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Law of Obligations Assignment Sample

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Words Words: 3719

Law of Obligations Assignment Sample

Introduction

Industrial sites make many useful products which is consumed by many people, but they also produce wastes. These wastes are not disposed or handled properly which causes a different kinds of issues for the people living in the locality where the factory is situated in. 

Industrial sites make many useful products which is consumed by many people, but they also produce wastes. These wastes are not disposed or handled properly which causes a different kinds of issues for the people living in the locality where the factory is situated in.

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Analysis

Factories should keep certain things in mind before starting their operation where there are people staying near the factory compound:

  •         Factories should be clear and honest about the products used for manufacturing purpose.  They should also let the people of the area know about the wastes generated and how they are disposing them (Landes, 2017).
  •         They should maintain all the government regulations and laws while disposing of the wastes. Factories should have proper ventilators, chimneys, pipes for the disposal of polluted air.
  •         The factories should ensure that all the machines installed are in good working condition and does not cause any kind of damage without the occurrence of accidents.
  •         The factories should have proper disaster recovery plans to handle natural disasters.

Different people can face different kinds of health issues when it comes to the pollution created by industrial wastes. Generally children and older people face more health issues than young people. Women face more health issue than men. This is because children, old people and women have less immunity. The issues faced also depends upon the chemicals used, the duration for which people are exposed to it and how they are exposed to it. They also depend upon different factors like the type of soil, the density of trees in that area. 

The smoke and chemical fog created in the factories are aired in the atmosphere and contaminates the air around the factory. Apart from small diseases like eye irritation, breathing problems, hairfall and skin problems they may also lead to serious damages like cancer, infertility or permanent damage of organs in the new born baby (SD Sugarman , 2015).

Air pollution can also harm other living things. For example, smoke can cover the leaves of a plant and change the way the plant grows, or reduce the amount of fruits and flowers or the plant can even die. There can be water pollution as well from the factory wastes. They can harm the fishes and other lives living in the water. Apart from human illness it can also affect the soil the soil irrigation. Due to pollution in the underground water, soil becomes less fertile and results in reduced crop yield. Thus it harms the farmers and people living nearby.  There can be many solid wastes as well which are either buried or dumped in a local dump or burnt. Factories should try implementing various ways of recycling of wastes (Boudreaux, 2015).

Rats, flies, mosquitoes, and other insects that spread diseases different diseases from the dumped wastes in the locality

Children playing, or old people wandering near to those dumped wastes can cause contamination in them

 Wastes can clog the water pipes and drains thus resulting in overflow of dirty water.

 Burning waste fills the air with smoke filled with chemicals.

Burning plastic can also cause severe major problems

For example, everyone knows about the Union Carbide tragedy in Bhopal, where a dangerous gas leak caused many people to lose their lives and also face permanent damage in their body.

Keeping health and environmental issues aside let’s talk about the torts of nuisance. Now what is a Tort? A tort is an act or omission that gives rise to injury to another and leads to a civil error for which courts impose liability. A person intending desiring to engage in a business in tourism, travel and hospitality needs to fulfil some laws and obligations. There is a need to study fundamental principles involving law on obligations and contracts.An obligation is a juridical necessity to give, to o or not to do.Obligation is basically a legal duty, however created, the violation of which may become the basis of an action of a law (Brenner, 2015). An obligation has 4 different parts- an active subject, a passive subject, an object of the prestation, the juridical or legal tie.Obligations arise from law, contracts, quasi contracts, acts etc. Mainly there are 2 sources of obligations-law and contracts. Contract is the meeting of minds between two persons whereby one binds himself with respect to the other to give something or render some service. Quasi-contract is a lawful and voluntary unilateral act that no one shall enrich himself at the expense of another. There are different elements of an obligation- 

 

The obligor- The person who is bound in the legal obligation is called an obligor.

The obligee- He checks if the obligor fulfils his obligation

The prestation- This is basically the subject matter of the obligation.

Legal bond- The obligation should be enforced by legal means.

What is Tort Law?

 Tort law is the area of law that protects people from other people’s negligent actions. Its purpose is to make sure that the victim is compensated for any losses caused by violation of the other. This law also helps to discourage the wrongdoer from doing such activities in the future. To prove negligence one needs evidence that someone owed injuries. For example a shop owner mops the floor and forgets to put up the ‘wet floor’ sign. Then some person slips and falls down, which is caused by the negligence of the shop owner. He did not perform his duty properly and thus causing the injury (Epstein, 2019). Torts maybe classified into intentional torts, unintentional torts, strict liability torts. In the shopkeeper case it was an unintentional tort. If somebody is the victim of a tort he should get monetary compensation for the damages caused. Sometimes it is not recoverable by money like emotional distress, pain, suffering caused by the tort. When a tort can't be recovered with money then the court may order an Injunction. This forces the wrongdoer to do something to remedy the situation. For example the court may order a company to clean up the toxic spill.

