PRESBYTERIAN UNIVERSITY COLLEGE, KUMASI CAMPUS
FACULTY OF LAW
PLAW 153: LAWYERS AND SOCIETY
Aim: The primary aim of the course is to create opportunity for students aspiring to become law graduates and lawyers
- To understand the role of lawyers in building a better society
- To appreciate the close relationship between legal profession and the quest of society to build a Rule of Law society
- To know how to use the legal knowledge to help society
- To know and critically understand the main theories of the profession
- To understand and apply a range of inter-disciplinary theoretical approaches (sociological, historical etc) , to specific case studies within the legal profession reflecting critically upon lawyers' claims
- To demonstrate critical awareness of the implications of the current organisation and culture of the legal profession for its capacity to exercise its traditional functions
- To demonstrate ability to compare, analyse and synthesise the principal rules and theories relating to popular culture
1. Portrayal of lawyers in Literature and Popular Culture
2. Legal Education in Ghana
3. Role of Lawyers in Ghana’s Development of Democracy and Rule of Law
4. The Development, Current State and Likely Shape of Legal Profession
5. Ethics of lawyering, the legal Profession and Legal Services- An Introduction
6. Access to Justice/Legal Aid and Cause Lawyering
7. Role of lawyers in Creation of Just Society
8. Portfolio of Practical Activities Oriented towards Skills Building: Court Visits; Visits to Prisons and other Law related Organisations
Mode of Delivery
2 hour lecture
1 hour community law clinic
Representative Reading Materials ( We will be picking from these as needed.)
- Abel, R. L., & Coleman Lewis, P. S. ( 1988). Lawyers in Society: The Common Law World Oxford, UK
- Albiston, C. (1999). “The Rule of Law and the Litigation Process: The Paradox of Losing by Winning.” Law & Society Review 33: 869-910.
- Balbus I. (1973). “Commodity Form and Legal Form: An Essay on the ‘Relative Autonomy’ of the Law.” Law & Society Review 11: 571-588.
- Baxter, H. “Niklas Luhmann’s Theory of Autopoietic Legal Systems,” Annual Review of Law & Social Science 9: 167-84.
- Berman H. J. (1983). “Introduction.” Pp. 1-45 in Law and Revolution: The Formation of the Western Legal Tradition. Cambridge, MA: Harvard University Press.
- Bliss, J. (2016). “Divided Selves: Professional Role Distancing Among Law Students and New Lawyers in a Period of Market Crisis.” Law & Social Inquiry DOI: 10:1111/lsi.12204. First published online, May, 2016.
- Bourdieu, P. “The Force of Law: Toward a Sociology of the Juridical Field,” Hastings Law Journal 38: 814-43.
- Burstein, P. (1991). “Legal Mobilization as a Social Movement Tactic: The Struggle for Equal Employment Opportunity,” American Journal of Sociology 96:1201-25.
- Charles, R. (1998). The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective. Epp. Chicago and London: University of Chicago Press.
- Charrad, M. M. (2001). States and Women’s Rights: The Making of Postcolonial Tunisia, Algeria and Morocco. Berkeley, University of California Press.
- Coser, L. (1984). “Introduction,” Pp. ix-xxiv in The Division of Labor in Society, Emile Durkheim. New York: Free Press
- Desmond, M., & Valdez. N., (2013). Un-policing the urban poor: Consequences of third-party policing for inner-city women. American Sociological Review, 78(1), 117-141.
- Dezalay, Y. &. Garth, B. G. (1995). “Merchants of Law as Moral Entrepreneurs: Constructing International Justice from the Competition for Transnational Business Disputes,” Law & Society Review 29 (1): 27-64
- Dinovitzer, R., Reichman, N. J & Sterling J. S. (2009). “The Differential Valuation of Women’s Work: A New Look at the Gender Gap in Lawyers’ Incomes.” Social Forces 88(2): 819-864.
- Dobbin, F. & Dowd, T. (2000).”The Market that Antitrust Build: Public Policy, Private Coercion and Railroad Acquisitions, 1825-1922.” American Sociological Review 65: 631- 657.
- Dobbin, F., & Sutton, J. R. (1998). “The Strength of a Weak State: The Rights Revolution and the Rise of Human Resources Management Divisions.” American Journal of Sociology 104: 441-476.
- Dobbin, F., Sutton, J. R., Meyer, J. W & Scott, W. R. (1993). “Equal Opportunity Law and the Construction of Internal Labor Markets.” American Journal of Sociology 99: 396- 427.
- Earl, J. (2003). “The Gay 90s? Models of Legal Decision-Making, Change and History.” Journal of Historical Sociology 16(1): 111-134.
- Edelman, L. & Stryker, R. (2005). “A Sociological Approach to Law and the Economy,”
- Edelman, L. B. & Suchman, M. C. (1997). “The Legal Environments of Organizations.”Annual Review of Sociology 23:479-515.
- Edelman, L. B. (1992). “Legal Ambiguity and Symbolic Structures: Organizational Mediation of Civil Rights Law.” American Journal of Sociology 97: 1531-76.
- Edelman, L. B., Erlanger, H., & Uggen, C. (1999). “The Endogeneity of Law: Grievance Procedures as Rational Myth.” American Journal of Sociology 105: 406-54.
- Edelman, L. B., Krieger, L. H., Eliason, S., Albiston, C., & Mellema, V. (2011). “When Organizations Rule: Judicial Deference to Institutionalized Employment Structures,” American Journal of Sociology 117: 888-954.
