Legal Paper: Durkheim Vs Maine

853 words | 3 page(s)

Reflect on your own experience in the practice of contractual exchange; for example, your ordinary experience as a consumer purchasing goods or services.
An experience of mine in a contractual exchange is leasing a property. This occurred through agreeing to meet specific terms and conditions in exchange for having access to various services / items on it. In my opinion, these agreements are legally binding because it is highly regulated. This means that you can exercise your basic rights and there is nothing the owner can do under law.

For instance, several years ago I rented an apartment house with several friends When we entered into the contract, the agreement was to rent the property (in Berkley, CA) for 1 year at $450.00. After the first six month, two left and forced me to pay the entire rent by myself.

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Explain how the discussion by Maine or Durkheim (or both) helps to illuminate your experience of contract.
The views of both Maine and Durkheim have influenced my beliefs by illustrating the role contracts play in any kind of business transaction. For instance, one of the ways that holds the other party accountable is having written documentation explaining the responsibilities of each side. This helps them to realize what they must do to fulfill these obligations and the penalties for failing to do so. In this aspect, it is supporting the views of Maine about how a contract is something all civilized societies will do. This allows individuals to exercise greater amounts of personal freedom by having a choice in their lives. At the same time, it helps them have a sense of confidence in the financial system and engage in entrepreneurial activities.

However, Durkhiem also has legitimate points by illustrating the way it is regulated to enforce different provisions. This is something society demands in order to prevent lawlessness and establish order. It is based upon accepted moral standards and practices which are integrated into various laws. The legal system is used as a way of holding those who do not follow these guidelines accountable for their actions. In some cases, it will subdivide into professional organizations with their own code of ethics that goes beyond the law. This is designed to improve professionalism. In my situation, both are explaining what protections I have to prevent abuses by unscrupulous individuals.

For example, does your experience conform better to the characterization of modern contract provided by Maine or by Durkheim?
In my case, the experience I had conforms more to Durkheim. This is because I knew the law and read the contract thoroughly before signing. Once the landlord began to demand that I pay more rent, I pointed out to him what the contract says and how his actions are in breach of that. I then, sent him a letter stating the law and asking him nicely to cease and desist with his activities. The possible threat of litigation prevented him from breaking the agreement during the time I was living at the property. This is highlighting Durkheim’s ideas by showing how it is enforceable via the legal system, regulatory structure and ethical standards.

Is one account better at explaining some features of your experience and the other account better at explaining other features?
Both accounts explain my situation from different perspectives. Maine is showing the basics surrounding why contracts are entered into and how it defines society. This is a natural evolution that has occurred over the course of human history. Everyone is using these provisions in one form or another to conduct a variety of business transactions. However, Durkheim is showing how specific provisions will prevent abuses and hold someone accountable for their actions. In this case, his account is better at explaining what will specifically happen to someone and how this is a deterrent. As a result, Durkheim is better at explaining my situation by demonstrating specific penalties that will occur if they do not change their attitude and actions.

Do both accounts miss important features of your experience?
Yes. They fail to discuss how this applies to different laws. For example, in some situations contracts may not be enforceable. This is because there was a sale of an asset, sudden death, accident or new owners. The big question is how these basic provisions are enforceable in a situation like this. There is an agreement in place, but a change in the other party. This creates confusion about their rights and if it is enforceable. In my case, the owner was starting to experience health problems (i.e. he had a stroke). I was concerned about the legality of agreement if he had become mentally incapacitated.

If one account provides the better characterization of your own experience, does this mean that the other account must be false?
Both accounts are accurate. They are only different to varying degrees. This means that I can use them to understand the nature of contracts and what makes them unique. Once this happens, is the point I can appreciate how this helps to sustain the legal, social and economic structure in almost every country around the world.

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