legal Free Legal Advice

[Chi-Chi]

hey guys thanks! I overlooked the fact that chen didnt pay anything at all before taking the goods..

 

Chen’s purchase was not a layby sale as it is stated in paragraph (a) of subsection (1) in Section 3 (Section 3(1)a) of the Layby Sales Act 1971 that the goods are not to be given or delivered to the buyer until the purchase price or a specified part or proportion of the purchase price is paid. Chen took the goods with her even before she paid any part or proportion of the purchase price, therefore this is not a layby sale.

 

 

thanks you guys

[Chi-Chi]

6. R v Clarke is a precedent. As such, indicate whether it is binding or persuasive on the following Courts in a similar case:

 

a) The High Court

The Supreme Court

c) District Courts

d) The Court of Appeal

 

 

The case of R v Clarke is about theft and injuring with intent. I dont know what's the answer for this, neither do i understand the question.

Can anyone tell me what the question means ? :/ Idea ko lang ung precedent which is using it as an example or something

[younghermit]

Nice analysis tol. Imodify ko lang ng konti (kung pwede).

 

  NZchick, under the given definition, a layby sale is one which ALWAYS must meet the requirement in 1a, meaning, the goods are not to be delivered to the buyer until the purchase price or a specified part or proportion thereof is paid. PLUS, it  must also meet the requirements of EITHER 1b(i) or 1b(ii). That is why there is an "AND" at the end of 1a and an "OR" at the end of 1b(i).

 

In your problem, the sale could not be a layby sale because it failed to meet the 1a requirement in the first place. Chen took all the goods away before paying a single centavo. Regardless of whether the sale complied with 1b(i) or 1b(ii), the sale can never be a layby sale.

 

Here, it can even be argued that the sale COMPLIED with both  1b(i) and 1b(ii). It complied with 1b(i) because the payment was to be on installment basis payable over a fixed or ascertainable period (at the expiry of one month and then two months from May 10 is an ascertainable period). It does not have to be on a regular basis as younghermit opines for as long as the period is ascertainable. (Actually, I believe "one month and then two months from May 10" falls under what younghermit calls "regular basis" kasi the payment is on a monthly basis na).

 

It can also be argued that the sale  complies with 1b(ii) because there is NO PROHIBITION with regard to the buyer paying the purchase price before the end of the two-month period. Note that  1b(ii) states  "with the option, express or IMPLIED, for the buyer to make payments..." Since there is no prohibition, the buyer can pay even before the period expires.The absence of a prohibition is an implied option which the buyer can avail of.

 

Nonetheless, despite my observations re compliance with 1b(i) and 1b(ii), the sale still cannot be a layby sale because it did not comply with 1a.

 

xxx

Peace.

 

P.S. Pasensya na kung mali ako. He he.

I've got not no problem with the modifications, I never claimed to be an expert in the matter in the first place. Well actually the modifications are actually corrections since I concede that I've misunderstood that part on 1( and that the layby sale should concurrently comply with both par a and b.

Well, at least I got 1(a) right. :cool:

Edited August 5, 2004 by younghermit

[younghermit]

6. R v Clarke is a precedent. As such, indicate whether it is binding or persuasive on the following Courts in a similar case:

 

a) The High Court

The Supreme Court

c) District Courts

d) The Court of Appeal

 

 

The case of R v Clarke is about theft and injuring with intent. I dont know what's the answer for this, neither do i understand the question.

Can anyone tell me what the question means ? :/ Idea ko lang ung precedent which is using it as an example or something

Precedent generally means coming before or at an earlier point in time.

From what I understand about the term "precedent" from the perspective of the law is that particular decisions of the Courts regarding a certain case or factual situation has a "binding effect" or "doctrinal" with respect to those similar cases following later in time (with similar factual circumstances of course). In the study of law there is this latin legal maxim - stere decisis (the phrase in full goes something like - stare decisis et non quieta movere.). The said maxim refers to the practice of Courts to adhere to established precedents or to follow the 'rules' (doctrines) set by those decisions that have been earlier decided. This thus gives stability to the legal system since the future actions or rulings of the Courts can be predicted with reasonable certainty by just studying the Courts' past decisions.

