Concepts and Case Analysis in the Commercial Law of Contracts - Research Paper Example

Commercial Law Number Xavier Street. Dotty bought the premises, which was hairdresser's shop. Dotty intended to set up a hairdresser's shop in the same premises. At the time of sale there was an implied warranty. An implied warranty is that premise shall be free from any charge of encumbrance in favour of third party, not declared known to the buyer before at the time when the contract of sale was made. This warranty will not apply to encumbrance is declared to the buyer when the contract is made or he has notice of it. The facilities were part of what Dotty bought and he should she vendor for breach of warranty by the seller or the buyer erect or if compelled to treat any breach of condition as a breach of warranty, and Dotty will maintain an action against the seller for the breach of warranty. Dotty has a right for the goods bought together with the premise and may sue to specific performance. It allows the buyer to sue for specific performance when the goods are specific. The remedy is discretionary and will only be granted if the goods are of special value or unique in their nature like the antique furniture. Dotty can also sue the vendors against trespass on the goods. An action for trespass to goods lies where there is wrongful interference with another person's goods, which are in his possession. The interference includes actual taking of or a direct and immediate injury to the goods. This tort aims at protecting personal property. For an action to be enforceable as a trespass on goods, the plaintiff must establish that at the time of trespass, he had the possession of the goods either actual or constructive and that his possession had been wrongly interfered with or disturbed. For this case, it was trespass on chattels or goods. This is based on possession. The tort consists of interference with the goods, which are in the actual or constructive possession of the plaintiff. We need to determine whether the seating and hair dryers are fitting to the land and also consider whether it has been fixed with the intention that it will remain in position permanently or for an indefinite or substantial period, or whether temporary purpose. If they prove to have been fixed merely for a temporary purpose, it is obviously not a fixture Land includes things affixed to the land such as buildings and fences, and so on. A fixture is an object that was affixed to land with the intention of becoming a permanent feature of that land. The necessary intention is to be ascertained by reference to the facts and appearances surrounding the fixing of the object to the land.1 Since the seating and the hair dryers had been bolted to the floor they seemed to have been permanent hence they ought not to have been removed. Dotty bought the premises and because of that he owned everything including the seating and hair dryers, which had been securely bolted to the floor. The vendors without her consent wrongly took them way from her. The remedies to trespass are recaption, order for specific restitution and action for damage. In recaption, Dotty will be entitled to possession of goods which have been wrongly taken way from him, provided he uses no more than reasonable force. In order for specific restitution, the court may in its discretion order specific restitution of goods if the award of damages is not an adequate remedy. In action for damages the plaintiff is entitled to claim the full value of goods and damages for any inconvenience suffered by him while he is deprived of their use. Dotty bought new chairs from auctioneer who later telephoned her to say that original owner was his grandmother who has changed her minds and wanted the chairs back. The buyer acquires a better title if ha sold good by a person who met the owner. The rule is expressed by the maximum 'nemo dat quad no non habet' (no one can give what he has not). The rule protects the true owner of the goods against anyone who buys his goods from a person who has sold without his authority or without having any right in them. However, there is an exception to this rule. A mercantile agent, acting in the ordinary course of business, give a good title to the buyer of goods provided the buyer receive them in good faith and without notice to an lien or other right of the original seller in respect of the goods. Therefore, a person who buyers goods from an auctioneer gets good title of them even though the seller has exceeded his authority has been revolved by the true owner. Dotty has a better of his goods therefore should not return them. An act of conversation was committed to the goods sold with the premises. A person is entitled top session of goods can maintain an action for conversation against anyone acting inconsistently with the right of his ownership. Dotty had tried to begin clearing the back garden but his provoked impossible because her neighbour Oscar flew a model aero plane in circles above her head. This is trespass on Dotty's land by Oscar. Trespass on land is unjustified interference with one possession or unjustified entry on the land of another independent of any intention to trespass. An action for damages lies for a mere trespass even when the entry was through mistaken and no damage was done. Oscar trespassed Dotty land by doing an act affecting the conclusive