GANGS OF NEW YORK -திரை விமர்சனம்

கலையுலக படைப்பாளிகள் நமது கற்பனை திறக்கு அப்பாற்பட்டு வரலாற்று சுவடுகளை எம் கண்முன் என்றும் நிறுத்த தவறியதில்லை எனும் கருப்பொருளிற்கமைய  Martian Scorsese இன் GANGS OF NEW YORK எனும் வரலாற்று திரைப்படம் சாட்சியாகின்றது. சட்டம் என்பது சமூகத்தை ஆளும் ஒரு தொகுதிவிதிகள் என வரைவிலக்கணப்படுத்த முடியாவிடினும் மறுவகையில் சமூக விதிகளே சட்டமாகும். எனவே சமூகமே சட்டத்தை உருவாக்குகின்றது. என்பது தவிர்க்க முடியாதது. 

எனினும் அமெர்க்க குடியேற்ற காலப்பகுதியில் அதன் பிரத்தியேக நகரான New York இல் இடம் பெற்ற உள்ளுா் வன்முறை மற்றும் நிறவெறியின் மகுடத்தை இத்திரைப்படம் எமக்கு தெளிவிக்கின்றது. இன்றைய உலக காவற்துறையாக தன்னை பிரகடனப்படுத்தி கொண்டிருக்கும் ஜக்கிய அமெரிக்காவின் முன்னைய காலகட்ட நிலையையும் தன் சொந்த மக்களையே அடகு வைத்து ஆட்சி செய்யும் கையாலாகத்தனத்தையும் அறிக்கை இடுகிறது இத்திரைப்படம். ஆபிரகாம் லிங்கனின் நிறவெறிக்கு எதிரான நடவடிக்கைகள் நிறத்துவேஷ வெள்ளையா்களில் எவ்வாறான பாதிப்புக்களை வெளிப்படுத்தியது  என இத்திரைப்படம் ஆவணப்படுத்துகின்றது. அதோடு கபட அரசியல்வாதிகளின் வாக்கு சேகரிப்பிற்கான வெளி உலக வேடத்தையும் இத்திரைப்படம் தோலுரித்துக்காட்டுகின்றது.

வழக்கமான திரைக்கதைப்பாணியின்படி கதாநாயகன் (குடியேற்ற வாசி) வில்லன் (உள்ளுா் வாசி) தன் தந்தையை கொன்றதற்காக பழிதீா்ப்தே கதைக்கருவாகும். வேறுபட்டு நின்ற குடியேற்ற வாசிகளை ஒன்றினைப்பதன் மூலம் தன் வெற்றிக்கு அடித்தளம் இடும் கதாநாயகன் சுகந்திர காற்றை சுவாசிக்க எத்தனிக்கும் ஒவ்வொரு இனத்தினதும் கூட்டுறவான பரஸ்பர நம்பிக்கை தளத்தின் வலிமையையும் தேவைப்பாட்டையும் உணர்த்துகின்றான். அதோடு தன்னோடு போரிட்டு இறந்த எதிரியின் புகைப்படத்தை தன் விடுதிச்சாலையில் உருவேற்றியிருக்கும் வில்லன் எதிரியின் வீரத்தயும் மதிக்கும் உயர் குணத்திற்கு வித்திடுகின்றான்.

ஒரு பெண் இல்லாமல் வாழ்வே சுவைப்பதில்லை எனும் பித்தனின் வரிகளுக்கேற்ப ஒரு குடியேற்ற பெண்ணால் திரைக்கதை சுவாரசியமாக்கப்படுகின்றது. எனினும் அவளின் வாழ்க்க சம்பவங்கள்  வயிற்று பிழைப்பிற்கான போராட்டங்கள்  ( கொள்ளை விபச்சாரம் ) அதோடு பசிக்காக பிணங்களை திடுடி விற்று குடும்பம் நடாத்தும் யாதர்த்தம் என்பன எமக்கு அக்கால அமெரிக்காவின் நரக போராட்டங்களை ஊடாட்டுகின்றது. ஆபிரகாம் லிங்கனின் அடிமை ஒழிப்பு பிரகடனத்தின் போதான வெள்ளையர்களின் நீக்ரோக்கள் மீதான கொலைவெறியாட்டமும் அடித்தே கொல்லுதல் மற்றும் தீயில் எறிதல் எனும் கொடும் செயல்களும் நிறவெறியின் உச்சகட்டத்தை காட்டுகின்றது.

