Analysing Critique on Judicial Method and Negotiating a Contract: A Legal Perspective

Judicial Method and Critiques

Question 1

Many critics of the judicial system argue that the courts can essentially decide for any outcome that they want, making the system unpredictable and haphazard.

Required: Using what you know about judicial method (hierarchy and precedent), analyse this critique. In particular, identify and discuss any aspects of judicial method that are subjective, give a judge significant discretion or may enhance erratic results. Also identify and discuss any

constraints the judicial method places on judges that may minimise said problems.

Question 2

You are working as an advisor for an executive of a clothing design company in New Zealand(Company A). The executive is negotiating a contract with another company, based in Japan (Company B), to manufacture Company A’s clothing line. So far, no lawyers have been involved.

While you study the background and context of the potential deal, you learn that Company B tends to issue unrealistic optimistic statements about their performance. Indeed, Company B has already made some persuasive yet rosy statements during the current negotiations. You suspect that some of these statements might not be realistic. Additionally, you learn that sometimes Company B uses questionable materials in the production process. At least in one previous case its products posed a danger to consumers.

Company B argues that this was an unintentional one-off mistake, yet refuses to disclose further information on that issue.

The two companies had some meetings and have been exchanging emails during the last few weeks. Via these meetings and email exchanges they have reached an understanding regarding the price per item, method and place of delivery, termination, and dispute (should there be any) resolution mechanism. As to materials, Company B assures that they will take “reasonable precautions”. The parties have not yet agreed on quantity and frequency.

The executive you are working for tells you she is running out of time. She informs you that she has arranged to meet Company B’s executive for dinner at a local restaurant. She believes it will be a good opportunity to form a contract. Therefore, she explains, she wants to end this

meeting with a final, meticulously detailed, written and signed agreement. In order to maximise the chances of achieving this goal, your executive plans to create a

friendly atmosphere. Amongst other things, she considers ordering a lot of food and alcoholic beverages. She wonders whether after a good meal and a few alcoholic drinks it might be much easier to close the deal. The chief financial officer, however, thinks it is a waste of time and money. He states that, “at the end of the day, we are dealing with a sophisticated businessperson. Businesspeople only care about the bottom line: how much money they can make”.

Required: your executive, a businesswoman with no knowledge of the law, is keen to reach an agreement. Based on your understanding of contract law and our discussions in class (including on pre-contractual negotiations), she asks for your opinion and advice on the negotiations so far and her plans for the meeting. In your answer, point to three important issues discussed throughout our classes, which you believe the executive might be unaware of. Concisely explain why you chose these issues and how (or if) contract law regulates or affects each of them. Per the three issues you identify, advise your executive as to the necessary steps she should take, or contract clauses she may wish to include in the contract. Make your advice as specific and clear as possible.