right of Dotty's possession. Dotty can exercise the remedy to use reasonable force to disposes the trespasser or to obtain a court order for his rejection.2 There was also private nuisance to Dotty's land by Oscar. Nuisance is unlawful interference with person's use any money of the land or some right over interconnection with it. Private nuisance is using it's own land. It cannot be made an object of criminal proceedings but may be aground of civil wrong for damages or an injunction or both. Although a person has a right not to be disturbed by excess noise during the legitimate use of his property. On the other hand noise made deliberately to annoy the plaintiff may render the person responsible for making such noise liable to pay damages. For this case, Oscar caused interference on Dotty's land by flying novel aeroplane in circle above her head thereby making unable to clear back garden. He also took to firing air gun pellets at Dotty's dog. Dotty is entitled to remedies of damage and injunction. However, Oscar may defend himself from being sued by prescriptive right and triviality. In prescriptive right, he may show that him (Oscar) has been carrying on alleged act of nuisance for a period of over 20 years. In triviality, Oscar may prove that the act complained of as nuisance is grossly insignificant and temporally in it's operation. Similar case studied is that of: - Christie v Davey, 1893 The plaintiff and the defendant were neighbours. The plaintiff taught music in his house. The defendant disliked this and deliberately created noise by banging doors and hitting the ceiling of his flat to annoy the plaintiff. It was held that the noise made by the defendant was not of a legitimate kind, and he was liable to pay damages. Dotty can also sue her neighbour Oscar for negligence. Negligence is the breach of a duty caused by the omission to do something, which a reasonable man, guided upon those consideration, which ordinarily regulate the conduct of human affairs, would do, or doing something, which a prudent and reasonable man would not do. In order to maintain an action for negligence, the plaintiff must prove that the defendant owed him a duty of care, there had been a breach of that legal duty and that the plaintiff has suffered injuries to his person or property. So, Dotty will maintain an action for negligence because Oscar owed her a duty of care. Duty of care means 'if one man is near to another or is near to the property of another, duty lies upon him not to do that which may cause a personal injury to that other or may injure his property' - Lord Escher 3 When Dotty arranged to rewire the premises, he was told Electricks would only accept liability for electrical defects arising within 2 months period following the contractual completion data. This is an implied condition when a sale done. Condition as to merchantability when a particular type of goods is sold by description they shall be of merchantable quality. (Fit for the purpose they are manufactured). This condition does not apply if the buyer has examined the goods and such examination ought to have revealed the defect of which he is now complaining. But if such examination by the buyer does not reveal the defect and the goods turnout to be defective when put into use, the buyer can repudiate the contract and claim damage. For this case can sue and claim for the damage if the wiring is a put into use revealed defect. Gus found a gold necklace worth $50,000 and he kept it on behalf of Bert, Electricks, Dotty and the wife of the previous owner of the house. Gus becomes the bailee because he is the possession of the necklace on behalf of the others who are the bailors. Gus has duties to take care of the necklace, not to be negligent or otherwise use of the necklace and to return the necklace to others when they demand for it because they are entitled to it. Gus is liable to pay damage is the necklace is stolen by the servant of the Bailee. In case of the loss of the necklaces Gus may not be liable if he establish that the loss of the reliance resulted without any negligence on his part, but he must show that he exercised reasonable care to assist in their recovery and reported the matter to the police immediately after the loss. Number 3 Xavier Street She borrowed a loan moreover from his neighbour Larry. The mower was told and did not have a safety guard on it of which Larry warned sue about it and told her to wear safety glasses to protect her eyes because without the guard, the blades may throw back stones. Sue forgot this and is stuck in the eye by a stone. This action is not abandoned in the court of law. Violent was fit injuria' meaning that a person cannot complain of damages resulting from the risk he voluntarily consented to sun. This is also known as assumption of risk. She cannot claim any damage because he knew the Lawn mower did not have safety guard and was advised by Larry to wear safety glasses, which he ignored. She knew of the danger involved appreciated it and assured it voluntary. Tom bought a trim wheel from beautiful body company but it broke the very first time he used it. The trim wheel was supposed to reduce body size in 21 days when used as a gym equipment. When Tom bought the trim wheel there was an implied condition in that the beautiful body company in every contract of actual sale has the right to sell good and in