Law of Business Management - Assignment Example

Question One The advertisement placed in the local press by Wedded Bliss stating that all wedding dresses will be available at half price and that the first customer to ender the door upon opening on March 1 will also receive a free case of champagne is an invitation to treat rather than an offer. This is an important distinction since a contract is formed at the precise moment that an offer is accepted. In the Victorian case, Nunin Holdings v Tullamarine Estates Pty Ltd [1994] 1 VR 74 it was held that Whatever the circumstances, it is fundamental to bear in mind that the general rule is that a contract is not completed until acceptance is actually communicated to the offeror.1 The distinction between an invitation to treat and an offer has long since been established in the law of contract. In Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1951] 2 QB 795 the chemist shop was organized in such a way that the goods, including prescription drugs were displayed so that the customer could select from among the goods and proceed to the cashier to complete the sale. At some stage during this process a registered pharmacist inspected the goods and either denied or refused the sale. The plaintiff claimed that the sale was contrary to the current legislation which required the sale of prescription drugs under a registered pharmacist’s supervision. The question then turned on when and at what point was the offer and acceptance actually made. It was held that the display of the goods only implied that the vendor was willing to ‘treat’ and an actual offer was not made until such time as the customer took the goods to the cashier.2 Generally an advertisement is regarded as an invitation to treat.3 However, if the advertisement goes beyond a mere invitation to treat and can be considered an offer, acceptance of which would constitute a binding contract.4 It was held in Partridge v Crittenden [1968] 1 WLR 1204 that an advertisement appearing in print form which states the price for the sale of certain goods it will only be considered an invitation to treat.5 Once a customer makes an offer to purchase the advertised goods and that offer is accepted by the vendor a legally binding contract is formed.6 In light of these considerations Carla has no claim to the case of champagne even if she had managed to enter the doors of the store first, as the advertisement was an invitation to treat and as such can not form the basis of an enforceable contract. Based upon the ruling in Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1951] 2 QB 795, which is a firmly established principle in the law of contract, Pauline merely trying on the wedding gown is not sufficient to substantiate an acceptance of the offer to sell the same. In order to constitute an acceptance of an order, Pauline would have had to present the wedding dress to the cashier for payment. Therefore Pauline can not be compelled to pay for the dress. Lesley and Wedded Bliss have a legally binding contract. All the elements of a contract exist. There is offer and acceptance as well as consideration. Once offer and acceptance are found to exist, the courts will then look to determine whether or not there is consideration. Consideration was defined by Lush LJ in the following terms: ‘…some right, interest, profit or benefit accruing to one party, or some forebearance, detriment, loss or responsibility given, suffered or undertaken by the other.’7 Lesley paid for the dress with the understanding that Wedding Bliss would make alterations free of charge. Question 2 Emmandness’ return policy is tantamount to an exclusion of liability clause. The validity of the policy and the right to return the items purchased at Ennandness are issues arising under the Sale of Goods Act 1979. By virtue of Section 2(1) of the Sale of Goods Act 1979 the sale of goods is described as a ‘contract by which the seller transfers or agrees to transfer the property in goods to the buyer for money consideration called the price.’8 According to the Court of Appeal in Clegg and another v Olle Andersson (trading as Nordic Marine) [2003] 1 All ER (Comm) 721 a buyer loses his right to reject goods that are of unsatisfactory quality if he accepted the goods in accordance with Section 11 of the Sale of Goods Act and/or he treated the goods in a manner which was inconsistent with the vendor’s reversionary interests within the meaning of Section 35(4) of the Sale of Goods Act 1979.9 Section 35(4) of the 1979 Act provides that ‘the buyer is also deemed to have accepted the goods when after the lapse of a reasonable time he retains the goods without intimating to the seller that he has rejected them.’10 Petunia returned the goods to the store the following day and therefore it can be assumed that she did in fact return the goods within a reasonable time. However Section 35(1) of the 1979 will arise in respect of the laptop since it was thrown across the room in disgust and very likely suffered some damages. According to Section 35(1) ‘The buyer is deemed to have accepted the goods subject to subsection (2) below— (a) when he intimates to the seller that he has accepted them, or (b) when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller.’11 Typically, a