Institutional provisions establish the court, tribunal or office of the official who
hears the case. Jurisdictional provisions authorise a court, tribunal or official to
hear the case. Procedural provisions set down the rules for bringing and
hearing the case.
Knowing these relationships assists a law student better to understand
litigation. It can also be an aid for a lawyer in reading some types of statutes
because it suggests possible types of provisions. Where a statute creates a
cause of action (an action provision in our terminology), depending on
circumstances it may contain provisions dealing with any one or more of the
other three provisions:
(1)
Establishment Provisions. The statute may establish a court, a tribunal
or an office to hear the case.
(2)
Jurisdictional Provisions. It is quite likely that the statute vests
jurisdiction to hear the case in some in some court, a tribunal or office
(whether these are created by the statute or not).
(3)
Procedural Provisions. If the statute creates a court, a tribunal or an
office to hear the case it will typically provide for its procedures in some way.
It may enact procedures, or it may authorise the court, tribunal or office holder
to create them. If it does not create the court, tribunal or office then the
procedures may already be in place. If they are not, or to the extent that special
procedures are needed, the statute will probably create them.
Contract Law
In contract law there is a formal relationship between all of the elements. In
fact the core of the subject (although there are some add-ons and inclusions
69
)
is one major rule that creates one single cause of action namely an action for
breach of contract. To explain this to the reader, the text will present an outline
of contract law. For this purpose, contract law is divided into five main parts.
These are negotiation of the contract, formation of the contract, definition of
the contract (by reference to its terms and parties), termination of the contract,
and other remedies (that is, non contractual remedies arising from the actual or
possible contract).
Negotiation
Before a contract is made there will often be negotiation. Negotiation may or
may not lead to a contract, but in either event what is said or written in
negotiation may well have legal consequences. These consequences may come
from contract law itself, or may involve another area of law.
69
The add-ons are the common law and statutory actions such as an action for
negligent advice that commonly arise from an actual or attempted formation of a
contract. The inclusions are actions that supplement contract law such as
rescission and rectification.
 |
 |
 |