The Law for Managers in Business: Introduction to the Course, Business Structures, Employment Law - Assignment Example

The Law For Managers Name: Student’ Number: Course: Tutor’s Name: Topic 1: introduction to the course The company I work in entered into a transaction with another company so as to be carrying out maintenance in the offices. The company delivered very good services that led to the extension of the contract. This was a very good transaction for the company. The commercial transaction was between the organization where I work in, and a promotion company. The company approached promotion company for the services of advertising their products for a period of six months the payments were agreed upon ant pried services effected the payment. The company was to print promotional coupons that will help increase their sales as well as help the customers to win a grand price of a car from the BMW Company. The Promotion Company printed the coupons as required but made a mistake because it printed a winning ticket in every five tickets instead of printing a winning ticket in every 50 tickets. This made the number of winners to be ten in each and every day, while my employers wanted a winning ticket to be one per day. The company I work in was not ready to award each and every winner. The company moved to court to seek if Promoters direct could pay for its negligence in its coupon production. This transaction ended poorly because the companies had to battle it out in court because the promotion company did not deliver as per the contract. This is because the promotion company had included an exemption clause in the contract document. This clause was not brought to the attention of my employer. The reason behind this is that before any contract is entered into all the terms and clauses should be understood by all the parties. Another lesson to learn is that all terms of a contract should be adhered to for it to be successful. Topic 2: Business Structures A proprietary company may wish to expand and yet it is not authorized to have capital from the marketplace. There are implications that arise from need for funds for expansion and they include the following. The company will have to either sell its existing assets or have other external loans. This means that the company will giving away its ownership to those it owes this means it be giving away some of its profits to the companies. This will destabilize the company because it will have debts to settle and its operation’s costs to meet. There is also a likelihood of the company running into losses because of its failure to meet its required output and failure to underutilize their resources. This means that the company won’t be able to meet its orders and this will affect its reputation negatively. The company will also be led to increase spending because expansion comes with extra responsibilities that will call for increased employees and resources. There is also an implication that the company will not get the funds to expand because many financial institutions like engaging with high reputable companies. A proprietary company may find it to attract any financial institution to give it the finances to expand. This means that the company will not be able to expand as the other limited companies this means it will face a lot of competition thus stagnation. This will cripple the business meaning it won’t be able to expand as required. The company will be forced to be in the operation for a very long time without expansion due to failure to attract any external finances. The company will be forced even to go into partnership with other companies so as to be able to expand. This means that the company will lose its powers to the partners because they have the finances to expand. Topic 3: Employment Law Darcy has just received a promotion to assistant concierge with a large hotel. Some very famous people attend the hotel and because of this the hotel has a strict confidentiality policy, staffs have received training on this policy. One day Darcy reviews the guest list and on seeing that the Prime Minister is staying he rings a newspaper to tell them, he receives $50 for this. Employment contract is made by terms which are implied and express. Implied terms are duties that both parties should play during this engagement. Express terms are terms such as salaries, time of engagement, company policies and what the company expects from an employee. Therefore, in Darcy’s case study the implied terms are duties that he was supposed to perform at the company. Therefore, the implied terms include, exercising skill and being competent, but Darcy breached this term because he was not competent with the computer system. This led to mistakes that had consequences to the company. Darcy is also not honest because he gave information in exchange of $50 and yet he is not supposed to do such a thing. The express terms that Darcy breached were the company policy of confidentiality where he gave information to the media of which he was not supposed to do such a thing. Another express term was that the company had a computer reservation system which the staff are well trained on how to use, but Darcy have made mistakes on several occasions that led to guests missing on their bookings. This is because he did not press the confirm button. Darcy’s manager Renoir had orally reminded him severely on how to use the confirm button. The breached terms are sufficient to guarantee termination of the contract because Darcy was not working in the best interest of the company. Topic 4: Contract Breach of contract is when one party to the contract does not meet the required obligations to the other party. These obligations are set by the terms of the contract, therefore, once these terms are met in one way or another is taken to be a breach of contract. The most common types of breach are when one party fails to complete the agreed terms in time. This results to lateness in completing the contract. There are many implications to breach of contract and they include destroying the company’s reputations to the other companies intending to enter into contract with the breaching company. The companies give recommendation after successful completion of contracts; therefore, a breaching company will not have any recommendations. Another implication is that the breaching company can