Legal Advice in Various Cases - Essay Example

Legal Advice Part Heather’s Case There are several issues in Heather’s case that should be filtered on the screens of reality. For instant, she is appointed by the Cambridge Organic (a wine producer in England specifically in Cambridge) with no signed agreement on contract basis. Her earnings are based on commission which is approximately 15% of each sale she makes. Despite, her ever increasing performance, she is dismissed on the grounds that the company anticipates or intends to open its own retail shops to facilitate the selling of its wine1. The notice of the dismissal however leaves more questions than answers. While taking a legal action against Cambridge Organic, Heather requires an experienced lawyer who is conscious to the regulations of commercial agents as well as the laws that protect the organizations and their subjects who in this case are the employees or apprentice or worker2. The 1996 employment acts of the United Kingdom illuminates that employees have a right not only for a fair dismissal but also a reasonable notice before being dismissed. They are also entitled to redundancy payment in case their jobs are rendered unnecessary especially on economic grounds. The 1993 commercial agents regulations asserts that commercial agent is referred to intermediaries who are self-employed and has the authority to sale and purchase of products on behalf of the principle (in this occasion the principle is Cambridge Organic) or completes negotiation or sale on behalf of the principle. Apparently, Heather had complied with her duties as a commercial agent. The law mandates these agents to look after the interest of the principle and action in utmost good faith; put efforts in making negotiations and where possible concludes sales; comply with the principles instructions; and communicate with the principle on necessary information. On the other hand, the principle has the duties of informing the agents within an appropriate period on the refusal or acceptance of the procured transactions of their agents. The remunerations regulations of commercial agents stipulate that an agent is entitled to commissions accrued on transactions concluded within the confines of the period of the contract. Moreover, the agent is also entitled to transactional commissions within the period of contract of the agency especially where the agent has exclusive right to a geographical setting or particular specific clients. This above entitlement is only viable if the transaction entered into is within the geographical area in question or the group highlighted above3. The regulations on commercial agency also stipulate that the agents to commercial firms are entitled to commissions on concluded transactions even after the contract has been terminated. This regulation is conscious to the agent’s effort during the contract period and the transaction ought to have been entered into within a period that is reasonable by incorporating the terminated contract4. What complicates Heather’s case is that their agreement with the company in question was not documented since she did not sign any document pertaining to the contract with the company. The law on commercial agency dictates that the agents and the principle should receive a signed document embedded with the terms of contract. In addition, the period for the notification of the termination of contract by the commercial agency is outline with the aim of protecting them from unreasonable abrupt termination. If the contract is concluded within unspecified period the involve parties may terminate that contract by notice. The notice period should be one month for the initial year, two months for the second year and three months for the third and subsequent years5. In Heather’s case scenario she had offered her services to the company for two years and had just began the third year. Unfortunately, the company grants her a one week notice which contravenes the law as she is entitled to at least two months notice in reference to her duration of stay in the company. It is prudent to know that the end of the period of notice should coincide with the when the calendar month comes to an end. Heather should also be privy to the provision of regulations that entitle commercial agents to indemnity or compensation when the contract has been terminated. The company can only indemnify if the agent brings new clients to the principle or significantly optimizes the business volume with the customers who already consented to sales and the principle continues to obtain benefits from the business with those customers6. This payment of indemnity should be equivalent to the commission lost by the agent on the business entered between the customer and the agent. Furthermore, the indemnity amount is an equivalent figure to the agent’s annual average remunerations for a period of the preceding five years. However, if the period is much less then the calculation is pegged on the average of the period in discussion. In case, the court proceeding favors Heather on the indemnity or compensation, the company has the right to seek damages incurred by the agent while discharging duties. The payment of indemnity is disqualified if the principle termination of the contract is associated with defaults on the agent which calls for immediate dismissal or the agent terminates the contract. However, Heathers dismissal is not pegged on those grounds hence she can seek for indemnity/compensation. A similar case to Heathers though it majorly encompassed on compensation and indemnity is that of Charles Shearman verses Hunter Boot Limited where the judge ruling neglected the clause 14 of the commercial agent regulations of the 1993 and the principle lost the appeal for electing indemnity7. This calls for the need of Heather through the layer to carefully think on whether to embrace indemnity or compensation as there is inconsistency if the clause 14 of the 1993 commercial regulation acts. Part 2: Cambridge Organic case There are several accounts in which Martha-Rose could hold the Cambridge Organic Company