Legal Issues

The cases referred herein are landmark judgments that pertain to search and seizure, a very integral part of criminal procedural law, and the manner in which such search and seizure operations may be carried out without adversely affecting the accuseds rights under the fourth and the fourteenth amendments to the United States Constitution.

Constitutionally, these provisions lay down that the privacy of a person shall not be violated unreasonably by the State, unless there exists a just and probable cause for necessitating  the issuance of a Warrant to search and seize, and which must be specific in all its particulars. This test of reasonableness of suspicion, which would make a search and seizure operation within the aforementioned Constitutional boundaries, has been extrapolated and deliberated at length in three landmark Supreme Court cases  Aguilar v. State of Texas, Spinelli v. United States and the most recent decision in State of Illinois v. Gates.

Aquilars case was the first case where the Supreme Court laid down a standard for assessing the reasonableness of suspicion (which would necessitate the issuance of a warrant), especially when such suspicion has been aroused on the basis of information received from a tip-off i.e. a third party. Accordingly the Court stated that such a warrant could only be issued by a competent magistrate when the investigation officer is able to show that prima facie, the information is reliable and that the credibility of the informant is satisfactory (called the two-prong test). Otherwise, any evidence procured without obtaining such a warrant may not be allowed during the trial. In fact the Court in that case invalidated the warrant issued by the magistrate stating that the twin test for determining the reasonable suspicion, which in turn would enable the warrant to be properly issued, was not satisfied. This decision of the Supreme Court resonated and was affirmed by the same court in Spinelli v. United States where it was categorically laid down that for a valid search and seizure warrant to be issued, the investigating officer must be able to show the Court that the two-prongs i.e. credibility of the information and that of the informant is sufficiently satisfactory. According to the reasoning offered by Harlan J. while giving the judgment, such a test must be strictly adhered to so that the State (the police, federal officers etc. etc.) does not violate the privacy and sanctity of a persons home in an arbitrary manner, which in turn would be a blatant violation of the rights of citizens enshrined under the Fourth Amendment of the U.S. Constitution.

While both Aguilars and Spinellis cases upheld an individuals right to privacy, which could only be infringed if the two-prong test was satisfied, correspondingly it became difficult for the State to use evidence obtained from search and seizure operations, against offenders during trial. Thus, it was increasingly felt that the two-prong test, while laudatory for the purpose it sought to achieve, curtailed officers powers to gather evidence against suspected offenders. Consequently, the two-prong theory was rejected in favor of a more totality of circumstances approach in State of Illinois v. Gates. Under this test, the Court held that so long as it could be made out to the satisfaction of a competent magistrate that, with regard to the underlying facts and circumstances of the case, there existed a reasonable suspicion that an offence is being committed, the warrant (and hence the evidence obtained through it) would be valid even if the twin tests of reliability of information and reliability of the informant are not strictly satisfied. This generic view has now been accepted as the norm in such cases and while there is only a very thin line separating the two-prong test from this totality test, this interpretation has given greater scope to investigating officers to pursue suspected offenders without having to worry about violating constitutional rights.

S u m m o n   C o m p l a i n t

Polk County Court, the State of Iowa

Mr. Bob Tuttle and Mrs. Susan Tuttle vs.             Ms. Smith
(Plaintiff)
Mr. Owen Jones and Mrs. Dolly Jones                          
(defendants)

To the defendants

Attention Mr. and Mrs. Bob  Susan Jones and Mr.   Mrs. Owen  Dolly Jones

You are hereby summoned and mandated to appear before the Polk County Court, State of Iowa and defend against the charges made by the plaintiff within the time applicable in this scheduled action in this court. You are directed to appear in this court twenty days after this notification is received exclusive of Saturdays and Sundays.

In connection with the above, you are hereby notified that in case of your failure to appear before this court and defend against the complaint made by the plaintiff within the applicable time, judgment by default will be rendered by this court against you for the relief demanded in the complaint.

You are hereby further informed that in order for you to appear in this court and defend you may either appear in person or you file an answer to the complaint or construct a proper response in writing with the clerk of this court along with the necessary filing fee within the time specified in this notification. You are also directed to provide the plaintiffs attorney of a copy of any answer or response that you submitted before this court.

If in case a reasonable accommodation for person with disabilities is needed, request may be made by parties to the division assigned to the case at leased 3 judicial days in advance of a scheduled court proceeding.

Signed and sealed this date ___________________
                                            ___________________
                                             Justice of the peace

Background of the complaint                                 (Verified Complaint)

Plaintiff complained that

On the summer of ----the defendants, Bob and Susan Tuttle along with their daughter took the plaintiffs daughter Shayla to summer vacation on a small camp ground owned by Mr. Owen and Mrs. Dolly Jones, who are also respondents in the complaints.

That upon arrival in the said camp ground, at around 930 in the morning, Tamara dove into the pool despite it is supposed to open at 10 A.M. and invited Shayla to join her. Shayla dove into the pool unfortunately, she hit the bottom and broke her arm.

In view of this, the plaintiff made the following charges

Negligent supervision on the part of Mr. and Mrs. Tamara. The plaintiff held that the respondents (Mr.  Mrs.Tuttle) have a duty to supervise Shayla as she was under their care.

Negligence on the part of the pool owner, Mr.  Mrs Jones. The plaintiff holds that Mr. and Mrs. Jones are equally responsible as they failed to properly secure the pool perimeter prior to its opening which is 1000 A.M.

Apparently, the pool has a shallow part which may be dangerous for anyone diving into the pool.
The both sets of respondents have committed breached of duties.

Plaintiff alleges

The Polk county court has jurisdiction over the case.

Defendants should pay a total of 20,000 dollars for their negligence to supervise Shayla and for properly securing the pool entrance close prior to its opening, resulting to serious physical injury, and for moral damages the incident has caused on her.

That the plaintiff is entitled to attorney fees and cost arising from court litigation.

Under the existing laws, the Polk County court justice of peace whose signature affixed here in has found these charges has sufficient ground and the respondents are hereby directed to file appropriate answer to this court. You may reach the plaintiffs council for the purpose of handing a copy of your response to the charges at this address and telephone numbers.

The Polk County Court Judge of the peace
State of Iowa

Q. Case Case study, Tony  Euan
In law, equity and trusts is used to reflect the application of legal rules by legal system such as court. Equity means fairness and in law judges must give legal ruling by practicing equity. Principles of equity are now applied in every legal system and this has resulted to trust. Trust in this aspect is applied when a person gives authority to another person to foresee his or her affairs. When a person trusts another person he or she can delegate the power to manage his own property.

The relations created by law include family, charitable organizations, inheritance, testate and charity organizations. However, it is not easy to find a person you can trust to be the custodian of your affairs once you are dead or in case of inheritance. The law of equity is therefore, applied to strengthen such relationships in a society (Ewan, 1992, p.14). Application of equity law helps parents to leave a will that provides guidelines on how a persons property may be shared among his or her sons and daughters.

The parent decides on how to distribute his property through application of trust. He only gives his or her property to the eldest child or any other child he trusts most. The case of Tony is a reflection of trust he has on Euan, the oldest son, who is responsible for distributing property between other children. Fairness or equity in this case is noted when he decides to write a will that provides the oldest son to be in charge of the property. Otherwise, he would have left the whole property to all his children and know how to handle the whole situation.

The law provides that a person who is above majority age and of sound mind to draft a will before his or her death. A will also known as testament is a declaration by a person (testator). He or she names two or more individuals who will manage his property or estate once he is dead. The testator transfers title of ownership to the person he trusts most and he gives directions on how the property should be distributed to other siblings (Langbein, 1995, 1001). The will is only affected once the testator dies and this is the reason why trust is an important aspect when it comes to writing a will.

The testator must show that he or she is the owner of the property to be distributed between siblings. For a will to be valid, two words, that is last will and testament must appear on the documents face. The testator must be free to dispose his property without any conditions. The signature of the testator must appear on the document in presence of two individuals who are not beneficiaries (Chambers, 1997, p.19). The beneficiaries of the will must be stated in the will by their names. Tony named Euan to inherit shares, to be in charge of property and ensure that the other children equally share the property, Gordon was named to inherit diarys, papers, and library, a second son to Tony, James would inherit 1million. Therefore, Tonys will was valid. This means that any incident that happened there after could be changed in court or under the guidance of a solicitor.

When the testator dies, a proceeding is initiated in a legal system that is court to verify whether the will was valid. However, the case of Tony is exceptional because one of the beneficiaries, Euan died before the testator. In such a case, principles of equity and trust are put into test. The eldest son of Tony, Euan collapsed of heart failure and it is feared that he may predecease his father (Brown, Timothy, 2003, p.145). If Euan predeceases his father, the provisions of the will have to change. This means that all that was allocated to Euan would be redistributed to his descendants. Other beneficiaries like James, Gordon and other children of Tony may not be affected by the changes.

The death of his son means that all gifts allocated to him particularly the shares in Murphys brewer will be allocated to the other child who is young than Euan. In the case of his old friend Gordon, changes may not affect his capacity to inherit papers, diaries and library. His second son James will be given the power and authority of his elder brother Euan. However, this will only happen if only his father trusts him (Brown, Timothy, 2003, 147). As per the details of the will, James is supposed to inherit 1million he is supposed to distribute the money to residents of Manchester. This implies that his father has trust in him and he can therefore be in charge of the other property.

The general rule is that, when the beneficiary dies before the testator, the gifts go to beneficiaries descendants. This will only apply when the beneficiary is a child or grand child to the testator. Tonys case is not exceptional to this and the gifts that were meant for Euan should be given to his descendants, James and his young brothers and sisters if any. On the other hand, if the beneficiary is not a descendant of the testator the gift goes to residuary beneficiary. The testator in his will may state another person who will inherit residue of the testators estate. This person legally is known as residuary beneficiary. In the case of Tony, if there were no other descendant, his friend Gordon would inherit Tonys property (Ewan, 1992, p.37). My advice to Tony is to allow the nature of law take place whereby the gift to Euan would be distributed to his descendants, James and other brothers in order of age.

