Saturday, January 25, 2020

Good Faith and Contract Law

Good Faith and Contract Law the governing principle applicable to all contracts and dealings . This statement was made by Lord Mansfield in 1766 and was an (unsuccessful) attempt to raise good faith to the level of a general principle, the common law as it subsequently developed rejected his initiative. The traditional law of contract, as it became established in England in the second half of the nineteenth century, did not impose or recognise a general duty of good faith. The notion of good faith undoubtedly pervades English law, but there is no single recognised doctrine of general application. The law is generally ready to strike against instances of bad faith: for example where lies are told in pre-contractual negotiations and where the weak are exploited or pressurised the application of concepts of contract law will make such contracts void or voidable,. However, no liability or remedy is to be had against the party who, acting in his own best interests, disengages from the negotiations. Moreover, the traditional view of the law is that during the performance of a contract one partys motivation is not relevant to define contractual rights, nor may (bad) motives increase the scope of express obligations. Aside from specific types of contracts, insurance being the notable example, there is no recognised extra-contractual duty on one party to disclose facts that may turn out to be of importance to another . This can be contrasted with the position i n other countries including Australia and Northern Ireland where the notion of good faith is more readily accepted. Steyn J who foresaw a future for good faith doctrine in English law however such a future has sadly not developed, or if indeed it has developed it has so in a piecemeal fashion. Bingham L.J’s perception has proven to be closer to reality, he stated when speaking with reference to the incorporation of conditions in contracts: The tendency of the English authorities has been to look at the nature of the transaction and the character of the parties to it; to consider what notice the party was given of the particular condition ; and to resolve whether in all the circumstances it is fair to hold him bound by the condition. This may yield a result not very different from the civil law principle of good faith, at any rate so far as the formation of contract is concerned . The classical theory of contract appeared to be hostile to the emergence of a general doctrine of good faith. Sir George Jessel M.R. emphasised that their was a strong public interest in maintaining the notion of freedom of contract which would necessarily exclude the notion of good faith : If there is one thing which more than another public policy requires it is that men of full and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by Courts of justice. Therefore you have this paramount public policy to consider that you are not lightly to interfere with this freedom of contract. A party to a contract could therefore expect that the contract would be enforced according to its terms even if the terms were unfair. Despite these early reluctances to include good faith as part of contract law, it emerged as an important and necessary role in some aspects of contract law. The modern law of contract places more emphasis on conduct which takes account of the interests of the other party to the contract . Some of these specific circumstances will now be considered, The common law imposes a duty of good faith in insurance contracts. The requirement of utmost good faith in insurance contracts requires disclosure by the insured of any fact material to the risk and abstention from misrepresentation. The justification for the creation of the duty is that only the insured knows the material facts and the insurer has no reasonable means of discovering them, although this same argument could be advanced in respect of general contract law. Another aspect of good faith arising out of insurance contracts is the rule that an insurer settling claims under a limited liability policy must act in good faith towards the insured and must have regard to his or her interests both in the defence of actions against the insured and in their settlement . The Supreme Court of Ireland have taken a very different view to the principle of good faith in insurance law and this is best highlighted by the case of Aro Road and Land Vehicles Ltd v Insurance Corporation of Ireland in this case the assured wished to send goods by road via a carrier. At the carriers instigation they effected insurance, the carriers acting as the insurers agents for this purpose. They were asked only for the details of the journey and the value of the goods, and did not volunteer any further information. The lorry carrying the goods was hijacked and set on fire, but the insurers refused to pay out on the policy, pleading that the assured had failed to disclose that their managing director had, some 20 years previously, been