University Degree: Commercial Law
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The commercial advantages of agreed remedies are so extensive that the courts should almost invariably give effect to them. Discuss.
distribution of property right clause) provides incentive to complete obligations and reduces likelihood of breach; and it may facilitate settlements. Hence, it appears that there are extensive commercial advantages to enforcing agreed remedies. The main justification for enforcement of agreed remedies clause is freedom of contract.5 Parties should be allowed to choice their terms and the court should enforce whatever the parties have agreed; thereby protecting parties' individual autonomy.6 Since preserving freedom of contract is an essential function of contract law and judicial control over agreed remedies may cause uncertainties and inefficiency,7 deviation form enforcement should be justified.
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Introduction to Commercial Law. Discuss the advantages and disadvantages of resolving a civil dispute through 1. Litigation 2. Arbitration 3. Mediation 4. Tribunal
The individual (defendant) who has been caught will face prosecution by the state. The consequences The plaintiff can request for compensation by: a) Monetary relief - when the plaintiff asks for a cash award to remedy the situation. b) Equitable relief - when the plaintiff asks for the court to order the other party to do (specific performance) or not to do something (injunction). If the defendant is convicted, he/she will be sentenced to either or all of the following: a)
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Coporate Law and Limited Liability. There are certain circumstances in which courts will have to look through the corporation, that is, lift the veil of incorporation, otherwise known as piercing the veil, and hold the shareholders of the company directly
The doctrine of piercing the corporate veil varies from country to country. In the opinion of two Corporate law scholars, apparently, there is a general consensus that the whole area of limited liability, and conversely of piercing the corporate veil, is among the most confusing in corporate law. Company Company is an association of a number of individuals for the purpose of carrying on some legitimate business. Generally, company is a form of organization.Organization engaged in business as a proprietorship, partnership, corporation, or other form of enterprise. Originally, a firm made up of a group of people as distinguished from a sole proprietorship.
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In the current financial crisis, the directors of stricken UK financial institutions run as listed companies have faced few legal consequences of arguably poor strategic management and risk management on their part, and there has been little new regulatio
Cadbury (1992) identifies corporate governance as the system by which companies are controlled and directed. Since 2008 there has undoubtedly been a global financial crisis which has lead to many company failures. However, there have been few legal consequences of arguably poor strategic management and risk management by directors, and little new regulations affecting the boards of listed companies in the financial sector as a result. This essay discusses the changes that have taken place as a result of the financial crisis and evaluate the proposed changes in preventing recurrence of the financial crisis and the prosperity of companies.
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There are three legal functions of a bill of lading; 1. Evidence of Receipt of Cargo 2. Evidence of a Contract of Carriage 3. Documentation of Title to Cargo (only if its an order bill)
According to The Carriage of Goods By Sea Act 1992 S5(1), the contract of is contained in or evidenced by the Bill of Lading. Specific conditions will be stated on the face with general terms being on the back. The Bill of Lading acts as a documentation of title only if it is an order bill. The goods will be transferred at the destination port on proof of an original copy of the bill. If it is an Order Bill the goods can be sold during transit but the Bill of Lading must be received by the new purchaser before the goods can be released to them.
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The Policy Defence - Excessive in Implementation? Prior to the Ipp report, the insurance industry in Australia was in the midst of a crisis. Increasing numbers of claims and claims costs caused insurers to suffer increasing losses, translating
An evaluation of their validity will be made with the aid of both critical and supportive comments. The CLAs of other States will only be mentioned where necessary. Overview of considerations In the Panel's review of public authorities' liability arising from negligence, two distinct categories were identified [10.1] 10. Resource allocation was the central theme for both categories. The first was of allocations made in performance of the authority's function [10.2]. The second were of decisions made based on political demands and social policy [10.9]. The Panel recognised that statutory authorities have a limited budget with which to deal with a large range of challenging problems.
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Incorporation. Upon incorporation a company comes into existence and thereby assumes legal personality having rights and obligations as it were like a natural person. The common law position is that once stipulated registration requirements have been met
Claims are therefore , legally confined to available assets of the company. Personal assets of members are not part of the company assets. If it were not a rule, investors would risk less in business for fear of losing personal assets should the business collapse. Having limited liability 'cheaply' and 'easily' available is to remove unnecessary legal bars which can be an inhibition to progress of economic activity. Incorporation process should be straight forward, and cheap, and importantly once the company is incorporated the rule follows without question.
