Business Law Assignment
This business law sets out in brief the legal rules of implied terms in context with the sale of goods act, application of the statutory provisions in transfer of property, rights and duties of the buyer and the seller and agent, difference between the credit agreements, rights of termination on default notice. The legislation regarding the monopolies and anti competition commission has been discussed in brief. The dominant positions under the EU common market and the applications of the EU exemptions to the anti competitive practices have also been discussed in brief.
1.1 Advice the parties base on the legal rules on implied terms relating to the sale of goods and supply of services.
The contents in a contract are called terms of contract which may be implied or may be express term wherein the express terms are those which is laid done by the parties themselves while the implied terms are those which are laid down by the court depending on the nature of the parties. An implied term may be by fact in law, by custom or by statute. There are three types of contractual terms; these are conditions, warranties and innominate terms (Weitzenböck, 2012).
- Conditions- These are of utmost importance terms in the contract. In breach of serious consequences, the innocent party can treat to bring the term into end (Weitzenböck, 2012). It is not necessary that the condition term will be explained the business contract , rather the court searches for evidence that parties intended that the terms will be a condition as held in (Schuler AG v. Wickman Machine Tool Sales Ltd., 1974).
- Warranties- Warranties are of lesser importance and are breach of no serious consequences, wherein the innocent party sue for damages but cannot end the contract (Bettini v Gye, 1876).
- Innominate term- Innominate term can either be conditions or warranties. If the effect of the breach is that it is serious then, the term is treated as condition and if the breach is not that serious, then the term is treated as warranties (Hong Kong Fir Shipping Co. Ltd.v. Kawasaki Ltd., 1962).
Based on the legal rules on implied terms relating to the sale of goods and supply of services I advice the following statutory terms to John and Emmanuel which they must consider in their contract-
- Section 12 Sale of Goods Act 1979- Under section 12 of the Sale of Goods Act 1979, there is an implied term which is the condition of a contract in sale and purchases type of contract that the seller has the right to sell the goods and the ability to transfer a good title to the buyer (legislation.gov.uk, n.d). This is a condition in a contract. Under section 12(2)(a) of the act, there is a term that implies that the goods are free from any undisclosed charge which applies to those goods which are yet a subject to hp terms being sold without telling the purchases of the hp contract or where other debts have been secured on the goods. This will be a warranty so while the buyer can sue for any loss or damage but cannot end the contract (legislation.gov.uk, n.d). Under section 12(2) (b) of the act, there is a term that implies that the buyer shall enjoy possession of the goods. This term is a warranty in contract as the act is an ongoing assurance that the buyer can enjoy the possession without any interference (Microbeads v Vinehurst Road Markings, 1975).
- Section 13 Sale of Goods Act 1979- Under section 13 of the Sale of Goods Act 1979, there is an implied term in the contract that the goods sold by description must correspond with the description (Harlington & Leinster v Christopher Hull Fine Art, 1991). The term implied in this section is a condition in context with the consumer sales but is an innominate term in context with the non-consumer sales.
- Section 14 Sale of Goods Act 1979- Under section 14 of the Sale of Goods Act 1979, there is an implied term in the contract that the goods sold in the course of business must be of satisfactory quality unless the defect of the goods is brought to the knowledge of the buyer prior to entering in the contract (legislation.gov.uk, n.d). The term implied under section 14 is a condition in context with the consumer sales but is an innominate term in context with the non-consumer sales.
- Section 15 Sale of Goods Act 1979- Under section 15 of the Sale of Goods Act 1979, there is an implied term which is a condition that the goods that are sold by sample must correspond to that sample, and must be free from any defect that causes the quality of the good which would not be apparent on reasonable examination of the sample (E and S Rubin v Faire Bros and Co Ltd., 1949).
1.2 Advice the receiver on the statutory provisions on the transfer of property and possession
Here are the following statutory provisions on the transfer of property and possession which I would like to bring into the notice of Joe, James, David and Paul which they must be aware of- Section 18 Sales of Good Act 1979, “unless a distinct purpose emerges, the following rules are being ascertained to determine the intention of the parties as to the moment at which the chattels in the produce is to go by to the purchaser-
- Section 18 Sales Of Good Act 1979, rule 1- “In an unconditional contract for the sale of particular goods in a deliverable state the belongings in the goods passes to the purchaser when the bond is made, and it is irrelevant whether at the moment of expense or the moment of release, or equally be delayed”.
