Running Head: Criminal Law/Contract law case
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Criminal Law/Contract law case
Contract law is body of law that governs both written and oral agreements between two or more people associated with exchange of any form of goods and services, property or money. It can also be defined as an agreement between two or more persons containing specific terms. It contains agreements and promises to do a certain thing for a benefit which is usually known as consideration. For a contract to be legally binding on the parties, it must have some basic elements that are essential to every contract. A contract that contains the basic elements becomes enforceable by the law.
Three basic elements of a contract
- Legality of the subject matter – The element is important to any contract and it requires that all contracts should be made on legal grounds. That means that a contract cannot be made based on an illegal activity as perceived in the region where the contract is being made.
- Consideration – consideration is an important factor in every contract and it is one of the essential elements to a valid contract. It is the gain or the profit that one of party gets after the implementation of the contract. It can also be a disadvantage or a loss that a party to the contract incurs while implementing the contract. A consideration can be any benefit or it can be money.
- Offer and acceptance – For a contract to be enforceable in a court of law, there must be an offer which means that one party has to give an offer and it is supposed to be accepted by another party as suggested by Gibelman and Whiting, (1999). It is not possible to have a mutual concept in a contract without the presence of offer and acceptance.
Stages of negotiation and areas of concern
Negotiation in the contract is used to manage disputes that may arise between the parties and it is also used to make decisions. The stages that are followed in a positional bargaining approach that use interest based bargaining are as follows.
- The first stage of negotiation is to select and evaluate the strategy that will guide them in solving problems. They are supposed to access the various approaches that are supposed to be used and select the approach that fits both of them.
- The second stage of negotiation requires the parties to make initial contacts with the other parties as Jones et al, (2006), puts it, which may be through the phone, emails or they may meet with the other parties in person.
- The background information should be collected and analyzed. This means that the accuracy of the data should be verified and unavailability or inaccuracy of the data should be minimized as much as possible.
- A detailed plan for negotiation should be planned. At this stage, the tactics and the strategies that will help the parties move to an agreement should be identified.
- The parties should build trust and cooperation and be prepared psychologically to negotiate and participate for better results. A strategy that is able to handle strong emotions is supposed to be developed at this stage.
- The sixth stage is where the negotiations sessions start where all parties are introduced and statements are exchanged which shows that the parties are willing to share ideas and to listen to each other.
- An Agenda is set at this stage and the issues of concern are defined by the parties who are concerned.
- The hidden interests are uncovered by probing each issue and elaborating the interests of the participants.
- The options for settlement are laid down at this stage and the participants are shown the need for the settlement options.
- Stage 10 is where the options for settlement are assessed.
- This is the stage of the final bargaining after an alternative has been selected.
- The last stage calls for the achievement of the formal settlement.
Implications of a contract that contains provision for performing illegal activities
One of the implications of a contract that contains provision for performing illegal activities is that illegality acts as a defence to what would have been considered to be a varied claim for the damages in the breach of a contract. This means that if a contract that was based on illegality has been breached, the claim against the contract cannot be varied.
According to California Penal Codes, (2003), a contract that contains provision for performing illegal activities can be rendered unenforceable by one of the parties or both of the parties. The contracts can also be rendered unenforceable by the common law or the statute.
Severability clause is a statement in the contract that is used to guard the contract from being invalid entirely if a part of the contract or a portion has been invalidated. An enforceable provision does not make an entire contract void if it is only one or some few provisions that are unenforceable as illustrated by Esquire, (2011). In the presence of severability clause the unenforceable provision is usually modified until it reflects the intentions that the contracting parties had. The remaining contract that contains the enforceable provisions remains enforceable and valid.
California Penal Codes (2003). Penal code Section 11160-11163. (Online), Available from, http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=11001-12000&file=11160-11163.6. Retrieved on 16 May 2011.
Esquire, J, V., (2011), Impact of the Severability Clause on Exclusionary Language under Pennsylvania Law, (Online) Available from http://www.forryullman.com/ImpactofSeverabilityClause.htm Viewed on 16 May 2011
Gibelman, M., and Whiting, L., (1999), Negotiating and contracting in a managed care environment: considerations for practitioners. pp 180
Jones, C, L., B S., Terry, l., Mills Jr., FAAFP., (2006), Negotiating a Contract With a Health Plan 13(10):49-55 (Online) Available from http://www.aafp.org/fpm/20061100/49nego.html. Retrieved on 16 may 2011