 

Different jurisdictions however have different rules regarding these matters. In the U.S as well in the Philippines, stare decisis is the norm, which means that earlier decisions, more often that not WILL be followed. The Courts however may change its mind and overturn its earlier ruling if it finds sufficient justification. (Sometimes the Courts forget that precedents exist and adopt a neutral stance- not adopting precedents but do not overturn it either)

Germany on the other hand (from what I've heard) do not follow stare decisis, which means that the earlier rulings are applicable only to that particular case and will not affect any other future rulings.

 

For a case to be come a 'binding precedent', the General Rule is that it should have been decided by the Highest Court of the Land. Those decided by the lower courts are merely 'persuasive' but can also be considered as precedents since they came at an earlier point in time.

 

I am not aware of the Rule followed in NZ but if its the same with RP, then:

R v. Clarke as a 'precedent' should be binding on All courts of the land (unless overturned by the Highest Court) . If the same case has been decided by courts other than the Highest Court, it would only have a persuasive value which the Courts can adopt or discard depending on the degree of reasoning employed therein.

(In the U.S. it is a lot more complicated since you have to deal with two types of courts- Federal Courts and State Courts.)

 

I hope my brief discourse was more enlightening than confusing.

[Chi-Chi]

I still cant understand ..

Edited August 6, 2004 by nzchick

[cruiser007]

If I may add to the discourse proferred by younghermit:

 

A precedent is a previously decided case which is recognizd as authority for the disposition of future cases. At common law, precedents were regarded as the major source of law. A precedent may involve a novel question of common law r it may involve an interpretation of a statute. In either event, to the extent that future cases rely upon it or distinguish it from themselves without disapproving of it, the case will serve as a precedent for future cases under the doctrine of stare decisis.

 

Stare Decisis means "to stand by that which was decided". It is a rule to which courts adhere to principles announced in former decisions and often uphold them even though they would have decided otherwise had the question been a new one.

 

With regard to your problem, assume that the case "R vs. Clark" is a decision of the highest court of the land (being aprecedent). From there, determine what effect said case has on similar cases (theft and injuring with intent) brought before the different courts you enumerated in the problem.

 

Hope it helps.

[Coboy_Bebop]

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[Coboy_Bebop]

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[kanto-terrorist]

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[totoybola]

hey guys thanks! I overlooked the fact that chen didnt pay anything at all before taking the goods..

 

Chen’s purchase was not a layby sale as it is stated in paragraph (a) of subsection (1) in Section 3 (Section 3(1)a) of the Layby Sales Act 1971 that the goods are not to be given or delivered to the buyer until the purchase price or a specified part or proportion of the purchase price is paid. Chen took the goods with her even before she paid any part or proportion of the purchase price, therefore this is not a layby sale.

 

 

thanks you guys

Roger.

[Cyber_pinoy]

Just dropping by people. Check out my signature... Vols. 1 to 73 of my SCRA is for sale!!!

 

Sorry off topic

[kringkringshaw]

I have the same case. I was married for a year and a half, not aware that my husband is previously married with 3 kids since 1992, well... accepted ko sana yung first wife coz they are separated since 1996 DAW!! kaya lang.... since,

Im working here in US i went home last May to be with my husband, ( his always away for field works DAW!) nag ka chance ako to open his luggage coz his going to UK daw for study grant in Kent, UK after my vacation. MY GOSH! i found out that he got married again for the third time to his GF in UK na nurse and his planning to disappear coz the third wife was aware that he has 2 wife na kaya she is trying to petition him to be with her in UK. Kaya lang di pa sya nakaka alis ng pinas until now... maybe his still waiting for the approval from the embassy. Ako naman si gaga na sa dami ng nanliligaw at ka dalagang tao pumatol sa kanya na walang ka alam alam sa pag katao nya. I won't mention any names coz he is a member in MTC an active user pa nga eh, baka isipin nya sinisiraan ko sya.