convicted of a number of offences of receiving stolen motor vehicles, for which he had served a sentence of 21 months imprisonment. The decision in this case was in summation that this was not reason enough for the insurance policy to be invali dated and the reasoning was that there is no breach of utmost good faith if the proposer has genuinely forgotten a material fact, at least where there is nothing (eg a proposal form) to jog his memory. Utmost good faith, they say, requires a genuine effort at accuracy, but does not require the proposer absolutely to guarantee the accuracy (and by implication the completeness) of his disclosure. This shows an inherent flexibility in the courts of Ireland to utilise and dismiss the notion of good faith in a sensible manner and this is evident in the general application of good faith in Ireland. Again in Contracts for the sale of land the vendor of land is under a duty to disclose material matters relating to the title which are known to the vendor but which the purchaser has no means of discovering . The duty of good faith also exists in the following situations, the mortgagee’s exercise of a power of sale, in relation to the principles of equity governing fiduciaries, undue influence and unconscionable conduct and estoppel, including promissory estoppel and in the duty to refrain from making misrepresentations. More importantly it is suggested that in certain situations there exists a common law duty on the parties to a contract to co-operate in achieving the objects of the contract. Where the parties have agreed that something shall be done which cannot effectively be done unless both parties agree in doing it, there is an implied obligation on each party to do all that is necessary to be done on his or her part for the carrying out of the thing . This can be seen specifically in the case of Meehan v. Jones where performance of the contract was conditional on the purchaser receiving approval for finance on satisfactory terms. Wilson J considered that there was an obligation on the purchaser to make reasonable efforts to obtain finance on such terms, though we doubted that the purchaser was required to do more than act honestly in deciding whether to accept or reject an offer of finance. That approach to the situation gave effect to the expectations of the parties and achieved a fair and se nsible balance of their interests. Another important element of the concept of good faith is that that can be seen in the notion of fiduciary relationships. The principles of a fiduciary relationship require the disclosure of material matters and require the fiduciary to subordinate his or her interests to the legitimate interests of another by reason of the relationship which subsists between the two parties. It can of course be argued that the fiduciary principle is stronger than the good faith doctrine in that it gives primacy to the interests of the party to whom the fiduciary obligation is owed. The good faith doctrine is concerned with those who contract and are on an equal footing. The principle of good faith also finds ground in the doctrine of â€Å"unconscionable bargaining†, this is the situation where relief is granted when a transaction, is so unconscionable that it cannot be allowed to stand. The requirement is thus that there exists an unconscientious taking advantage of the serious disability or disadvantage of the person in the inferior bargaining position by procuring or retaining the benefit in question in a way that is both unreasonable and oppressive . . In Australia, unconscionability has been relied upon as a ground in relieving a purchaser from forfeiture of his equitable interest under a contract of sale pursuant to a notice making time of the essence of the contract leading to rescission of the contract . Once relief against forfeiture was available specific performance of the contract could be ordered. The purchaser had gone into possession under the contract and erected a house on the land but was unable to pay the balance of the purchase price on the due date. This approach was taken further in the case of an instalment contract for the sale of land under which the purchasers had been let into possession, though they were not entitled to possession until completion, and had built a house on the land . Again, the contract had been rescinded, this time for non-payment of an instalment. In this instance the majority likened a terms contract to a mortgage, the forfeiture provision being by way of security for the payment of the purchase price so that there was no need to establish unconscionable behaviour of an exceptional kind. In Australia, the emergence from the shadows of this ground of equitable relief has relegated the doctrine of undue influence to a position of relative unimportance. Unconscionability and undue influence overlap, the latter being more limited in scope, concerned as it is with the exercise by the contracting party of an independent and voluntary will. Perhaps the most important