be mistaken as a failing company to the other companies and will not receive any business dealings from the other companies in the same line of business. The company can also enter into losses if the other companies sue it for breach of contract. The company may be forced to pay heavy penalties for the breach of contract. The company can have remedies for the breach which will include cancellation of the contract. The company can cancel the contract because when a company breaching the contract allows the other company in the original position it was before the contract. There is also another remedy of restitution that puts the non-breaching company in a position to enter into another contract with a different company or have new terms to the breached company. Breach of contract is a very serious scenario in business because the breaching company destroys its reputation in the market. Topic 5: Property Intellectual property is differentiated from other methods of property because this is a property which has a bundle of rights which are attached to an intangible form of a scientific, intellectual or even an artistic creation. Over the years, intellectual property has continued gaining recognition as a force driving the cultural development as well as the economic growth. This as a result has given rise to the law of intellectual property. Although the aspect of intellectual property has continued growing, it still remains a challenge area to law. While transacting intangible forms of property, there arises complexities since there are rights created by the law of intellectual property between the individuals vested in objects that are abstract, and these being objects, they are not easy to define. Again, intellectual property role in the society has increased in significance as well as complexity because of its ever expanding nature. Complexities arise while transacting intangible property partly as a result of the specific nature of its culture, as regime based on the notion of arts as a commodity and knowledge, hence being referred to as just another type of intellectual property despite it being a special type of intangible property. Possessing intangible assets exclusively is difficult because they cannot be secured physically against being accessed by a third party hence they are non- excludable. Most rights of intangible property do not last indefinitely but instead, they last for just a given time period for example copyrights and this may be very hard in intellectual property transfer since, the new owner may be hindered from the full use of the property until the expiry of the copyrights . Some rights of intellectual property can last indefinitely for example trade mark registrations. In this case, exclusivity goes on as long as the property registration is maintained. Topic 6: Tort Law In a case Shaddock V Parramita City Council (1981) ALR 385, the plaintiff wanted to buy a property that was under the council’s jurisdiction. He went to the office to seek information about the future of road expansion in the area. Through his solicitor he wrote to enquire about the same. The council said there were no plans of road expansion in the area. This was wrong because this was one of the council’s plans. If there was a proposal to expand the roads the value could reduce. The plaintiff claimed that they incurred financial losses because they relied on the information from the council to purchase the land. The issue for the court was to decide whether the local government authority such as the council could be held responsible for the information it gives to the general public. The court held that there was duty of care that could arise if the council official new that the person seeking information could use it to make decisions about their information. This depends on the skills and competencies that are held by a government authority. This might result to negligent misstatement if the person receiving the information will rely on it to make future decisions. This is important in the current world because it could ensure that people do not negligent their duties in giving the wrong information. It is also important to anyone receiving information to ensure that they use the right channels using the word of mouth from an unauthorized people who could lead them into losses. This case can help solve the current cases that hinder smooth operation of business that arise as a result of negligence from any person who is entrusted by another to give information that they would rely in while making business decisions. Topic 7: Contract negotiation Devising a negotiation strategy while selling a business is fundamental because; of the present tight market. Lack of a perfect negotiation strategy can derail a deal even after executing all the other aspects of selling a business successfully. There are fundamental aspects that need to be included in a negotiation strategy in order for a sale of a business to be perfect. A common ground should be established between a buyer and a seller before the sale negotiations have started. This includes a signed letter of intent describing the proposed structure, proposed price as well as terms and conditions pertaining the business sale. This letter of intent is a responsibility of the buyer, and it kicks off the process of negotiation. Being a good listener plays a major role in making a good deal as it helps in gaining an insight into the mind-set of the buyer. Defining the objectives of selling the business is an effective aspect of the negotiation strategy. This is because, a seller’s goal of negotiating should always be the completion and achievement of a sale and purchase agreement mutually acceptable and benefiting both parties. Consulting experts is a plus in the negotiation strategy. This is because, no matter the knowledge and experience a person has about the business, a business sale negotiation can prove to be a risky and complicated task. Considering a seller’s concessions should be done after articulating the deal breakers. This is because deal breakers articulation eliminates any possibility of a misunderstanding occurring at the last minute. Considering concession helps the seller to give out too much, and again, not to dig in the heels very firm to an extent of making the deal untenable. Being realistic as well as strategizing small victories helps