கட்டாய இராணுவ ஆட்சேர்ப்பில் தப்பிக்க வேண்டும் எனில் பெருந்தொகை தண்டம் என்பன பொருளாதார வர்க்க ரீதியில் இருவேறுபட்ட குழுவினரிடையே பரிணமிக்கும் வர்க்க வேறபாட்டை சிக்கலாக்குகின்றது. அதோடு நிறைவேற்று துறை மற்றும் காவல் துறையினரின் இலஞ்ச ஊழல் நடவடிக்ககைளையும் தெளிவாக விபரிக்கின்றது இத்திரைப்படம்.

Leon Dicapio , Daniel Day-Lewis and Cameron Diaz ஆகியோரின் நடிப்பில் 166 நிமிடங்கள் எம்மை கட்டிப்போடும் இத்திரைகாவியம் அடக்கப்படும் இனம் ஒன்றிணைந்து தம் உரிமைகளை நிச்சயம் ஈன்றெடுக்கும் இன்னோர் வரலாற்று சான்றாக ஆவணப்படுத்தப்படும் என்பது திண்ணமே !!!!

http://en.wikipedia.org/wiki/Gangs_of_New_York

Problem with Devolution

The whole basis of devolution of power (Regionalism) is based on a dubious concept, that of the existence of a 'historical Tamil homeland' in the North and        the East.

1. The powers to be devolved are excessive 
2. Except for separatist Tamil groups, the rest of the country has never asked for devolution of power. 
3. The concept of a 'Union of Regions' and powers granted to such 'Regions' can be the stepping stone to total separation of the ethnic Tamil Region in the north and east. The background to the Tamil separatist movement (Tamil homeland concept and the link up with South India) and the insistence on the three 'non-negotiable demands' emphasises the fact that devolution could result in separation. 
4. The background to the separatist conflict and the device for a link up with South India to form a 'Free Tamil State', as well as the insistence on the three' non-negotiable demands', indicate that total separation will be a certainly once devolution is granted. 
5. The danger of demands for the creation of other ethnic regions (Indian Tami areas) is real. It could lead to protected and bloody conflict in the heart of the country. 
6. The envisaged 'regions' (provinces created by the British) are economically non-viable. 
7. Environmental problems resulting from excessive exploitation of natural resources within 'Regions' are almost certain. Inter-regional conflicts (on sharing of water resources, forests, watershed etc.) are inevitable. 
8. The possible build up of a vast military capability by Tamil separatists and future link up with South India will spell great danger to the stability of the South Asian region in general and Sri Lanka and India in particular. 
9. The merged Northern Province and Eastern Province will be an ethnic Tamil 'Region' and will be demanded on the untenable 'Tamil homeland' concept. The Muslim Congress has demanded a region for the Muslims. Similarly, Thondaman has asked for a separate region for plantation workers, while other 'Regions' are to be non-ethnic based units, This is a major discrepancy. 
10. The future of more than one-half of the Tamil population who live outside the Northern Province and Eastern Province (this includes Sri Lankan and  Indian Tamils), is not clear. A separated ethnic Tami1 'Regional in the N-E, can be of no benefit to this vast majority of Tamils. 
11. It is significant that there will be Tamil Regions and a Muslim Region but there are no Sinhalese Regions. This is a serious flaw in the Proposals. It is expected that 'Regions' outside the N-E will be 'multiethnic', a situation most unfair to the 74% Sinhalese majority.

The Sri Lanka government has mounted a pressure campaign through the media censorship and other means, to show the package of reforms as one with absolutely no dangers designed to solve 'genuine grievances' of the Tamil people. What these 'genuine grievances' are, have never been clarified. It is also argued that the majority of Sri Lanterns is with the government as the Proposals are based on the premise that a clear majority voted for the present President at the last Presidential Elections.
Independent opinion polls published in the press show very clearly over 75% of the people, including many Tamil and most Muslims oppose the 'ethnic regionalisation' of the country.
What is needed in Sri Lanka is honest political leadership, which will not blindly pander to minority extremist demands to legitimise an illegal concept and destroy the unitary character of the country, for the sake of remaining in power through the minority vote bank.

