased.

We should see that people of one religion should not be allowed to concentrate on one place. They must be asked to disperse and locate themselves amongst people of other religions because people of one religion are located at one place, they start demanding something which our Constitution dies notallow. We should have one common civil code in which system of marriage and divorce should be one and similarly we should be having one succession law with us. We should see that the family should be bound to look after the infirm and old people and every child must get proper education and proper training. The nation must look after the child through his or her parents, but none of them should be allowed to go astray.

Till we have one spirit, we shall never become a nation and till we attain the status of a nation all these terrorism and riots shall be hampering our progress and we shall remain a backward country. Therefore, we should see that each one of us must get all these fundamental rightws automatically and is not is compelled to fight for these rights in Courts.

First Stages of the US Federal Law

July 18th, 2009 at 02:56am Under Constitutional Law

During 17th and 18th centuries, all colonies of Great Britain had a Constitution or an organizing Royal Charter. As soon as in 1776the United States became an independent country, thirteen states approved their specific constitutions, while the other two, Connecticut and Rhode Island, stayed under the imperial charters. According to the legitimate governments contract theory which was created to give explanation for English revolution of 1688, people of the United States trusted that there was a definite necessity to both limit and define the powers of legislative branches in Constitution. That way, the major importance on written form of Constitution was embedded in legal practice of England, while the necessity for Constitution was a result of the recently received independence.
The major advantage of English legal system was the privilege not to be taxed with no complaint in the taxing legislature and that factor was absent in the United States. Such rights became protected in America only in 1776; nevertheless, the assertion on addition of them to the Declaration of Independence finally made them essential to U.S. society’s basic rights.
All the way through the history of development and during the initial years of independence, the United States of America experienced two limits of nationwide government strength. From one prospective, Articles of Confederation guaranteed very little security of liberty and property rights, because administration was decentralized and, therefore, was powerless to offer the needed stage of security. Americans made a mistake by considering that democratically chosen distinct governments in all states in place of monarchy would guard both liberty and property rights. From the other prospective, the colonial regime of England was a faint imperial domination which deprived American population of basic liberty. After some time, U.S. federal law with its’ crucial foundation – Constitution of the U.S. – appeared as an answer to striking the right stability between the degree of order and freedom

Contract Law Summarised; Explanations, Definitions, Cases

July 17th, 2009 at 08:56pm Under Constitutional Law

LAW OF CONTRACT SUMMARY, WITH EXPLAINATIONS OF LAW OF CONTRACT DEFINITIONS, AND CASES(Based on author’s site www.geocities.com/cntrct)

Of the various agreements made some are social or domestic; some others are contracts – legally enforceable.

Jones -v- Padavattan 1969 was about an agreement between a mother and daughter ~the mother had promised to support her daughter during her studies the daughter argued -the judge decided that it had not been intended to be legally binding, so it was a domestic agreement.

But in Simkins -v- Pays 1995, the mother and daughter had intended to be legally bound by jointly entering a competition to share the prize won, it was a contract.

In Jones -v- Vernon Pools Ltd. 1938, and also in Appleson -v- Littlewoods Pools 1939, there was an intention to be bound legally, but it was one-sided; the other had not so intended it to be, for the football pool company showed that the coupon contained the words ‘binding in honour only’, and it was not enforceable.

A Local Authority did not have to sell a house at the price applicable at time of application -which it was to consider; no offer existed to accept but an invitation to treat: Gibson -v- Manchester C. C. 1997.

A reward-poster (if a product did not protect against influenza) was Intention to be legally bound, as Offer, and Acceptance too had Consideration -the essentials of a contract: Carlill -v- Carbolic Smoke Ball Co. 1893.

A Contract is distinguished from other forms of agreement by determining whether it contains those three basic essentials -as matters of fact, oftener of law.An agreement is a Contract if it contains the three basic elements of Intention to create Legal Relations, Offer & Acceptance, and Consideration; but what constitute these, how, and why, or not, are matters, mostly, of precedent; therefore, it is useful, on each of these, to look at some more of such precedent…Intention to Create Legal Relations: It is, of course, most unusual when commercial agreements between businesses are made that a legal relationship was not by both parties intended to be created; it is, essentially, more so a different situation than an exclusion clause making it binding in honour only, when, while may have been intended as a matter of fact, that an agreement may not be made the subject of the jurisdiction of the courts -in terms at least of whether it is legally binding, is not capable in law of having been intended; yet a contract in Rose & Frank Co.-v- J P Crompton 1925 was not the agreement -it showed that a legal relationship was not intended to be created.