party entering into a contract is bound by exclusion of liability clauses that are contained in the contract.12 It will not matter whether or not notice of the exclusion clause is actually received or read.13 Courts will generally attempt to balance the doctrine of freedom of contract against the necessity of protecting weaker parties in contracts.14 Notwithstanding the fact that an exclusion clause will generally bind parties to a contract, there are certain factors that can operate to negate its validity. For instance, in order for an exclusion clause to bind the parties, the party to whose detriment it is directed is required to have adequate notice of the terms of the clause either before or during the time of entering into the contract. Whether the exclusion is read or not is immaterial.15 The exclusion clause is displayed at the reception area at Ready To Ski and it generally the practice of these kinds of businesses that the contract is concluded at the front desk upon admission on the premises and the negotiation of the ski instruction terms. Therefore in the circumstances, it appears that Ben is deemed to have effective notice of the exclusion clause and its terms. The case of Chapelton v Barry UDC (1940) 1 KB 532 offers a significant exception to the application of an exclusion clause. In this case the plaintiff was on a beach resort where a pile of chairs contained a notice which essentially read, ‘hire of chares 2d per session of 3 hours – Public requested to obtain ticker from attendant.’16The plaintiff helped himself to a chair and availed himself of the ticket which stated ‘the council will not be liable for any accident or damage arising from hire of the chair.’17 It was held on appeal that the restriction was not contained on the notice to obtain a ticket (which may not have been obtained simultaneously with the hiring of the chair) and could not operate to alter the terms of the contract.18 Applying the reasoning in this case Petunia is bound by the exclusion clause since it is present at the place and time of entering into the contract. As a result she cannot return the goods unless they are returned according to the store’s policy. Question 3 By virtue of a directive issued by the European Commission on November 27th, 2000 discrimination on the grounds of disability within the labour industry is unlawful The directive provides that ‘any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community.’19 In compliance with this Directive, on October 1st, 2004 England enacted and passed into law two amendments to the Disability Discrimination Act 1995. They are Disability Discrimination Act 1995 (Amendment) Regulations 2003 SI 2003/1673 and Disability Discrimination Act 1995 (Pensions) Regulations 2003 SI 2003/2770. Another piece of legislation was also enacted at the same time. This piece of the legislation was the Disability Discrimination/Code of Practice. 20 The collective purpose of these additions to the Disability Discrimination Act 1995 was also to improve the protection of disabled persons.21 For the purpose of this discussion, the relevant statutory provision is the 1995 Act as amended. Section 5 of the Disability Discrimination Act 1995 defines discrimination on the basis of disability as follows:- ‘5(1) For the purposes of this Part, an employer discriminates against a disabled person if- (a) for a reason which relates to the disabled persons disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and (b) he cannot show that the treatment in question is justified. (2) For the purposes of this Part, an employer also discriminates against a disabled person if- (a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; (Section 6 relates to a duty to accommodate the disabled person) and (b) he cannot show that his failure to comply with that duty is justified.’22 The Disability Discrimination Act 1995 as amended by the Discrimination Act 2005,23 defines a person suffering from a disability as someone with either a mental or physical impairment ‘which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.’24 On the facts of the case for the discussion Peter’s disability obviously has no impact on his ability to perform his duties and the decision not to hire him is contrary to the Council Directive quoted above as well as the Disability Discrimination Act 1995 as amended by the Discrimination Act 2005 as cited above. As for Tony, the discovery of a previously undisclosed or false information on the part of an employee can constitute grounds for dismissal. However, it will be more difficult for this discovery to constitute grounds for dismissal if the employer never made enquiries regarding previous convictions prior to employment.25 In this case however, it appears that the information was requested and given, but falsified. The question then becomes one of trust. The same principles apply to Geoff as he has violated the trust between employee and empoyer. In the case of Kawol v Caring Homes Ltd the employment tribunal held that failure to disclose the contents of a previous conviction and sentence on the part of an employee constitutes a breach of contract because it represents a breach a trust between an employee and employer. The breach of contract is not based on the