Understanding Thesawalamai

(1 ) ‘Thesawalamai’, in Tamil, literally mean the customs of the land. It is ancient in its origin and has prevailed in the North Ceylon for several centuries - long before the evolution of any political parties or liberation movements. Because of its popularity among the local inhabitants, the Dutch first codified it in 1706 and the British gave it legal validity by the Tesawala Regulation No 18 of 1806. Ordinance No 5 of 1869. The Matrimonial Rights and Inheritance Ordinance of 1911 (as amended by the Ordinance No 58 of 1947) and the Jaffna Matrimonial Rights and Inheritance Ordinance No 1 of 1911 are the sources and basis of the Matrimonial Rights of Tamil Spouses and gave statutory validity and, where required, affected amendments, to Thesawalamai principles concerning the same subject. The Thesawalamai Pre-emption Ordinance of 1948 amended and consolidated the Law of Pre-emption relating to lands affected by the Thesawalamai Case law on the various aspects of Thesawalamai has been richly developed over a hundred years by our judges.

(2). Thesawalamai is one of the three main customary Laws which are in current operation in Sri Lanka. The other customary laws are the Kandyan Law and the Muslim Law. All three customary laws operate strictly within limited parmeters. The general law of the land apply in all other matters. Thesawalamai always recognized that the criminal law (wherein matters such as capital punishment and rape are dealt with) was the same as is elsewhere in Sri Lanka.

(3) Thesawalamai, in its origin, was intended to serve an agricultural community. It dealt with customary rules governing caste, slavery, marriage, marital rights,, guardianship, adoption, the law of parent and child, of intestate succession, pre-emption, forms of mortgage peculiar to Thesawalamai such as otti and servitudes peculiar to Thesawalamai, the law of property and contractual obligations which were current among the agricultural communities such as those arising from loan of beasts, paddy etc . Slavery was abolished by Regulation No 20 of 1844. In modern times, many of the other provisions contained in Thesawalamai are obsolete. Thus adoption, the law governing obligations and the otti form of mortgage are currently not in use. The customary form of marriages (eg. The "Thali" ceremony, etc) among the Tamils governed by Thesawalamai are still recognized and followed. Nowadays, possibly just to make sure, such ceremonies are almost always followed by registration. Until recently, certain upper class Tamil families in Colombo used to get down persons of lower castes from Jaffna to perform certain ceremonial duties which are incidental to the marriage ceremony. All other requirements of marriage, such as consent, prohibited degree of marriage etc are governed by the General Marriages Ordinance.

(4) Thesawalamai is both territorial and personal in character viz: (i) it is applicable to all lands situated in the Northern Province, whether such land is owned by a Sinhalese, Tamil, Muslim or Burgher; and (ii) it does not attach itself by reason of descent and religion to the whole Tamil population.

It is a personal law applicable to the" ‘Malabar’ (Tamil) inhabitants of the Province of Jaffna".

Decided case law inform us that, though Thesawalamai applies to Tamils in the Mannar area, it does not apply to the Tamils in the Trincomalee or to those in Batticaloa or to those Tamils of Indian origin resident in the hill provinces. Again, Thesawalamai does not apply to all Jaffna Tamils but only to those Tamil Inhabitants of the Jaffna Province. The word ‘Inhabitant" is of the essence. Rules repaying domicile, as found in International Law, have been developed and applied, mutatis mutandis, to determine as to whether a person is an inhabitant of Jaffna.