That the husband would pay his wife £30pm was not intended in Balfour -v – Balfour 1919 to be binding; that he was to repay the mortgage and transfer ownership of the property to her in Merritt -v- Merritt 1970, as she had asked him to be put in writing and he had, was intended as binding ~as meant a travel firm’s sign that failed holidays would be reimbursed for in Bowerman -v-ABTA Ltd. 1995Offer and Acceptance: An ‘offer’ is not an ‘invitation to treat’ ~an advert. in Partridge -v- Crittenden 1968 was an invitation to treat as the numbers of birds could not be infinite to make it capable of being ad-infinitum accepted -in Pharmaceutical Soc. -v- Boots 1953 drugs in self-service store could not be an offer to sell as a chemist at pay-point could refuse to. Nor is it ‘information’ ~’Will sell? State lowest price’ replied to stating it was information in Harvey -v- Facey 1893; the announcement of the auction cancelled did not in Harris -v- Nickerson 1783 entitle to travel expenses, as in Pane -v- Cane 1789, a bid constituted the offer.

Nor is an offer unwithdrawable if the offeree is informed -by anyone Dickinson -v- Dodds 1876, before acceptance Byrne -v- vanTienhoven 1880 ~and it can lapse eg shares Ramsgate Victoria Hotel -v- Montefoire 1866, or if goods become damaged or destroyed, or by a counter-offer (£950 ok?) Hyde -v- Wrench 1940, or if the offeror rejects it or dies.

A valid offer, therefore, as an expression of a proposition willingly to contract, can be, as by a reward poster in Carlill to any or many persons, if communicated -e.g. by biding by raise of hands, with clear terms, while it exits capably of being accepted.

Acceptance of such a valid offer constitutes contract.

Agreement to the offer is ‘acceptance’ -if communicated.

Generally, the offeree’s silence is not tantamount to acceptance and ‘if I don’t hear from you I’ll deem it so’ in Felthouse -v- Bindley 1862 did not constitute it.

Any effective way will do, Entores -v- Miles Far East 1955, if fax or e-mail, during working hours or the following work day: Brinkbon -v- Stahag Stahi 1982. If acceptance is posted or telegraphed, it is effectively made, even if it is incorrectly addressed and delayed Adams -v- Lindsell 1818, or lost in the post Household Fire -v- Grant 1879 -unless handed to a postal staff not authorised to receive mail; such acceptance is, and the contract is made, at that time -even if before its receipt the offer is withdrawn Byrne -v- vonTienhoven 1876 ~and, Blackpool Aero Club -v- Blackpool C.C. 1990, the offeror must check his mail before closing the offer.

The offeror may prescribe a way of acceptance -then only that, or possibly one more advantageous to the offeror, will do; in Ediason -v- Henshaw 1819 postal acceptance was not as specified -giving it to the driver; if unspecified conduct may imply it -e.g. purchasing aware of the offer, Carlill.-v- Carbolic Smokeball Co. 1893.

Acceptance must be unqualified, ’subject to contract’, or Neale -v- Merrett 1930 ‘the rest later’, is not so; unless it is capable itself of acceptance, Hyde -v- Wench 1840, requesting information is not a counter offer barring later acceptance, Stevenson -v- McLean 1880.Consideration: A contract’s point is consideration: ‘executed’ -something done because of which another has to also; or ‘executors’-to be done because of which a contract will exist that another will have too ~it is the benefit or the detriment involved: Currie -v- Misa 1875.

What is contributed to the bargain must be of some value – not necessarily adequately matching the other’s: in Thomas -v- Thomas 1842 £1pa rent was so; and in Chappel & Co.-v- Nestle Ltd. 1960 chocolate wrappers were the stipulated consideration for a music record.