- Espeland, W. N. (1998). The Struggle for Water: Politics, Rationality, and Identity in the American Southwest. Chicago, IL: University of Chicago Press.
- Ewick, P. & Silbey, S. (1998). The Common Place of Law: Stories from Everyday Life. Chicago: University of Chicago Press, Introduction, Chapters 1-2, Chapters 7-8 and Appendix A (these are pp. 3-53 and 223-261)
- Ewing, S. (1987). “Formal Justice and the Spirit of Capitalism: Max Weber’s Sociology of Law.” Law & Society Review 21: 487-512.
- Feeley, M., M. (1979). The Process is the Punishment. New York: Russell Sage Foundation.
- Felstiner, W., Abel, R., & Sarat A. (1980). “Emergence and Transformation of Disputes: Naming, Blaming and Claiming,” Law & Society Review 15: 631-654
- Forbath, W. E. (1991). Law and the Shaping of the American Labor Movement. Harvard University Press.
- Foucault, Michel (1975). Discipline and Punish: The Birth of the Prison. Random House.
- Frohman, L. (1997). “Convictability and Discordant Locales: Reproducing Race, Class and Gender Ideologies in Prosecutorial Decision-making.” Law & Society Review 31: 531-556.
- Galanter, M. (1974). “Why the Haves Come Out Ahead.” Law & Society Review 8: 95-160. Beth Harris. 1999. “Representing Homeless Families: Repeat Player Implementation Strategies.” Law & Society Review 33: 911-39
- Garland, D. (1990). Punishment and Modern Society: A Study in Social Theory. Chicago: University of Chicago Press.
- Granfield, R. (1992). Making Elite Lawyers: Visions of Law at Harvard and Beyond. New York: Routledge.
- Grasmick, H. G. &. Bursik, R. J. Jr. (1990). “Conscience, Significant Others and Rational Choice: Extending the Deterrence Model.” Law & Society Review 24: 837-861.
- Haglund L. D. & Stryker, R., (2015). Closing the Rights Gap: From Rights to Social Transformation, editors. University of California Press, Introductory and Concluding Chapters, “Making Sense of the Multiple and Complex Pathways through which Human Rights are Realized,” “Emerging Possibilities for Social Transformation.” Handbook of Economic Sociology, 2nd Ed, edited by Neil Smelser and Richard Swedberg. Princeton: Princeton University Press.
- Heimer, C. A. & Staffen, L. R. (1998). For the Sake of the Children: The Social Organization of Responsibility in the Hospital and the Home. Chicago: University of Chicago Press.
- Hirsch, C. E. (2009). “The Strength of Weak Enforcement: The Impact of Discrimination Charges, Legal Environments, and Organizational Conditions on Workplace Segregation.” American Sociological Review 74: 245-71.
- Hull, K. E. (2003). “The Cultural Power of Law and the Cultural Enactment of Legality: The Case of Same Sex Marriage.” Law & Social Inquiry 28: 629-657.
- Hyde, A. (1983). “The Concept of Legitimation in the Sociology of Law.” Wisconsin Law Review 1983(2): 379-426.Excerpt from Tom Tyler, Why People Obey the Law, New Haven: Yale University Press, 1990, pp. 474-485 in Law & Society: Readings on the Social Study of Law, edited by S. Macaulay, L. M. Friedman and J. Stookey, WW. Norton. 1995.
- Skrentny, J. (2006). “Law and the American State,” Annual Review of Sociology 32: 213-244.
- Kagan, R. (2001). Adversarial Legalism: The American Way of Law. Cambridge: Harvard University Press.
- Kalev, A. & Frank, F. (2006). “Enforcement of Civil Rights Law in Private Workplaces: The Effects of Compliance Reviews and Lawsuits over Time.” Law & Social Inquiry 31: 855-903.
- Kalev, A., Dobbin, F. & Kelly, E. (2006). “Best Practices or Best Guesses? Assessing the Efficacy of Corporate Affirmative Action and Diversity Policies.” American Sociological Review 71: 589-617.
- Kostiner, I. (2003). “Evaluating Legality: Toward a Cultural Approach to the Study of Law and Social Change.” Law & Society Review 37: 323-68.
- Leahey, E. & Hunter. L. A. (2012). “Lawyers’ Lines of Work: The Role of Specialization in the Income Determination Process.” Social Forces 90(4):1101-1132.
- Levi E. H. (1949). An Introduction to Legal Reasoning, University of Chicago Press.
- Liu S. (2013). “Legal Profession as a Social Process: A Theory on Lawyers and Globalization.” Law & Social Inquiry 38(3): 670-693.
- MacKinnon. C. A (1983). “Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence.” Signs 8:635-658.
- Marshall, A. M. (2005). “Idle Rights: Employees’ Rights Consciousness and the Construction of Sexual Harassment Policies.” Law & Society Review 39:83-124.
- Marx K., (1841). "Debates on the Law on Thefts of Wood." Excerpt reprinted pp. 128-139 in Treviño A. J. (1996). Sociology of Law: Classical and Contemporary Perspectives. St. Martin's Press.
- Max Weber, Excerpts from Economy and Society "1. Domination and Legitimacy," “2. The Three Pure Types of Authority,” and “8. Substantive Law and Procedure,”
- McCammon, H. (1990). “Legal Limits on Labor Militancy: U.S. Labor Law and the Right to Strike since the New Deal.” Social Problems 37: 206-229.