(5) The late Dr. H. W. Tambiah Q. C. who was the leading authority on the subject of Thesawalamai was of the opinion that Thesawalamai recognized only one domicile i.e. a Ceylon (Sri Lankan) domicile and that it is wrong to assume that Thesawalamai is based on a "homeland theory" as has been propounded by some politicians. The (Thesawalamai) concept has been greatly misunderstood with the consequence that incorrect inferences have been drawn. One widespread wrong belief is that Sinhalese cannot buy land in the Northern Province consequent to the law of pre-emption contained in the Thesawalamai. Pre-emption, under Thesawalamai, may be explained as a right recognized over immovable property situated in the Northern Province of Sri Lanka by which a co-owner, co-sharer or adjacent landowner, who has a mortgage of the land in question, has the right to demand the seller to sell it to him at a price which any bonafide purchaser is prepared to pay a higher price than the persons who are entitled to pre-empt. Pre-emption would also benefit Non-Tamils because of the territorial character of Thesawalamai. Any person, irrespective of race, owning land in the Northern Province has to comply with the postulates as they applied. Dr. Tambiah believed that resistance towards the devolution of powers in the Northern province was significantly influenced by misconceptions regarding the true nature of Thesawalamai. It is only possible to remove such misconceptions if people are educated about the origin, history and significant aspects of the Thesawalamai.

Thesawalai being primarily a codified law, however, has not been able to evolve with time or take into account social changes which have, over the years, taken place in Sri Lanka or elsewhere. Under Thesawalamai, the woman on marriage, passes from the guardianship of the father to the guardianship of the husband who becomes the sole and irrevocable attorney of the wife. It is ironic that, however qualified a woman may be, as for example, be a Chartered Accountant, or an Investment Adviser and deals with millions or billions of rupees on behalf of her employer but is unable to do so with regard to her own personal investments or, indeed, sign away ownership of land without the husband’s written consent

Sure, the time is ripe for urgent reform this and other areas of Thesawalamai. But changes must necessarily take place through legislative intervention and/or with judicial creativity. Such changes cannot be done by person or persons or by a political party or by a liberation movement, made to stand by themselves in the wilds of Vanni, and yet remain under the banner of ‘Thesawalamai’

The threads of ‘Thesawalamai’ are inextricably interwoven into the legal system of Sri Lanka and are very much part of the rich fabric that is the legal system in Sri Lanka. Thesawalamai is still a way of life among a good proportion of the Jaffna Tamils. In a recent case, the then Chief Justice Sharvananda decided that, once it is established that a person had an initial Jaffna inhabitancy, an intention to abandon such an inhabitancy should not be lightly presumed. This could mean that Thesawalamai will continue to apply to certain persons who regard Jaffna as their home although, such persons have not been able to physically travel to Jaffna over long periods of time because of prevailing war conditions, difficulties of travelling etc. Some properties in Colombo and other parts of Sri Lanka may be governed by Thesawalamai principles consequent to the fact that Thesawalamai, by virtue of its personal character, applies to the owners of such properties.

Let not ignorance, prejudice, and misinterpretation of this rich system of customary law be impediments to its harmonious co-existence with the other laws of Sri Lanka.

By:Guiendran Tambiah

Thanks to Web

Triangle of Bermuda

The world is filled by different types of puzzles and delusions. But all the matters are not cleared by scientific methods. Many scientists try to explain it, and they may say there is no puzzle or delusion but after this statement too the delusion continues.

 Triangle of Bermuda situated to east of Florida, 40 degrees west to vertical lines and South to the Bermuda island.

Why the Bermuda island is significant or why many writers describe about the triangle? Many aero planes , large vessels and small boats were hidden within the triangle’s space without any evidence.But until now we can’t find any part of such vessels or hidden human bodies.When weather satellites flying around 800 miles above such triangle it gets repaired.

Some scholars argue that such triangle’s scope has a great magnetic power, this power pulls the vessels, but after thus argument other scholars, made fully plastic vessels and sent it through the Bermuda triangle. It is a unbelievable fact, they are also hidden. In 1982 a Russian ship called “Vityas” made some researches in the triangle. Hence they find a truth the water in the area is pure not salty water. Scientist are again confused how pure water appears within the scope of sea.

The first reported event of hidden an aero plane record in 1945-Dec-5 , 7 fighter plane who were included in flight-19 section. Sent from Lander dale military base to a usual petrol purpose. The flights were Navy Grumman TBM-3 Avenger Torpedo bomber type flights, every plane save fuel to fly 1000 miles. This team was sphere headed by an experienced pilot  Lef Charles Taylor. But after 20 minutes on air the contact with tower disconnected nothing more. After a whole day a recover flight “Martin Marine” with double jet engines, it also hides in such place. Then continuously many places hide in the plane,{ Star tiger with Air Marshall Sir Arthur in 29-Jan-1948}

In the history of large vessels started during 1800. An American passenger service vessel called “Insurgent” is also hidden at the place and in 1814 Wasp ,1823 Wild Cat is hidden in such particular area and many other ships also hide in the particular area.