an agreement to sell the will have the right when the Nark trim wheel is to pass. As a result of this, if the trim wheel turn strobe defective, Tom is entitle to reject the trim wheel and claim damages. There is also condition as to merchantability. The beautiful body company deals in body tuning and gym equipment, and then when their goods are sold by description they shall be of merchantable quality (fit for the purpose they are manufactured). Tom examined the trim wheel but the defect was not revealed but it was first put into use. Tom can repudiate the contract and claim damages. A similar case studied was that of: - Morelli v Fitchand & Gibson, 1928. Morelli bought a bottle of ginger wine from tree defendants shop. When he was trying to open the bottle, the wife came off seriously injured his hand. Held that the plaintiff was entitled to damage, as the bottle was not of merchantable quality. Number 7 Xavier Street Jim was told that the Martin's guitar he had been playing had been stolen from Stan. He was even shown a photo of Stan playing Martin's guitar. This issue concerns the law of property. Property means anything, which is capable of being owned, either it exist in tangible or intangible form. There is a difference between ownership and possession. Ownership is a matter of law and it denotes the relation between a person and any right that is vested in him over the property. A person becomes an owner of a property if he has ultimate legal right over its use and disposal. On the other hand, possession is a matter of fact. Position is physical detention coupled with the intention to hold the things detained as one's own. Hence, Stan can still enforce his rights to recover his guitar that was stolen by Martin. Both Martin and Jim can be prosecuted by police for criminal offence, whereby Martin will be prosecuted for stealing while Jim for being in possession of a stolen guitar. Jack who was used to frequently talk to Gilbert, the oldest person in the street had an aspiration to be a writer. According to Minnie, Jack wanted to write the stories told to him by Gilbert. This concerns the Intellectual property of Gilbert. Intellectual Property are non-corporeal things like ideas, plans, orderings and arrangements (musical compositions, novels, computer programs) - are generally considered valid property to those who support an effort justification, but invalid to those who support a scarcity justification (since they don't have the exclusivity property). The validity of property depends on whether the "property right" requires enforcement by the state. Different forms of "property" require different amounts of enforcement: intellectual property requires a great deal of state intervention to enforce, ownership of distant physical property requires quite a lot, ownership of carried objects requires very little, while ownership of one's own body requires absolutely no state intervention. The issue of Jack writing the stories told by Gilbert and and the ideas given by Jack to a TV produce which he regarded as stupid ideas and later on went ahead and lunched a similar a successful series based on the Jack's ideas are under the law of copyright. The Law of Copyright protects original 'works' that are 'fixed' in some way, such as on paper, film, sound recording, or as an electronic record on the internet, and so on. Copyright also protects designs, for example documents detailing the design as well as any artistic work incorporated within the finished product.4 Copyright lasts for 70 years after the death of the creator for many types of works. It is not legally necessary to do anything else to secure copyright, although there are a number of steps you might usefully take to protect your work. One precaution is to include the copyright symbol followed by your name and the date, as a warning to others against copying. Similarly in the case of unregistered design rights, no steps are necessary to secure protection - the person who creates the design owns any rights in it, except where the work was commissioned or created during the course of employment, when the rights will belong to the employer or commissioning party.5 Copyright does not protect ideas but it only protects the expression of an idea fixed in tangible form. Examples of material protected by copyright include novels, computer programs, databases; dramatic works such as dance or mime; musical works; artistic works such as paintings, photographs, architecture, and logos; and sound recordings on tape or CD. Hence for the Tom cannot publish the stories told by Gilbert because its his intellectual property and he can sue the TV producer for damages because he launched a very successful series based on Jack's idea. Bibliography Chirelstein, M, 2001, Concepts and Case Analysis in the Law of Contracts (University Textbook Series), California Gabriel, M, and Peter, G, 1998, International Trade and Business: Law, Policy and Ethics, 4th Edition, Cavendish Publishing, Texas. Gibson, A, Rigby, S & Tamsitt, G 2003, Commercial Law in Principle, 2nd Edition, Lawbook Company, Sydney. Hussain, A, 2002, General Principles and Commercial Law of Kenya, East African Educational Publishers Ltd, Nairobi. Saleemi, N. A, 1999, Commercial Law Simplified, Saleemi Publishers Ltd., Nairobi. Tunner C, 2003, Austraria Commercial Law, 22th Edition, Lawbook Company, Sydney Read More