a lot in aiding the process of negotiations, as well as not putting of the buyer. Topic 8: commercial transactions Laws are different in many countries and this leads to different verdicts in the same case. In some countries commercial transactions have a different process from the other countries. In some countries there are very strict antitrust laws. The antitrust laws are laws that ensure that there are proper operations by companies while carrying out their business. This ensures that there is competition in business in the most professional ways. These antitrust laws means that no company can engage in business in a way to protect other companies from producing goods that will help in competing with the company goods so as to ensure efficiency in production of high quality products. In the United States a companies like Microsoft and Google are forced to give their production knowledge to their competitors. This action enables the competitors to produce the same products the leading companies are producing. In a country like India antitrust laws are not very effective because the country ensures that the leading companies continues to produce the products so as to cater for the growing market. Therefore, in the two countries antitrust laws will be solve3d in a different way and reach a different verdict. This means that it may not be a crime in India and yet be a crime in the United States. The lessons learnt in this process are that managers should always follow the right processes while carrying out the transactions. Another lesson is that every transaction should follow the legal process for it to be on the right track. The elements of intention and consideration required for the formation of a contract exist. The parties in this case are Pried Services as the defendant and customers who have the winning coupons as the plaintiffs. The plaintiff is the person that takes the case to court and the defendant is the accused party. Topic 9: Litigation There was a dispute between two parties John as the plaintiff and Ben as the defendant. John hired Ben to repair his vehicle and they agreed on a fee and John paid Ben. They agreed on when the vehicle should be ready for John to receive it. Ben gave John an identification document in form of a receipt. The document had the words “the company is not responsible for any loss or damage in the property’ during the repair there was some current faults and John’s vehicle was burnt in a way that it could not be repaired. When John learnt about this he sued Ben for damages. Ben argued that in the identification document it was clear that Ben would not take any responsibility for any loss or damage. This made Ben to refuse any responsibility because John wanted them to settle it out of court so as not affect their friendship. Ben refused and relied on the clause on the document. The issue before the court was to decide whether Ben could rely on the statement on the document to avoid liability. John argued that it was not brought to his attention before they entered into a contract. John said if this had been brought to his attention before the repair contract he would not have taken the contract with Ben. The court held that the statement had not become a term of the contract. The reason behind this was that the document did not appear to be a contractual document and it was not brought to John’s attention. It is important for the involved parties to understand the terms of the contract both express and implied. Topic 10: Insolvency Insolvency in a company occurs when a business has assets which are not sufficient to cover and pay their debts, or when a business is not in a position of paying its debts when it is required to. A high profile company insolvency occurs when this high profile company has debts and is not is not in a position to pay up the debts, since the assets of the company cannot meet all the debts the company owes. In case of insolvency, the administration of a company stops any legal process or even action from going on, unless a court or an administrator gives the go ahead. This in turn hinders the creditors of the company from undertaking any legal actions against the company in an effort of obtaining the outstanding debts. This action is taken by the company’s administrator in the interest of the creditors of the company as a whole. The administration reviews the company’s position as well as collecting the company’s information, and then takes over the daily control, management and running of the company. The creditors receive a written appointment from the company and a report is sent to them 8 weeks after the appointment. All the creditors receive a written report about the administration every 6 months. What the company owes is frozen on the day of administration and the creditors are paid after the company’s assets are realised, and after the costs of administration. The creditors are paid depending on their types; secured creditors, preferential creditors, unsecured creditors or even share- holders or even members. Secured creditors are paid from the realisation of the specific assets after the costs of realisations are deducted, so are the other creditors depending on what the company owes them. In an occurrence of a high profile company insolvency, the creditors are eventually paid but, with time after the realisation of assets from the company, and when the company can be able to pay them. References Abbott, K, Pendlebury, N and Wardman, K. 2007. Business Law. Sydney: Cengage Learning. Adamson, J.E. 2010. 21ST Century Business: Business Law. London: Cengage Learning. Allan, D.E, and Hiscork, M. E. 1997. Law of Contract in Australia. Sydney: CCH Australia. Carter, W.J, Harland, D and Lindgren. 1996. Contract law in Australia. London: Butterworth. Clarke, P. 2006. Law of Contract. Sydney: Turnaround Publishers. Emerson J.D. (2009). Business Law. London: Barron Publishers. Gibson, A. and Fraser, D. (2013). Business Law. Sydney: Pearson. Gillies, P. (2004). Business Law. Sydney: Federation Press. Goldman, A.J. and Sigismod, W. (2010). Business Law: Principles and Practice. Sydney: Cengage. Lambiris, M. (2012). First Principles of Business Law.Sydney CCH. Latimer, P. (2012). Australian Business Law 31st edition. Sydney: CCH. Miller, C. and Cross, J. (2004). Business Law: Text and Cases 11th edition. Sydney: Cengage. Read More