Many scholars argued that human and nature errors are the foremost reason to such accident but why this specific area is only a place to make human error ?

Many other scientist forward various reasons first they said we can only see three diminutions activities but the universe has many dimensions example we can’t realize the infrared ray directly.

Second reason is a black hole situated directly   behind the triangle of Bermuda. So that gravity attract all the things behind the Bermuda triangle.

Third reason is many caves were there in the bottom of sea-level. It is not a direct or easy way. It has many branches and different types sizes , So when  the water level bring such hidden vessels in to the cave the mariner cannot find the vessels.

Fourth reason is forwarded by American Navy and Coast guard that in the area many different types of fish exist. They   can change the water direction at any time. So the top level and bottom level water move various ways, so vessels are easily attracted by water level. But their AIDS { Airborne Integrated Data System } are also failure in many times and nowadays advanced technology also cannot recovered in Bermuda triangle.

So what is the conclusion for this, I am not a researcher mere an analyzer within given facts given to me. So wait for the next generation technology because “Former delusions are nowadays actions”

“Discuss the legal requirements, essential for the formation of a valid contract which is enforceable before a court of law.”

                                                              “A contract is a promise or promises mutually exchanged, setting up against the promise or promises, duties of performance which the law will recognize or enforce at the instance or for the benefit of the promise or promises or of third party intended to be benefited” - C.G.weeramantry. All agreements are not legally binding certain elements should be present. There is no legal requirement that a contract should be in writing. It can be verbally or in writing or it could be assumed by the conduct of the parties. However in special circumstances certain statues expressly prescribe certain contracts to be in a particular form.

  If we want to create a contract, which is legally binding and enforceable by court of law, such contract includes some elements. They are an offer and unqualified acceptance, valuable consideration, Capacity of parties, intention to create legal relationship, possibility of performance, Genuine consent, Legality, Terms of the contract to be certain. The above factors are common to all legal systems .But the common law doctrine of “consideration” does not apply to civil law systems such as Roman Dutch law. In Sri Lanka different terminologies used in essentials of a contract, Roman Dutch law is the common law of Sri Lanka but statute law may provide different rule.

                                                           Before entering legal requirements of a valued contract. The manifestation of agreement is essential. It depends on the parties’ intention. Words or acts can express the intention of a person, which they were uttered or performed. When there is such a manifested meeting of minds the law says “consensus ad idem” between the parties or more shortly that the parties are “ad idem”

                                                            Offer and unqualified acceptance, an offer defines as follows “It is a definite promise6 to be bound on certain specific terms. According to this definition we may say that an offer is a conditional promise. If there are no condition attached to a promise it is not an offer one should make the offer known as offerer and the person who give response known as offeree.


                                                           In offer there are some pre-requests: it should be a definite promise and it should not be a doubtful one8, the terms should be specific it cannot be vague, A definite offer not restricted to a person or group it can be for the entire world, a reply to an inquiry does not amount to an offer, Declaring an intention to do a thing is not an offer.  We should differentiate the offer from invitation to treat. Invitation is treat is not a offer, just exchange of information. The main difference is whereas offer could ripen into a contract upon acceptance, an invitation to treat is not capable of being accepted as is therefore not legally binding.

                                                             When we start to differentiate those items the distinction has arisen in the following areas. Normally these constructed as invitation to treat ; Advertisement,tender( when the intention clearly states in unilateral type of contracts consider as offer )Auction of sales(When a word hold “without reserve” would amount to an offer, Display of goods,Sales of land,Carriage of persons, transfer by machine( here the rule is contrast and it consider as offer).Communication of the offeree , in general an offer is effective when and not until , it is communicated to the offeree.

                                                              Now we enter to acceptance, it may be define as an unconditional assent, communicated by the offeree to the offerer, to all terms of the offer, made with the intention of accepting. The requipment of an objective perspective is important in cases where a party claims that an offer was not accepted and seeks to take advantage of the performance of the other party. So courts recognized and followed some kind of rules of acceptance.