- McCammon, H. J. (1993). “From Repressive Intervention to Integrative Prevention: The U.S. State's Legal Management of Labor Militancy, 1881-1978,” Social Forces 71: 569-602.
- McCann, M. (1994). Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization, Chicago, University of Chicago Press
- McCann, M. W. (1998). “How Does Law Matter for Social Movements?” Pp. 76-108 in Bryant Garth and Austin Sarat, How Does Law Matter? Chicago: Northwestern University Press.
- Megan, C. (2009). Doing time together: Love and family in the shadow of the prison. Chicago: University of Chicago Press.
- Morrill, C. (1995). The Executive Way: Conflict Management in Corporations. Chicago: University of Chicago Press.
- Neilson, L. B., Robert, N. & Lancaster, R. (2010). “Individual Justice or Collective Legal Mobilization: Employment Discrimination Litigation in the Post-Civil Rights Era.” Journal of Empirical Legal Studies 7: 175-201.
- Nelson, R. & Bridges W. P. Legalizing Gender Inequality: Courts, Markets and Unequal Pay for Women in America. Cambridge: Cambridge University Press. Chapter 1 (pp. 1-22) and Chapter 9 (pp. 309-363).
- Nielson, L. B. (2000). “Situating Legal Consciousness: Experiences and Attitudes of Ordinary Americans about Street Harassment,” Law & Society Review 34: 1055-1090.
- Nielson, L. B. and Albiston, C. (2006). “The Organization of Public Interest Practice: 1975-2000,” North Carolina Law Review 84: 1591-1622.
- Page J. (2011). The toughest beat: Politics, punishment, and the prison officers union in California. New York: Oxford University Press.
- Pager, D. (2007). Marked: Race, Crime and Finding Work in an Era of Mass Incarceration. Chicago: University of Chicago Press.
- Paik, A., Southworth, A. & Heinz, J. P. (2007). “Lawyers of the Right: Networks and Organization.” Law & Social Inquiry 32(4): 883-917.
- Pedriana, N. & Stryker, R. (2004). The Strength of a Weak Agency: Early Enforcement of Title VII of the Civil Rights Act of 1964 and the Expansion of State Capacity, 1965- 1971. American Journal of Sociology 110: 709-760.
- Pedriana, N. & Stryker, R. (2013). “’Effects-based’ Civil Rights Law: Comparing US Voting Rights, Equal Employment Opportunity and Fair Housing Legislation.
- Pedriana, N. & Stryker, R. (2017). “From Legal Doctrine to Social Transformation: Comparing US Voting Rights, Equal Employment Opportunity and Fair Housing Legislation. American Journal of Sociology 123(1). July.
- Powell W. W. (1996). “Fields of Practice: Connections between Law and Organizations.”Law and Social Inquiry 21: 959-966.
- Reiter, K. (2016). Reclaiming the Power to Punish: Legislating and Administrating the California Supermax, 1982–1989. Law & Society Review, 50(2), 484-518.
- Rueschemeyer, D. “Comparing Legal Professions Cross-Nationally: From a Professions- Centered to a State-Centered Approach. “ American Bar Foundation Research Journal 11(3): 415-446.
- Sarat A. & Scheingold, S. (1998). Cause Lawyering: Political Commitments and Professional Responsibilities, eds., Oxford University Press.
- Sarat, A. (1990). “...The Law Is All Over” Power, Resistance and the Legal Consciousness of the Welfare Poor.” Yale Journal of Law & the Humanities 2: 343-379.
- Sarat, A. (1998). “Going to Court: Access, Autonomy, and the Contradictions of Liberal Legality,” Chapter 4 (pp. 97-114) in David Kairys, editor, The Politics of Law.
- Savelsberg, J. “Knowledge, Domination and Criminal Punishment,” American Journal of Sociology 99: 911-943.
- Savelsberg, J. J. (2010). Crime and Human Rights: Criminology of Genocide and Atrocities. Sage Publications.
- Scheingold, S. A. (2004). The Politics of Rights: Lawyers, Public Policy and Social Change, 2nd Ed, Ann Arbor, MI, Univ. Mich. Press.
- Segal, J. A. & Spaeth, H. J. (1993). “Models of Decision Making.” Pp. 32-73 in The Supreme Court and the Attitudinal Model. Cambridge: Cambridge University Press.
- Seron C. & Silbey S. S. “Profession, Science, and Culture: An Emergent Canon of Law and Society Research” The Blackwell Companion on Law, edited by Austin Sarat.
- Shoenfeld, H. “Mass Incarceration and the Paradox of Prison Conditions Litigation,” Law & Society Review 44: 731-768.
- Silbey, S. (2005). “After Legal Consciousness,” Annual Review of Law & Social Science 1: 323-368
- Simon, J. (2007). Governing through Crime. New York: Oxford University Press.
- Skaggs, S. (2009). “Legal-Political Pressures and African-American Access to Managerial Jobs.” American Sociological Review 74: 225-244.
- Steinberg, M. (2003). “Capitalist Development, the Labor Process and the Law.” American Journal of Sociology 109: 445-95.
- Sterling J. S. & Reichman, N. J. (2010). “So You Want to Be a Lawyer? The Quest for Professional Status in a Changing Legal World.” Fordham Law Review78 (5):2289- 2314.
- Sterling J. S., Dinovitzer, R., and Garth, B. G. (2007). "The Changing Social Role of Urban Law Schools.” Southwestern University Law Review 36: 389-443.