Other instances, the gift may lapse but this will only happen when the beneficiary has no siblings. However the circumstances of death will dictate whether the gift will lapse or not. When the death of the testator and beneficiary occurs at a close time span, it is very important to establish the order in which the death occurred. This will help to determine whether the gift lapses or not. In the case of Tony, it is predicted that Euan may precede his father therefore the gift is passed on to his descendants.

Change of unsuccessful bequests
Changing inheritance of property in the will is a very technical process that requires observation of law provisions.  A bequest is the act of a person to receive property as is provided by will. The provisions made in a will are always right because when the testator dies there is no other person who is in a position of correcting it. It requires legal process to make changes in a will. In the case of Tony, the adjustment of various acts needs the approval of the court. The court is the only body that can recommend changes to be made in a will.

One way through which I would change unsuccessful bequests is through use of codicils. A will is usually altered by codicils which show that a will is changing as a result of extraordinary happening. A codicil indicates the clause in a will that is supposed to change. It states that the rest of the will remains unchanged. In the case of Tony, I would call the same witnesses who were there when the will was been drafted. I should execute the codicil in the same way the will was been amended. This will help equity to prevail and give the right descendant gift of the deceased beneficiary.

Another way to make changes in the will for unsuccessful bequests is through the use of an executor. An executor is a person who is appointed to administer the property or estate of the testator after his death. The person in this capacity should be very much responsible and in most cases a family member or friend is appointed. He or she provides professional advice in relation to the estate. A solicitor is the best person in this case. I would approach the executor and tell him or her about what happened. This information will be prior to adjustment of some clauses in the will. Since his main work is to help distribute the estate of the testator, it becomes a necessity for him to change clause that provided distribution of property to Euan and give it to Euans descendants.

This change should be reflected in the will and it becomes easy for beneficiaries to get their share without problem. The executor is supposed to apply for probate of the will to court. Probate is a confirmation that the changed clauses make the will to be the final legal draft and that the executor is in charge of administering estate. This is one of the major changes that I would like to make such changes so that the executor will have easy time when distributing the estate. In a will, there are two executors such that if one dies before the testator the other may fill his or her vacancy. In other situations, the two executors may die before the testator. In such a case, the Supreme Court appoints a person who will act in the capacity of an executor. In the case of Tony, I should inform the executor to distribute gift meant for Euan to his descendants. Changes in the will especially the gift of shares to brewer can only be effected through deleting that clause and providing another clause that favors James.

Q.2. McPhail v Doulton
The case of McPhail v Doulton also known as Re Badens trusts was a decision of judges in the law of trusts. The case brings to an end the difference between power and trust such that the two mean the same thing. Mr. Baden executed a deed that aimed at settling trust that is non charitable in favor of Matthew Hall and company staff, relatives, and dependants. The clause stated that trustees to apply net income at their discretion to benefit officers and employees of the company as per the provisions of the trust. This clause did not qualify to be a valid trust thus it was challenged due to its insufficient (Halbach, 1999, p.255). The case was all about discretionary trust that is  a trust  in which the trustee is  given discretion from a class of  chosen people  by  settler should  be  given trust over  property and the  level at which each trustee should  receive.
In such a trust, a settler is appointed to oversee the affairs of the people in a given list of classes. The  class of people  to  benefit  are appointed and a list is passed to the  settler to monitor  how  property will be  distributed  in a trust. The settler is the custodian of the property and he or she should be a responsible person. The settler should be very careful not to allow any person benefit from property of the trust. He should work under the provisions of trusteeship to ensure that only legal beneficiaries get their dues.

Beneficiary of discretionary trust has no power or right to access trusts property or income without the consent of the settler. However, the trustees must be in a position to consider their claims in connection with those of other beneficiaries. In such a case, it becomes very difficult to distinguish trust powers and powers of appointment that are held by trustees in trust agreement. Most discretionary trusts were not recognized as property trust in the past. They did not however help as a way of planning tax liability but in the modern fiscal legislations, it is being recognized as property trust (Oaklay, 1996, p.31). This has helped to collect tax from trustees. Tax collected from property trust is used to manage activities of the trust. The case of Biden reflects how trust and power are related and it tries to define clear definition that shows the difference between power and trusts.

The background of discretionary trust and power in relation to McPhail v Doulton is referred or connected to authorities that constitute a board. The  authorities in early nineteenth century forms  functions that have  changed  the way of handling  settlements to a  level that  may  have astonished lord Eldon. The authority in 1930s established laws that called for individuals to pay high rates of tax. This made some individuals who were wealthy to establish settlements leading to accumulation of funds in the hands of companies and trustees. The practice of accumulating tax spread over to other sectors that led to capital gains in tax. Some individuals did not comply with such provisions and they wanted to avoid payment of tax. This led to establishment of measures to come up with good ways of governance for purpose of good settlement (Hayton, 1999, p.249).

Those who avoided paying tax increasingly influenced the creation of certain forms of settlement. Discretionary trusts and powers have established several authorities who have the power to control trusts. The authoritys power is conferred on them by trustees who are supposed to protect the property and interests of other individuals in a settlement. The authorities are directly concerned with disclosing important information and documents of the trust. The case of McPhail v Doulton settled the issue of trust power test the validity of settlement, trust demand and certainty of trusts object clause.

The case held the test of the trusts to be the same. However, some questions arose in the context of appeal where a difference arose between Court of Appeal and House of Lords. The Court of Appeal on its part took the test to be power while House of Lords held it to be trust. The provision of the case showed how trustees distributed income for their own benefit or benefit of employees, officers, ex-officers or ex-employees of a given company (Birks, 1995, p.23). The relatives or dependants of such persons are also considered to be beneficiaries of property or income. The settler in this case must scrutinize very well legal beneficiaries and non-legal beneficiaries. Ruling of the House of Lords prevents trustees from distributing property or income of the trust in an unprofessional way.

These observations of discretionary trust are the context in which Lord Wilberforce made his observations which were lengthily. Lords observations were very much detailed and there was need for them to be set out in full capacity. The sentiments of trust and power are connected to the rulings made in a Court of Appeal and lords observation. In any particular judgment that is  given by intellectuals,  what  may appear  as  power of distribution related  to trust of disposing undistributed surplus in which ever manner, may  be different in another aspect of learned judgment. In such a case of learned judgment, power of distribution may be viewed as trust for distribution. A normal person may not see the difference between the two terms therefore there is need for a legal expert to interpret the difference between power and trust. The case in McPhail v Doulton to a large extend puts an end to the distinction between these two terms (Hayton, 1999, p.246). Judgment in this case as is given by House of Lords points out that the difference of the two is reduced to one degree.

The judgment of the case as is given by his Lordship Wilberforce noted that authority for this principle was compelling as per the facts of the case. The ruling is clearly connected to certainty of object in discretionary trust which is a requirement in the formation of trust. It is not satisfying to note that the validity of disposition should be influenced by delicate issues such as shading. In addition, an individual should not consider trustees to be competent in their actions. This is because trustees are only given the capacity to handle situations when every thing has been set in the right order.

Validity is the major important factor that must be considered by the relevant parties concerned with execution of powers. The court has no power to compel any party from exercising its power irrespective of the position held by any authority. Trust on the other hand is mandatory and its execution may be compelled. Whether an employee is given power or trust power, he or she benefits through fund. This gives such person to be aware of the fiduciary duties waiting to be executed. The capacity to bestow trust in a particular trustee depends on the experience, knowledge and responsibility to such duties as they are given (Oaklay, 1996, p.45). The person who administers such duties must be a high ranking official who has the capacity to give out orders in an appropriate manner.

Powers and trusts are the most influential elements in respect to execution of duties, authority and responsibility. A person who is not responsible has no power and hence cannot be trusted. Bidens case tries to bring a clear understanding on how the employees, officers, relatives and descendants of a given trust execute the powers of a trust though application of power and authority. The  suitable  person to  fit  in any  area of responsibility can only be appointed when he  or she  has  been trusted  by  officers and members of trust.

To be in charge of a given entity a person must be trustworthy, have power to give orders and also be experienced. When a person is appointed in a trust to be in charge of property and income, his reputation must be of high profile. Any given trustee must be aware of the area of interest. If what he has is power that is not accompanied by trust, then it becomes very hard to execute duties in the right way. The court legally on the other hand, has no power to control trust of an individual. The court can only intervene in a situation where it feels that trustee is not working as per the provisions of the trust (Birks, 1995, 51). A well behaved trustee has knowledge in his or her area of practice. His duty to perform better must be under some guidelines to avoid misappropriation of property. It is the role of the trustee to ensure that each beneficiary was within a given power and that a certain grant meant for him, is appropriate.

A trustee must prove that he or she is responsible enough to oversee distribution of property and income to the right beneficiary even without checking their names from a list. This is a good sign that the trustee has the power and trust in his or her actions. The power and trust of a trustee is similar in different types of activities that yield certain results as per the requirements of a given trust. The common element between trusts and powers is certainty. The two elements provide a common understanding of certainty. In power there are certainties and the same thing applies in trust.

Part One
a.  I want to commit my husband to a mental institution.

In this case, I would ask the wife why she thinks her husband might be better in a mental institution. I would ask questions about the mental capacity of the husband. I would advise her to seek opinion from a psychiatrist or one who is expert in examining the mental behavior of a person before doing anything.

b.  I cant control my teenage son anymore I want him placed in a juvenile home.

I would explain to the client how a child is placed in a juvenile home, the living conditions there, and the consequences of being in that kind of environment before asking anything. It would also be advisable to ask the parent to go to counseling for parents.

c.  I want to put my baby daughter up to adoption.