                                                             Communication of acceptance, the acceptance must be communicated but exception in unilateral types of contract. An offeree usually not bound, if another person accept such offer has dispenced with the requirement of communication of acceptance –generally in bilateral types of contracts. If the offer specifies a method of acceptance made by a method by that such as “By registered post, and by the method only”. However, acceptance may be inferred from conduct. Correspondence with offer , this rule express that if u are to accept an offer , you must accept an offer exactly, without modifications . However a mere request of information in not amount to counter offer and the revocation must be communicate to the offereor –although not necessary by the offereror , Postal acceptance rule here offereee has posted the acceptance document, the contract will be created but offereo revocate such offer the posted document should received by the offeree .knowledge of the offer, In Australian law , there is a requirement that an acceptance is made in reliance or pursuance of an offer

                                                         Termination of offer, unless accepted an offer has no legal effect. Apart from counter offer and express rejection, an offer may terminate in the following ways. Revocation an offer may be revoker at an y time until it is accepted . Open for a period of time will not be binding unless sipported by consideration. Communication of revocation need not be made by the offerer personally , Lapse and Death.

                                                         The next element is Consideration, it means something, which is value given by the person in exchange for a promise made to him. It is the element if exchange. A promise is valid in law only in two circumstances. But is it not prevalent in Sri Lanka as a general rule. Consideration is a common law doctrine. In civil law countriesthe simple requirement of “just causa” suffices. There are certain rules with regard to consideration. Consideration needs not to be adequate, the sufficiently is enough,it must not be past, it must be legal,performing the capacity of public duty,waiver of existing rights also should be supported by consideration,performing an existing obligation imposed by statue is not valid consideration. Consideration is generally divided in to three categories such as executory,executed and past. Both executor and executed contracts are valid. But past consideration is not treated as a valid consideration in law. In certain cases past consideration also is a sufficient consideration51


                                                          Intention to create legal relationship, both parties must have an intention to make a valid and legally binding agreement. Roman Dutch law recognizes that “the evidence should establish clearly that the intention of the parties was to create a legal obligation”. The contracts are divided in to two; Commercial agreements here court has a strong presumption that the parties legally binding. But when parties express they do not to bind legally hence courts has not any jurisdiction. Domestic agreements it made among friends, family members or relatives. It was presumed do not have an intention to create binding agreement.

                                                           Capacity of contract, as in general everyone is capable to entering in to contracts. But sometimes it was restricted behalf of their mental statues insanity, intoxication or by infancy . Terms of contract should be certain. Usually term of contracts classified as conditions and warranties .Genuine consent also help to avoid unnecessary breaks.

                                                         These elements are determined by every legal system to their own and specifically use. Sri Lanka also adopts both categories to its law. When both parties understand these ingredients clearly only they can make an effective contract, which was enforceable by court of law. And they can act without fear or favor because any breach of such contract the parties can get remedy through law. Not only contracts governed under the law by statues but also under judicial decisions too. So every contract must include the legal ingredients to develop ever one’s contract view and move effectively in his life.

 References
01. Anson – Law of contract 
02. Law of contract by C.G.Weeramantry
 03. Law of contract – Nutshells 04. Law of contract – Open University
 04. http://en.wikipedia.org/wiki/Contract accessed on 31st of March 2011. 05.http://www.vakilno1.com/saarclaw/srilanka/lawofcontract

The nature and history of equity

This is an extract from Lawbook Company's Nutshell: Equity by Tina Cockburn & Melinda Shirley (Sydney: LBC, 2001). LBC Nutshells are the essential revision tool: they provide a concise outline of the principles for each of the major subject areas within undergraduate law. Written in clear, straightforward language, the authors clearly explain the principles, and highlight key cases and legislative provisions for each subject.

Introduction The body of law called equity is founded upon the principles of fairness and conscience. Its piecemeal development took place over many years as a direct result of the injustices often caused by a strict application of the common law. As a result, equitable principles have also developed in a piecemeal and responsive way. The principles of equity are founded on the conceptof 'unconscionability' that is, where an act or omission is considered to be contrary to good conscience. In those circumstances equity will often step in and grant relief to a party whose trust has been breached or whose disadvantage has been used to the advantage of another. Equitable remedies are both flexible and specific to the circumstances of each case and the granting of equitable relief is always discretionary. An understanding of the history and development of equity is fundamental to an understanding of this area of the law. Medieval period In the medieval period, the doctrine of precedent required the common law to be applied strictly and uniformly.