conviction itself but the failure to disclose it when asked.26 It appears on the facts that the terms of the employment contract between Phil and Ultimate Images that Phil after having been employed with Ultimate for five years is entitled to some time off. Whether or not Ultimate is at liberty to deny Phil the right to time off will depend on whether or not it is reasonable to deny it in the circumstances of the case. To start with, the company undertook a number of photo shoots with the understanding that Phil would be available to make those shoots. According to the ruling in Lee Edworthy v YMCA South Devon Limited [2004] ALL ER (D) 94 EAT if an employer suffers a financial hardship in making adjustments to accommodate an employee then it is not fair to insist that the employer makes those adjustments.27 It is obvious that at this time, Ultimate cannot afford to permit Phil’s leave of absence without suffering a loss. However, when balanced against Phil’s particular set of circumstances, it might be advisable to higher a temporary photographer to stand in for Phil so that he might take his leave of absence. Question 4 By and large the relationship between an employee and an employer is regulated by contract there are terms and conditions that are implied by statute and common law principles. For the purpose of this discussion an implied term of any employment contract is ‘the duty of care’ owed to an employee by an employer during work hours within the authorized work place. The House of Lords ruled in Wilsons & Clyde Coal Co. Ltd v English [1937] 3 All ER 628 that ‘the whole course of legal authority consistently recognises a duty which rests on the employer, and which is personal to the employer, to take reasonable care for the safety of his workmen’.28 Moreover, by virtue of the Health and Safety at Work Act 1974 the duty to provide a safe place of work is also a statutory duty. Section 2(1) provides that ‘It shall be the duty of every employer to ensure, as far as is reasonably practicable, the health, safety and welfare at work of all his employees.’29 Section 2.2 goes on to provide that ‘the matters to which that duty extends include, in particular - the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health; the provision of such information, instruction, training and supervision as is necessary to ensure, so employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work.’30 The Management of Health and Safety at Work Regulations 1992 came into effect in 1993. These regulations make it mandatory for employers to assess the health risks to which their employees are exposed ‘for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed on him by or under the relevant statutory provisions.’31 If an employer violates legislative provisions imposing a duty to provide a safe place of work he can be liable to criminal prosecution. In all the circumstances the health and safety provisions implemented by the meat factory for which Tony was recently employed fall short of that which is reasonable in the circumstances. As Tony was only just recently employed, leaving him to manage the dangerous machinery without supervision was negligent and as a result the meat factory faces both criminal and civil liabilities. Question 5 Based on the fact of the case it appears as though Una does not have patent protection in respect of her musical creation. In other words it appears as though she has not registered the music nor has she made an application for registration. Patent protection is calculated to prevent others, particularly those in competition, from product exploitation. Essentially, patent protection restricts and controls the manner in which others can copy, manufacture, sell and otherwise use a patent without permission from the patent’s registered owner. In the event others use a registered paten without prior approval from the registered owner, the owner can take legal action for damages in respect of such exploitation.32 Patent protection provides the following benefits: 1. It permits the registered owner to sell his or her invention and all intellectual property rights associated with it. 2. The property patented can be licensed to another without requiring the owner to part with the intellectual property rights. 3. The owner of the patented material can negotiate with others with a view to setting up business interests in respect of the patented material.33 The Patents Act 1977 represents the substantive law regarding patent protection within the UK. The 1977 Act also makes provision for the application of UK patent law within the European Patent Convention as well as the Patent Cooperation Treaty. Subsequent statutory provisions such as the Copyright, Designs and Patents Act 1988, the Regulatory Reform (Patents) Order 2004 and the Patents Act 2004 have modified the Patents Act 1977. 