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vypracovaná otázka (19kový) č. 7 (q_7.doc)

7)

1. The Monarch

The monarchy is the most ancient secular institution in the United Kingdom, with a continuous history stretching back over a thousand years. The monarchy is hereditary and the present title to the Crown derives from provisions of the Act of Settlement of 1701, which secured the Protestant succession. They succession cannot now be altered, under a provision of the Statute of Westminster, 1931, except by common consensus of the member states of the Commonwealth which owe allegiance to the Crown.

Queen Elizabeth II. who succeeded to the throne in 1952, is, in addition to being an integral part of the legislature, the head of the judiciary, the commander in chief of the armed forces of the Crown and the temporal head of the established Church of England.

The monarchy in the United Kingdom has evolved over the centuries from absolute personal authority to the present constitutional form by which the Queen reigns but does not rule.

The monarchy in the United Kingdom has evolved over the centuries from absolute personal authority to the present constitutional form by which the Queen reigns but does not rule. Her Majesty’s government governs in the name of the Queen who must act on the advice of her ministers. The Queen summons, prorogues (dismisses at the end of a session) and dissolves Parliament; she usually opens new sessions of Parliament with a speech from the throne in which the major governmental policies are outlined.

These acts form part of the Royal Prerogative, defined by Dicey (diction.) as the residue of discretionary or arbitrary authority, which at any given time is left in the hands of the Crown. Prerogative rights are of legislative, executive and judicial character. The Monarch must give the Royal Assent before a Bill, which has passed all its stages in both Houses of Parliament, can become a legal enactment (Act of Parliament). The Monarch’s consent and approval is required before a Cabinet can be formed or a minister takes up office.

As Head of State the Monarch has the power to sign international agreements, to cede or receive territory and to declare war or make peace.

The Monarch confers honours and makes appointments to all important offices of state, including judges, officers in the armed services, diplomats and the leading positions in the Established Church.

It is only Monarch who is able to remit all or part of the penalties imposed upon persons convicted of crimes through the exercise of the prerogative of mercy on the advice of the appropriate minister.

At the present time the Monarch, although exercising residual authority by consent of Parliament and according to the advice of the government of the day, ids regularly informed and consulted on many aspects of public affairs. The Privy Council is the body on whose advice and through which the Monarch exercises most statutory and many prerogative powers. There are about 330 members of the Privy Council, which, however, only meets as a full body on the death of the Monarch. It conducts much of its business in committees at which the Monarch may not constitutionally be present. All cabinet ministers are members; other members are appointed by the Monarch on the recommendation of the Prime Minister.

2. The case: Carlill v. Carbolic Smoke Ball Co. (1893) 1 Q.B. 256

An offer, to be capable of acceptance, must involve a definite promise by the offeror that he will bind himself if the exact terms specified by him are accepted.

An offer may be made either to a particular person or to the public at large.

If an offer takes the form of a promise in return for an act, the performance of that act is in itself an adequate indication of assent.

Appeal from a decision of Hawkins, J.

The defendants, who were the proprietors and vendors of a medical preparation, called The Carbolic Smoke Ball, inserted in the Pall Mall Gazette of November 13, 1891, and in other newspapers, the following advertisement:

100 £ reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by taking cold, after having used the ball three times daily for two weeks according to the printed directions supplied with each ball. 1000 £ is deposited with the Alliance Bank, Regent Street, shewing our sincerity in the matter. During the last epidemic of influenza many thousand carbolic smoke balls were sold as preventives against this disease, and in no ascertained case was the disease contracted by those using the carbolic smoke ball. One carbolic smoke ball will last a family several months, making it the cheapest remedy in the world at the price, 10s. post free. The ball can be refilled at cost of 5s. Address, Carbolic Smoke Ball Company, 27, Princes Street, Hanover Square, London.

The plaintiff, a lady, on the faith of this advertisement, bought one of the balls at a chemist’s, and used it as directed, three times a day, from November 20, 1891, to January 17, 1892, when she was attacked by influenza.

Hawkins, J., held that she was entitled to recover the 100 £. The defendants appealed.

Lindley, L. J., delivered judgement dismissing the appeal.

Bowen, L. J., I am of the same opinion. We were asked to say that this document was a contract too vague to be enforced.

The first observation, which arises, is that the document itself is not a contract at all, it is only an offer made to the public. The defendants contend next, that it is an offer the terms of which are too vague to be treated as a definite offer, inasmuch as there is no limit of time fixed for the catching of the influenza, and it cannot be supposed that the advertisers seriously meant to promise to pay money to every person who catches the influenza at any time after the inhaling of the smoke ball. It was urged also, that if you look at this document you will find much vagueness as to the persons with whom the contract was intended to be made that, in the first place, its terms are wide enough to include persons who may have used the smoke ball before the advertisement was issued; at all events, that it is an offer to the world in general, and, also, that it is unreasonable to suppose it to be a definite offer, because nobody in their senses would contract themselves out of the opportunity of checking the experiment which was going to be made at their own expense. It is also contended that the advertisement is rather in the nature of a puff or a proclamation than a promise or offer intended to mature into a contract when accepted. But the main point seems to be that the vagueness of the document shews that no contract whatever was intended.