notion of good faith can be found in the law of restitution which transcends the traditional common law causes of action and equitable grounds for relief. General principles are being articulated and refined which may apply indifferently, whether the basis of the claim has its origins at common law or in equity. In Lipkin Gorman v. Karpnale Ltd , it was acknowledged that the underlying principle governing the recovery of money had and received at common law in restitution is unjust enrichment. Here again unconscionability underlies the claim for unjust enrichment and imports into contract law the notion of good faith. Good faith and fair dealing concepts are already substantially in place under English law, though not in contract negotiation. In that area, the application of specific good faith and fair dealing duties, based on the reasonable expectations of the parties, might advance the interests of justice. Furthermore, recognition of good faith and fair dealing concepts would bring greater coherence and unity to the varied array of principles which are presently available in the area of contract performance. Finally as Mason points out â€Å"the criticism of those doctrines may be no more than the reluctance to accept unconscionability as a basis for relief; in other words, the reluctance is in truth an objection to the application by courts of generalised concepts and standards instead of rigid rules† . As to whether or not there exists a future in English Law for the principle of good faith remains to be seen. There are underlying notions of the principle of good faith and it would se em that the sensible notion would be to codify this principle and make it generally applicable to all contractual dealings; it seems unlikely however that English Law is willing to accept such a principle. Bibliography Cases Aro Road and Land Vehicles Ltd v Insurance Corporation of Ireland [1986] IR 403 Bridgewater v. Leahy (1998) 194 C.L.R. 457 Carlish v. Salt [1906] 1 Ch. 335 Carter v. Boehm (1766) 3 Burr. 1905 Devonport Borough Council v. Robbins [1979] 1 N.Z.L.R. 1 Distillers Co. Bio-Chemicals (Aust) Pty. Ltd v. Ajax Insurance Co. Ltd (1974) 130 C.L.R. 1 Interfoto Picture Library Ltd v. Stiletto Visual Programmes Ltd [1989] Q.B. 433 Louth v. Diprose(1992) 175 C.L.R. 621 Mackay v. Dick (1881) 6 App. Cas. 251 McInerney v. MacDonald (1992) 93 D.L.R. (4th) 415. Printing and Numerical Registering Co. v. Sampson (1875) L.R. 19 Eq. 462 Stern v. McArthur (1988) 165 C.L.R. 489. Journal Articles Denning LJ, (1991) The Role of Good Faith and Fair Dealing in Contract Law: a Hair-Shirt Philosophy? Finn, Statutes and the Common Law (1992) 22 U.W.A.L. Rev. 7 Mason A F, (2000), â€Å"Contract, Good Faith and Equitable Standards in Fair Dealing†, Law Quarterly Review 2000 116 66-94 Books Beatson J, (2002), â€Å"Anson’s Law of Contract†, Twenty Eighth Edition, Oxford University Press Denning LJ, (1991) The Role of Good Faith and Fair Dealing in Contract Law: a Hair-Shirt Philosophy? Elliot Quinn, ( 2003) â€Å"Contract Law†, Fourth Edition Forte A (ed), (2001), â€Å"Good Faith in Contract and Property Law†, Sweet and Maxwell McKendrick E, (2003), â€Å"Contract Law†, Fifth Edition, Palgrave McMilliam McKendrick E, (2003), Contract – Text and Materials, Oxford University Press Stone R, (2002), â€Å"The Law Of Contract†, Fifth Edition, Cavendish Publishing

Friday, January 17, 2020

Engage in personal development in health, social care or children’s a young people’s settings Essay

My role of a Teaching Assistant begins at 7.45 am where my colleague and I begin preparation for the school Breakfast Club. This includes setting out table top activities such as jigsaws, colouring and ipads. Breakfast Club also has a pool table so I write a weekly rota for this to ensure fair play. During breakfast club I encourage the children to sit together and eat a healthy breakfast of cereal, toast and choice of fruit juice. I have time to sit, chat and take part in the activities the children are doing which enables me to form good relationships with the children there. Breakfast Club is new to the school in Sept 2013 so we are currently putting together a display board which shows examples of the breakfasts, posters designed by the children and pictures of the staff that work there. Then I have 10 minutes in the nursery unit to help the teacher do some preparation for the day, for example this maybe hiding arrows around the playing field for the children to take part in a treasure hunt or preparing pots of paint. We then welcome the children into class and help them with hanging up coats and bags, comforting any that maybe distressed as their carer has left. Once they are settled the teacher will begin the register and my role is to help the children take part and sit quietly on the carpet and listen. We then begin our morning activity. I will be asked to take a small group with me for example to draw an apple tree and have to complete a short assessment on them. For example ask them to draw a