Consideration is owed in return for pre-agreement considerations: the King’s favour was got upon the other’s request, not for £100 overjoyed promised later in Lampleigh -v- Braithwaite 1615; the children’s promise to pay was after repairs were begun in Re. McArdle 1951; also not for a duty: in Glassbrook Bros. -v- Glamorgan C.C. 1925 it was more than the job of the police, in Hartley -v- Ponsonby 1857 more than the sailor’s, but in Stilk -v- Myrick 1809 it was the sailor’s job -his duty. Nor, in is it owed to thirds parties -in Tweedle -v- Akinson 1861 the bridegroom was not a party to the parents’ agreement to give the couple £500 ~unless since Contracts (Rights of Third Parties) Act 1999 named in or identifiable from a contract as beneficiary.

Consideration less than agreed is not good -Pinnel 1602 -except in settling debts, but is if fair commercially -more funds to complete job: William -v- Roffley 1990.Terms: Those conditions which, if breached, entitle to remedies (depending on their status and the type) are ‘terms’.Express Terms, subject only to judicial interpretation, as a rule, cannot be argued, if in writing, to have misstated intentions: Jacobs -v- Batavia etc. Trust 1924 -unless unreasonably creating an inequity ~where oral, parole evidence is allowed: Hanish -v- Bank of Montreal 1969.Implied Terms, unless by statute so, if customary or not occurring to the parties (’the bystander test’) disregards business efficacy, are deemed so: In The Moorcock 1889 safety of the anchorage did not have to be express, nor in Liverpool CC -v- Irwin 1977 that dwellings must habitable. In Rowland -v- Divall 1923 that seller transfers ownership, Microbeads -v- Vinehurst Road Markings 1975 buyer’s right to quiet possession, Priest -v- Last 1903 (scalding hot water bottle) merchantable quality and Grant -v- Australian Knitting Mills 1936 (underpants -dermatitis) fitness for the purpose, Beale -v- Taylor 1967 that sale is by description also when upon inspection, are, respectively, ss. 12 & 12(1), 12(2), 15, Sale of Goods Act 1979 ~in s. 15 the bulk must be as the sample in quality, ss. 1(2) & 1(2B) Sale & Supply of Goods Act 1994 limited fitness to ’satisfactory’, s. 1(2C) quality if defect not told of or where examined could not have been reasonably noticed ~they must not be serious: Frost -v- Aylsbury Diaries 1905 (contaminated milk -death), ss. 13, 14 Supply of Goods & Services Act 1982 imply reasonable care-skill-time; interpretation is strict: Re. Moore & Landau 1921.Conditions are terms entitling to withdraw from the contract and sue if breached. A singer’s partly not turning up to perform breached a condition: Poussard -v- Spiers & Pond 1976. In e.g. the Sale of Goods Act 1979 s. 12(1), seller transfers ownership, s. 15, bulk must correspond to sample, are implied conditions.Warranties if breached are of trivial consequence, not entitling to withdraw from the contract: 19 out of 24 months could still be worked a ship in Hong Kong Fir Shipping -v- Kawasaki Ltd. 1962; a singer only from rehearsal had been partly absent: Bettini -v- Gye 1876. In s. 12(2) SGA a buyer’s quiet possession is an implied warranty.Exclusion Clauses limit or disclaim liability, if not inequitably in bargaining power, as in Photo Productions -v- Securicor Transport 1980 for failures of employees -both equal in power and legal advice. In standard contracts, they are binding on who sign them: L’estrange -v- Graucob 1934; but how & when incorporated matter; on a receipt it would not do: Chapelton -v- Barry UDC 1940, it had to be pointed out: Spurling -v- Bradshaw 1956 -’red hand rule’, it could not be relied on contained in the delivery: Interphoto Picture Library -v- Stiletto Visual Programmes 1988, nor on a sign in a room (theft) -contracted at the reception: Olley -v- Marlborough Court 1949.

They are confined to the matters excluded, strictly interpreted -ambiguity unfavourably to a party seeking enforcement -’contra-preferentum rule’: Pollock -v- Macrae 1922.