- This rule apply only when the goods is in a position of delivery, a position where the purchaser would be under an obligation to accent its delivery. Goods can be of fault quality and yet be deliverable. The key to deliverable position is, do the purchaser have to do anything more to the goods. Of course it’s not probable to reserve title of the goods after the contract has been completed where the goods are in a deliverable position for the reason that the assets will have approved under section 18 rule 1 at the moment of the contract (Dennant v Skinner & Collom, 1948).
- Section 18 Sales of Good Act 1979, rule 2- apply where the contract is for the selling particular goods and the seller is under an obligation to put the goods into the position of delivery, the assets doesn’t pass until the same is done and the purchaser has the notice of this execution (Underwood Ltd v Burgh Castle Brick and Cement Syndicate, 1922).
- Section 18 Sales of Good Act 1979, rule 3- apply when the contract is for selling the goods in a deliverable position, but the seller is under an obligation to weigh, measure, test or do anything to ascertain its price, the assets doesn’t pass until the same is done and the purchaser has the knowledge of the same. This rule applies to the acts done by the seller (Nanka Bruce v Commonwealth Trust Ltd., 1926).
- Section 18 Sales of Good Act 1979, rule 4 (a) and rule 4 (b)- apply when the goods are delivered to the purchase on sale, return or any other similar terms, then the assets in those goods passes to the purchaser when the purchaser signifies his/her approval to the seller or does any other things in order to adopt the operation. And, if the purchaser doesn’t signifies his/her approval to the seller but keeps the goods without giving the notice of the same refusal and fixed time for the returning of the goods has been set, on the expiration of that set time, and, if no time is fixed, on the expiration of that reasonable time. Any act of the purchaser not consistent with his/her free power to return the goods in the act of adopting the business deal (Kirkham v Attenborough, 1897).
- Section 18 Sales of Good Act 1979, rule 5 (1) and 5 (2)- where the former applies when the contract is for selling of unascertained goods by description, and those goods in a position of being delivered are unreservedly appropriated to the contract either by the one who is selling with the assent of the purchaser or by the purchaser with the assent of the seller, the assets in those goods then passes to the purchaser which may be expressed or may be implied or might be given either before or after the appropriation is completed. And, the latter applies when in pursuance of the contract, the seller delivers the goods to the purchaser for the reason of transmission to the purchaser and he doesn’t conserves the right to dispose which he would have taken unconditionally in appropriating the goods to the contract. These rules must be read under section 16 of the sales planning of goods act 1979 (Re Blyth Shipbuilding, 1926).
1.3. (a) what remedy if at all is available to Rachel and who is liable for her injury?
As far as the identification of the bottle is concerned, by applying the case of Niblett v Confectioners' Material (1921) here, Rachel can seek to recover for his injury from the “Fox on the Hill” on the base that the bottle served to him was not labelled. “Fox on the Hill” has no right to sell the goods in this manner and hence “Fox on the Hill” didn’t have the right of possession of that good. “Fox on the Hill” was prevented from selling that bottle due to the injunction therefore “Fox on the Hill” didn’t have the right even though “Fox on the Hill” has owned the same.
1.3 (b) would your answer be different if George is the manufacturer of the drink
Had, George been the manufacturer of the drink, and then my answer would have been definitely different. In that situation I would have stated that the present case is similar to the case of Donoghue v Stevenson (1932), which created the concept of negligence whereby one person owes a duty of care to another. By applying this case study in the present case, Rachel can bring a claim against the “Fox on the Hill” that they owed a duty of care towards their customer. They have breached the duty and the breach caused injury to Rachel.
1.3 (c) Evaluate the statutory provisions on buyer’s and seller’s remedies
The following remedies are available to the buyers and sellers under the statutory provisions-
- Under section 48 B of the Sale of Goods Act 1979, the buyer can get its goods repair from the seller or replace those goods from the seller at the expense of the seller. The seller need not repair or replace those goods if it is impossible to do so (legislation.gov.uk, n.d).
- Under section 48 C (1) of the Sale of Goods Act 1979, the seller may reduce the purchase price if the seller has not complied with the request from the buyer to repair or replace the due to disproportion (legislation.gov.uk, n.d)..
- Under section 48 C (2) of the Sale of Goods Act 1979, if the request has not been complied then, the rescission is in putting the parties into the position where they started and the buyer would return the goods and the seller would return the purchase price. The seller may deduct the price from the purchase price of the value used by the buyer (legislation.gov.uk, n.d).
1.4 Apply the statutory provisions on product liability to advise Rebecca on her rights under the Supply of Goods and Services Act, 1982
- Statutory provisions on product liability- Product liability under Part I of Consumer Protection Act, the manufacturer of a product is legally responsible for any defect in the product. The liability may also be imposed on the party who hold them to be the manufacturer and also on the person who imports the product into the European Community (legislation.gov.uk, n.d).