- Stone A. (1985). “The Place of Law in the Marxian Structure-Superstructure Archetype.” Expert reprinted pp. 149-161 in Treviño, A. J. (1996). Sociology of Law: Classical and Contemporary Perspectives. St. Martin's Press.
- Stryker, R. & Pedriana, N. (1997). “Political Culture Wars 1960s Style: Equal Employment Opportunity-Affirmative Action Law and the Philadelphia Plan.” American Journal of Sociology 103: 633-691.
- Stryker, R. (1994). “Rules, Resources and Legitimacy Processes: Some Implications for Social Conflict, Order and Change.” American Journal of Sociology 99: 847-910.
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PRESBYTERIAN UNIVERSITY COLLEGE, KUMASI
FACULTY OF LAW
LAW OF CONTRACT 1
Dr. Ernest Owusu-Dapaa
This handbook details the main points you need to be aware of in relation to Law 151 Law of Contract 1. Read it carefully (it isn’t long), and return to it when you have administrative queries to see if the information is here, before asking academic or administrative staff of the Faculty.
The Subject Matter
Contracts are the primary way in which business of all kinds is transacted. A contract is a legally enforceable agreement between two or more parties, for a breach of which the law provides a remedy. A knowledge of contract law is vitally important to the lawyer in practice in advising clients on the drafting of their agreements. A lawyer needs to know how a court would interpret the agreement in the event of litigation (the word we use to mean the process of taking a case through the courts). S/he also needs to know where the courts would imply terms and what terms they would likely imply, and to know what terms are forbidden by law, etc. Furthermore, s/he, in advising clients in the case of a contract dispute, needs a thorough knowledge of contract law in order to advise on what a court would likely do, and, therefore, how best to approach settling the dispute without going to court.
The law of contract deals with the way the world does business – in the broadest possible sense. You have clothes on today? Well, you got them through a contract you made with the shop and you probably paid for them using a bank or credit card, which you use courtesy of a contract with the card issuer; the shop got the clothes from wholesalers or manufacturers via a contract; they travelled to the shop via ship, plane, lorry, van – all because of contracts of carriage of goods; if they were imported, then there will have been some sort of international payment mechanism, another contract, and chattel security, another contract; the manufacturer has the money for machines and materials because it has a contract with its bank; the clothes are made by workers who work because they have a contract of employment with the manufacturer; they don’t die of starvation because they make contracts to buy food; they have cloth to work with because the manufacturer has a contract to buy it from a cloth mill; the cloth mill has contracts with its bank, with its workers, with the suppliers of the raw materials; all these people also buy clothes, which…. It goes on and on – there’s nothing simple about a simple tee-shirt or pair of jeans. Then think: did you wake up today in a building? Think about all the contracts it took to get that built…
Contract is the way we plan virtually all enterprise, one of the most important ways enterprises control risks and decide what to produce. The study of contracts is about understanding the way contracts work and, yes, understanding the rules and principles by which courts decide disputes about contracts.
The law of contract plays a vital role in many other areas of law, too: criminal law (where the offence involves offering for sale, or where the existence of a contract might be a defence – you bought the goods rather than stealing them, for example); medical law (all that private treatment; the pharmaceutical business; doctors’ contracts); land law (you can’t buy land without a contract); employment law (were new terms of the employment legally incorporated?); trusts law (a whole can of worms there – understanding contracts is absolutely vital to understanding trusts); and lots of others, one way or another.
Contracts is probably the single most important area of legal knowledge in a commercial law firm. Many smaller firms also consider themselves to be more or less ‘commercial’. But contract law matters outside the commercial law sphere as well: contracts are at the root of consumer rights and employment law, so-called ‘pre-nups’ (pre-marriage agreements about the parties’ assets), buying a house, and becoming a partner in a law firm... Contract is, quite rightly, specified by the General Legal Council as a compulsory subject in all qualifying law degrees.
So, contract is a vitally important area. Is it easy? Sorry: no. If you studied physics, say, you’d study the easy physics in the 1st year, harder physics in the 2nd year, and the hardest physics in the 3rd and 4th year. Law just doesn’t work like that. Because there is so much that you need to know about certain areas of law before you can study other areas properly, we have to do some of the toughest stuff (like contracts) in the 1st year of law. We will do our best to make it comprehensible – but it isn’t easy and you will have to make a considerable effort. Contract is a case based, or ‘common law’ subject. That is to say, that there aren’t many Acts of Parliament concerning contracts – the law is almost all derived from studying different (sometimes apparently conflicting) lines of judgments given over many years. So you will have to read a lot of cases. This does not mean reading about cases in your textbook. It means you will have to read actual case reports – some of them in full (we will tell you which ones, as a minimum, you must read in full), while for some a few excerpts or the headnote will suffice.
EDUCATIONAL AIMS AND OBJECTIVES
Educational Aims: Subject Specific: Knowledge, Understanding and Skills
his module aims to provide you with knowledge and understanding of different aspects and general principles of contract law. To this end, the module gives you an overview of the requirements for the formation of contract, consideration, terms, interpretation and enforceability of contract, vitiating factors, damages and other remedies. In particular, the module aims to enable you
develop knowledge and understanding of the general principles and traditional approaches of English contract law as received under Ghanaian law and compare them with alternative models and techniques;
develop independent thinking and think practically in this field, and apply the legal rules and principles you have learned to specific situations;
develop the ability to identify and analyse problematic issues within the law of contract; and
gain an analytical and critical approach to contract law and an awareness of social, policy and other issues that can impact on contractual relations, including fairness, inequality of bargaining power and public policy.