I would first ask the status of the relationship between the parents of the child. Before doing anything drastic, I would deeply advice the parent to first think about every advice that I gave before deciding anything.

Part two
a.  To assume he or she is about to file for divorce and has hired the law firm where you work as a paralegal.

As a paralegal, I would first ask for the reason why the person want to file for divorce. After finding out the reason, I would explain to the person the proceedings in filing for a divorce as well as the time needed for filing and waiting for the court decree.

b. To assume the spouses acquired considerable wealth during the marriage

c. To make up answers to all the questions you ask

If a person asks for advice about how to obtain a divorce, one of the questions that must be asked by the paralegal is whether or not there is a premarital agreement specially if the spouses acquired wealth during their marriage. If there is, then the properties they acquired would be divided in accordance with their agreed prenuptial agreement.

Answer to question one

The argument of Jim is not valid. The premarital agreement is enforceable because when Jim refused to inquire about the properties of Mary, he waived his right and he made an implied comment that he knows how much Marys assets are, he cannot,afterwards, claim that he was unaware.

A premarital agreement or a prenuptial agreement is a supplemental contract made between prospective spouses that helps define some terms stated in the marriage contract. One of the primary objectives of a prenuptial agreement is to take away rights that the spouses could have had in the assets of each other. This is accomplished by a waiver of rights (Statsky, 2004).

Section 6 of the Uniform Premarital Agreement Act provides that a premarital agreement will not be enforceable if one of the parties did not provide a fair and reasonable disclosure of his or her properties and financial obligations (US Legal, 2010a).

Question two

Do women have enough equality in todays society
Today, there exists an equality of the sexes. If the women make a bad choice when it comes to her premarital agreement, most of the courts have a tendency to force her to live with the consequences. As long as there was a proper disclosure of the identity and value of the others assets and there was no fraud, there exists a proper chance to seek advice from outside counsel and there is no danger of her becoming a public charge. This holds true for the men as well (Statsky, 2004).

Is it more demeaning to a woman to rescue her from a bad agreement or to force her to live in a drastically poorer economic circumstance because of the premarital agreement

Based on my study of the family law, I am of the view that living in an unsuitable environment is far worse than being rescued. In laymans term, if women are to be rescued, the only wounded thing would be their pride. It is not fair to force a woman to live in a circumstance against her liking just because she made a poor choice in signing a premarital agreement. In legal parlance, if the agreement is unconscionable or shockingly unfair to the other party, justice and equity dictate that it must end.

Give specific examples of evidence of damages you think the plaintiff will try to introduce at the new trial.
One very common example of damages that plaintiffs often introduce are moral damages. They can secure a medical certificate from a psychologist or a doctor about the sleepless nights and the anxiety that they claim they have been suffering from in order for the defendant to be held liable.

Give specific examples of evidence of damages she will be forbidden to introduce.
If a new trial is held, the plaintiff can no longer introduce new evidence regarding compensatory damages because if a new trial will be held, it will only be limited to the liability. By this time, the amount of compensatory damages must be fixed already.

Do you agree with the result reached by the court in Stanard v. Bolin, why or why not
I agree with the trial court when it reversed the ruling of Washington State and ruled in favor of the plaintiff. Even if the state does not have a heart balm statute, justice and equity provides that the defendant must be held liable. Defendant was the one who misled the plaintiff into believing that he has a lot of money. He convinced the plaintiff to sell her house and furniture only because he led the plaintiff to believe that she never has to work again after their wedding.

Is marriage a property transaction today
Despite what many people seem to think, the law provides that marriage is not and will never be a property transaction. Marriage is a special contract embarked into by two parties for the purpose of creating a conjugal and family life (IrishTimes.com, 2010).

Question three

Does your state code contain a heart balm statute for breach of contract to marry
The Heart-Balm statute is named after a broken heart that supposedly justified a breach of promise. In this case, the breach of promise can be utilized to compensate the person who was injured as a result of the failure of the relationship (US Legal, 2010b). The Heart-Balm Statute of Florida is found in Chapter 771 of the Florida Statutes. According to this law, all actions for alienation of affection, criminal conversation, seduction as well as actions for breach of contract to marry are abolished (Harrell, n.d.).

Question four
Requirements for entering a valid prenuptial agreement and grounds for annulment.

Section 3 and 4 of the Uniform Premarital Agreements Act provides that the premarital agreement must be in writing and signed by both parties concerned (US Legal, 2010). The other requirements are enumerated in the said law.

Grounds for annulment in your state (Florida).
Florida does not have a law that directly deals with annulment, but many cases support this right for as long as the action must be brought during the lifetime of the parties. Annulment is proper when one of the parties did not consent to marrying their partner or lacked the capacity to contract because of a valid prior marriage, intoxication, mental incapacity. The lack of physical capacity to consummate the marriage is also a ground for annulment (Able Legal Forms, n.d.).

Public use can be defined as an area or a tract of land owned by the government and designated for use by the public. This can range from sidewalks, parks to large interstate highways. One way or another all of us have used a form of public use land either by walking on a sidewalk, relaxing in a park or driving down the interstate. At times the State will need to appropriate areas of private land for the sake of development for the welfare of the general public. It is at this point that we enter into the realm of eminent domain.

Eminent domain is the power possessed by the state over all property within the state, specifically its power to appropriate property for a public use. An example of this is the extension of the stub-end of Highway 58 west from Highway 99 to connect to Bakersfield citys West Side Parkway. The extension is a much needed addition in order to connect the citys dead end freeways to each other bringing much needed relief to the nearly 400,000 metro area residents who need such a connection due to their commuting needs. In exchange though nearly a hundred homeowners will have to forcibly sell their homes to the government so that the extension can be built.

It all boils down to this one question do the needs of the few outweigh the needs of the many In most cases the answer is no. The homeowners will of course be appropriately compensated for their property and the 400,000 urban residents in the area will be able to have their freeway access. It may seem grossly unfair on the part of the homeowners however if you were the metro area residents who had to deal with massive snarl ups in commuting traffic due to congested streets and there was a solution readily available nearby to resolve this issue what do you think you yourself would do In this case the number of metro residents who need the use of the freeway far outweighs the needs of the homeowners.

The case involved Newman Industries Ltd who were supposed to deliver a broiler to Victoria Laundry (Windsor) Ltd. They delayed the delivery by twenty weeks resulting to Victoria Laundry losing a profitable contract. Since government contracts were accompanied by exceptional profits, the plaintiffs sought to know if they could sue for the normal and the extraordinary profits they had foregone. Lord Asquith held that the defendants were only liable for normal profits. This is because loss of normal profits was classified under the first head and was recoverable (Dotstoc.com, 2010). Moreover, loss of exceptional profits fell under the second head and was not recoverable as the defendant lacked prior knowledge that the broiler could harness exceptional profits.
         
A contract is a legal agreement between two or more parties and is enforceable in a court of law. Author Jean-Louis Baudouin argues that courts give financial compensation of damages which correspond to loss suffered and gains foregone due to a breach of contract. He further elaborates that the loss and gain has to be related directly to the breach of promise (article 1611 QCC). This implies that a court can only award damages equal to the gains that the concern parties could have reasonably expected to receive when they signed the contract (Law Essays UK, 2010).
           
In the case of Victoria Laundry, had Newman industries had a prior knowledge that the boilers were subject to extraordinary profits, then they would have been liable for such losses. Moreover, they would have associated the gains on this contract as different and of greater type of risk than the usual risk of losing profit by the cleaning company.  

Regardless of state affiliation, regular employees are entitled of benefits offered by the company. These employees are those who have passed the probation period and are placed on the regular rolls of the company or one who is to perform work directly related to the regular operations of the firm. A regular employee, who is also called a permanent or employee without definite period, may not be terminated in his or her services by the employer without just cause except when authorized by law. Temporary or independent contractors on the other hand are an individual who sells his or her services to an organization but who is not considered an employee of that organization (Kaplin and Lee 2006, p. 259).

The obvious differences between the two include, first, the basis for their employment. Regular employee applied, was hired, on probation for at leased six month, and has passed the probation period. Independent contractors do not undergo this process because they are skilled individuals who work for the company under a particular arrangement. It is in a sense need based contract. Second, is on the basis of applicable labor laws. Regular employees are protected under Federal Labor Standard Act (FLSA), Title VII, and other specific laws that is not applicable to independent contractors.

Exempt and non- exempt employees
The exempt employees are those exempted from the provisions of FLSA. They include executive, administrative, and professional employees who are paid on monthly basis rather on a number of hours. They are exempt from the minimum wage and overtime laws. Non-exempt employees on the other hand are bounded by time clock and time sheets for the purpose of determining the number of hours to be paid.

Basically employers respond to the state law based on merits of the applicable law. In the case of regular employees versus independent contractors, firms respond by complying with the existing federal law that favors them. However, Firms do comply with the existing states law in manner that is appropriate and ethical. This understandable as under the provisions of FLSA and Title VII, an employee can file a suit against the employer who violated its provisions. This is also the case with the exempt and non-exempt employees (Baldwin 1996, p. 34-36).

The internet as a medium of communication has revolutionized the whole concept of communication in the sense that all sorts of speeches are easily disseminated to the intended individual whether it is meant for good or for bad. All categories of internet users including the racists, hate mongers, cyber bullies and terrorists have utilized the internet as a communication hub to execute their heinous crimes. These groups of individuals have used the internet to harass and plan despicable crimes to the innocent law abiding citizens. The First Amendment of the American constitution has provided for the freedoms regarding speech and expression under which communication has been covered. The challenges that have been brought about by the advent of the internet have made the need for a legal framework that could deal with the emergent issues. This area becomes very sensitive as censorship of specific internet information closely borders on the infringement of the crucial First Amendment as provided for in the Bill of Rights (Hardwick, 2010).