The Unfair Contract Terms Act 1977 makes them void for death, personal injury, loss, damage, negligently caused -reasonableness in circumstances as proof of one relying on it. Supply of Goods & Services Act 1982 & 1984 invalidate suppliers’ exclusion of statutory implied terms; so the Unfair Terms in Consumer Contracts Regulations 1994 any unfair individually unnegotiated -it requires plainness in written consumer contracts, allows consumer organisations to challenge terms.Discharge of Contracts: Fulfilled or comes to an end.Performance is when the parties have fulfilled their obligations -not necessarily fully nor all at once. Part performance, if substantial, does not entitle to withdraw: Hoenig -v- Isaacs 1952 (£55 of £750) ~in severable contracts if performance in stages ceases, part performed must be paid -so also if prevented performance: Planche -v- Colburn 1831 (cancelled £100 job done £50 payable on a quantum meriut basis); to accepted part performance ends the contract and any remainders may be contracted for anew.

Agreement to other considerations is new contract: Pinnel 1902.Breach of a condition frees the other party of obligations; of a warranty, only entitles to sue for damages.Frustration is when it is, or becomes, due to no fault of either party, not possible to carry out the contract; if so when made, it does not exist: Paradine -v- Jane 1647; else, it is a breach which makes it void: Taylor -v- Caldwell 1863 (destruction of the subject -hall burnt down) and Condor -v- Boron Knights 1966 (incapacity re. personal service -ill) and Re. Shipton, Anderson & Co. 1915 (government intervention or supervening illegality -state requisitioned it) and Krell -v- Henry 1903 (non-occurrence of sole purpose -event cancelled). Under The Law Reform (Frustrated Contracts) Act 1943 money paid before the frustration is irrecoverable, if due is not payable; a party is entitled to expenses, and a valuable benefit has to be paid for: Gamerco -v- ICM Fair Warning Agy. 1995.Remedies: Breach of one’s contract entitles remedies.Damages are the actual financial loss of the wronged party that were in the reasonable contemplation of both of the parties, at the time they contracted, as would naturally arise from the wronged party’s normal activity: Hadley -v- Bexendale 1845, and any not so but of which the parties were expressly informed: Victoria Laundry -v- Newman 1945, in loss aiming to put the wronged party in the position that he would have been if the contract had been completed: Jarvis -v- Swan Tours 1973 ~general damages for distress or annoyance being recoverable where comfort or freedom from discomfort (e.g. holiday contracts) is the basis of a normal commercial contract: Alexander -v- Rolls Royce Motor Cars 1995 -but Forthsyth -v- Ruxley Electronics & Construction 1995 did awarded for amenity and disappointment (less deep pool than ordered); but one’s must have taken steps to mitigate his loss: Brace -v- Calder 1895.Quantum Meruit is piecemeal as an implied term, unless conditional to completion: Sumpter -v- Hedges 1898.Equitable Remedies may be specific performance if only that would do (e.g. land sale), except for personal services: Lumley -v- Wagner 1852; or injunction if must prevent, also in personal services: Warner Bros. -v- Nelson 1937.Liquidated Damages as terms in advance agreed which are fair Dunlop Tyre Co. -v- Garage Motors 1915, not tantamount to a penalty: Ford Motor Co. -v- Armstrong 1915 (above list-price). This is an outline of the English Law of Contract ~laws change, always ascertain current law.The author has a website at: http://www.geocities.com/eoa_uk

Ismaili Constitution

July 17th, 2009 at 02:56pm Under Constitutional Law

A Better U.s. Constitution?

July 17th, 2009 at 08:56am Under Constitutional Law

If you’ve read it, you may have noticed that the U.S. Constitution, in designating how representatives were to be apportioned by population, excluded “untaxed” Indians, and counted each black slave as three fifths of a person. That’s in the first couple paragraphs, by the way. Fortunately it was changed when the 14th amendment was ratified.

Obviously the writers had the prejudices of the times they lived in. The lesson here is that we cannot create a perfect constitution that will stand the test of time. To think so is to think we have nothing to learn. Any document that is so important will need to be changed as we learn more and progress in our political and moral ideas.