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Retention of Title. The term retention of title has become significantly vital in a commercial perspective due to the important ruling made in a case of Romalpa 
This can be done by notifying the buyer of the clause either by including it in a contractual document signed by the insolvent or by showing that both parties understood the seller's terms of business. One way to find out is to look at the statements made in the scenario 'The gravel he supplies is generally mixed...' and 'owns a business supplying gravel to other businesses.' It appears to be clear from the word 'supply' that there is a contract and therefore, the incorporation could be presumed.
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Legal Environment - Popeye v Spinach Tankers Ltd. The appellant claimed damages under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 due to the sinking of a vessel caused by the negligence of the defendants.
Also, [Line 176] "some 'plant and machinery' would be properly described as 'equipment' even in the most ordinary use of the term..." The Golden rule - [Line 172] "...must have been inserted for clarification and the avoidance of doubt." The Purposive approach - [Line 169] "It must have been inserted in the statute either for the purpose of enlarging the word by including in its articles..." Also, [Line 177] "...the purpose of the express inclusion of plant and machinery can, I think, only have been to make it clear that every type of plant and machinery is to be regarded as equipment within the meaning of the 1969 Act."
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The Criminal Justice Act 1993 (CJA) and the Financial Services and Markets Act 2000 (FMA) does not sufficiently regulate insider dealing infringements in the UK."Discuss
Nevertheless, by introducing the CJA 1993, the UK government overlooked the problems arise concerning criminal confrontation under the previous law. It has been argued that depending only on criminal sanctions to regulate insider dealing was inappropriate as the task to prove the act and the state of mind that someone had dealt on inside information beyond reasonable doubt is almost impossible to succeed. This renders the enforcement of such prohibition by criminal penalties particularly expensive as so few regulatory agencies are willing to take efforts to enforce legislation that is practically impracticable to enforce. The disappointments at the inability of
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Both the common law and statute make it too easy for buyers to reject goods. Critically discuss this statement.
It is not deniable that there are varies definitions of 'consumer', but, here, we simply assume that 'consumer' means that a person who acquires goods and services for personal or household to develop further discussion, because the focus of this paper is not propose to offer a prescriptive definition of the consumer, but to investigate whether or not the common law and statute make it too easy for buyers to reject goods. Consumerism The basic rules of tort and contract law which apply today and which are the current basis of 'consumer protection' law were introduced in England.
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Piercing the Corporate Veil. The concept of the separate legal personality, which regards a company as a separate person from its members, sometimes may act as a vehicle to defraud others, and it is to guarantee the interest of justice (Bisacre, 2002, p.5
In the case of Macaura v Northern Assurance Company Ltd  A.C. 619, Macaura failed to get compensation by putting the insurance in his own name instead of the company actually owning the timber, it was held that, 'Macaura could not claim on the policy, as the timber was no longer his to insure.' Piercing the Corporate veil The original idea of the separate legal personality is to benefit the economy by encouraging companies' incorporation. According to Pettet (2005, p.31), if investors have set up financially risky ventures, they could invest in high-risk sectors without facing individual bankruptcy.
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The damage to the left eye arose due to an accident which was basically as result of a defect in the product. The condition of the eye developed due to a defect in the product. Earlier common law, negiglence had failed due to the foresability test. This meant that the injury which occurred was unlikely but also predictable (Pill, 2000). For the mentioned problem in the defect of the product, the Consumer Protection Act, 1987 would be applicable. This Act is meant to protect those who are consumers of a product or a service in order to protect them from any kind of damage and hold the manufacturers responsible.
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According to Menon J, detriment to the company, in the form of depletion to its assets, whether in fact or contingently, was a critical element of financial assistance, a rule which was premised on the doctrine of capital maintenance. While s 76 makes no mention of any requirement for depletion, the court inferred the requirement from the instances of financial assistance set out in s 76(2), which included financial assistance by providing a loan, the giving of a guarantee and the provision of a security.
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The case was finally settled with UCC's payment of US$470 Million to the Indian Government, and the compensation was reported to be partially held by the government and not fully distributed to the victims until 2004, when it claimed all cases had been cleared. Individual lawsuits staged by Indian victims against UCC, on the other hand, continue and have remained unsettled till today. The table below gives a quick summary of the event: The Bhopal Disaster at a glance Time * 1984, when the tragedy happens * 2004, when compensation is distributed to the victims * Spanning across more than
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The academic debate concerning on the directors duties is one of the oldest issues in company law and the corporate governance. The common law gave the directors a large degree of latitude in terms of standard of care expected of them. Before Re City Equi
This is therefore an objective test. The intervention of statue in particular the Company Directors Disqualification Act (1986) and Insolvency Act (1986), S (214) extended and refined director's duties in respect of the failing company introducing an objective standard. However subjective consideration will take into account on the level of any particular special skills a director may possess. Company law review went on advocate two possible approaches to reform, which it termed the 'enlightened shareholder value' and the 'pluralist' model".