 Common law proceedings were commenced by the writ which was only available for specified causes of action, so that if a plaintiff could not bring his or her action within those categories, the common law courts could not deal with it. Due to corruption within the court system and the nature of the common law, many decisions of the
common law courts were considered to be harsh and unjust. Dissatisfied litigants began petitioning the King for relief and leniency. As the number of petitions grew, the King delegated that review function to the Lord Chancellor and it was from that function that the Court of Chancery was established. The first chancellors were ecclesiastics with no formal legal training whose decisions were largely shaped by questions of conscience and fairness. The decisions issued by the Court of Chancery in its formative stages were framed according to church law, rather than the common law and as a result this area of the law was not developed upon any clear doctrinal foundations.

 During the 16th century the character of the Court of Chancery changed with the appointment of a lawyer, Sir Thomas Moore as Chancellor. From that point in time all future chancellors were lawyers, reports of proceedings were kept and equitable doctrines began to develop. Conflict between common law and equity The two court systems were soon in conflict and there are many examples of this conflict as the two bodies of law wrestled with the issue of supremacy. The common injunction Dissatisfied litigants from the common law system would seek relief from the Court of Chancery. Equity would then often give relief by way of the common injunction which would either restrain the plaintiff from continuing with his or her common law action or restrain them from enforcing a common law judgment. The penalty for disobeying the common injunction was imprisonment. The response of the common lawyers to the common injunction was to issue writs of habeus corpus which ordered the release of people who had been imprisoned for disobeying Chancery decrees. The use The use was an embryonic form of trust. It was a creation of equity that enabled the division of the legal and beneficial interests in land and took the form: "To A to the use of B". In such a conveyance A (the feoffee) held the legal title and was the only owner recognised by the common law. B (the cestui que use) had no recognised legal interest, but was recognised by equity as having the right to the benefit of the land
which became known as the beneficial interest. The use became an effective tool for the avoidance of feudal taxes and in 1535 the Statute of Uses was passed in an attempt to negate it. That Act executed or abolished the use and deemed the beneficial owner to hold the legal interest. In response, equity lawyers created the use upon a use which took the form: "To A to the use of B to the use of C". The Statute of Uses only executed the first use which left B with the legal title. Equity then recognised the obligation on B to hold the property to the use of C and so the legal and beneficial interests were again successfully separated.

 The Earl of Oxford's case The growing tension between the two bodies of law culminated in the Earl of Oxford's case in 1615. In that case, Coke CJ gave judgment in a common law action which was alleged to have been obtained by fraud. The Lord Chancellor, Lord Ellesmere, then issued a common injunction from the Court of Chancery, preventing proceedings to enforce the common law judgment.

 As the two courts were deadlocked the matter was referred to the Attorney -General, Sir Francis Bacon, who upheld the use of the common injunction and determined that whenever there was conflict between the common law and equity, that equity would prevail. The Judicature Act 1873 During the 17th to 19th centuries the fundamental principles of equity were developed and followed in the court of chancery by way of precedent. However the common law and equity continued to be administered by separate courts and litigants who had commenced their claim in the wrong jurisdiction were forced to start again in the other. The cost and time implications of this duality led to the enactment of the Judicature Act 1873 which fused the administration of the common law and equity. This Act abolished the old court system and replaced it with a new High Court of Justice which was vested with all of the jurisdiction previously exercised by the separate courts. There was one code of procedure for all claims and the ascendancy of equity in any situation of conflict with the common law was specifically preserved in s 25.