The First Amendment
The First Amendment to the US constitution was contained in the Bill of Rights and prohibits the Congress against the passing of any law that could abridge the freedom of speech and expression. The concept of speech has been given broad interpretation by the courts to include both verbal and nonverbal communication. There is a common saying that there is no law without exceptions and the First Amendment has included exceptions of free speech as including obscenity, defamation, breach of peace, incitement to criminal activities, fighting words, and sedition. However, the courts may at times justify these exceptions as speech that is capable of causing a considerable harm to the general public. Under the harm principle, it is argued that the only way the government can rightfully exercise power in any given civilized society is by preventing foreseeable harm to others (Van Camp, 2005). The inadequacy in the First Amendment can be observed since it has loopholes that allows for the protection of what can be considered as offensive, repugnant, and hateful expressions.

Cyber-bullying
Cyber-bullying is an online safety concern that has gotten much attention in the recent past. The proliferation of communications due to the advancement in the technology has been on the rise. The advent of the internet has resulted into increased interconnectivity between individuals making social interactions and activities on social sites like the Facebook, Twitter, MySpace, You Tube, Webkinz, among others gain instant popularity. Even though the increased connectivity has its advantages, the advancement in electronic media has given rise to a social problem that is referred to as cyber-bullying. This is a problem that is mostly associated with children, adolescents, and young adults. Cyber-bullying is a wider concept that includes an action that is aimed at coercing, intimidating, harassing, or causing emotional distress to an individual. Cyber-bullying has been defined as being cruel to others by sending or posting harmful material or engaging in other forms of social cruelty using the internet or other digital technologies (Szoka  Thierer, 2009 Para 7). The technology of today is characterized with free exchanges in text messages, instant messages, blogs, and website comments. Cyber-bullying is all about direct and covert negative social expressions that are conveyed electronically via the internet, cellular phones, and other various forms of digital technologies. There are two forms of cyber-bullying that have emerged which includes peer against peer and anti-authority. In peer against peer, schoolmates and generally young people are involved in the ridiculing and harassment of their age groups via the electronic media. On the other hand, anti-authority cyber-bullying involves the educators and other authority figures being targeted by the bullies who are out to harm their reputation (Shariff, 2009).
There is profound evidence that cyber-bullying is on the increase and that it has devastating repercussions especially for children. The effects of cyber-bullying are great to the victim and may even result in suicide cases. Victims of cyber-bullying are oftenly depressed, and lack self esteem due to the demoralization and character assassination directed towards them. The victims would experience direct emotional distress and this impact on the concentration of the victims since they are preoccupied by the concern of their security. The victims may experience increasing fear and may be tempted to take their lives. The case involving Megan Meier is just an illustration of how cyber-bullying can turn tragic. Megan was a thirteen year old who was bullied on MySpace and was devastated that she resorted to committing suicide. Prior to her death, Megan had received humiliating messages from her bully and considering that the girl had a fragile and difficult background, she committed suicide (Szoka  Thierer, 2009).

Legal and policy vacuum
Cyber-bulling has presented a great challenge to the authorities when presented with the task of controlling and relating the internet use. It is very difficult to monitor cyber-bullying among school going children since it occurs on personal computers and mobile phones when they are out of school environments. The bullies usually have a false sense of security using screen names to enhance anonymity but nevertheless accomplishing their mission of frightening their targets. There is a general lack of knowledge about the roles of stakeholders including the technology corporations, teachers, and news media have to play as policy shapers and their legal responsibilities in proactively handling cyber-bullying. There are two federal approaches that have been employed in an effort to deal with cyber-bullying. The first one is based on the creation of a new federal felony in order to be able to punish cyber-bullies with the imposition of fines and jail sentences to the violators. The other model involves creating awareness about the safety of the internet through education in order to address the issue in the schools and the community. Criminalization of what is mostly child to child behavior will have its challenges in providing solution to childhood mistreatments by fellow children. This issue on children has traditionally been dealt with through counseling and rehabilitation at the home setting. Nevertheless, criminalizing will raise thorny issues regarding the freedom of speech and the issues related to the legal definitions given to harassing and intimidating speech. On the contrary, education and awareness stand a chance of reducing the harmful behaviors in children and avoid the constitutional pitfalls (Szoka  Thierer, 2009).

The First Amendment and Cyber-bullying
Cyber-bullying has been described as the most venal and unbearable abuse of the provisions of the First Amendment. Due to technological advancement, cyber-bullying has continued to evade sanctions that are meant to protect individuals from the traditional abuses like stalking and threats. Online expressions can be permanently saved on personal computers and linked on the internet search list. They can also be forwarded to as many recipients as possible. There are loopholes in the First Amendment that have been abused by the cyber-bullies as seen in the several Supreme Court rulings. The court in Reno Vs ACLU (1997) established that the internet is entitled to the highest level of First Amendment protection, just like the print media. This means that online hate speech could be viewed in the same line as a hate speech pamphlet that is distributed by the outlawed political organizations like the KKK (Hudson Jr, 2009).

The law holds that, unless the hate speech crosses the line into provocation to imminent anarchy or threats perceived to be true, then the speech will have to enjoy the protection of the First Amendment. Most online speeches rarely cross into the unprotected categories of incitement and imminent lawlessness since most will not meet the imminence that is required. A hate message on the website may lead to an unlawful action at some undesignated time in the future and therefore may enjoy the protection of the law. Based on this criterion, some legal experts have argued that new standards are needed in order to fully address hatred speech on the internet. It is obvious that some online speech may fall under the unprotected true threats in the First amendment. However, in Virginia Vs Black case, true threats were defined as statements where the speaker intended to communicate a serious expression of intent to commit a criminal act of violence to either an individual or a group. Therefore, for online speech to qualify to be true threats, then it has to meet the demands of the definition provided above (Hudson Jr, 2009).

Any efforts aimed at the regulation of the internet are faced by the First Amendment huddle under which a considerable portion of the cyber-bullying activities are protected. Though some of the cyber-bullying activities are so grave that they cannot be protected by the First Amendment, still serious questions remain about how best to deal with cyber-bullying. The Supreme Court has recognized threats and has established in the Watts case that threats are punishable in congruence with the First Amendment. It should be noted that the Congress had already recognized and adopted a law that criminalizes electronic threats. Cyber-bullying continues to enjoy protection from the fighting words criterion since the latter can only happen during face to face communication. On issues of libel and slander, the Supreme Court usually crafts criminal sanctions regarding defamatory statements. With the intentional infliction of emotional distress, the Supreme Court has recognized that cyber-bullying activities befit this criterion only when the act is deemed intentional. However, controversies have continued to emerge given the rulings that are at times made by the Supreme Court. For instance, the ruling in a case where Reverend Jerry Falwell sued the publisher of the Hustler Magazine surprised many First Amendment observers.  The Falwell vs. Hustler case casts doubts about the theory of intentional infliction of harm when dealing with cyber-bullying (ONeil, 2009).

Legislature and Cyber-bullying
Social networking on the internet has been a major concern to the authorities and the stakeholders due to the fear of predatory activities of the cyber-bullies. This has elicited various legislative responses with lawmakers coming up with different legislations aimed at containing the menace. States have been engaged in the pushing for age verification, mandates that will enable them to exclude certain age brackets from accessing social network cites. Recently, some state law makers have been of the view that parental consent requirements be expanded based on the framework established by the Federal Childrens Online Privacy Protection Act of 1998. Even though none of these has been put in practice, these proposals have continued to be floated (Szoka  Thierer, 2009).

Following Megan Meiers incident, in May of 2008, a bill that would create a new federal felony was introduced in the house. The bill famously known as the Megan Meier Cyber-bullying Prevention Act was introduced by Rep. Linda Sanchez. In the defense of her bill, she argued that cyber-bullying offense is one area that has avoided penalty for long. She emphasized the need to act upon bullies who are taking advantage of the provisions of the First Amendment to cause harm on children. The bill failed and Sanchez planned for its reintroduction in 2009 as the HB 1966 Act. This second attempt was equally rejected by the public which was indicated by the critical reaction leveled against the bill. The revelation section of the bill involves the definition of cyber-bullying as any transmissions in interstates or foreign commerce of any communication, with the intent too coerce, intimidate, harass, cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, (Cox, 2009 Para 8). In the bill, communication has been defined as the electronic transmission, between or among points specified by the users choosing, without change in the form or content of the information as sent or received (Cox, 2009 Para 12). The bill has been seen as raising the First Amendment concerns which happen to be a great issue to most Americans. Other critics have alleged that the bill would have been faced with constitutional vagueness if enacted and therefore challenged by the First Amendment. In the bill, communication has been defined as the electronic transmission, between or among points specified by the users choosing, without change in the form or content of the information as sent or received, (Cox, 2009).

Some individuals have argued that criminalizing the cyber-bullying is not necessary and that all the cyber-bullying activities can be handled by parents, educators, and the general community. They continue to argue that when the cyber-bullying rises to the level where criminal intervention is necessary, already there are laws in place to deal with the situation. This includes laws in regard to stalking, criminal harassment, felonious assault, among other provisions. As much as I would want to agree with this argument, the government has to recognize the deficiency of our legislature in dealing with the technological expansion that we are experiencing. Technology is always a step ahead of the legislature and it is therefore the duty of legislature to catch up. Nevertheless, parents have the duty to teach their kids on the morals of being good cyber-citizens by monitoring which kind of websites the children browses and generally monitoring the internet activities of their children. Most cyber-bully participants have been found to be having many social issues and this would not require legislation to curb but instead, good parentage is needed.

Employment relations in Vermont are governed by the principles of contract law between the employees and the employers as well as certain federal and state rules that cover all employers potentially (depending on them meeting the criteria laid out in the rules). In these scenarios all sources are considered.

Legal Encounter 1
Pat has been recruited in a senior position within the organization and therefore, although the entire contract hasnt been seen, it is fair to assume that the provisions would be consistent with that of a relatively senior executive. Essentially, the employment relationship is a contractual relationship between the employer and the employee and therefore it is governed by the contents of that contract. Having said that, there are also statutory restrictions that are placed on the way in which employers can act towards employees.