Educational Aims: General: Knowledge, Understanding and Skills
The module aims:
to provide students with the chance to develop their communication skills, both written and oral
to encourage students in the development of self-organisation skills (meeting reading and coursework deadlines etc)
to develop students’ critical and problem solving skills in analysing complex source materials and developing and justifying their ideas
to develop students’ research and referencing skills, including the use of electronic resources
Learning Outcomes: Subject Specific: Knowledge, Understanding and Skills
On successful completion of this module students will be able to:
1. demonstrate knowledge and understanding of the law on the topics covered on the module, using appropriate concepts, interpretative techniques and terminology;
2. identify and analyse (with guidance) the general concepts and principles relating to contract law, together with related theories and academic commentary;
3. research a legal question and demonstrate competence in applying contract law in order to formulate and evaluate a response to it;
4. demonstrate competent understanding of some of the relevant legal practice, social, economic, political, historical, philosophical, ethical and cultural contexts within which contract law operates;
Learning Outcomes: General: Knowledge, Understanding and Skills
On successful completion of this module students will be able to:.
Apply critical analysis skills to complex source materials
Apply research skills in sourcing appropriate materials (including electronic resources) etc
Identify and analyse issues using problem solving skills
Communicate effectively both orally and in writing
Manage their workload effectively
Dr. Ernest Owusu-Dapaa- Course Convenor
ASSESSMENT Main Assessment
Examination ( 60%)
/ Coursework weighting ( 40%)
LECTURE OUTLINE AND WEEKLY PROGRAMME
Curriculum Design: Outline Syllabus
Week/Date Topic Essential Pre-Lecture Reading
General Introduction to the Module and Historical and Theoretical Introduction to Law of Contract Chesire & Fifoot, Law of Contract- Chapter 1- 3
Dowuona-Hammond, The Law of Contract in Ghana, Chapter 1-2
Week 2 Formation of Contract : Offer and Invitation to Treat Chesire & Fifoot, Law of Contract- Chapter 3
Dowuona-Hammond, The Law of Contract in Ghana, Chapter 1-2
Weeks 3 Formation of Contract: Acceptance, Termination of Offer and Test of Agreement ( Objective and Subjective Tests) Chesire & Fifoot, Law of Contract- Chapter 3
Dowuona-Hammond, The Law of Contract in Ghana, Chapter 1-2
Week 4-5 Case Class (1)
2.Remedies for Breach of Contract (1) and (2) Chesire & Fifoot, Law of Contract- Chapter 21
Dowuona-Hammond, The Law of Contract in Ghana,
1.Intention to Create Legal Relations.
2. Capacity to Contract
3.Group Presentation ( Part 1)
Chesire & Fifoot, Law of Contract- Chapters 5 and 13
Dowuona-Hammond, The Law of Contract in Ghana, Chapter 3-4
Week 7 Case Class (3)
Capacity to Contract (2) Chesire & Fifoot, Law of Contract- Chapter 13
Dowuona-Hammond, The Law of Contract in Ghana, Chapter 4
MID SEMESTER EXAMINATION
Week 9-10 Consideration (1) and (2)
Group Presentation ( Part 2) Chesire & Fifoot, Law of Contract- Chapter 4
Dowuona-Hammond, The Law of Contract in Ghana, Chapter 5
Week 11 Case Class (3)
Privity of Contract and Voluntary Assignment of Contractual Rights and Liabilities Chesire & Fifoot, Law of Contract- Chapters14, 15 and 16
Law of Contract in Ghana, Chapter 7
Week 12 General Revision and Group Presentation (3)
Teaching on Law of Contract takes place in three types of class:
Lectures :. Lectures are designed as a very basic introduction and sketchy overview of each topic within the course and, as a course of lectures, they sketch out for you a structure in which to locate your contracts knowledge. Lectures are not a source of detailed knowledge about the topic in question, but rather serve as a ‘taster’ for what you will be reading for yourself, which is largely prescribed in the seminar preparation sheets. We also hope that lectures will whet your appetite and arouse your interest in the topics with which they deal.
Case Classes :(Case classes are large-group sessions (you will be allocated to one such groups). These are an import from US law schools, having been first invented at Harvard in 1870 (coincidentally, this was originally for contracts teaching). The case class is the characteristic teaching method of American law schools. Some UK law schools already use them, but they do so in conjunction with a book of excerpts from judgments (note the spelling of the word ‘judgments’ – always spell it like this in legal writing, never ‘judgements’ with an e – some textbooks include the e, but that’s publisher’s house style). Law 152,however, is using a ‘full-fat’ version of case-method: requiring students to read the cases in full. The cases you are required to read and prepare are the same cases that are prescribed as read-in-full cases for seminar preparation. There are typically about 5 or 6 of these for each seminar. In each case class the lecturer will select 2 or 3 of these (without giving you any prior notice as to which ones) to discuss on that occasion. The lecturer will name the case to be discussed and then pick on one of you to discuss it with him, putting to the student a series of questions intended to produce discursive and informative answers, which can then form the basis of
further questions. This is known as the ‘Socratic’ method of teaching, after the 5th century BC Athenian philosopher, Socrates, who taught in this question-answer- question way. After a while, the lecturer will move onto another student, and so on. Obviously, only a handful of students can be called upon in each class, but: (i) your time can come anytime, and you may be chosen on more than one occasion!; and (ii) all the class can listen to the conversation, think how they would have answered, and make notes on what is said – so everyone learns.