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These friendships can quickly lead to strong emotional attachments. Strong emotional attachments with the opposite sex can often lead to romance. The most noticeable theme is that they work together, grow to understand one another and "relate" better to this co-worker than they do to their spouse. The co-worker friend offers someone who relates to talk with the topic that known by both of you, someone who empathizes with them and does not bring any of the stress that home often has, making them all the more attractive.
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Commercial Law Case. Jack needs to be advised regarding the two issues he has with the Solent Builders and Ron. The first issue is that, Jack discovered that Solent Builders in liquidation and have not paid for the bags of cement. The second issue is that
until such conditions as to the payment of instalments or otherwise as may be specified in the agreement are fulfilled.1 The legal right that can bind in the first issue is that, sale by a buyer in possession under section 25 of Sale of Goods Act 1979 (SGA)"Where a person having bought or agreed to buy goods obtains, with the consent of the seller, possession of the goods ... the delivery or transfer by that person ... of the goods ...
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It is worth noting that the judge instructed the jury that "making available" was enough to constitute an infringement. On October 4th, 2007, after 5 minutes of deliberation, the jury returned a verdict finding Thomas liable of willful infringement, and awarded damages in the amount of $222,000, a total of $9,250 per song. Once the guilty verdict was handed down, Thomas' lawyer then ordered a retrial on the basis that recent case law cast doubt on the theory of "making available" as infringement. After Thomas' original lawyer stepped down in May, 2009 while preparing for the retrial, Thomas accepted Joe Sibley's offer to defend her.
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Common law states that reasonable notice of terms should be given at the time of contract. According to Unfair Contract Terms Act 1977 one cannot limit or exclude liability against loss or damage to property unless there are responsible circumstances. As well as the past case of Mrs Olley is a stable case reference in the courts for the law of liability and law of tort. The liability clause notices displayed in various places does not safe guard the company's right of negligence as according to the Unfair Contract Term Act 1977 a minimum level of duty of care should be taken.
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Discuss the development of Implied Terms in English Contract Law and how this is reflected in the current Sale of Goods Legislation.
There for, an offer should not be an invitation to treat2. But in the case of Carhill v Carbolic Smoke Ball an offer was made in advertising it in the newspaper. 3. Acceptance. It can not be a counter offer and it should be accepted with the term of offer (for instance: the price of the good that is offered). It can be done by post, email, fax, phonecall or by word, but Offeree must know that Offeror has got an answer.
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Atrophia Alldown, the CEO of Simple Serenity, tells Gomez she wants to acquire some luxury funeral homes to expand Simple Serenity's range of services. She says Simple Serenity has already signed a deal to buy Hampshire Haven Ltd, and wants to buy Stately as well. She tells Gomez to think seriously about the deal as "Stately couldn't possibly compete with Hampshire now that Simple Serenity is running the show." Worried, Gomez calls a company meeting and presents the deal. The company constitution requires a 75% resolution of members before a decision on selling Stately or its subsidiaries can be made.
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through the law recognizes rights of power over it.17 In Anglo-western society, things perceived as holding value through social relationships that gave rise to property rights were ultimately defined through the common law,18 and as society developed, rights became enshrined through statute to now cover many different forms of property.19 Consequently, at the heart of property law is the recognition and regulation of competing interests over a thing of value.20 III HUMAN PROPERTY - TRADITIONAL LEGAL PERSPECTIVES. It is preoccupation with possession, more than anything else, that prevents [people] from living freely and nobly.21 Locke and Blackstone asserted that both
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assessment of tax that quantifies the sum which the person liable has to pay (3) methods of recovery if the person taxed does not voluntarily pay 1 The constitution makes a distinction between tax and fee which are both impositions made by a state for raising revenue of the state. A fee in contrast is imposed for rendering services and bears a broad co relationship with the services rendered. Taxes are specifically named and distributed between the Union and States by various entries in List I and List II of the Constitution. A tax not so mentioned can be levied by the Union under Parliament's residuary power in entry 97 of List 1.
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In addition, s588G is subject to meeting various pre-conditions. 1. A person is a director of a company at the time when the company incurs a debt.3 Under Australian Corporations Act, it has a noticeable point that s588G will only apply to directors but not the extensive group of persons who involved themselves in the management of the corporation.4 A director of a company is defined in s9 as a person who is delegated to the place of a director or substitute director no matter what name given to their position.
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