Any employee who does not have a contract in Vermont would be deemed an at will employee, meaning that the employer can fire Pat whenever they choose. Despite this, Pat had an employment contract and therefore he has increased protection based on this fact. There are certain other protections that are in place for Pat, stating that he cannot be discriminated against, for example, he cannot be fired due to issues of race or sex. This does not seem to have been the case here.

He cannot be fired either for asserting some sort of legal right. For example, he could not be fired for reporting health and safety issues. In this case, it is suspected that Pat was fired for asserting his opinion at a local school board. This is not however a protected right and is therefore unlikely to provide Pat with an action.

The most likely cause of action is therefore going to be the clause in the employment contract stating that where performance falls short then there is an agreed management plan in place. This has not been followed and therefore Pat could claim breach of contract and damages pursuant to this. As Pat had relocated and acted in reliance of the role to his detriment he would be able to make a claim against his employer to reimburse him and to put him back in the financial position he would have been if the breach had not occurred.

Legal Encounter 2
There are several potential issues here including the approach being taken by Sam and also the request made by Paula to transfer departments. The employer has a liability (based on the Occupational Safety and Health Act) to ensure that Paula is not exposed to hazardous substances and therefore, pending her change of department, the company is under a federal law duty to ensure that the appropriate checks are undertaken. This is true whether or not Paula is pregnant, but should naturally be taken into account when undertaking this check.

All employers in the Vermont region are governed by the Fair Employment
Practices Act, that prevents acts of discrimination and harassment against any employee. Although the activity has primarily taken place from Sam, he is a senior member of the staff and there is likely to be seen some degree of fault placed on the company for failing to manage the situation accordingly. Some of these provisions only apply to companies with more than 20 employees, but this is amply covered in this case.
No individual can be discriminated against by virtue of their pregnancy, therefore a blanket refusal to transfer Paula to another department could be seen as being potentially discriminatory.

Paula has been harassed by Sam and the company has a duty to ensure that she does not suffer harassment from another member of staff. Failing to manage the position with Sam could potentially render the employer liable to an action from Paula, should she decide to leave her employment as a result. They could potentially also face a claim based on discrimination, for failing to consider a department change due to the fact that she is pregnant.

Legal Encounter 3
This situation is once again governed by the Occupational Safety and Health Act and is dealt with by the Occupational Safety and Health Administration. Each employee has a right to raise health and safety issues with their employer if they feel there is a dangerous situation in the workplace. If the employer fails to deal with this matter then the employee is fully entitled to report the matter to the Occupation Safety and Health Administration. The administration is part of the Vermont Labor Department and deals with enforcing the Act across all employers (including New Corp).

No employee can be discriminated against for filing a complaint with the administration and New Corp needs to ensure that Paul is not treated less favorably as a result of his complaint. He is entitled to refuse to work in the area until the matter is resolved.

Certain specific criteria need to be looked at by the company. For example, the company would need to instigate noise monitoring if it finds itself in a position where an employee is exposed for 8 hours on average to a noise in excess of 85 decibels. The company will need to produce the necessary records to show that it is complying with this requirement, or if it does not need to monitor, it will also need to evidence this fact. Safety records need to be maintained and these should be checked to be seen if they are available and up to date, as it is likely that the administration will undertake an investigation following the complaint made by Paul. Paul should not be forced to work in the offending area and should not be treated unfavorably for making the complaint (which in any event is anonymous).

Creating Goals and a Mission Statement for a Legal Practice
From a legal office management perspective, creating goals and a sense of structure are keys to the continued growth and profitability of the business.  Knowing where the business is headed is a critical part of ensuring it reaches its intended destination. Having a sense of direction also ensures that it does not lose sight of its value to clients. Therefore, six goals (a firm overview) have been established for the law firm, with the needs of the solo practitioner in mind- while also addressing the needs of employees and clients

The first goal is to provide reliable and competitively-priced legal services, and  sound legal advice to all clients, regardless of the level of complexity of the case.

The second goal is to ensure all legal services (including follow-ups) are provided in a timely manner, with the level of professionalism clients deserve.

The third goal is to develop operating proceduresmanuals for staff members and to employ technologically savvy support staff that will work as a team to successfully implement organized record-keeping strategies.

The fourth goal is to develop a better system for keeping client information secured and tracking potential conflicts of interest.

The fifth goal is to relocate to a larger office space that is better-suited for legal services.

The sixth goal is a long-term goal, which is to set aside two hours each week to mentor local high school students interested in entering the legal profession.

The seventh goal, another long-term goal, is to expand to surrounding communities and eventually serve clients state-wide. This will be done by adding partners to the law firm.

Each goal created for this law firm was created with extra consideration being given to what it takes to run an office of any size. Therefore, further explanation will be provided here on the thought process behind each goal.

The first goal was created to address the law firms desire to make profits while also serving its clients as promised.

The second goal was formed on the basis that law firms understand the most basic of client needs, which is to have their legal concerns addressed in a timely manner- since legal matters are usually time-sensitive.

The third goal and fourth goals work in congruently and were designed to address the firms need for good record keeping, and personnel that can ensure confidential client data is secured- yet easily accessible - by authorized personnel, through a secured network.  With the solo practitioner considering a move to a shared office space, this would ensure that client information is not accessible to anyone not permitted to view the files.

The fifth goal deals with the law firms plans to relocate. In order to present a more professional image the sixth goal enables the firm to display its commitment to the community and increase the firms accessibility to potential clients. Successful achievement of this goal will ultimately result in the development of additional offices (which is how the sixth goal will come to fruition) and community development initiatives such as legal workshops for the public.

The seventh goal, which involves adding partners to the firm, was added to broaden the range of services offered by the practice, thereby increasing the client base.

The goals serve primarily as the starting point for the development of a strong, clear and sincere mission statement. The mission statement created is one the firm would use to effectively communicate its vision to affiliates, employees, new and existing customers and the world

As dedicated, experienced legal professionals, our mission is to always treat clients with respect. The relationships formed with our clients are of the utmost importance, as shown in our undying commitment to overreach our customers expectations and deliver principled, professional and affordable legal services to those we serve. We will expand our client base through referrals from loyal clients who can attest to our commitment to excellence, and through our reputation as a firm that knows the law and practices it with integrity, transparency and courage.

The mission statement further illustrates the philosophies the law firm stands behind, and the image the law firm wishes to leave behind for years to come. The mission statement helps with this by, as stated in Strategic Planning Made Easy (2004), acting as the companys compass and guiding the business along the rewarding path to reaching its objectives.

While the solo practitioner does not yet appear to have great organizational skills at this time, if the goals outlined in the firm overview are followed- she will be well on her way to achieving these business goals and other goals as they unfold, during the process of continued business growth.

In this case of Harrison we find that it is based on the law of contract which according to the existing law a contract can be defined as a legal binding obligation created under an agreement between two or more persons that is enforceable by law. Under this case, Harrison is therefore advised to know that there are several elements that make a contract to be valid and this includes the following there must be an offer and an acceptance, there must be an intention to create legal relations, the contract must be under deed or consideration, there must be a contractual capacity, a genuine consent which must not be obtained from mistake, fraud, duress and unconscionability and lastly the contract must be lawful.

Generally, Harrison needs to know that for a contract to exist and to be valid more weight is directed to the intention of creating legal relationship by all parties involved, the law of contract that applies in businesses is generally presumed by the courts that there is an intention to create legal relations unless the parties insert a clause that their agreement shall not be binding by law but shall be binding in honour only. Therefore for this case Harrison he could have considered the following applications

Offer and Acceptance
In this case of Harrison there exist the rule of offer and acceptance, whereby the law provides that an offer may be made to a specific person or to any member of a group of persons but it cannot form the basis of a contract until it has been accepted by an ascertained person. In this case we find that Harrison placed an advertisement in the local newspaper to sell his antidue stamp collection for  300, this clearly indicates that he made his offer to the general public not to a particular person. The law provides that offers made by advertisements are the commonest form of offers made to a number of individuals and can be accepted by anyone just by acting on them. Here we find that on that particular day, Amy phones Harrison telling him that she is willing to buy the collection of stamps for  280, this clearly shows that Amy made an acceptance when she decided to call Harrison, Harrison responds by telling her that he will have to make some considerations then he will have to communicate back to her after making a decision, so here the offer was not clearly accepted by the offeror.

 According to the law Harrison should know that an offer may be made by the word of mouth, in writing or by conduct also an offer can only be accepted by the person to whom it is made, the offer can only be accepted in different modes, which is it can be accepted orally, in writing or by conduct. The law provides that in order to make a contract binding the acceptance must be communicated and mere mental intention to accept it is not sufficient. In this case of Harrison we find that there was communication between him the offeror and Amy the offeree, where she said that she accepts to buy the stamp collection for  280. This is clearly indicated in the case of Felthouse v Bindley, 1862 where F wrote to his nephew offering to buy one of his horses adding  if I hear no more about him I consider that the horse is mine at  30.15 shillings  the nephew did not reply, but told Bindley, an auctioneer, to keep the horse out of the sale of his farm stock as it was sold to the plaintiff. Bindley sold the horse by mistake and F sued him for damages. Held that as the nephew had never communicated his acceptance to F, there was contract of sale, and so the auctioneer was not liable. Therefore in the case of Amy, she can sue Harrison for the damages caused to her since she had communicated her acceptance to buy his stamps.