Note that this is a very well-established method of teaching law, practised in some of the world’s very best law schools, and is not an unwarranted attempt to make
individual students feel ‘small’ or humiliated. If you prepare well for each class then, whether called upon or not, it will be a valuable and enriching experience. The
challenge of being ‘put on the spot’ both in case classes and in seminars, is an important preparation for future professional life, whether in the legal profession or any other graduate-type career. Some students complain about being put on the spot like this, since their schools did not do this, but you have to grow up sometime and clients and bosses (and judges if you litigate) will put you on the spot frequently and if you can’t hack it then you will find the quickest way to the dole queue.
There is a case class for every seminar topic, and the case class is in the week following the lecture on that topic and preceding the week of the seminar on that topic. It is an important opportunity to explore the subject in more depth with the help of a lecturer. Contract is a very case-heavy subject area, with few statutes, so case law is the main source of contract law.
Case classes are compulsory. Non-attendance will be recorded and may result in disciplinary action being taken, with penalties up to and including expulsion from the University.
Tutorial / Seminars (1 hour per week ). Seminars are small classes in groups of around 20-25 students.
You will find that for each seminar there are a number of questions of two sorts: problem questions, and discussion (or ‘essay’) questions. Problem questions are the most characteristic feature of legal education in the whole of the English- speaking world. They involve advising an imaginary client on the basis of a set of hypothetical facts. Learning how to structure answers to this type of question is a vital skill for a law student (and for the lawyer in practice as well – only in his/her case the facts won’t be hypothetical, of course). There is some guidance below on how to approach doing this using a method called ‘IPAC’ (in America this method is called ‘IRAC’, but that may be a bit tactless at the moment!). Tutors in seminars will help you with the method as well as with the substantive legal content in these questions, but it is vital that you come fully prepared having done the reading and having prepared detailed draft answers. Essay questions are designed to promote a broader discussion of contextual issues and debates and points of difficulty and
policy matters, etc., within the legal topic in question. When you do your reading, try to think also about these questions as well as about responding to the problem question(s).
The tutor will select one or more questions from those on the sheet to discuss. This is at the discretion of the tutor. The seminar preparation ‘sheet’ is not a workbook to be got through, but is there to guide your reading and your thinking, so that your private study time is as effectively directed as possible. The exact content of the
‘happening’ that is a seminar is a matter for the judgment of the tutor. The course convenor will not entertain complaints that a tutor ‘doesn’t cover all the questions’ or ‘changed the facts in a question’ (the latter, in fact, is an important technique – asking how the law might respond differently if some fact were different from that stated: always have this point at least in the back of your mind when you prepare your response).
Tutorial/Seminars are compulsory. Non-attendance will be recorded and may result in disciplinary action being taken, with penalties up to and including expulsion from the University. There is further advice on preparing for seminars, and on IPAC, later on in this handbook.
Referencing properly and the risk of plagiarism / academic misconduct
I prefer the use of OSCOLA in referencing all writing tasks in this module.
The prescribed textbook is a choice of EITHER:
M.P. Furmston, Cheshire, Fifoot and Furmston’s Law of Contract, 16th edn (OUP: Oxford, 2012) or any earlier edition
J. Beatson, A. Burrows and J. Cartwright, Anson’s Law of Contract, 29th edn (OUP: Oxford, 2010) or any earlier edition
BUY YOUR TEXTBOOK TODAY –DO use one of the prescribed texts – better still swap with a friend from time to time and see if you can find useful differences.
It also useful to have a copy of Ghanaian textbook, C. Dowuona-Hammond, Law of Contract in Ghana.
DO also buy K. Llewellyn, The Bramble Bush which has been going decades. This is a book about studying law in America, but the reflections on the nature of law and the advice on preparing for case classes are equally applicable to you and VERY USEFUL.
It is not necessary to acquire a commercial casebook, as you will need to read the most important cases in full anyway. All these cases, indicated by bold type in the seminar sheet, are available in pdf format from Lexis and bailii.org as well as PUC law library . Commercial casebooks have dangers – many give over-brief excerpts from the judgments, and all use the extracts to make the point the author wishes to make. This will usually be a perfectly valid point, that the excerpt neatly illustrates, but unless you look at the report (at least the headnote) for yourself, you will not know what the case was actually ‘about’, let alone the result (an important point) – the casebook editor may be discussing something that was only a minor, side-issue in the case. In the same way, textbooks are not really a reliable guide to what an individual case is really about (I recall one writer stating the law on some point, then illustrating it with an example about buying an ice-cream, then citing a case as authority – students then wrote in their essays that this case was about buying an ice-cream, but it actually concerned a marine insurance contract). Do read actual case reports for yourself! (You will need to anyway for the case classes as well as for the seminars.)
DON’T use one of the innumerable rubbishy contracts textbooks available, such as Elliot & Quinn, Contract Law; Martin & Turner, Unlocking Contract Law; or the ‘LLB’ textbooks, let alone Q&A, LawCards, Nutshells and the like. All of these are far too superficial for your needs and will result in lost marks (a simple sketch of the ‘rules’, without properly understanding the ‘exceptions’ and other subtleties may be enough for A Level and at some down-market universities – but here it will scupper you).
It is always a good idea to find the time to read around the subject. First priority should be reading more cases; then you should look at some of the books below. Remember, you can ‘read’ more books if you skim them and make notes – you must learn to ‘fillet’ a monograph (a monograph is a book on one usually narrow subject, often written to make an argument – as opposed to a textbook, which broadly addresses a subject area, with a view to exposition and explanation).
