Judges as Social Engineers


Our courts still follow the idea of stare decisis. This adherence to precedent furnishes a system whereby a businessman or businesswoman may act in a certain way, confident that this action will have a known legal effect. At times, however, some modern judges feel that it is their duty to engage in the practice that lawyers term social engineering—shaping the law to the judge’s own individual social and economic beliefs.

When a judge tailors a decision to personal ideas about how society should operate, the holding of the court may be directly opposite to what the legislature intended by the passage of the law. Many legal observers feel that this social engineering by judges is an outright usurpation of the privileges and responsibilities of the legislature. Many critics feel that the laws should be made by the legislative branch of government, not by the holding of a court. Business and trade interests usually favor the idea of permitting the legislature to enact the laws.

My Consultancy–Asif J. Mir – Management Consultant–transforms organizations where people have the freedom to be creative, a place that brings out the best in everybody–an open, fair place where people have a sense that what they do matters. For details please visit www.asifjmir.com, and my Lectures.

Delayed Performance


Delayed performance will always justify a claim of damage where it can be shown that loss was occasioned by the delay. Most courts hold, however, that delayed performance will not be a material breach justifying rescission unless performance by a certain date is a condition precedent in the contract. If the late performer has any reasonable excuse for delay, the courts may allow damages but will seldom agree to rescission.

In agreements for the sale of marketable merchandise, however, a contract calling for shipment or other performance within a designated time is generally held to be a condition precedent. The difference between merchandise contracts and other contracts is in the position of the injured parties. A delay of a week in obtaining possession of a new home would not likely be crucial to the average home buyer. But a merchant’s success depends on the prompt delivery of goods to customers. Often advertising and sales programs are scheduled around specific delivery dates. Consequently, a delay in the shipment of merchandise is usually held to be a material breach.

Delay cannot be tolerated indefinitely in any kind of contract, however. After the passage of a reasonable time without performance the courts will permit rescission in almost any kind of contract. What is a reasonable time will vary with the type of agreement and all the surrounding circumstances. If no date is specified in the agreement, the courts interpret this to mean that performance must be done within a reasonable time. When time is of great importance, the contract should always be drafted to read that “time is definitely of the essence in the performance of this contract.”

In a bilateral contract, the injured party cannot regard the other party as being in default until the injured party has offered to perform. In legal circles, this offer by the injured party is called a tender. Depending on the terms of the contract, the tender must be either an offer to pay or an offer to perform a service.

My Consultancy–Asif J. Mir – Management Consultant–transforms organizations where people have the freedom to be creative, a place that brings out the best in everybody–an open, fair place where people have a sense that what they do matters. For details please visit www.asifjmir.com, and my Lectures.