- Rebecca’s right under the Supply of Goods and Services Act, 1982- Rebecca can sue the hotel owner for the defect in the plate-glass balcony doors. She can ask to refund for the payment she made in the hotel because the products they served was of unsatisfactory quality. She can be compensated on a reasonable amount (legislation.gov.uk, n.d).
2.1 Advice NatWest Bank of their legal position. Would your advice be different if the £10,000 is for the purchase of a Honda Accord, 2.2i? Differentiate between types of credit agreements
Mr. Ali will have the following rights under section 15 of the Hire-Purchase Act 1964 -
- Ali can purchase the car at anytime by giving the notice to the Brit College and by paying the balance of the HP price less a rebate.
- Brit College, being wrongfully repossessing the car, Ali can recover the car.
- With the consent of the Brit College, Ali can assign the car to a third party (Hire-Purchase Act 1964, n.d).
Here are the various types of credit agreements and their differences-
To differentiate between the Schedule to the Master Agreement and the Credit Support Annex, the agendas are totalled as Parts and Credit Support Annex is totalled as Paragraphs. In order to customize the necessities of an OTC Transaction, the clauses which are requisite are auxiliary as Paragraph 11 for the London Agreements and as Paragraph 13 for the New York Agreements. As compared to the Outright Transfer, this is offered in the English Law Credit Support Annex with the Security interest in the New York Law Credit Support Annex. Both of these functions to generate security interests in the collateral posts, the differentiation are functional and could be material on an insolvency of another party (ISDA-Credit-Support-Annex, 2014).
2.2 Advice Mr. Ali of his legal position by applying rules on termination rights and default notices
Ali’s s right to terminate hire agreement
Section 101 of the Consumer Credit Act offers a hirer, the right to terminate the agreement in a regulated consumer hire agreement by giving a written notice that doesn’t expires prior to 18 months after the creation of the agreement to anybody ratified to accumulate the expenses. Repudiation of any agreement does not impact the liability of hirer which arouse before repudiation (legislation.gov.uk, n.d).
2.3 Differentiate the above statement with particular reference to “Agency creation and Agency Authority.
An agent is an individual who is authorized by the principal so as to act on behalf of the principal and under the control of the principal. In order to begin an agency relationship, the principal manifests assent to the agent that the agent shall not act on behalf of the principal. An agency relationship might be implied either by words or by conduct of the parties and the situations of the cane that shows the evidence about the intention of the parties in order to describe their relationship (Koricic v. Beverly Enters, 2009). An agency is a fiduciary relation, the consequence of which is from the manifestation of consent by one person, a principal to another and the consent of that agent (Forgeron, Inc. v. Hansen, 1957).
Conversely, the authority of an agent may either be actual or may be apparent. The actual authority is formed by the manifestations of the principal to the agent while the apparent authority is formed by the manifestations of the principal to the third party (Kiewit/Tulsa-Houston v. United States, 1992). The actual authority either be implied or may be express wherein the express authority is formed when the principal expressly states that the agent of what is supposed to be done and implied authority involves incidental and necessary powers in order to carry out the express authority (Hardcore Concrete, LLC v. Fortner Ins. Servs, 2007).
2.4 (a) Evaluate scenarios in light of the “Rights” and “Duties” of an agent
An agent has a duty of care and skill to perform their duty and failing to perform their duty can be claimed for negligence. It also required that an agent in a particular trade or profession who has been performing their duty with the degree of care and skill should be of that degree which any reasonable person in that same profession would take in order to meet that standard duty required (Estate Agents Authority, 2011). In the present scenario, Joseph though not is a mechanic with no interest in car yet was working under his principal and was required to take that reasonable care that the car was repaired and hence it must have met an accident.
2.4 (b) Evaluate scenarios in light of the “Rights” and “Duties” of an agent
Since Joe expressly agreed to employ Jude as an agent for 10 years, Jude has the right to bring a claim against the Principal i.e. Joe for the loss of income because an agent has the legal right to claim any remuneration, amount and terms of payment of such remuneration if the employer has expressly agreed for the same (Estate Agents Authority, 2011).
3.1 Outline monopolies and anti-competitive practice legislation in the UK
The definition of an anti competitive practice can be defined under the CompetteionAct as a that practice which intends to have or is likely to have the effect of confining, deforming or to conserve competition. This Act not only replicates the monopoly provisions of the Fair Trading Act, but also allows investigating the particular conduct of firm or firms rather that what the Fair Trading Act requires of the Multinational Companies of investigating the market in general (Business Case Studies, 2014).
