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.

Question 1

Three basic elements of a contract

  1. 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.
  2. 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.
  3. 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.

Question 2

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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. An Agenda is set at this stage and the issues of      concern are defined by the parties who are concerned.
  8. The hidden interests are uncovered by probing      each issue and elaborating the interests of the participants.
  9. The options for settlement are laid down at this      stage and the participants are shown the need for the settlement options.
  10. Stage 10 is where the options for settlement are      assessed.
  11. This is the stage of the final bargaining after      an alternative has been selected.
  12. The last stage calls for the achievement of the formal      settlement.

Question 3

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.

Question 4

Severability clause

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, Retrieved on 16 May 2011.

Esquire, J, V., (2011), Impact of the Severability Clause on Exclusionary Language under Pennsylvania Law, (Online) Available from 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 Retrieved on 16 may 2011


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