tree; are they using brown for the trunk? Green for the leaves? Can they follow a simple instructions? Whilst taking part in this activity I bring as much of the welsh language as possible e.g. I will ask them the welsh words for the colours we are using. We then head back to the class for ‘tidy up time’ and snack. Two mornings I prepare the snack of toast and milk. Then 3 mornings I supervise the Reception children on the yard. I ensure the children are playing happily with one another and no one is left on their own. Often I bring out bikes so I have a timer to make sure each child has the same amount of time on a bike. Some children may need the toilet and I assist in any personal care needs required or if they have had an accident then I will put gloves on and change the child. Then it’s back to Nursery class for the second part of the morning which could be songs or story on the carpet where I encourage ‘good sitting and listening’ for the teacher. At 11.30 most of the nursery children are getting collected so I again help with bags and sing our welsh going home song. I then make sure the classroom is tidy and take the Reception children over to the main dinner hall for them to have a cooked lunch. Whilst there I make sure each child has a meal, desert and drink. I encourage them to eat as much as they feel they can. If the leave something, for example carrots and will ask that they eat as many as they can. Once the dinner hall is empty and the tables wiped down I supervise on the main yard with Years 1-6. There the children will ask me if they want to go inside the School for the toilet or a drink. I will discipline any children that are not acting appropriately; I make sure no one is left on their own. Then I take part in encouraging happy play by blowing bubbles for the younger children and help with skipping and taking part in any fun games they want to do. If we have any injuries then I take them to the school secretary and write in accident book and call the parents if I feel it is necessary. Page 2 – Kathryn Di Terlizzi Assignment Unit 332 (1.2) For all Teaching Assistant roles there is a set of National Occupational Standards (NOS) set out by each individual school. These NOS offer guidance on wider aspects for competent performance (Burnham 2010 pg 118). They were set up to realise the potential of all teaching support staff whatever their role. (http://www.napta.org.uk/) The standards are statements about how tasks should be carried out and the minimum acceptable quality of practice that should be delivered. I have looked closely through the standards and looked at the most important ones to me in my role and given an explanation on each one as follows – 301.3 Understand legislation, policies and procedures for confidentiality and sharing information including data protection The Data Protection Act of 1998 is designed to ensure that confidential information cannot be passed to others without the individual consent. In my role I am exposed to a great volume of confidential information and I understand I cannot pass this to anyone. My sons attend the same school so I am often approached by parents at birthday parties asking me how their child is getting on. I understand the schools confidentiality policy so say sorry I can’t discuss this outside of school, please come and see the teacher and discuss on Monday. 302.3 Understand school ethos, mission, aims and values The school ethos –â€Å"St David’s Roman Catholic Primary School is part of the living presence of Christ in the modern world. Part of our purpose is, by the education, care and protection of our children, to present a model of Christian living that is clear to all.† (https://swansea-edunet.gov.uk/en/schools/StDavids/Pages/Mission_Statement.aspx) I am employed in a Catholic primary school but I am not a Catholic. However daily I embrace the catholic ethos and take part in Mass, Prayers and Religious Education activities. For example October is the month of the Rosary Bead. This week we have been learning about the letter ‘b’ so to tie in religion I have asked the children to bring in any Rosary Beads they have to ‘show and tell’ to the class. This builds confidence talking in front of the class and brings in the school ethos. 303.2 Be able to prepare for learning activities Before the children arrive in the morning the teacher will inform me of what activity I will be doing with them. For example when we were learning about the letter ‘a’ Mrs Jones asked me to take the children to the field in small groups and draw the apple tree. Preparation is vital for this to ensure it runs smoothly. As once the children are with me on the field if I have forgotten something for safety reasons I cannot run back to the class leaving the children. Frustratingly they would have to come back with me which would cut down the activity time. First I gather the resources I need for the activity, chairs, clipboards, paper, and pencils. Then once my 5 children are ready I make sure if it has been wet