Declaration of Intention 
By placing an advertisement in the local newspaper we find that Harrison made a declaration for his intention. The law provides that where a person expresses or declares his intention to do a thing or an act, it does not bind him to another person who suffers damage because he fails to carryout his intention despite the fact that someone relied on his declaration and acted on it. The same applies in the case Amy can not sue Harrison as a result of him declaring his intention of selling the stamps to her which he later sold to another person
This is clearly indicated in the case of Harris v Nickerson, 1873 N, an auctioneer, advertised that there would be a sale of office furniture. H, a prospective buyer, travelled from London to attend the sale, but all the furniture was withdrawn. H thereupon sued the auctioneer for the loss of time and traveling expenses. Held that the auctioneer was not bound to sell the furniture as he was merely stating his intention to sell, not making an offer that by acceptance could be turned into a contract

Consideration 
Harrison should know that in his case consideration was applied. He needs to know that the contemporary law provides that a bare promise is not binding unless it is an act or supported by consideration or is in the form of specialty contract. Consideration was defined in Dunlop v Selfridge as an act or forbearance of one party, or a promise thereof, is the price for which the promise of the other is bought, and the promise thus given for value is enforceable. A simple contract is not legally binding unless it is supported by consideration, so that if A promises to give his watch to B, he cannot enforce As promise if A changes his mind. But if A agrees to sell his watch to B for ten pound, the contract is binding on both parties. There is a following benefit to each of the parties i.e. A gets ten pounds and B receives a watch.

In the case of Harrison we find that on Wednesday he receives a call from the Guildhall Fine Art Galleries who indicated their interest in buying the stamps for  400, Harrison did not accept to give out the offer but instead said to think about it, after which he calls Amy to ask whether she has raised the funds for the stamps, where she says not yet. For Harrison not to miss the high price given by the guildhall galleries he calls them and accepts to sell them the stamps at the price they were willing to give him.

 In this case we find that Harrison practiced consideration by reviewing the economic benefits of selling the stamps guildhall galleries, an opportunity he could not wish to waste as a result of waiting upon his friend Amy to buy them at a lower price. Though consideration is required in every simple contract, it need not be adequate as long as it has some economic value. Even as an act or omission of small value can be consideration, but a mere sentimental motive for making the promise will not make it binding. For example a promise to pay 500 pounds by A towards a fundraising project in his area is not enforceable as the consideration is merely sentimental.

This is clearly indicated in the case of Bainbridge v Firmstone, 1838 the plaintiff owned two boilers and agreed to allow the defendant to them, provided they were returned in as good a condition as they were lent. The defendant dismantled the boilers in order to weigh them, and returned them in that state. The plaintiff sued for damages, and the defendant pleaded the absence of consideration for his promise. Held that the consideration was that the plaintiff at the request of the defendant allowed him to weigh the boiler, and he was held liable to pay damages.

Harrison is therefore advised to note that for consideration to support a simple contract may be either executed or executory, but it must not be past. In this case the executed consideration is some value already given by the promisee to the promisor e.g. purchase of goods on credit. The seller has performed his side of the obligation in delivering the goods to the purchaser.

Executory consideration is a promise to do something in the future for example in the above illustration, the consideration for the purchaser of the goods is executory until he pays for the goods received. It may be sometimes executory on both sides, such as where the seller agrees to deliver the goods on a future date and the buyer promises to make the payment on delivery.

Harrison is advised to put in mind that there are rules that should apply in terms of consideration which are as follows Consideration must be real although it need not be adequate. The statement means that it must have some values in the eyes of the law the consideration must not be past. This means some past act or forbearance which took place before the promise is made. Consideration must move from the promisee. This statement means that no one can enforce anothers promise unless he has been a party to a contract, and provided consideration to the promisor. In other words a stranger to consideration cannot sue on the contract although made for his benefit.

Revocation of an Offer 
The law provides that once an acceptance is made it cannot be revoked. An offer may be revoked by an express notice before it is accepted. But acceptance can not be revoked in any circumstances. This means that the moment a person expresses his acceptance of an offer, that very moment the contract is concluded. And it does not matter whether the acceptance is by word of mouth or in writing and sent by post. In this case we find that Amy communicated her acceptance through telephone through which Harrison accepted to give her the offer. According to the law we find that Amy has a right to claim for the stamps, since she had actually communicated her acceptance.

 In the same case we find that Harrison had terminated the offer to Amy who had accepted to buy the stamps, this offer was terminated by revocation meaning it was actually withdrawn by Harrison, we find that the law provides that revocation of an offer must be communicated to the offeree, though not necessarily by the offeror himself, it also provides that it is sufficient if the offeree comes to know of it through any reliable source  meaning that a third party should be involved through whom such a notice of revocation or withdrawal is passed so that the offeree can not accept the offer. The case clearly indicates that Harrison did communicate to Amy about his revocation of the offer by calling her but due to her absence he left the message on the answering machine, this proves that Amy cannot sue Harrison on this issue of buying stamps since he had explained every thing on the answering machine, which Amy claims to have gotten the message after she had sold her vehicle with an intention of buying Harrisons stamps this makes it clear that Harrison carried out his obligation of revoking his offer to Amy, thus- he can not be sued for any damages caused to Amy which came up as a result of her not answering his phone call. This is best explained in the case of Dickinson v Dodds, 1876 on Wednesday, the defendant gave the plaintiff a written offer to sell him his house for 800. The offer was to be left open until next Friday 9.a.m. on Thursday the defendant sold the house to someone else. On that very evening of Thursday, the plaintiff was told of the sale by a third party but before 9 a.m. on Friday, the plaintiff delivered his acceptance to the defendant, which the defendant refused to receive. It was held by the court that there was a proper revocation of the offer and the plaintiff could not accept it. Amy is therefore advised to know that as the result of the use of revocation of the offer by Harrison, she can not therefore claim for the damages caused to her.

Accord and Satisfaction 
In the case of Harrison and guildhall galleries who claim to take the stamps at a lower price than the one agreed upon since they alleged that some of the stamps were forgeries, this makes the representative of the guildhall galleries to force him to take the money or leave it, as a result of fulfilling his needs for the money, Harrison accepts to sell the stamps at a lower price. We have stated earlier that consideration is necessarily not only for making the contracts but also for their discharge. It is however possible to discharge an existing obligation by an accord and satisfaction. Accord and satisfaction occur when one party has performed his obligations under the contract and agrees to accept something different from that to which he is entitled under the contract in discharge of his rights. The same applies in the case of Harrison and Guildhall galleries where He accepts to sell the stamps at a lower price than the one they agreed upon in the beginning. The new agreement is the accord and the carrying out of it is the satisfaction. It is essential that if the new agreement is to be enforceable, consideration should be given by one party in return for the surrender of his rights under the original contract by the other. As a result of accord and satisfaction Harrison is therefore in a position to discharge the contract with guildhall galleries without claiming for the damages caused by the Galleries. Thus the promise of payment of a lesser sum than one which is already due cannot -5 b

Juvenile crime and recidivism have over the years remained critical issues in the society due to their negative implications to the youths and the community.   Unlike other crimes, juvenile related crime and recidivism have been cited to have more negative implications because youths are considered to be critical elements for defining a States future orientation.  In their view, Hess and Hess (2009) indicate that failure to address juvenile crime effectively is the biggest mistake that any State can make.  This paper provides an intrinsic analysis of juvenile crime and recidivism in the state of Oregon to establish the related policies and their introduction, its constitutionality and the extended implications to the society.    

Issue description and analysis 
Juvenile crime and recidivism as Josine and Frieder (2009) indicate form some of the most disturbing aspects in the society.  Many youths turn to crime either due to bad peer influence or involvement in drug abuse.   Josine and Frieder (2009) continue to say that youth involvement in crime should be viewed from various angles during policy formulation.  On average, the Office of Juvenile Justice and Delinquency Prevention report of 2008 indicates that about 2.11 million youths below the age of eighteen years were arrested in the year 2008 (US Department of Justice, 2010).   Though this indicates a drop of three percent on the previous 2007 levels, the numbers are still very high.  In the state of Oregon, recidivism rates remained at 23 in the year 2008, a consideration that has led to key human rights activists criticizing the efficacy of the current correction system (Larry and Brandon, 2008).  Most of the juvenile crimes are committed during the after school hours (3- 6pm) when most of youths go unsupervised.   Psychological analysts such as Erick Erickson and Albert Bandura concur that the trends are mostly influenced or a result of the inadequate capacity of most young people at the tender age in making the correct decisions that may deter the influence of the peer pressure (Larry and Brandon, 2008).

Juvenile delinquency and recidivism prevention policy 
This is a legislative initiated policy established by the Oregon State government through its Juvenile Crime Prevention Advisory Committee of 1999 (Oregon.gov, 2010).  The program was established following the Oregon State governments realization of large amount of money that it was losing to juvenile crime.  Juvenile delinquency and recidivism prevention policy requires the youths to undergo established programs where they are taught on how to avoid getting involved in crime.  Particularly, the policy emphasizes on the need to address the after- school hours by committing youths to after-school sports program as a key strategy to keep them away from negative peer pressure (Hess and Hess, 2009).

Constitutionality 
Notably, the United States strong values for its future are reflected in the emphasis of juvenile justice in all States.  It is therefore a constitutional issue at the federal level as it is reflected in the Federal Statutes Title 42 and Chapter 72 (Josine and Frieder, 2009).   Though key amendments have taken place, the creation of Office of Juvenile Justice and Delinquency in 1974 has been very critical in addressing the thorny issue youth delinquency and recidivism.  In the State of Oregon, Sections 5611 to 5617 of the Juvenile Justice and Delinquency Prevention Act has been emphasized in creating local programs to guide youths in avoiding getting involved in crime and engaging in more constructive activities such as sports (Hess and Hess, 2009).

Effects of the issue to the to the community, accused, and the victims 
Analysts have over the recent years sought to establish the major implications that accrue juvenile delinquency and recidivism in the society.  To the community, juvenile delinquency is highly destructive as it disrupts the correct economic and social-political environment (Hess and Hess, 2009).  Criminal activities are highly destructive and at times may lead to loss of lives in violent crimes.  Most of the community members especially in the inner cities have indicated their fears especially during the danger zone (period between 3-6PM) after school period (Larry and Brandon, 2008).

