Business Structures - Revolutionary Ventures Limited - Assignment Example

Student Name: Course Name and Code: University: Date of Submission: Individual Assessment QUESTION ONE: CASE STUDIES Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] 1 QB 401 Flow chart The area of law addressed in this case is the law of contract, with a specific focus on ‘offer and acceptance’. The facts of this case revolve around a new method of purchasing medicine by Boots cash Chemists. Instead of having a cashier behind the counter to obtain and sell what the customer wanted, the customers would be required to pick drugs from the shelves and then pay for them at the till. The Pharmaceutical Society of Great Britain however opposed the method arguing that it was unlawful in accordance to 1933’s Pharmacy and Poisons Act which states that a pharmacist is expected to supervise at the purchase point. According to the Society, displaying the products symbolized an offer and acceptance was made possible once the customer placed it into the basket; such that supervision by a pharmacist was not executed. The court sided with the Chemists and maintained that by picking a product, the customer made an offer; which was then accepted at the counter by the pharmacist who then supervised the sale. The case was hence dismissed. PART B In choosing this case, I considered a subject that highly interests me, thus settling for the subject of the law of contract. I considered a case with adequate information and facts so that I could effectively design my chart and discuss the focus of the case. I encountered challenges in answering questions regarding the facts of the case and the court’s decisions. I realized that I should address the court’s decision separately in order to understand how facts of the case were resolved. QUESTION TWO: BUSINESS STRUCTURES My company will be called Revolutionary Ventures Limited. Essential characteristics of a company A company’s essential characteristics can be analyzed as follows: Registration: It is compulsory for a company to be registered in accordance to the law. Legal entity: According to the law, an artificial person is created once a company is established and is legally distinct from its members. It can own, acquire and sell property as a legal person in its own name. It can sue and be sued in return. Limited liability: Member of the company cannot be required to pay debts of the company . Liability is limited depending on the nominal value of shares that members hold. Perpetual succession: The Company’s continuity is not affected by changes in membership such that a company may last forever. Common seal: Given that a company by itself cannot sign official documents, a common seal for the company replaces the signature. Shares transferability: Company shares are transferable freely except in the case of private companies. Legal obligations as an officeholder There are a number of laws governing the operations of company officeholders as stated in the Corporations Act 2001 which I will be expected to follow. The law requires officeholders to be honest and exercise caution I all the company dealings in order to avoid unnecessary losses. They are expected to know what the company is doing at all times and make sure that general operations and payment of debts are facilitated. Further, an officeholder must ensure proper financial records are maintained. Directors must act in the best interests of the company and use any information available in the company’s best interest. In essence, personal interests should not conflict with business interests. Availability of company name It is imperative to check name availability before attempting to register a company. I visited the ASIC website, www.asic.gov.au, and searched in the National Names Index to determine whether the name I chose for the business was being used by any other business (ASIC website). I also used ASIC’s Identical Name Check to decide on the name Revolutionary Ventures Limited. Type of company The company will be a limited company. This is to mean that the company will be an independent entity and the members will enjoy limited liability. Limited liability for members signifies that the members will not take responsibility for the company’s debts as it is an independent entity from the members. Rules The company will dwell on accountability, proper time management, honesty, integrity and respect in order to enhance success. Employees will be required to be highly accountable by providing reports on their daily activities. The company will have a set of rules on a constitution, which will be displayed in every office so as to ensure everyone is familiar with them and the consequences of failure to abide by them. Members of the company The members of the company will include members of the public who meet the set minimum criteria. To begin with, the potential members of the companies will not be bankrupt or convicted under the Company law for fraud and other offenses. Secondly, the members will be well learned with at least college education and indicate significant knowledge in business related matters. Duties of officeholders The duties of officeholders may vary depending on the type of company. Officeholders have a duty to oversee the completion of the company’s activities; ensure that financial records are effectively prepared and other forms of records are well maintained; ensure that the company’s business name is displayed in all places where the company does business; Make sure that the company adheres to the law; protect the company’s interests; and follow all duties and responsibilities