34 By virtue of Section 55 of the Patents Act 1977 patent protection is always subject to the government’s right to use the patent without the prior permission of the patentee. Section 55(1) provides as follows:- ‘Notwithstanding anything in this Act, any government department and any person authorised in writing by a government department may, for the services of the Crown and in accordance with this section, do any of the following acts in the United Kingdom in relation to a patented invention without the consent of the proprietor of the patent, that is to say - (a) where the invention is a product, may - (i) make, use, import or keep the product, or sell or offer to sell it where to do so would be incidental or ancillary to making, using, importing or keeping it; or (ii) in any event, sell or offer to sell it for foreign defence purposes or for the production or supply of specified drugs and medicines, or dispose or offer to dispose of it (otherwise than by selling it) for any purpose whatever…’35 Patent protection is provided in instances where the government does in fact make use of a registered patent. By virtue of Section 57 compensation is payable for loss of profits as follows:- ‘57A.-(1) Where use is made of an invention for the services of the Crown, the government department concerned shall pay - (a) to the proprietor of the patent, or (b) if there is an exclusive licence in force in respect of the patent, to the exclusive licensee, compensation for any loss resulting from his not being awarded a contract to supply the patented product or, as the case may be, to perform the patented process or supply…’36 Section 60 of the Patents Act 1977 defines infringement of a patent in the ordinary course of business. In that case a patent is infringed when a person does ‘any of the following things’37within the jurisdiction of the UK ‘in relation to the patent’38without first obtaining the patentee’s permission: ‘(a) where the invention is a product, he makes, disposes of, offers to dispose of, uses or imports the product or keeps it whether for disposal or otherwise; (b) where the invention is a process, he uses the process or he offers it for use in the United Kingdom when he knows, or it is obvious to a reasonable person in the circumstances, that its use there without the consent of the proprietor would be an infringement of the patent; (c) where the invention is a process, he disposes of, offers to dispose of, uses or imports any product obtained directly by means of that process or keeps any such product whether for disposal or otherwise.’39 By virtue of Section 61(1) a patentee can commence legal proceedings in the civil courts for infringement of his patent pursuant to Section 60 as cited above. The following applications may be made in a civil action: ‘(a) for an injunction or interdict restraining the defendant or defender from any apprehended act of infringement; (b) for an order for him to deliver up or destroy any patented product in relation to which the patent is infringed or any article in which that product is inextricably comprised; (c) for damages in respect of the infringement; (d) for an account of the profits derived by him from the infringement; (e) for a declaration or declarator that the patent is valid and has been infringed by him.’40 Even if a patent is only partially valid a patentee may obtain partial relief in respect of that part of the patent which is found to be valid.41 Section 77 of the Patents Act 1977 makes identical provisions for patent protection in respect of a European patent as follows:- ‘(a) the proprietor of a European patent (UK) shall accordingly as respects the United Kingdom have the same rights and remedies, subject to the same conditions, as the proprietor of a patent under this Act…’42 Unfortunately for Una she will be denied the patent protection in respect of the musical invention up to this point. However, by reference to the laws discusses above she is at liberty to register the patent at this point and she can enforce her rights against Davina and Nakida’s preventing further use of the patent. Bibliography British Employment Law. (December 7th 2006) http://www.emplaw.co.uk/researchfree-redirector.aspx?StartPage=data%2f20030381.htm Viewed April 11, 2007 Chapelton v Barry UDC (1940) 1 KB 532 Cornish, W.R.,(2003) Intellectual Property: Patent, Copyright, Trade Marks and Allied Rights , London, Sweet & Maxwell. Clegg and another v Olle Andersson (trading as Nordic Marine) [2003] 1 All ER (Comm) 721 COUNCIL DIRECTIVE 2000/78/EC of 27 November 2000 Official Journal of the European Communities. 2.12.2000 L 303/16 Currie v Misa (1875) LR 10 Exch 153 Disability Discrimination Act 1995 Disability Discrimination Act 2005 Drexl, J and Ku.r, A. (2005) Intellectual Property and private international Law: heading for the future, Oxford: Portland, Or: hart Pub. Grainger & Son v Gough [1896] AC 325 Health And Safety at Work Act 1974 Lee Edworthy v YMCA South Devon Limited [2004] ALL ER (D) 94 EAT Management of Health and Safety at Work Regulations 1992 McEntive, E. Business Law. (2005) Longman, Pearson Higher Education Patents Act 1977 Partridge v Crittenden [1968] 1 WLR 1204 Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1951] 2 QB 795 Nunin Holdings v Tullamarine Estates Pty Ltd [1994] 1 VR 74 Re Mount Tomah Blue Metals Ltd (in liq) [1963] ALR 436. Sale of Goods Act 1979 Thomas v LM & S Ry (1930) 1 KB 41 When Convictions Come to Light. http://www.recruitermagazine.co.uk/Articles/330828/When+convictions+come+to+light.html Viewed April 11, 2007. Williams v Staffordshire County Council [2001] EWCA Civ 1116 Wilsons & Clyde Coal Co. Ltd v English [1937] 3 All ER 628 Read More