Taking into consideration the fact that the accused often get into conflict with the law, the implications are very extensive.  United States Department of Justice (2010) points out that, most of them are often caught and incarcerated due to the high resilient nature of delinquency.  However, recidivism acts as a major pointer towards stronger addiction by the youths.  Compared to others, youths involved in crime often exhibit poor cognitive and personality development.

According to Hess and Hess (2009), victims of juvenile crime suffer key damages depending on the nature of crime and its magnitude.  Some criminal activities such as rape have long term implications on the victim while in some other violent cases, they may result in to loss of lives.  Larry and Brandon (2008) explain that though implications are indeed very different, they result to a victim are very painful as they count their losses.
Conclusion 
From the above analysis, this paper concludes by supporting the thesis statement, Juvenile crime and recidivism has over the years remained a critical issue in the society due to their negative implications to the youths and the society.  It came out clearly that juvenile delinquency if not addressed effectively, not only threatens the current generations, but equally denies the state and indeed the country a future.  It is therefore very critical that the policy on Juvenile delinquency and recidivism prevention is further strengthened to facilitate a better future for all.  

The case Braes of Doune Wind Farm (Scotland) Limited v. Alfred McAlpine Business Services Limited relates to the decision of the arbitrator, Mr John Uff CBE QC and the enforceability of the clauses of the Engineering, Procurement and Construction (EPC) Contract between the Claimant, Braes of Doune Wind Farm (Scotland) Limited, the Defendant, Alfred McAlpine Business Services Limited, which provided for compensation for stoppage, and a second contractor, the Wind Turbine Contractor. The Defendant or the Contractor agreed to do the required work on 36 wind turbine generators (WTGs) located approximately 18 kilometers from Stirling in Scotland. The issues dealt in the case refer to the question of the nominated seat of the hearing and the authorized seat of arbitration. Arbitration was decided as the means of conflict settlement in case of any disagreement or quarrel between the parties.

The Claimant approached the Court of England for leave in opposition to the decision of the arbitrator, while the Defendant declared the Court of England had no right to consider the appeal as the designated place of arbitration was Scotland, and the Court of England and Wales had no right to consider the appeal application. However the Claimant counteracts by saying the English Courts were given exclusive jurisdiction by both parties to settle any quarrel stemming from the contract or any act that was against the Arbitration Act 1996. The Arbitration Rules, which are part of the Arbitration Act 1996, state that these rules will be relevant if arbitration is being held in England, Wales or Northern Ireland (CIMAR Rules 1.6b). These rules have clearly mentioned the powers of the arbitrator (CIMAR Rules 4.1, 4.2, 4.3) and by no means does it prohibit the legal rights of the court relating to the arbitration process (CIMAR Rules 1.7).  It was important for the EPC contract to have these rules laid down clearly so as to avoid any kind of ambiguity.

There are different laws that relate to an arbitration law of the contract that determine the parties rights, law agreed by both parties with respect to arbitration, designated seat of hearing and arbitration, orand law of arbitration itself. The rule applied here was Naviera Amazonica Peruana SA v Cia Internacional de Seguros del Peru HYPERLINK httpwww.lexisnexis.comaulegalsearchrunRemoteLink.doservicecitationlangcountryGBrisb21_T3649041361A0.024900372138448312linkInfoGB l LLOYDyear25198825page2511625vol25125sel225125sel125198825bctA t _top 1988 1 Lloyds Rep 116 which states the Law of England does not recognize the concept of a delocalized arbitration, every arbitration must have a seatwhich subjects its procedural rulesin case any party has not chosen the relevant lawactions will have to be set according to that countrys law where the process of arbitration is taking place(1 Lloyds Rep116,1988 p119) . In this case, the seat for the parties implied there must be a country that would control the arbitration. The Defendants representative argued that there was no ambiguity in this matter and the seat was Glasgow, Scotland.

However the court does have the right to consider any application by either of the parties as per the Arbitration Act 1996, Section 69. Reasons include the law of the country judicially controlling the arbitration England and Wales (courts) were given exclusive legal rights according to Clause 1.4.1 which suggests some sort of control, moreover even though arbitration was the sought method of dispute resolution, the parties under part b of Clause 1.4.1 agreed that the English Courts under jurisdiction could deal with disputes under their Law.

The case also states reference is considered to be a reference in case of arbitration as per the Arbitration Act 1996 (Act of Arbitration 1996, Clause 20.2.2). This confirms that the parties had agreed to a reference that had legal rights as according to the Act of Arbitration someone not having legal rights under arbitrational proceedings will not be termed as a reference. With respect to this it is clear the seat decided in case arbitration occurred was Glasgow, Scotland, however the law applied would that be of England and Wales, hence for the Scottish Courts it would be delocalized arbitration.

As for the application for leave to appeal is concerned, compensation due is rarely unenforceable, however under English Law if such compensation is under penalty it will not be enforceable (Dunlop Pneumatic Tyre Co. v New Garage and Motor Co, 1915 AC 79).

For this case the damage penalties were laid out in Clause 8.7 which mentioned penalties for delays with respect to the time taken to complete the contract starting from the issuance date and extension of time if delay caused due to another contractor on site. This had to be decided by the arbitrator who was well established and knowledgeable in the relevant field of construction. Previously a hearing had taken place on 5 December 2007 in Edinburgh about time extensions under the EPC Contract, the judgment of which doubted the arbitrators reliability. The Court can only grant leave against the arbitrators decision if the conditions mentioned in Section 69(3) of the Arbitration Act 1996 are met. The defendants representative argued that the subject raised through the claim was not a Question of Law as it was a question of the contracts formation however it is a question of law as both parties had legally made the law by entering into a contract.

The arbitrators decision is deemed to be right and convincing as the delays were caused by the Wind Turbine Contractor, and as there was no condition about partial achievement of the contract, the 36 WTGs had to be completed only after being connected with the Wind Turbine Contractors work which obviously was not complete and caused delays.

Given respect to the arbitrators experience and judgment, the Claimants appeal was discharged and the Defendant got the leave to implement the decision under Section 66(1).

Conclusion
This case illustrates a great example of arbitration and the different elements arbitration includes. A small error of not mentioning the exact seat of arbitration and the hearing of arbitration can cause huge misunderstandings and conflicts among the parties. It is therefore extremely important for the benefit of all parties under the contract to clearly mention the place of arbitration and the law that will be applied during hearing and any other information that is crucial to the contract. It is advisable that parties should specify a seat without any reference to other laws as that can cause unnecessary complexities.

Another important thing is to make sure the Act of Arbitration has been thoroughly read and understood. In this case also we saw the parties had not understood the clauses well and the distinction between the seat and hearing of arbitration was clearly mentioned in the Act of Arbitration 1996. The case therefore is a great example of how paying attention to minor details while formulating the contract can save the parties from complex situations and disputes.

The case here being discussed is about Dr. George Nicola, his wife Dr. Miriam Nicola and their company George  Miriam Nicola Pty Ltd, versus Ideal Image Development Corp Inc (Ideal) and its officer Mr. Pace. The firm Ideal has been registered as a business in Florida. As per the Nicolas application, Ideal is primarily a franchisor of technologically advanced lasers for hair and skin removal, Botox application and injection therapy. Nicolas claims that on 1st September 2004, they signed an agreement to franchise the business operations of Ideal in Sydney as per the name Ideal Image.

Now the Nicolas complains that the terms and conditions of their agreement were violated by Ideal. The Nicolas claims that Ideal provided them with insufficient assistance and did not possess the quality and standards as agreed upon. Furthermore, Ideal did not have sufficient access to the intellectual property in Australia. Hence, the Nicolas claims that the franchising agreement done with Ideal lies void. And now Nicolas claim that they are entitled to restitution of franchise fees they paid to Ideal and are demanding for the damages they incurred as a result of the breach of contract by Ideal. This demand has been made under Section 52 of Trade Practices Act 1974 (Cth) and 51 AC of the Act. The Nicolas also seek to vary the agreement pursuant to the Independent Contractors Act 2006 (Cth).

Then on 3rd December 2008, the court granted on Ideals request granted permission to resolve this issue outside of jurisdiction and conditionally sought a permanent stay of proceedings. The stay was taken on basis of Arbitration, Enforcement of Foreign Arbitration Agreements and Governing Laws.

As per the franchisee agreement between the two parties any dispute which could not be settled amicably shall be resolved by referring to arbitration with reference from the Rules of the American Arbitration Association. However, as per the agreement both the parties agreed that no punitive damages shall be awarded in any arbitration. Furthermore, the arbitration proceedings shall be conducted by an impartial Arbitrator who must have been actively engaged in practice of law for past five years in Florida State.

The hearings for this arbitration process shall be conducted at Ideals principal place of business in Tampa, Florida. The Arbitrators award shall be final and judgment can be rendered in any court having the jurisdiction to do so. The expenses of hiring the Arbitrators and their fees charged shall be borne by the parties as the Arbitrator defines. The arbitrator shall not be able to extend, modify or suspend the terms of the agreement taken place between the parties in good faith.

Another matter related here is that of Enforcement of Foreign Arbitration agreements. On getting an application of any party to the agreement.  The court can issue an order to stay the proceedings if necessary can refer the parties to arbitration in respect of that matter. The third matter of concern to the Franchise agreement is with respect to the governing law. The governing law here shall be in accordance with the laws of State of Florida. But if any provision contravenes with laws of any state where this agreement has to be performed then that provision shall be modified to the extent necessary to conform to those laws.

Hence, consequently, by virtue of the first two matters Ideal submitted an application to the court that it is bound to stay the Nicolas proceedings. As per Ideals claims the Nicolas are bound by the exclusive jurisdiction of the law of Florida. And the current proceedings are an abuse of process which thus has to be stayed. Thus, the application gave rise to nine other issues.