they are wearing Wellington boots and coats and hold on to the handrail as they exit the classroom. I make sure they walk carefully in a straight line down the path, closing the nursery door behind me which has a safety code so no outsider can gain access. Once we have arrived at the field I make sure our immediate environment is safe for example by checking for things the children could trip over. Depending on the children I may need to adapt some of the resources for example some children find it difficult to press hard with a pencil so I make sure I have other things with me like crayons and felt tip pens. Page 3 – Kathryn Di Terlizzi Assignment Unit 332 304.2 Be able to promote positive behaviour It is imperative in any school for children to have guidelines in school so they have a clear understanding of how to behave in school. Children need to be aware of the boundaries within which to manage their behaviour, so that they understand what is expected of them. (Burnham 2010 pg 58) In our nursery unit we encourage positive behaviour with stars on their jumpers to go home and show their parents. If a child has done something positive like sat well and listened to a story we will tell the whole class how happy we are with that child and give them a bigger reward like make them the ‘helpwr y dydd’ – helper of the day. 306.2 Understand the impact of prejudice and discrimination on children and young people Children can experience prejudice and discrimination in several ways, religion, ethnicity, sex, body image, disabilities. It will affect their self esteem and their learning will almost defiantly be affected. They could be come withdrawn and may not want to attend school. You must ensure your own inbuilt ideas do not affect how you treat children. I have not come across it yet but understand I must always challenge discrimination. It can be promoted in a positive way by posters in school and bringing in guest speakers to talk about their own experiences in a positive way. 331.2 Understand the factors that influence children and young people’s development and how these affect practice There are personal factors that could influence a child’s development for example their health. We have a child in Year 4 that has a heart problem and has missed a lot of school for operations. This could also affect his social activities for example on the playground. A child’s emotional development may also be affected depending on their awareness of their needs and the extent to which they are affected. It is important that the adults in school are aware of how pupils may be affected by these kinds of conditions so we can support them by ensuring they are included as far as possible. (Burnham 2010 pg 155) External factors can also have a massive affect. Families can go through significant changes through the school years for example separation, bereavement, new partners, house move or changing country. This can affect their ability to learn. Statistics show that children that suffer from poverty and deprivation are less lightly to thrive and achieve well in school. Some children make personal choices on friendship groups and extra curricular activities, they may need advice and support from adults to make sure the choices were right for them. Some children may come from a very alternative background such as a home schooling environment. These children may need some additional support until they become settled. (Burnham 2010 pg 156) There have been a number of theories of development. Many physiologists have different ideas about how children learn. Some think it is innate and others feel it depends on the opportunities a child has been given, often referred to the nature nurture debate. One of the physiologists Watson believed that we are all born with the same abilities and anyone can be taught anything and that it does not depend on innate ability but on watching others. His idea of ‘classical conditioning’ was born out of Ivan Pavlov’s research using dogs. He noted his subjects would salivate before the delivery of food. In a series of experiments he presented a variety of stimuli before the presentation of food, eventually finding that, after repeated association, a dog would salivate to the presence of a stimulus other than food. He termed this response a conditional reflex. (psychology.about.com) Page 4 – Kathryn Di Terlizzi Assignment Unit 332 Children that come into nursery are treated the same and assumed at first to have the same abilities. As it becomes apparent some children need more support than others then the level is identified. Appropriate bodies are brought in to observe and correct support is implemented. 