Legal injuries caused by violation and negligence are not only about monetary issues. They also involve violation of property and constitutional rights Torts include a huge amount of different topics. Tort law is different from criminal law in the following ways-Criminal actions are generally intentional but torts can be both intentional and unintentional. Tort has lower issues regarding proof.

Product liability is the segment of law where the product manufacturers, distributors, and sellers are the ones who are responsible for the harms caused by their products. Mainly they are caused by negligence. Negligence is that action that results in unintentional harm or injury for an unintentional loss. Product liability laws have evolved over the period of time. Product liability results from a defective design, a manufacturing error (Pickard , 2018).

Manufacturing defects- These are the errors in the process of manufacturing due to the use of poor quality materials or defective process of manufacturing.

Design defects- Sometimes the design of the product is itself defective. No matter how much effort one puts in the right manufacturing process it is not effective due to the error in the design which is the first and foremost important sector that is to be considered.

Failure-to-warn defects- These are some errors that can be totally avoided by providing warnings to the users.

In tort law, strict liability is one of the key areas. The one claiming the damage needs to prove that violation has occurred and he is harmed by the violation. Proofs should also be required against the person/company who has caused the harm (Vogel, 2017). The Law assignment provides strict liability to situations it considers to be threatening. It discourages the inappropriate behaviour and ensures that precaution is taken in future. Strict liability is based on the following legal theories:

  1.   Some products cause injuries no matter how much care is taken.
  2.   Consumers should look for compensation if any kind of loss/injury is occurred to them.

Nuisance is an illegal act or indirect illegal interference to the enjoyment of human property or causing any kind of discomfort. Basically it is a wrongful act that causes damage or loss to another individual. For example a cement factory is creating lots of dust and noise which is affecting the day-to-day lives of people in the neighbourhood. This is a nuisance created by the cement company. There are certain differences between nuisance and trespass (Gregory, 2015).

Trespass is direct physical interference with the plaintiff’s possession or land. Nuisance is an injury to some right accessory to possession, but no possession itself, through some intangible objects. Basically a simple entry to another's property without causing any harm to it is called trespass. For example planting trees on a neighbour’s land is a trespass. There are two types of nuisance- Public and private nuisance. 

A Public nuisance is an unreasonable and unlawful interference with a right common to the general public. Public nuisance affects the public at large which creates problems to the rights of people which they otherwise should have enjoyed. Public nuisance affects the health, safety and comfort of the public and tends to degrade the public morals. This comes under criminal acts under Indian law (D Mendelson, 2016). In order to avoid multiplicity of proceedings of both civil and criminal, public nuisance does not allow civil action. An individual may have a private right of action in respect to a public nuisance. Private nuisance deals with the rights of a specific person, individual or entity.

Situations where a person can have a private right of action in respect to a public nuisance:

The person should be able to showcase a particular injury/loss of his which has a higher degree than the rest of the people.

The injury should be a clear and unique one

The injury should have a huge effect on the person.

 A Private nuisance typically arises between neighbours with one property owner being negatively affected by the acts of his/her neighbour. The affected person can claim the right to persona. For example a neighbour regularly plays music at high volume which harms the studies of the kids staying at neighbour-hood. The steps taken to avoid private nuisance is civil action for damages, injunction or both. Private nuisance can be of 2 types-

Damage to property

Physical discomfort

In case of industrial sites/ factories in the neighbourhood both of these types of private nuisance take place.

The factors which are involved in private nuisance are:

  • The act by the nuisance creator should be unlawful and inappropriate which a reasonable man would never do.
  • The act can be associated with the property, personal belongings being misused by the nuisance creator.
  • The damage caused should be visible and perceptible (RC Ellickson, 2014).

A nuisance can be related to property or physical discomfort.

Property- Any see able and reasonable injury to the property is being considered. For example a person is using his neighbour’s land to keep the materials required to be used in his building’s construction work. Basically he is holding the property of his neighbour illegally. If wanted the person can take legal action against his neighbour

Physical discomfort- In case of physical discomfort, there are two important conditions which are asked for.

If the regular use of the property is being affected. The usage by third party on special occasions are not considered here and the injury should impact the local people and their normal course of enjoyment (Zirkel, 2017).

Coming to the defence against nuisance, it can be handled in two ways-

Prescription- Prescription is a title acquired by use and time and which is allowed by the law, a person claims any property because his ancestors have had the possession of the property by law. If a nuisance is peacefully and openly ongoing without any kind of interruption then defence of prescription is available to the party. On the expiration of this term of twenty years, the nuisance becomes legalised as if it had been authorised in its commencement by a grant from the owner of the land.There are 3 requirements for implementing prescription (MJ Rizzo, 2018).

Use of the property: The property should be owned and enjoyed by the person who is trying to implement prescription.

Identification of the property enjoyed: The person claiming for injury should be able to identify his property uniquely.

Unfavourable to the rights of another individual: The rights of one person in a property is somehow creating problem in the rights of other person and thus creating the nuisance.

Statutory Authority- When a statute authorizes the doing of a particular act or the use of land in a way, all the remedies whether by action or charge are taken away.