Of course it could be dangerous to create an entirely new constitution, given the politics that would go into writing and ratifying it. Still, if we were to do so, what should it include? I can think of many changes that I would like to see, including an electoral process that is less based on geography and more on citizens political beliefs. In such a system, representatives would be elected not by districts but by voters across the country who share common political causes or goals.

But apart from the specific provisions throughout a new constitution, there is one important change that I would like to see right up front: A declaration of purpose and intent. The current document governing the United States is vague enough that there are many “gray” areas. The result is laws that may or may not be unconstitutional, based on differing interpretations. Differing interpretations are inevitable to some extent, but a clearer statement of purpose would resolve much of the confusion. An example follows.

A New Constitution – Preamble

“The government of the United States has only the powers specified in this constitution, and may not do anything which is not explicitly authorized by this document. The intent of this document is to protect the rights of individuals within the country, both citizens and all others, and that is the only valid purpose of government. When the United States government acts outside its borders, it must still act in accordance with this constitution, and refrain from violating the rights of individuals. This is in recognition that rights are not a gift of government, or an earned privilege, but are inherent in every human being.”

The idea here is to state plainly what the intent of the constitution is and what the proper purpose of the government is. This makes it much easier to determine when a law is allowable or unconstitutional. Combined with the clear enumeration of powers laid out in the rest of the document, there would be much less room for mis-interpretation than there currently is.

It also makes it clear that rights are not a matter of citizenship. Any and all who are within the jurisdiction of the government are to have their rights respected and protected. Also, the government cannot violate an individual’s rights just because that person is not within the borders of the country.

Finally, this preamble states that government power is limited. The current United States Constitution is supposed to do this as well, but is vague in many ways. A new constitution should state plainly what the government is allowed to do, and should require that all new laws specify the constitutional clause that authorizes them. This will prevent much of our useless legislation, and help prevent an abuse of power on the part of the government.

State Laws and Employer I-9 Employment Verification Responsibilities

July 16th, 2009 at 02:56pm Under Constitutional Law

E-Verify is an Internet-based system operated by Department of Homeland Security (DHS/U.S. Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration (SSA). E-Verify is currently free to employers and is available in all 50 states. E-Verify provides an automated link to federal databases to help employers determine employment eligibility or work authorization of new hires and the validity of their Social Security numbers.Employers or “Designated Agents” (e.g., payroll companies) must register online and agree to the terms of participation to use E-Verify. [Registration includes agreeing to the DHS/Immigrations and Customs Enforcement (ICE) Memorandum of Understanding (MOU). A discussion of the ICE E-Verify MOU is outside the scope of this post.]E-Verify will soon be required of all federal contractors. DHS is now promulgating “final” E-Verify regs. I present an E-Verify overview and update in this post.

Indian Constitution: the Supreme Law That Governs India

July 16th, 2009 at 08:57am Under Constitutional Law

A constitution is the supreme law of a free country. It is the system by which a government of a country functions. Constitution of India was adopted in the in the constituent assembly on 26th November 1949. It is document that contains set of instructions and policies that a government in power of India must follow. Indian constitution came into force on 26th January 1950, the republic day of India, defining India as a republic union of states. Indian constitution also defines the fundamental rights, directive principles and fundamental duties of a citizen of India. Constitution of India declared India as a state to be sovereign, democratic republic but later in the amendment of constitution of 1976 the India was added to be a socialist and secular state.

The constitution of India is the longest written official book than any other of an independent country. Indian constitution is considered the best constitution that an independent country has in the world. It is a well drafted book that is a result of research of years. India is still a young independent country and hence the makes of India constitution have adopted several effective articles and laws from different constitutions of other countries. It has given a permeable that is just a complete crux about it. Preamble of India is again considered the best in the world. It contains 22 sections including 395 articles, 12 schedules and 83 amendments.

The committee that drafted the constitution of India was headed by Dr. B.R. Ambedkar and other six members as Jahwahar Lal Nehru, C. Rajagopalachari, Rajendra Prasad, Sardar Vallabhbhai Patel, Maulana Abul Kalam Azad and Shyama Prasad Mukherjee. All these members were great politicians and major scholars of India. Indian constitution is written in the hand writing of Dr. Ambedkar.

