Inroduction to Business law Coursework Example | Topics and Well Written Essays - 3000 words

Inroduction to Business law - Coursework Example Though there are fundamental differences between tort and contract laws, it is argued that they are similar to one another and negligent misstatement and negligent misrepresentation are clear evidence for that. This part of the paper evaluates Doctrine of precedent in relation to Lord Radcliffe’s statement in his work ‘Not in Feather Beds’(1968) and discusses negligent misstatement under the law of tort and negligent misrepresentation under the law of contract to support the argument that they clearly indicate that both tort and contract laws are similar to one another. Judicial Law-Making and independent sources Lord Radcliffe (1968, p. 216) stated that ‘Judges should be cautious (in terms of making law or following precedent) not because the principles adopted by the Parliament are more satisfactory or more enlightened, but because it is unacceptable constitutionally that there should be two independent sources of law-making at work at the same timeâ€℠¢. ... Judges are to be more cautious to discover and declare the law that they want to express in front of the legislator, but not to make it. Whether judges should make new laws or they should simply declare what the law is has been a major topic of academic debate. In today’s legal systems, it is generally recognized that judges do make new laws when resolving certain disputes even though they often disagree about the extent of their law-making power (Mothersole and Ridley, 1999, p. 41). The doctrine of precedent, which states that courts must use decisions concluded in earlier legal-cases, has provoked serious debates about the precise role and rights of judiciary in developing common law. Are Judges just decision-makers who simply discover the law and declare it in the courts or they actually make new law with their power to do so. Some researchers have seriously claimed that judges have no more power than finding and applying existing legal principles. From Lord Radcliffeâ€⠄¢s statement, it seems that he agreed that a Judge can either depend on decisions made in earlier legal-cases or make law, but he needs to be cautious because it is constitutionally unacceptable that there should be two independent sources at the same time. The two complimentary sources of law-making are Judicial and Legislature processes. Though there are disputed regarding whether a Judge creates law or perfectly follow decisions made in earlier cases, it is generally agreed that a Judge has the power of law-making. Both Judge and Legislature have to understand the respective functions and limitations related to judiciary and legislature. Zander (2004, p. 332) stressed that Judges do not reverse principles that are already well established, but they usually modify, extend or restrict them