The first issue was that the agreement clause was to be interpreted by an expert in accordance with the law of Florida. However, Nicolas objection was that such an experts evidence was inadmissible in this case. The second issue was to the proper construction of the cl 31(a) with respect to arbitration. The Nicolas denied Ideals application that their allegations met the description in cl 31(a). The third issue was to the proper characterization of the claims. The fourth issue was about the authority of the arbitrator. The Nicolas claimed that the effect of the cl 31(e) was to prevent the arbitrator from making any orders that would set aside the agreement itself. Ideal however denied that cl 31(e) had that effect.

The fifth issue was pertaining to the role of public policy. Nicolas submitted that the resolution of their proceedings raised important issues touching upon the public interest. They said that in foreign parts litigation was proving to be unsuitable for arbitration. The sixth issue was to the jurisdiction of the Courts of Florida. The Nicolas submitted that cl 40 was not being properly understood. The seventh issue was that Ideal denied that Nicolass claim that arbitrator was not to resolve this issue.

The eighth issue was the third applicant and the second respondents were nonparties to the agreement. The ninth issue was about mediation. Nicolas claim arbitration should not be done unless there was mediation as the arbitration clause. Ideal however replied that Nicolas had waived this point by commencing the present proceedings.

The first issue thus was to identify the content of the law of Florida. Here Ideal took assistance form Mr Michael Gerard Murphy Esquire. He is a law expert in Florida Bar since 1998. And is also the litigation partner with Greenberg Traurig which is a United States firm with more than 1,800 attorneys. His major area of practice is construction law which includes mediation as well. He has been a advocate of stay motions to induce arbitration and is recognizable with the top cases in Florida addressing the span of arbitration clause. Thus, as per Mr. Murphys opinion, the laws of the State of Florida apply here in this case and that nothing can stop an arbitrator from determining this issue. In accordance with the law of any directions by the parties involved.

But there are flaws in Mr. Murphys advice been given. He has identified the laws of state of Florida that are applicable. But he did not clarify their standing in the operations part. His opinion gets inadmissible if these cases are referred. Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 at 371 120 per Gummow and Hayne JJ United States Trust Co of New York v Australia  New Zealand Banking Group Ltd (1995) 37 NSWLR 131 at 136 per Sheller JA Allstate Life Insurance Co v Australia  New Zealand Banking Group Ltd (No. 6) (1996) 64 FCR 79 at 82 per Lindgren J Stern v National Australia Bank Ltd (2000) 171 ALR 192 at 52 per Hill, OConnor and Moore JJ. The opinion fails on the ground that he has failed to expose his process of reasoning. The approach used by him does not expose the difference between the wordings of clauses in the cases he says are relevant and in the wording of cl 31(a). Further, the material presented by Mr. Murphy cannot be all considered valid as all cases are not relevant to the issue under discussion.

So if Ideal failed to prove the contents of the law of Florida then the law of Australia was to be applied to this case. The second case as submitted by Nicolas was of Ideals misconduct in the construction of the cl 31(a). The phrases arising out of or relating to the agreement seems to be taken a different meaning for both the parties. For Nicolas, the meaning is that nothing which relates to the operation of Ideals business can also relate to the operation of their business. Where as for Ideal, everything which relates to the operation of its business also relates to the operation of the Nicolas.

The third issue is pertaining to the characterization of the claims. Nicolass first claim is a series of allegations which it has against Ideal on breaching the terms of the agreement. Each of the claims relates to the deficiencies in Ideals support for the Nicolas in their operation of the franchise. There are allegations to deficiencies in the computer software which was provided by Ideal to Nicolas and also Ideals failure to properly advertise the franchised business. These allegations are so because they have affected the conduct of the operations that were being carried out by Nicolas.

All this had an impact on the smooth running of the business and also on its profitability. These claims do not cease to relate to the operation of the franchised business. Thus, all the claims for the breach of contract are caught by cl 31(a). Further, the Nicolas claim that the royalties paid by them were incorrectly calculated by reference to revenue from which GST had not yet been deducted.

They contend that on its proper construction the agreement provided only for payments of royalty by reference to revenue after the deduction of GST.  In both cases it is apparent that the payments relate to the operation of the franchised business. Franchise fees were paid by the Nicolas as an integral part of their business of operating their franchise, as were the royalties. The question of whether and, if so, to what extent those moneys are recoverable are claims which relate to the operation of the franchised business. They are, accordingly, within the terms of cl 31(a).

The Nicolas alleges that Ideal entered into another franchise agreement with them for the operation of other clinics in return for certain fees. The amended statement of claim refers to this additional agreement as a collateral agreement. The Nicolas complain that Ideal failed to obtain from them certain signed documents which were made legally necessary by the provisions of the Franchising Code of Conduct which was itself made compulsory by the strictures of the TPA. The Nicolas paid Ideal US200,000 towards various fees due under this collateral agreement.

Apparently, the clinics did not proceed and Ideal charged the Nicolas US72,975.16 for back royalties, which included withholding tax.

Consequently, they claim to be entitled to recover the US200,000 for their wasted expenditure on an additional clinic at Double Bay and also to recover from Ideal past and future trading losses at the same clinic. Ideal however pointed out that the first and second applicants were granted license to open and operate a second clinic operating the franchised business within the territory referred to in paragraph 17 hereof, without payment of any further franchise or system fee and upon the terms of the Agreement and the franchise fee and Comprehensive System Fee for the clinic. They were granted license to open and operate three more Ideal franchise clinics severally in additional territories in the Sydney and Melbourne Metropolitan areas.

The pleading by Ideal shows that the collateral agreement was just that collateral. So, the claims made under the collateral agreement are claims for the recovery of moneys paid under the agreement which relate to the conduct of the franchise business. So conclusively, all the claims made here are amenable to arbitration as per the cl 31 (a).

The fourth issue is about the authority of the arbitrator.  The arbitrator shall not extend, modify or suspend any terms of the Agreement as per the cl 31(a). The arbitrator could not exercise a power to set aside or to vary the agreement itself. Since the Nicolas claims for relief included claims for orders setting aside or varying the agreement, it followed that the arbitrator would not be able to deal with those parts of their claims. Ideal submitted the words extend, modify or suspend were not apt to describe the relief sought by the Nicolas.

Ideal submitted that cl 31(e) was directed towards preventing the arbitrator from making interim determinations which would have the effect of extending, modifying, or suspending the operation of the agreement or which would have the effect of amending the standard of the performance required by the franchisee. Ideal also pointed to AAA Rule 7 which confers on the arbitrator a power to determine the validity of the agreement that allows the arbitrator to set aside or vary the agreement. Hence, the Nicolas claims to set aside or vary the agreement cannot be determined under the arbitration clause and hence cannot be described as being claims which are capable of settlement.

Next, the Nicolas submits that those parts of their case which depend upon issues of competition law are not suitable for arbitration and hence should not be the subject of a stay. This involved the invocation of an established principle which keeps from arbitration certain categories of dispute involving issues of public policy or affecting a broader range of persons than the parties to the arbitration. Suits concerning competition law have frequently been cited as examples of claims unsuitable, by reason of public policy, for arbitration.

Next, all claims which, as a matter of law or public policy cannot be submitted to arbitration in accordance with Paragraph 31 shall be brought within the State of Florida in the judicial district in which Ideal Image Development Corporation has its principal place of business.

Thus, it can be concluded, therefore, that the effect of cl 40 is to require all claims between the parties that are not subject to arbitration - in this case those parts of the claims relating to the setting aside of the agreement and the post termination restraint issues - to be determined by the courts of Florida and not by Australian courts. As an alternative submission, Nicolas submitted that this Court would not stay their proceedings if there was a doubt that the courts of Florida could entertain them. Since there is no evidence about the law of Florida on this issue, and since it was less than self-evident that the courts of Florida did have jurisdiction under the TPA (or the ICA), the stay should be refused.

Next the second argument also stands rejected. Much of this part of the Nicolas argument proceeded as if what was involved was not an exclusive jurisdiction clause. But this case is concerned with such a clause and the consequence is that strong cause by the party resisting the stay must be shown otherwise the stay will be imposed. Cases concerned with non-exclusive jurisdiction clauses have no particular relevance in that context.  Hence, on this issue, the Nicolas themselves would need to establish by clear evidence that their claim was not recognizable before the courts of Florida.

The Nicolas made an additional submission that their pleading directly attacked the arbitration clause. The claims to set aside the agreement are not, in fact, within the authority of the arbitrator means that such claims are within the exclusive jurisdiction of the courts of Florida. In those circumstances, the question does not arise. In the eighth issue, the Nicolas next submitted that only they, and not their company, were parties to the agreement. That has the consequence, so they submit that the claim brought by their company George and Miriam Nicola Pty Ltd is within the jurisdiction of this Court and should be permitted to proceed.

Ideal submitted that this was not so because the dispute with the company was part of the same matter as the matter which existed between the Nicolas and Ideal. It pointed to the fact that the companys role in the pleading was essentially only that of a nominee. Lastly, the Nicolas submitted that the matter could not be sent to arbitration until there had been mediation. The Nicolas commenced proceedings in this Court, which is inconsistent with any entitlement to invoke the mediation clause.

The effect of this decision is that the first and second applicants claims to set aside and vary the agreement, together with the matter involving the post termination restraints, must be heard in the court of Florida, but the balance should be arbitrated pursuant to cl 31(a). It follows, therefore, that the whole of their proceedings should be stayed. And the third applicants claim also stays until further order. Hence, Ideal did not oppose the imposition of the following conditions on the stay of the Nicolas proceedings.

The proceedings are stayed upon condition that such stay may be terminated upon application by the Applicants in the event that the First Respondent does not do all things reasonably necessary to be done on its part to have the matters referred to arbitration being determined in accordance with the arbitration agreement between the parties with reasonable expedition. And the parties are to bring in short minutes of order giving effect to these reasons within 7 days. Finally the applicants should pay the first respondents costs of the motion.