Questions on Sound Business Practice

As we all know, the thing called “sound business practice” requires correct thinking and good perspective on things. Everyday, we encounter some difficult questions, some of them may become the basis of our business judgments. The intent of this page is to encourage anyone to ask the question  pertaining to business, and I will surely provide a good answer to it for free.

A friend asked me two days ago and this is her question:

“Someone offers me a free installation services but he provides the materials to be installed, shall I accept it?”

ANSWER:

“Reject it. In business, when someone offers you an advantage at their own expense, it is something either with a concealed intent or a fraudulent element. Do not take the bait of “free services”, it will indirectly ruin your expenses. In philosophy it says, ‘free labor can avail of an unlimited favor’. I hope it helps you.”

You can ask your question too.

Ancient Legal Doctrines Involved in Negligence Cases: Comments and Simplified Explanation

I humbly presumed that it is widely understood that the lack of diligence is the essence of what is called “Negligence”, the term then signifies as the absence or the lacking of caution which an ordinary man of common sense should observe.

Thus, I defined “Negligence” as a failure of what a prudent man anticipates; a failure of apprehension on the reasonable consequence of an act; the failure in the anticipation of a natural result of an act or omission.

In negligence cases, there are so many corners of events from which an incident might be interpreted in accordance with the circumstances of time, place and some other situations. Almost all of the principles involved date back to the time of ancient civilizations, most of them were from Rome, that is still useful even to this day of our time. Only that not all of these doctrines were accessible to our direct understanding – meaning, these doctrines in generality are not easy to understand.  Hence, to explain them in the simpliest term is a necessity in this attempt. 

Before anything else, we will try to discover in the first place the two types of negligence; it is the negligence of doing [it means, to constitute a negligence, the actor must have done a negligent act] and the negligence of non-doing [it means, to constitute a negligence, the actor failed to observe some standards dictated by human reasoning. It is also called negligence of omission].

THE LAST CLEAR CHANCE DOCTRINE

The doctrine of last clear chance refers to the situation whereby a party who had the last opportunity to avoid or to escape the danger is considered to be negligent when he failed to evade from the impending harm.

Illustration: Mario Gitubol was properly driving his car in the proper lane; when he observed that a car in opposite direction was running in the same lane of the road, Mario Gitubol did not bother to take the other lane on the basis of his belief that he will be favored in the courts of law in case of collision case because he is driving his car in the proper lane. The two cars collided and the last clear chance is in him who had the opportunity to avoid the incident.

Comment: Mario Gitubol shall be considered negligent because the accident would not have occured had he avoided the car that was running in his lane. He had the last chance to avoid the mishap; the fact that he was running his vehicle in a right lane does not totally cleared him from being negligent. The doctrine of last clear chance appeared to be unfair for those who were prudent; In my opinion, the person who detects danger and failed to avoid it is not and never to be considered as prudent. In fact, it is the most reasonable doctrine since our mind dictates the avoidance of danger rather than asking the sympathy of the public that he was responsibly driving his vehicle in the proper lane.

DOCTRINE OF CONTRIBUTORY NEGLIGENCE

The doctrine of contributory negligence is also called “the shared responsibility rule” [It is only my view]. This refers to a situation where an unfortunate events [rhetorical term for accident] cannot exist if not by the voluntary act of the parties.

Illustration: Clarina participated in a bungee jumping adventure in Manipis Cliff. However, before the jumping adventure, the head of the team informed Clarina that the bungee jumping rope might not be capable of holding her because of her weight [probably 500 pounds]. Clarina suppressed the dissuasion of the team leader on her belief that the rope might even hold an elepant, hence jumped into deep height and vanished after the rope looses.

Comment: Clarina contributed to the negligence of the team leader. The negligence of the team master arises at his failure to prevent Clarina from participating, but Clarina also becomes negligent in her assertion to take part in the adventure considering the suggestion of the team master.

Purpose: The reason of knowing this doctrine is to minimize the liability of a party charged for negligence.

DOCTRINE OF VOLENTI NON FIT INJURIA

The doctrine is also known as “the assumption of risk rule”.  The latin “volenti non fit injuria”  suggests a concept about ”self inflicted injury”. This refers to the injury caused by the injured himself.

Illustration:  Kobe was a ticket collector of a train bound from Brisbane to Sydney, when he asked a certain Dingwall to present the ticket the man run away to the nearer window and jumped off from the running train which resulted to Dingwall’s untimely death.

Comment: The absence of a ticket, the fear Dingwall entertained in his mind, and the act of jumping from the train are all his fault. The train cannot be said negligent because the procedure of asking for a ticket is a transportation standard in all civilized place.

DOCTRINE OF DAMNUM ABSQUE INJURIA

Damnum Absque Injuria literally means “damage without legal injury”. This doctrine presupposed the existence of a damage, only that there is no law in the determination of the offender party. Meaning, there is damage but there is no injury on the reason that the cause is not a result of a negligent act.