into account. These accounts could be: the flavor of the wines did not satisfy the consumer (the wax used for sealing had apparently mixed with the wine during the production) and the effects of explosion of the wine such as breaking Martha-Rose’s TV and causing injury to her friends. The flavor did not meet the wine description. The wax or some elements in the wax reacted with the carbon dioxide which consequently led to pressure build up in the sealed wine bottle thus exploding when opened. It is this explosion that consequently results into the glass wines and Martha’s TV breaking. The amendments on sale of goods act of 1979 illustrates that consumers are protected by law while purchasing products or goods. The act highlights conditions that traders must meet while selling good. The goods sold must be as described by the trader; their quality must be satisfactory to the consumers; and fit for the intended purpose. Description in this case is in reference to the advert or the verbal communication/description on the goods sold by the trader. On the other hand, the quality in satisfaction dwells on cosmetic and minor defects as well as other problems that emanate for the product’s purported quality. Also these rights are upheld within a limited period of time8. However, the consumers’ rights are denied if they are warned on the existence of faults that are obvious or were pointed out at the point of purchase. The condition of the good or service should fit the purpose. The sales of goods act stipulates that the obvious purpose of the product or good is covered as well as the queried purpose being given assurance by the trader9. When a client purchases an item that does not meet the intended purpose then that item can be returned and the client is entitled to a refund. Moreover, if the cost of the similar item in another business venture or shop is more than that of the returned item then the trader covers for the extra cost. These rights last within a short span after which the trader assumes that the products have been accepted though the buyer still has rights to legal redress. In addition, the buyer of the good has entitlement to repair or replacement or refund which incorporates price reduction if the good has been subjected to wear and tear. Cambridge Organic Company in reference to Martha-Rose’s experience with their product can be sued that their product (wine) did not meet its description. Furthermore, the product did not fit its purpose instead the consumers (Martha and Friends) not only incurred loses but it also inflicted an injury to one of them. Suppose Martha and her injured friend seek redress in the corridor of justice then the company is bound to lose both its reputation and the incurred cost of litigation. They should advocate for out of court settlement with the aggrieved consumers. Consumer protection act of 1987 of the United Kingdom introduced a strict liability on damages that emanate from products that are defective to the clients10. The act also prevents manufacturers or producers from availing or supplying goods that not safe to the consumer. The locals’ council is allowed to seize these unsafe goods and suspend the selling of the product. In addition the act discourages acts where traders induce misleading prices though the Cambridge Company has not violated this act. When a producer is alleged to have contravened on product liability then they are not entitled to demonstrate that the fault emanated from actions such as those deemed negligence. The liability cannot be wished away by any clause that is exclusive. In addition, this acts categorized damage in three facets: death, individual injury, and damage to property. The damage on property entails property intended used privately by the individual making claim and the value is substantial, that is more than 275 pounds11. The research project by China illuminates that the undesirable effects are due to reaction between elements within the wax and carbon dioxide. The company ought to have investigated or found in its investigation the implication of using the wax to seal the bottled wine. The court cannot take into account such negligence on the producer’s part. The company is obliged by the intriguing circumstances to halt its supply of the wines to prevent other potential damages as well as judicial reviews on its defective products. Interestingly, it leaves more questions than answers as to how the product met the standard requirement which is regulated by the British Standards Institution (BSI). This institution allows products to be placed legally into the British market. As the company tries to seek out of court settlement on potential liability to Martha-Rose, the settlement should be aimed at compensating the damages accrued to the resultant effects of the product. Moreover, the bills that are likely to emanate from the injury of Martha’s friend should be catered for by the company promptly12. Bibliography: Munday R J C. Agency: Law and Principles (Oxford: Oxford University Press, 2008). Burrows A S. English Private Law (Oxford: Oxford University Press, 2013). Withersworldwide. Another victory for the Commercial Agent as English court rules that Principal cannot have the best of both worlds (2014). < http://www.withersworldwide.com/news-publications/another-victory-for-the-commercial-agent-as-english-court-rules-that-principal-cannot-have-the-best-of-both-worlds--2> Accessed on 31st March 2015 Bradgate R., Fidelma W and Margaret L. Commercial Law 2012 (Oxford: Oxford University Press, 2012). Furmston M P. Principles of Commercial Law ( London: Cavendish, 2001). BBC. Sale of goods Act 1979 (as amended) (2013).< http://www.bbc.co.uk/programmes/articles/3zR6PS2LXwbV3sY2MT9PPjF/sale-of-goods-act-1979-as-amended> .Accessed on 31st March 2015. Application of Part Ii of the Consumer Protection Act 1987 - Consumer Safety -: Report by the Secretary of State for the Department for Business Innovation and Skills for the Period 1 April 2003 - 31 March 2008(London: Stationery Office, 2010). Harpwood V. Modern Tort Law (London: Cavendish Pub, 2003). Read More