3.2 Explain the role of the Competition Commission within the context of monopolies and anti-competitive practices and the UK Office of Fair Trading
The competition commission in the United Kingdom regulates the merger and monopoly power in the markets of the UK replacing the Monopolies and Mergers Commission. The competition commission deals with the matters which are referred to it through the Office of Fair Trading and only makes recommendations and the Office of Fair Trading and the government enforces the rules (Economics Help, 2014).
3.3 In view of the given statement, define dominant positions within the EU common market and related regulations
The competition laws of the UK and the EU forbids the business with pertinent market power that unfairly exploits their strong positions such as-
- To prohibit the practices that confines free trading between the entities.
- To ban abusive behaviours of a firm that dominates the market and
- To supervise the mergers and acquisitions of large corporations
In the present case, the dominant position of the British Gas is that being the only supplier of gas in UK, it has increased the price which is above the marginal cost and therefore the competition laws of the UK and the EU can ban and prohibit such practice of the British Gas (Richard Whish, 2012).
3.4 Consider the given provisions in the context of the application of EU exemptions to potentially anti-competitive practices.
The definition of an anti competitive practice can be defined under the CompetteionAct as a that practice which intends to have or is likely to have the effect of restraining, distorting or to prevent competition. This Act not only replicates the monopoly provisions of the Fair Trading Act, but also allows investigating the particular conduct of firm or firms rather that what the Fair Trading Act requires of the Multinational Companies of investigating the market in general (Business Case Studies, 2014).
4.1 Identify differing forms of intellectual property
Trademarks, patents, copyright, and designs are various types of protection that protects the intellectual property. Trademark protects the names and logos of the goods. Patents protects the invention such as of machines, tools etc. Copyright protects the literary works like films, photography, music etc. and design protects the shape of the objects (Gov.UK, 2014).
4.2 Outline the principles relating to the protection of inventions through patent rights and their infringement in a given business scenario
A patent is an intellectual property which is a set of exclusive rights to an inventor for a period which is limited. This is exchange for detailed public disclosure of an invention which is solution to a specific technological problem and is a product for process. Infringement of patent means manufacturing, selling or importing a product which has been patented or has been into process without the consent of the owner (Gov.UK, 2014).
4.3 Describe the principles relating to copyright protection and their infringement in a given business scenario
Copyright protects the literary works like films, photography, music etc. and design protects the shape of the objects (Gov.UK, 2014). Infringement of copyright is a criminal offence which can be brought into the civil court. This infringement can also be claimed under the Fraud Act 2006 as the literary works can be pirated (Gov.UK, 2014).
4.4 Compare and contrast the protection of trademarks and business names
- Trademark is a trade name which is registered including the combination of slogan, logos or sounds identifying the company or product either. Brand name identifies the name of a company under which the product is supplied (Leslie Truex, 2014).
- A trademark gives legal protection to the brand name while the brand name makes it easy for a consumer to realize the company name (Leslie Truex, 2014).
- Trademark can be used by others unless the it’s not confusing while the brand name which is registered cannot be used by any other without the written permission (Leslie Truex, 2014).
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Though the business law assignment has not been dealt with all the tasks in detailed, but the brief study makes the application of the given rules, legislations, regulations easy to apply on the given case scenarios. The contents in a contract are called terms of contract which may be implied or may be express term. There are three types of contractual terms; these are conditions, warranties and innominate terms. Product liability under Part I of Consumer Protection Act, the manufacturer of a product is legally responsible for any defect in the product. Trademarks, patents, copyright, and designs are various types of protection that protects the intellectual property. Trademark protects the names and logos of the goods.
Bettini v Gye (1876).
British Crane Hire Corp. Ltd. v. Ipswich Plant Hire Ltd. (1975).
Business Case Studies, 2014. The importance of competition policy. [Online]
Available at: http://businesscasestudies.co.uk/office-of-fair-trading/the-importance-of-competition-policy/anti-competitive-practices.html#axzz3LIc4RPpx
Dennant v Skinner & Collom (1948).
Donoghue v Stevenson (1932).
E and S Rubin v Faire Bros and Co Ltd. (1949).
Economics Help, 2014. Competition Commission UK. [Online]
Available at: http://www.economicshelp.org/blog/glossary/competition-commission/
Estate Agents Authority, 2011. Agent's duties to principal under common law. [Online]
Available at: http://www.eaa.org.hk/Home/Publications/AgencyLaw/5Agentsdutiestoprincipalundercommonlaw/tabid/383/language/en-US/Default.aspx
Estate Agents Authority, 2011. Agent's rights against principal under common law. [Online]