Illustration 1: Connor was driving a truck together with all his classmates. The truck was suddenly struck by a lightning that caused it to bump at a place full of people.

Comment:  Connor cannot be said to be negligent because the cause is not his negligent act but a sudden distraction that stops the natural consciousness of every man at the time of the incident. There is no injury although there is damage because the term “injury” brings the concept as being the result of a deliberate or a negligent act.

Illustration 2: Constancio Gacalibang is a stateless person who was killed in Iraq while he was roaming around in the City of Baghdad. In International Law, a stateless person is considered as a person owned by nobody. Hence, Mr. Gacalibang’s death maybe a damage to his family but there is no legal injury against any state.

Comment:  The doctrine of damnum absque injuria is applicable to the case of Constancio Gacalibang because there is no state considered to be the injured party in case of death of a stateless person. In International Law, a state is not authorized to assert on the right of a person in another state when the person is not its citizen. This is because a state has no interest and has no standing in another territory for a person not its national. The status of stateless may be acquired by a person when he was born at a place who grants only citizenship by blood [jus sanguinis] and his parents were from the place who grants only citizenship by land of birth [jus solis].

Example of Statelessness:        X, an American citizen, gave birth to Y while having her vacation in Spain. Y is considered a stateless person because America does not grant citizenship to any child of its citizen when the child is born outside America [America adheres to Jus Solis], and Spain does not grant citizenship to any child unless born of both Spanish parents [Spain adheres to Jus Sanguinis].

DOCTRINE OF FORCE MAJEUR

Force majeur is referring to a “strong force” which a person has no control. Something which is beyond the control of man or anything under uncontrollable circumstance.

Illustration: Jose was sued for failure to deliver a masterplan to Meacham Corporation. The failure to deliver was due to the destruction of a bridge connecting one place to another which occurred many weeks before the obligation to comply takes place.

Comment: Jose is not liable for his failure because it was not caused by his negligence but by some circumstance beyond his will and capability. This is a situation where an ancient phrase could be applied – “NO ONE IS OBLIGED TO COMPLY AN IMPOSSIBLE DUTY”.

RESPONDEAT SUPERIOR

Respondeat superior is a delegated responsibility rule. It means that a negligent act of a person is deemed to be coming from the authority who commissioned the person’s work. It suggests that the act of a servant is considered to be an act of the master.

Illustration: A security guard of a Mansion owned by Mrs.Gikegwa shot an intruder after refusing to yield on a “stop order”. The security guard was charged of injury.

Comment: The act of a security guard is considered as the act of the owner who hired him because his function is hinged upon a contract to do or to perform an act of initiative to protect the person who hired him. Hence, his act is considered as an act with permission from authority. The owner should answer in behalf of the actions taken by the security guard.

PROXIMATE CAUSE RULE

This refers to the first cause of event. It refers to the adequate and efficient cause which naturally produce the logical result.

Illustration: A driver of a bus was hit by a solid object thrown by one passenger who had a fight with another passenger which resulted to the collision with another vehicle.

Comment:  The proximate cause of the incident is not the negligent act of the driver because the first cause of the event was coming from a passenger who threw a solid object that caused the distraction of the driver’s driving concentration which resulted to the collision with another vehicle.

With the hope that this contribution be of intellectual help to our evaluation and judgment on events pertaining with human imprudence. -Barrister79

Comments on the Jurisdictions of the International Criminal Court

Brief Over-view:

1. The International Criminal Court [located in The Hague] will function as a tribunal for international crimes only when a State becomes a party to the International Statute.

2. The ICC is not considered as a replacement for the National Court but a complement to National Criminal Jurisdictions.

3. The ICC will only investigate and prosecute if a State is unwilling or unable to genuinely prosecute or when the culprit enjoys impunity on his evil acts.

4. The jurisdiction of the ICC is limited only to these crimes:

    a.) Crimes against humanity

    b.) Genocide

    c.) War crimes

5. The summary

Jurisdiction

Once a State becomes a party to the Statute, it accepts the Court’s jurisdiction with respect to crimes under the Statute. For the Court to exercise its jurisdiction, the territorial State (the State on whose territory the situation which is being investigated has taken or is taking place), or the State of nationality (the State whose nationality is possessed by the person who is being investigated) must be a party to the Statute.

National Court

The ICC will not replace national courts, but will be complementary to national criminal jurisdictions. The Court will only investigate and prosecute if a State is unwilling or unable to genuinely prosecute. This will be determined by the judges. Unjustified delays in proceedings as well as proceedings which are merely intended to shield persons from criminal responsibility will not render a case inadmissible before the ICC.