 The fusion fallacy Section 25 of the Judicature Act clearly contemplated the continued existence of separate bodies of rules for the common law and equity although their administration had been fused. Nevertheless, a series of cases are argued to be evidence of the proposition that the bodies of law themselves had been combined so that after the Judicature Act , decisions that would have been impossible under the separate systems of law were now possible. This is referred to by academics as the fusion fallacy, and a series of cases is used as examples of the courts implementing this fallacy and combining equitable and common law rights inappropriately:

 Redgrave v Hurd (1881) 20 Ch; Seager v Copydex Ltd [1967] 2 All ER; Walsh v Lonsdalenbsp; (1882) 21 Ch. Many academics argue that the development of the fusion fallacy has harmed equity, however, the modern reality is that the dual administration has led to a convergence of the two bodies of law in relation to a number of doctrines (see: Meagher, Gummow and Lehane, Equity: Doctrines and Remedies (3rd ed, Butt, 1992) para 259. Tina Cockburn BCom LLB (Hons), LLM (QUT) Lecturer in Law Queensland University of Technology Melinda Shirley BA LLB (Hons), LLM (Bond) Lecturer in Law Queensland University of Technology 2001

Elements Of a Contract

Offer and acceptance

A contract is formed when an offer by one party is accepted by the other party.
An offer must be distinguished from mere willingness to deal or negotiate. For example, X offers to make and sell to Y calendars featuring Australian paintings. Before any agreement is reached on size, quality, style or price, Y decides not to continue. At this stage, there is no legally binding contract between X and Y because there is no definite offer for Y to accept until the essential terms of the bargain have been decided. An offer need not be made to a specific person. It may be made to a person, a class of people, or to the whole world.

An offer is a definite promise to be bound, provided the terms of the offer are accepted. This means that there must be acceptance of precisely what has been offered. For example, a used car dealer offers to sell B a Holden panel van for $1,000, without a roadworthy certificate. If B decides to buy the Holden panel van, but insists on a roadworthy certificate being provided, then
B is not accepting the used car dealer's offer. Rather, B is making a counter offer. It is then up to the used car dealer to accept or reject the counter offer. A person can withdraw the offer that has been proposed before that offer is accepted. For withdrawal to be effective, the person who has proposed the offer must communicate to the other party that the offer has been withdrawn. To continue the example above, the used car dealer may say to B that he'll check with his supervisor and maybe a roadworthy certificate can be provided. If, while waiting for a reply, B decides he does not want to buy the Holden panel van and he tells the used car dealer of his change of mind, then there is no binding contract.

Acceptance occurs when the party answering the offer agrees to the offer by way of a statement or an act. Acceptance must be unequivocal and communicated to the offeror: the law will not deem a person to have accepted an offer merely because they have not expressly rejected it. Some modifications to the rules of offer and acceptance have been made to protect consumers by sections 52 and 65 of the Trade Practices Act 1974 (Cth) ("TPA"); for example, invitations or offers to purchase cannot be misleading or deceptive.

Intention to create legal relations

A contract does not exist simply because there is an agreement between people. The parties to the agreement must intend to enter into a legally binding agreement. This will rarely be stated explicitly but will usually be able to be inferred from the circumstances in which the agreement was made. For example, offering a friend a ride in your car is not usually intended to create a legally binding relation. You may, however, have agreed with your friend to share the costs of travelling to work on a regular basis and agree that each Friday your friend will pay you $20 for the running costs of the car. Here, the law is more likely to recognise that a contract was entered into.

Commercially based agreements will be seen as including a rebuttable intention to create a legally binding agreement. However, the law presumes that domestic or social agreements are not intended to create legal 

relations. For example, an arrangement between siblings will not be presumed to be a legally binding contract. To defeat this presumption, it must be shown that the parties did intend to create a legally binding agreement.

Consideration


Consideration is the price paid for the promise of the other party. The price must be something of value, although it need not be money. Consideration may be some right, interest or benefit going to one party or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other party.

So long as consideration exists, the court will not question its adequacy, provided that it is of some value. For example, the promise to pay a peppercorn in return for the lease of a house would be good consideration. Of course, the consideration must not be illegal or impossible to perform. There is an exception to the rule: documents under seal (deeds) do not require consideration for there to be a binding contract. However, since few contracts between people are made in this way, it is not discussed further in this chapter.


Legal capacity


Not all people are completely free to enter into a valid contract. The contracts of the groups of people listed below involve problematic consent, and are dealt with separately, as follows:
 people who have a mental impairment;
 young people (minors);
 bankrupts;
 corporations (people acting on behalf of a company); and
 prisoners.