Indian constitution is the best official draft one must read to know how a democratic and independent republic nation works. It will provide a deep insight of the laws and principles that Indian government follows to run the union of India.

Patriot Act is un-constitutional

July 15th, 2009 at 08:56pm Under Constitutional Law

By Michael Webster Syndicated Investigative Reporter: April 18, 2009 at 12:00 PM PST

    The USA PATRIOT Act broadly expands law enforcement’s surveillance and investigative powers and represents one of the most significant threats to civil liberties, privacy and democratic traditions in U.S. history. The act in its current form gives sweeping United States Constitution   Page one of the original copy of the Constitution

 search and surveillance to domestic law enforcement and foreign intelligence agencies and eliminates checks and balances which had been the difference between the free world and the suppressed.

That difference previously had given courts the opportunity to ensure that those powers were not abused. PATRIOT and follow-up legislation now in development threaten the basic rights of millions of Americans and has turned America into a suppressed state.   A new bill introduced in this 110th Congress is designed to extend the USA Patriot Act allowing what many experts say are illegal provisions which will continue to allow the FBI, DEA, ICE, ATF, U.S. Military and other federal agencies to spy on investigate and arrest innocent Americans. The law because of the act allows for violations of Americans constitutional rights that our fore Fathers did not intend.    Constitutional lawyers all across America say the Patriot Act should be repealed not reinstated. President Bush signed into law the earlier renewal of the controversial Patriot Law on December 30, 2005 as the provisions were due to expire they were extended with Public Law 109-160 that pushed the date from December 31, 2005 until February 3, 2006. The date of expiration was again changed from February 3, 2006 until March 10, 2006.

The origenal Patriot Act was passed into law on October 24, 2001 by the Congress of the United States, just 45 days after the September 11 attacks, with few Congressman even reading it and virtually no debate.  There are significant flaws in the Patriot Act, flaws that threaten your fundamental freedoms by giving the government the power to access your medical records, tax records, information about the books you buy or borrow without probable cause, and even worse the power to break your door down at your home at any time of the day or night and conduct unconstitutional searches and seizures or if your lucky and are not home they can search your home or business in secret without telling you for weeks, months, or even indefinitely.  

According to Electronic Frontier Foundation (EFF) the law dramatically expands the ability of states and the Federal Government to conduct surveillance of American citizens. The Government can monitor an individual’s web surfing records, use roving wiretaps to monitor phone calls made by individuals “proximate” to the primary person being tapped, access Internet Service Provider records, and monitor the private records of people involved in legitimate protests.

PATRIOT is not limited to terrorism EFF writes on their web site. They point out that the Government can add samples to DNA databases for individuals convicted of “any crime of violence.” Government spying on suspected computer trespassers (not just terrorist suspects) and all of this and more requires no court order. Wiretaps are now allowed for any suspected violation of the Computer Fraud and Abuse Act, offering possibilities for Government spying on and monitoring any computer user’s searches, e-mails and in fact record every stroke on any computer.   Foreign and domestic intelligence agencies can more easily spy on Americans.

Powers under the existing Foreign Intelligence Surveillance Act (FISA) have been broadened to allow for increased surveillance opportunities. FISA standards are lower than the constitutional standard applied by the courts in regular investigations. PATRIOT partially repeals legislation enacted in the 1970s that prohibited pervasive surveillance of Americans.   PATRIOT eliminates Government accountability. While PATRIOT freely eliminates privacy rights for individual Americans, it creates more secrecy for Government activities, making it extremely difficult to know about actions the Government are taking.   PATRIOT authorizes the use of “sneak and peek” search warrants in connection with any federal crime, including misdemeanors. A “sneak and peek” warrant authorizes law enforcement officers to enter private premises without the occupant’s permission or knowledge and without informing the occupant that such a search was conducted.

The Department of Justice, with little input from Congress and the American people, is developing follow-on legislation – the Domestic Security Enhancement Act (nicknamed Patriot II) — which would greatly expand Patriot’s already sweeping powers.   The federal government has turned American freedoms into a world wide mockery with their unchecked spying on ordinary Americans, part of a broad pattern of the executive branch using “national security” and or “suspected terrorism ” as an excuse for encroaching on the privacy and free speech rights of Americans without adequate oversight. It eliminates many protections against unlawful imprisonment and now many rights in U.S. legal system are absent — such as the important right of habeas corpus.

