Judicial Precedent Is The Prominent Element Of Common Law System

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1. Introduction 1.1. Judicial Precedent is the prominent element of common law system. A precedent emerges when the judiciary interprets and ascertains the application of law to a particular situation. The doctrine of stare decisis thus separates judiciary from the executive and legislative bodies which limits the exercise of power by the government. 1.2. Since the law is interpreted and applied to a particular set of facts, the system of judicial precedent is flexible to fit in and resolve a great range of disputes. These decisions then form a benchmark to resolve cases of similar nature. Therefore, this system carries the benefits of consistency, flexibility and is time saving. 1.3. However, due to the existence of a plethora of cases,…show more content…
1.6.1. Whether a contract exists: In Courtney and Fairbairn v Tolaini Bros [1975], it was held that letters do not give rise to an enforceable contract. There was no agreement on price which is fundamental to the contract. Hence, there was no concluded contract. 1.6.2. Presumption that a contract exists: The second approach could be observed from the decision in Percy Trentham v Archital Luxfer (1992) 63 BLR 44. Though there is no signed sub-contract, the sub-contract was fully performed by Archital. Hence, it was held that the contract exists. Court distinguished Archital Luxfer against RTS Flexible systems v Muller that no contract existed after the expiry of LOI due to the presence of a condition that a contract would exist only if it was in writing and formally executed and signed. 1.6.3. Intention to create Legal relations: Law examines the intention based on person’s conduct to the perspective of the offeree and not the offeror and hence adopts an objective approach. In Bowerman v ABTA [1996], it was held that the notice was intended to be read and would reasonably have been read by a member of the public as containing an offer of promise which the customer was entitled to accept by choosing to do business with and ABTA member. It was sufficiently clear to have been legally enforceable and disclosed an intention to create legal relations. The intention to create legal relations also needs to be certain . In Fitzpatrick

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