Read the contents pages to see how the book is structured.
Read the Introduction to see what the book is ‘about’ (what argument is being made – eg, the book argues that the law of contract was given to us by Martian invaders on 7 June 1782, or whatever).
Then read the openings and closings of each chapter – what does the author say s/he is going to demonstrate in that chapter, how does s/he claim to have done this?
Make a note of the subheadings in each chapter to see the process by which the argument is made.
Some books are well worth reading every word of – but you won’t read many books that way. Filleting a monograph, as described above, is a key academic skill.
Some good monographs and edited collections on contract worth reading are:
C. Dowuona-Hammond, The Law of Contract in Ghana ( Accra: Buckpress, 2011)
J.N. Adams and R. Brownsword, Understanding Contract Law, 5th edn (Sweet & Maxwell: London, 2007). (But actually, unlike with most law texts, any edition of this book will do – the idea is to pick up their theory, not the law as it stands.)
R. Brownsword, Contract Law, Themes for the Twenty-First Century (Butterworths: London, 2000).
C. Fried, Contract as Promise, (Harvard UP: Cambridge, Mass, 1981).
G. Gilmore, The Death of Contract (Ohio State UP: Columbus, Ohio, 1974). (Utter twaddle, but interesting all the same – do not read this without also reading R. Austen-Baker, Gilmore and the Strange Case of the Failure of Contract to Die After All (2002) 18 JCL 1.)
G. Gilmore, The Ages of American Law (Yale UP: New Haven, Conn, 1977).
H. Havighurst, The Nature of Private Contract (Northwestern UP: Chicago, 1961).
I.R. Macneil, The New Social Contract (Yale UP: New Haven, Conn, 1980).
I.R. Macneil, (Ed, D. Campbell), The Relational Theory of contract: Selected Works of Ian Macneil (Sweet & Maxwell: London, 2001).
G.H. Treitel, Some Landmarks of 20th Century Contract Law (OUP: Oxford, 2002).
C. Willett (Ed), Aspects of Fairness in Contract (Blackstone Press: London, 1996).
An important aspect of university-level study is the reading of articles in scholarly journals. The library carries a wide range of law journals, some on paper, others in electronic form, many in both forms, of which the most important for you are probably the University of Ghana Law Journal, KNUST Law Journal, Review of Ghana Law, Modern Law Review, the Law Quarterly Review, the Oxford Journal of Legal Studies, the Journal of Contract Law, the Common Law World Review (formerly the Anglo-American Law Review), the Lloyd’s Maritime & Commercial Law Quarterly, the Journal of Business Law and Legal Studies. Articles can be read in full, or filleted in a similar way to a monograph. The main differences are that there probably won’t be an actual table of contents for an individual article, so you will have to work out the structure for yourself: each major heading should be treated as a chapter, and as well as an Introduction there will be a Conclusion which you should also read in full. A selection of useful articles for you to read will be included in the reading list for each seminar, but you should not just rely on the ones we give you – follow up other articles mentioned in the articles we recommend, or that are mentioned in the footnotes in your textbook.
Stuff that only appears online usually does not go through such a rigorous process and is typically of dubious accuracy or value.
Particular reference must be made to Wikipedia in this regard. It is a useful source of information when you know absolutely nothing, but where you purport to know anything Wikipedia quickly becomes an unreliable and dangerous source. Wikipedia should not form any part of a law student’s legal research armoury. It is important to learn how to cite articles as well as books and cases.
The style guide I recommend is the OSCOLA which is freely available online as pdf. It shows you exactly how to cite all forms of legal and scholarly sources – follow this way exactly, and do not make up your own method!
Learning the Law – Some Hints & Tips
Preparing for Tutorials/ Seminars
For each seminar you will get a question sheet in advance. This is the basis for your preparations. Each sheet starts with a list of reading you should do, prioritized.
Readings from your textbook – consider this a must-do.
Cases in bold type – you should read these in full – it isn’t enough to read about them in a textbook, or to read an excerpt from them in a casebook – read the whole report – cases in bold type are all included, in full, in your casebook. There is guidance on effective case-reading technique in the casebook supplied for this course, which is based on advice provided in J. Poole, Casebook on Contract Law, 9th edn (OUP: Oxford, 2008).
Article(s) in bold type – for each seminar there will be at least one journal article identified in bold type. You should make sure to read this/these. Journal articles help you to understand the issues properly and provide vital evidence of wider reading.
Cases in normal ‘Roman’ type (like this) – those aiming for top marks should read at least some of these in full, and all students should read at least the headnote of all of these cases.
Articles in Roman type – try to read some/all of these if you get time.
Cases in italics – try to read the headnotes of some or all of these, especially if you’re aiming for top grades.
Articles or reports in italics – read these if you can find the time, they will help you on the way to a First!
There will be one or (usually) more questions for each seminar. These are to guide your reading and your thinking – you will be thinking about responding to these questions (remember: there will usually not be one right answer – responses are good or not) as you do your reading, and you will be trying to apply the knowledge you gained in your reading to help you respond to these questions. They are not a ‘lesson plan’ – this is a university law school not a secondary school. The tutor will choose one or more of these actually to discuss during the seminar, but is not in any way bound by the questions – this isn’t an exam, and it isn’t an entertainment either, the seminar sheet is there to help you prepare for the encounter you will have with your tutor, nothing more. Try to think around the questions a bit – can you think how your response might differ if the facts had been subtly different: a tutor might typically ask you this to get you thinking about the extent and the exceptions to the principles being discussed.