As written the act violates due process for all Americans. All the president has to do is call a citizen an “enemy combatant,” and the person’s due process rights disappear. The US Government says that U.S. citizens can be detained and then tried in secret trials – in absentia, and can use secret evidence that the accused cannot see or challenge.  If evidence is obtained by coercion, or torture government lawyers contend that it should still be allowed as a basis for conviction, there by erasing 300 years of Anglo-American jurisprudence.

You should be very uncomfortable with the collection of your records by the governmentwhich are using the Patriot Act to demand your social security number and other private financial or medical information by order of secret courts and the muzzling of those citizens who receive such orders from speaking publicly about them. This is a violation of both the 1st and 4th amendment. You should also oppose the collection of both private and business records by banks, pharmacies and other businesses which are using the Patriot Act to demand your social security number and other private financial or medical information. Criticism of former President Bush’s admission that he had received warnings only weeks before September 11th has made it more important to understand the origins of the act. There has never been a more urgent need to preserve fundamental privacy protections and our system of checks and balances than the need we face today. As illegal government spying, provisions of the Patriot Act and government-sponsored torture programs transcend the bounds of law and our most treasured values in the name of national security and just the allegation of suspected terrorist activity be it true or not. The current Act that was extended and updated you can read online at this site: www.epic.org.

Financial TransactionsThe sections of the Patriot Act that deal with financial transactions fall under Title III, which is also known as the International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001. It stands on its own as a separate act of Congress as well as being part of the Patriot Act, and is an amended version of the 1986 Money Laundering Control Act and the 1970 Bank Secrecy Act. The earlier acts tended to focus on preventing money laundering and international cash flow as it related to the drug trade, or to gambling, smuggling, and other types of criminal activity. In the 2001 version, the focus has shifted towards money laundering as a means of financing international terrorism.The current act encourages financial institutions to collect certain data to identify customers and their transactions in case any of the activity should be flagged as “suspicious” by a government agency. “Suspicious” in most cases means involving any foreign nationals or corporations. The Patriot Act considers any such accounts or transactions worthy of intense scrutiny. (Although the scrutiny will, of course, be more severe for certain nationalities than for others.)What if you are a US-born, US citizen, do not have any arrest record, and are not involved in any type of criminal activity? If you’d just like to open a bank account or engage in another banking transaction, can a bank force you to provide your social security number? How about fingerprinting you? Is either of these strictly required by law? Not exactly – although if you do not wish to provide your social security number you will have to obtain an alternate taxpayer identification number. This information (along with your name, address, and date of birth) is used as part of the required Customer Identification Program (CIP) used to verify customer identity (and to compare customer information with lists of known terrorist suspects). Such information may also be required by other money service businesses such as currency exchanges. All having the effect of the financial institution acting as agent to and for the US Government.Fingerprints are not a requirement of the Patriot Act, and they are certainly not required by all financial institutions – so if your bank insists on this procedure, you may wish to take your business elsewhere.Cash TransactionsCash transactions are certainly not prohibited, but they bring more government scrutiny, and they are now more inconvenient for certain vendors to process. If you deposit, withdraw, or make a purchase involving more than $10,000 in cash in one day, the other agency involved has to file a Currency Transaction Report (CTR) with the IRS that reports details such as your name, address, and taxpayer identification number. If you purchase over $3,000 of traveler’s checks, money orders, or cashier’s checks, such a transaction will also be reported to the IRS via a Monetary Instrument Log (MIL). And should you engage in any activity that indicates you may be engaged in money laundering or otherwise violating the law, your transaction may even trigger your being put on the no fly list and on the Suspicious Activity Report (SAR). The SAR will be filed without your knowledge – it is, in fact, against the law for you to be informed of the SAR as your knowledge would compromise the subsequent investigation.

If you want the Patriot Act to be repealed you should immediately write your Congressperson and express your concerns, if you and millions of others don’t America’s leadership in freedom and many of our own basic freedoms and liberties will be a thing of the past.