 

Subject Matter

The Court’s jurisdiction will be limited to the most serious crimes of concern to the international community as a whole. It will therefore have jurisdiction with respect to the crimes of genocide, crimes against humanity and war crimes, all of which are fully defined in the Statute and further elaborated by the Elements of Crimes.

Even though the Court has jurisdiction over aggression, it will not exercise such jurisdiction until the crime has been further defined and conditions under which the Court will exercise its jurisdiction have been agreed upon. The First Session of the Assembly of States Parties created a subcommittee of its Bureau to continue work on the crime of aggression. The subcommittee will be chaired by Allieu Ibrahim Kanu of Sierra Leone, and is expected to report and make proposals to the Assembly during its meeting in February 2003. Once agreement is reached, the Statute will be amended accordingly and the Court will be in a position to exercise its jurisdiction.

Personnel

The Court only has jurisdiction over natural persons aged 18 and above. Official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official does not exempt a person from criminal responsibility.

Commanders and superiors will also be held liable for criminal offences committed by forces under their effective command and control or effective authority and control.

Preconditions to the exercise of jurisdiction

The Court may exercise its jurisdiction with respect to the crime of genocide, crimes against humanity and war crimes either when the situation is referred to the Prosecutor by a State Party or by the Security Council, or when the Prosecutor decides to initiate an investigation his or her own decision and on the basis of information received. However, in this last case, the Prosecutor must seek the authorization of the Pre-Trial Chamber before proceeding with the investigation.

 

When the situation is referred to the Prosecutor by the Security Council, the Court may exercise its jurisdiction in all cases and no preconditions are applicable.

However, in the two other cases, when the Prosecutor decides to initiate an investigation on his or her own decision with the authorization of the Pre-Trial Chamber, or when the situation is referred to the Prosecutor by a State Party, strict preconditions shall be met before the Court can exercise its jurisdiction.

Indeed, in those two cases, the Court may exercise its jurisdiction only if either the State on the territory of which the suspected crime occurred (State of territoriality), or the State of which the person suspected of having committed the crime is a national (State of nationality of the suspected person), is a State Party to the Statute.

If neither of these two States is a State Party to the Statute, the Court will not be in a position to investigate the suspected crimes, except if either the State of territoriality or the State of nationality of the suspected person accepts the exercise of jurisdiction of the Court by declaration lodged with the Registrar. Such a declaration may be made for all suspected crimes committed after 1 July 2002 (taking into consideration that crimes within the jurisdiction of the Court are not subject to any statute of limitations).

Thus, if nationals of States Parties to the Statute are victims of suspected crimes within the jurisdiction of the Court in the territory of a State which is not a Party to the Statute committed by persons who are not nationals of a State Party, the Court wouldn’t be in a position to investigate except if either the State of territoriality or the State of nationality of the suspected person accepts the jurisdiction of the Court, or if the situation is referred to the Court by the Security Council.

COMMENTS

The investigation and prosecution of crimes by the International Criminal Court [ICC] is one of the exemptions of the “territorial application of criminal law”. Many legal experts maintained that the function of the ICC is only complementary to National Court. However, I still considered this as an exemption to the “Territoriality Rule” because the accused will be tried in the territory which is not the place of the commission of the crime. 

The cases triable in the ICC is limited only to the three [3] offenses mentioned in the International Statute. However, these three offenses are broad enough to include many things because its definitions are open to various interpretations. Some slight distinctions may create a lengthy argument for the classification of excluded and included cases. For example, a war crime may be argued to be a political crime. A political crime is not one of those under the jurisdiction of the ICC.

Can the ICC acquire jurisdiction when the National Court already tried the offender? My answer is NO. Because the ICC is not a judicial empire.

But what about if the National Court deliberately tried the accused for the purpose of protecting the offender from the ICC, can the ICC suppress the illegal arrangement of the accused and the National Court? My answer is still NO. It is not the power of the ICC to supplant the authority of the National Court.

What if the National Court convicts the accused and extend pardon afterwards, will the accused be tried again in the ICC because of impunity? If the answer is positive, will it not constitute double jeopardy?

The ICC does not have the mechanics to deal with this matter. An accused alleged to have committed the crimes defined by the ICC may still escape from any criminal liability when the power and influence of the accused is strong enough such that the State itself would act as his prosecutor and judge IN DISGUISE.

In fine:

a.] When the State does not act, there is a possibility that the ICC may act.

b.] When the State protects the culprit, there is a possibility that the ICC may investigate and prosecute the case.

c.] But since, the ICC is not a replacement to a National Court; when the State itself initiates the investigation and prosecution of the case [IN DISGUISE], the ICC’s principle against war crimes, crimes against humanity and genocide would just be an empty shell.

In this tricky civilization, there is always a tendency that a State shall facilitate or accommodate the offender [by reason of influence and power] masquerading as an investigator or prosecutor.

We must remember that there are many impossibility in legality, where in fact all are possible in reality.