In this case David has recently bought his first house. He lives there with his children and wife.  The location of the house is quite problematic as there was an Industrial estate and factory in the neighbourhood. In the factory several manufacturing process takes place. The factory is very successful and hence operations kept ongoing for all day all night long. They faces different kind of issues like-  

The noise from wagons coming to and leaving the factory throughout the night has caused David and his family to suffer a lot. They could barely get a sound sleep because of the sounds from the factory (Winfield , 2014).

David’s wife has dust allergy, which got accelerated due to the dust and smoke coming from the factory causing breathing trouble for her. Even she needs to take inhaler on regular basis.

The family is unable to sit out in their garden and enjoy the summer due to the dust and noise

They bought a rose tree which lead to due to the dust that is affecting the soil.

 The trees in their garden can face different kinds of issues due to lack of nutrients in the soil. The soil is polluted due to the exposure of contaminated chemicals from the industry site. Increase in fallen leaves, twigs also retards the growth of trees. To overcome this problem the local people should ask the factory owner to dispose of their wastes properly and use fertilizers to improve the soil quality. Also microorganisms can be used to fertilize the soil. This can be used as compensation by the factory or industrial site for the loss or harm caused by them (Walsh, 2016).

 The soil compaction causes harm to the trees in the garden. This compaction is due to too much use of the soil. Compacted soil leads to retarded root growth, crushed roots and stressed soil. This kind of problem is there in newer houses and houses which are close to construction or industrial sites.

The paintwork in the car of David’s son has been damaged by chemical smuts emitted from the factory’s chimney. His son even got furious and reached the factory office to meet the manager and inform the nuisance caused by the factory which is affecting his family in an adverse manner.

These are all part of private nuisance which hampers the enjoyment and lifestyle of David and his family. The factory is causing discomfort to the family and affecting their peaceful lives.

First of all David’s family needs to send one legal notice to the owner of the factory. Even after that if the factory does not refrain from the nuisance, the family can file a case in the court. Court can give an order of permanent injunction to get rid of the nuisance. David and his family should also claim compensation for the damages resulted due to the activities of the factory.

A nuisance can be treated in following ways-

There are three kinds of remedies available in the case of a nuisance, these are:

1. Injunction

An injunction is an order issues by the court. Sometimes a court provides a mandatory injunction but it rarely does so. A mandatory injunction forces a defendant to do a specific thing. A plaintiff must ask for a specific type of remedy when they file a lawsuit. Often plaintiff ask for damages or money as compensation. However money can’t fix every problem. Instead the plaintiff can ask for an injunction against the defendant. The extent of it and how to get one are based on the civil procedures of the particular state.

2. Damages

 

Damages are basically compensation or monetary return paid to the plaintiff by the defendant.

3. Abatement

Abatement is to omit the nuisance by the party who has suffered, without any legal procedures. This type of remedy is not favourable by the law but done by certain parties under certain circumstances.

As David and his family is suffering nuisance, the sufferer must go through the following step:

Let the industrial site/factory know that the noise/wastes created by them is causing problem for the neighbours. Maybe the company is unaware of the problem caused by them. That is why it is preferable to tell the company about the issue caused by them. 

Conclusion

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A modern approach to nuisance has evolved in many ways. Previously the nature and amount of harm determined if the nuisance was reasonable or not. Now it has totally changed. Now a question is asked by the court on the subject matter to understand its importance and then decide the reasonability. Thus it should be first understood whether the reason for which nuisance is created has greater cause and helps the public in a broader picture. For example creation of renewable energy causes a lot of nuisance for the neighbour-hood but contributes the society in a greater way. Thus the process can’t be scrapped and other ways should be thought about to handle the nuisance.

References

WM Landes, RA Posner - 2017 - books.google.com

 

SD Sugarman - Calif. L. Rev., 2015 – HeinOnline

 

K Boudreaux, B Yandle - Fordham Envtl. LJ, 2015 – HeinOnline

 

JF Brenner - The Journal of Legal Studies, 2014 - journals.uchicago.edu

 

DR Hodas - Ecology LQ, 1989 – HeinOnline

 

RA Epstein - The Journal of Legal Studies, 2019 - journals.uchicago.edu

 

J Pickard - Journal of the Royal Australian Historical …, 2018 - search.informit.com.au

 

KR Vogel - The Journal of Legal Studies, 2017 - journals.uchicago.edu

 

CO Gregory - Virginia Law Review, 2015 – JSTOR

 

D Mendelson - Journal of Legal Medicine, 2016 - Taylor & Francis

 

RC Ellickson - Journal of Institutional and Theoretical Economics …, 2014 – JSTOR

 

PA Zirkel, JH Clark - S. Ill. ULJ, 2017 –HeinOnline

 

MJ Rizzo - The Journal of Legal Studies, 2018 - journals.uchicago.edu

 

PH Winfield - The Cambridge Law Journal, 2014 – JSTOR

 

T Walsh - Melb. UL Rev., 2016 - HeinOnline

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