 

Anyway right now... i want to file for Declaration of Nulity kaya lang since im still here in US di ko ma asikaso. In my case... how long do you think it will take for me to be free again??? any idea members?? Im willing to pay a good price kung ma annul in less than 6 months.

[coychee]

I have the same case. I was married for a year and a half, not aware that my husband is previously married with 3 kids since 1992, well... accepted ko sana yung first wife coz they are separated since 1996 DAW!! kaya lang.... since,

Im working here in US i went home last May to be with my husband, ( his always away for field works DAW!) nag ka chance ako to open his luggage coz his going to UK daw for study grant in Kent, UK after my vacation. MY GOSH! i found out that he got married again for the third time to his GF in UK na nurse and his planning to disappear coz the third wife was aware that he has 2 wife na kaya she is trying to petition him to be with her in UK. Kaya lang di pa sya nakaka alis ng pinas until now... maybe his still waiting for the approval from the embassy. Ako naman si gaga na sa dami ng nanliligaw at ka dalagang tao pumatol sa kanya na walang ka alam alam sa pag katao nya. I won't mention any names coz he is a member in MTC an active user pa nga eh, baka isipin nya sinisiraan ko sya.

 

Anyway right now... i want to file for Declaration of Nulity kaya lang since im still here in US di ko ma asikaso. In my case... how long do you think it will take for me to be free again??? any idea members?? Im willing to pay a good price kung ma annul in less than 6 months.

your case can be resolve faster by the court compared to other nullity cases (psycholigical capacity) like since your ground is bigamous marriage and all you need to present in evidence are the two marriage certificates.

 

however, im not sure if it can be resolved in less than 6 months. it depends on where you will file your case and the judge who will hear it.

[younghermit]

I still cant understand ..

Which part do you not understand?

 

Let's try to directly address the problem:

 

Short answer. (assuming that the jurisdiction adopts the principle of stare decisis)

1.) If P. v. Clarke is decided by the highest court- it is a binding precedent. Then all courts in the future from the lowest to the highest will be bound to follow it in so far as it is applicable.

2.) If P. v. Clarke is decided by any lower court (other than the highest court) it will only have a persuasive effect (not binding, but maybe adopted) with respect to all the courts of the land, until the Highest Court makes a definite ruling thereon.

The degree of persuasiveness is greater depending on the level of the court which decided it. Hence, a court of appeals decision will be more persuasive than a decision issued by the lowest court of the land.

 

Another Analysis part:

P v. Clarke is a decided case right?

The facts however do not disclose which Court have issued the FINAL Ruling on the case. Take note that even decisions of lower courts can become final for failure t file the necessary appeal during a definite period.

 

So if P. v. Clarke decided by the Highest Court of the Land (I don't know which Court in NZ is that but here in RP its the Supreme Court), then it becomes a BINDING PRECEDENT if the jurisdiction adopts the principle of stare decisis.

If the jurisdiction does not follow stare decisis, the case (P. v. Clarke) can not be used in other cases, in other words, not binding nor even persuasive.

Lower Courts can not disregard BINDING PRECEDENTS, and they have to follow it for such cases have the force of law or they would risk being overturned by a higher court on appeal. Only the Highest Court can overturn such Binding Precedents.

 

Let us now assume that NZ follows stare decisis (otherwise, further discussion would be pointless)

Now if P. v. Clarke was decided by Courts other than the Highest Court of the Land, then it is still a precedent (because it was decided at an earlier time) but it is NOT a BINDING PRECEDENT. This means that the reasons therein (in the case of Clarke) only have a Persuasive nature, which the Courts can adopt or disregard.

 

Now all the above, applies only to the "Doctrines" (rules of law) enunciated by the Case - that is the subject matter which the case intends to address. So in our example P. v. Clarke deals with "theft" and "injuring with intent", so it will apply to:

1.) All cases with facts similar to P. v. Clarke

2.) Theft cases with "injuring with intent" in so far as the reasoning in P. v. Clarke is applicable.