333.4 Understand how to respond to evidence or concerns that a child or young person has been abused or harmed Possible signs or symptoms that may be cause for concern are – Acting out in an inappropriate sexual way with toys or objects Becoming withdrawn or very clingy Becoming unusually secretive Sudden unexplained personality changes, mood swings and seeming insecure Regressing to younger behaviours, e.g. bedwetting Outburst of anger New adult words for body parts Talk of a new, older friend and unexplained money or gifts Physical signs, such as, unexplained soreness or bruises around genitals or mouth, sexually transmitted diseases, pregnancy Not wanting to be alone with a particular child or young person (http://www.parentsprotect.co.uk/warning_signs.htm#) If a child tells me something I should listen and try as best I can to write down word for word what the child is telling me and not question anything they are saying just let them speak. I will then explain to them that I am not able to keep it a secret and I must tell Mrs Jones the teacher. Mrs Jones will then take the relevant action. The UK Government ratified the Convention on 16 December 1991. This means that the Government must make sure that every child in the UK has the rights that are listed in the Convention. The Government can do this by passing laws or by taking other action, including making sure that the rights in the Convention is widely known in the UK. One of these points is as follows – Protection from violence, exploitation, abuse, neglect and maltreatment: The Government must make sure you are protected from any type of physical or mental violence, injury or abuse, neglect, maltreatment or exploitation, including sexual abuse or exploitation, while you are living with your parents or in the care of anyone else. Special procedures must be set up to help you if you have been the victim of abuse. (http://www.lawstuff.org.uk/the-facts/what-are-childrens-rights) Bibliography www.teaching-assistants.co.uk www.napta.co.uk www.gov.uk/government/publications/nos-for-supporting-teaching-learning Oct 2010 Burnham, L (2010) â€Å"Support Teaching & Learning in Schools†. Published by Heinemann Reference List Burnham, L (2010) â€Å"Support Teaching & Learning in Schools†. Published by Heinemann www.psychology.about.com/od/profilesofmajorthinkers/p/pavlov.htm (accessed on 05/10/2013) http://www.parentsprotect.co.uk/warning_signs.htm# (accessed on 05/10/2013) http://www.lawstuff.org.uk/the-facts/what-are-childrens-rights (accessed on 05/10/13) https://swansea-edunet.gov.uk/en/schools/StDavids/Pages/Mission_Statement.aspx (accessed 05/10/13) http://www.napta.org.uk/ (accessed 05/10/13)

Thursday, January 9, 2020

Observation Of The Bystander Effect Essay - 1457 Words

The purpose of this research paper is to help precisely identify the â€Å"bystander effect† as defined by noted social psychologists. It will also explain why the bystander effect occurs and with whom it occurs more often. Using multiple examples of psychological studies on this concept, this paper will give reasons the bystander effect is an important and yet controversial thing to study. Additionally, it will outline how these studies are conducted and the setbacks of those methods. Lastly, this paper will come to a conclusion based on the results of the studies cited. The Importance of Studying the Bystander Effect It is critical to understand the bystander effect in order to predict how individuals will react to certain emotionally arousing situations. Will they risk themselves and help the victim? Or will they stick to self-preservation and avoid the potentially dangerous situation altogether? Also, are people more likely to help someone who is a member of their in-group? Are they less likely to assist a member of their outgroup? Abbott and Cameron found that people have a greater ingroup bias when they have less intergroup interaction. Meaning, those who are more isolated in their own group with little socialization with others, will be less likely to stand up and assist someone in an out-group. These findings are very important to help us understand why some people ignore emergency situations when someone clearly needs assistance, and better predict who they willShow MoreRelatedThe Observation Of The Bystander Effect1079 Words   |  5 Page sreader briefly of the overall topic and why it is of interest. The general topic area is about The Bystander Effect. John M.Darley and Bibb Latane research about the bystander effect based on the story of Kitty Genovese. Also known as individuals are less likely to help in a situation in the presence of others (Greitemeyer and Mugge, 201 p.116). 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From the looks of it, some students, especially those who areRead MoreThe Bystander Effect On Children Essay2036 Words   |  9 Pagesthat question is what is commonly known as, The Bystander Effect. First of all, a bystander, is a person who is present at an event, or incident, but does not take part. (Dictionary.com) This phenomenon has been pondered and experimented upon for decades. The term bystander effect refers to the phenomenon in which the greater the number of people present, the less likely people are to help a person in distress.† (Kendra Cherry 1) The bystander effect has taken a toll upon very many people. It is very