The ‘Problem Question’
A special characteristic of law study is the ‘problem question’. This is a question which involves advising a party on a hypothetical legal situation. A set of facts will be given to you, which you must assume to be undisputed. It is for you then to advise your putative client as to how a judge would approach dealing with this situation. It is the nearest thing possible to the bulk of the work done by barristers and by litigation solicitors in writing opinions or advices to clients.
A technique for answering all kinds of problem questions was developed some time ago in US law schools. They call it IRAC (stands for Issue, Rule, Application, Conclusion), we call it IPAC – which stands for Issue, Principle (don’t forget the exceptions as well as the rules!), Application, Conclusion.
ISSUE – an issue, in legal terminology, is something likely to be in dispute between the parties. In problem questions, this is always an issue of law – ie, a dispute as to the proper legal principle and its application, rather than an issue of fact to be settled by evidence. Start your approach to a problem question by identifying all legal matters likely to be disputed – so, a question about a contract dispute will never involve a dispute as to every aspect of contract law; you have to spot what can clearly be accepted by both parties and identify and deal with only those things they are going to be arguing over. The identification of these issues is what makes up the Introduction to your answer. Have a heading ‘Introduction’ right at the start of your answer, in which you tell the reader what the issues are.
Then, in respect of each issue in turn, make a heading – something that summarizes the nature of the issue, eg, Was Jane’s Poster an Offer or an Invitation to Treat?
Then briefly restate the issue. This is followed by:
PRINCIPLE ( or RULE) – state, concisely, what the principle of law is, starting with the rule and following with any possibly relevant exceptions. For each rule/exception, cite some authority. For example:
Advertisements, shelf displays and shop window displays are generally an invitation to treat, not an offer capable of acceptance: Fisher v Bell  1 KB 394. However, if the circumstances are such that it seems genuinely to be an offer to the world, and all that is required is some act on behalf of the offeree in order to meet the terms of the offer, then it may amount to an actual offer: Carlill v Carbolic Smoke Ball Co  1 QB 256.
APPLICATION – having stated what the applicable legal principle is that will allow us to resolve the issue in question, you need to apply it to the facts of your hypothetical case. For example:
Jane’s poster is similar in effect to the display of flick-knives in Fisher v Bell or to the advertisement in Partridge v Crittenden  1 WLR 1204, because as in that case, Jane’s poster advertises something for which there is a limited supply, so that she cannot have meant to be bound by acceptances from an unlimited number of people.
Finally, for each heading, you need a
CONCLUSION – summarizing the effect of what you have just said. For example:
In this case it is submitted that Fred is extremely unlikely to succeed in establishing a contract between him and Jane on the basis of there being an offer in the form of the poster, since a court will almost certainly rule that this poster was only an invitation to treat.
NOTE: DO NOT HAVE HEADINGS ‘ISSUE’, ‘PRINCIPLE’, ‘APPLICATION’ AND ‘CONCLUSION’ – THE HEADINGS FOR THE WHOLE ANSWER ARE ‘INTRODUCTION’ FOLLOWED BY THE HEADING FOR EACH ISSUE (EG, ‘WAS JANE’S POSTER AN INVITATION TO TREAT?’), AND FINALLY ‘CONCLUSION’ OR ‘SUMMARY’ WHERE YOU SUMMARISE YOUR ADVICE ON ALL THE POINTS. THE ‘ISSUE’, ‘PRINCIPLE’, ‘APPLICATION’ AND ‘CONCLUSION’ THING IS MERELY TO SHOW HOW YOU STRUCTURE EACH BIT OF THE ANSWER INTO PARAGRAPHS OR GROUPS OF PARAGRAPHS.
When you have dealt with each of the issues raised by the hypothetical facts, and identified in your Introduction, you should make a new major heading ‘Conclusion’ or ‘Summary’, which summarizes all the conclusions you have reached on individual issues, and finally advises the client. For example, having summarized the conclusions on each individual issue, your advice to the client might look like this:
It is therefore submitted that Fred would be ill-advised to sue Jane for breach of contract, but he might bring an action for monies had and received in order to recover the money he has paid to her.
NOTE: You may find that potential issues are raised by the facts, but you do not have sufficient facts to give clear advice on the matter – you would like to know more in order to give proper advice. This is very common: in particular, barristers are often asked to give advice on inadequate facts (either because the solicitor wasn’t aware the facts would be needed, or because they are not available at the time of preparing instructions to counsel). In this case you should do as barristers do: identify the areas where you cannot fully advise; identify the factual questions to which you require further answers; and indicate the possible different consequences for likely different answers to these points.
In contracts problem questions, at least, always advise on remedies where you think one will be available. This is partly the reason we cover remedies first, though most textbooks and most other law schools deal with this topic at the end. Real clients aren’t all that interested in reading a legal disquisition – they want to know their prospects for victory and their remedies (and in the case of damages – the usual remedy – how much?)
Keep everything concise and to the point, use clear headings throughout, and follow this method of structuring your answers and you will find that problem questions are no problem at all. We don’t set them in order to make your life difficult – they are one of the best ways of developing both your legal skills (both research/knowledge-application skills on the one hand, and the equally vital skill of being able to handle complex factual situations, on the other) and your legal knowledge itself, that is why we use them.
Dr. Ernest Owusu-Dapaa/2020-2021