as indicated in the company constitution. QUESTION THREE: LAW OF CONTRACT There are two legal issues in relation to Ms Jones. To begin with, she has made losses following a breach of contract with FAL. She can therefore sue the company for breaching the contract because even though it was not signed on paper, it was an implied contract. An implied contract occurs from the conduct of either of the parties or where there are assumed intentions (McCarthy, 2007, p. 48). Further, her nephew Joseph has a case against her for failing to pay him the dues associated with the renovations. Ms Jones can sue FAL for a breach of contract. While there was no signed contract, there was an implied contract as the agreement was complete and FAL had stated that it needed to lease the building. Jones can prove that she suffered loss following the company’s withdrawal from the contract and thereby demand compensation for a breach of contract. The relevant case law for this case is Omnium D’Enterprises vSutherland(1919). In this case, the defendant agreed to let a ship to the plaintiff. Before the actual performance time, the defendant sold the ship. The plaintiff could sue the defendant; given that the implied contract was breached PART B Joseph has a case against her aunt for breach of contract. Ms Jones breached the contract by failing to pay Joseph once FAL declared that they would not lease the building. Furthermore, he can file criminal charges if contract breach is not considered because Ms Jones refused to pay him for the work done. Joseph has the right to receive his payment. In relation to the law of contract, the agreement to conduct the renovations for Ms Jones consists of a contract because there was an initial agreement where both parties had enough consent. It is only after the project failed that Ms Jones refused to pay him. He needs to be compensated for the intimidation and the loss suffered when he left his permanent job to come and work for his aunt. The relevant case law for Joseph’s case is Boyo v. Lambeth London Borough Council [1994]. In this case Toju Christopher Boyo raised a case against the council for wrongful dismissal with an objective of obtaining the amounts due to him and payment for damages. QUESTION FOUR: NEGLIGENCE SwimWell Pty Ltd (SWPL) has broken various provisions under the Trade Practices Act of 1974. Section 52 of the Act requires corporations to desist from engaging in activities that are likely to deceive or mislead customers (AUSTLII, 2011). SWPL practiced misleading and deceptive conduct that would make the consumers believe that the swim wear they were buying was actually made in Australia. On the contrary however, the designs were not made in Australia despite being designed by an Australian. According to the case study, it is certain that the swimwear garments were supposedly designed in India and the material was made in Vietnam before being woven to cloth in China. This is misleading and deceptive conduct and could lead to legal action against the company if it is found out. Section 53 of the Trade Practices Act prohibits businesses from giving false or misleading representations (AUSTLII, 2011). SWPL has broken this provision because of misrepresenting the standard and quality of goods. The goods advertised on the website are of good quality hence the reason customers are likely to be attracted to the company’s stores. The presence of garments whose seams are coming apart therefore is unacceptable, given that customers expect quality goods. Secondly, the company makes a false misrepresentation regarding the goods’ origin (Section 53, eb). It is important for the company to review Section 75AD of the Act which provides for liability for defective goods (AUSTLII, 2011). It is notable that while the stores have a sign indicating that commodities will not be refunded in case of a defect. Customers may sue the company if it continues to provide substandard products as indicated by the case of the customer who noted that the seams were coming apart. QUESTION FIVE: NEGLIGENCE PART A Debbie could file a negligence case against matt but not the Nightclub owner. There are various steps that are involved when lodging a case of negligence against an individual or entity. These are elements of negligence, which must be effectively proved in order for a plaintiff to succeed in a case of negligence. Duty of care: The Nightclub owner has a duty of care to customers while they are within the premises. What happens after they have left however does not concern of the owner. Accordingly, Debbie cannot have a claim against the Nightclub owner. Matt on the other hand had a duty of care when he offered Debbie a lift until he dropped her at the agreed destination. Breach of duty: Matt performed a breach of duty of care when he caused the accident such that Debbie could sue him for negligence. The Night club owner had no duty of care towards Debbie. Furthermore, the occurrence of the accident was outside the Nightclub owner’s premises and he or she did not cause it such that Debbie will not have a negligence case against him or her. Direct cause/Factual causation: Debbie must identify the cause and effect claim for the case to be considered. To begin with, the plaintiff should be in a position to prove certainly that the act of negligence occurred and that the act resulted in injury to him or her (McCarthy, 2007, p. 67). In this case, it can be noted that Debbie was hurt on that particular day while in the company of Matt. Matt was negligent, having drunk alcohol before driving. This led to the accident when the car hit a telegraph pole thus hurting Debbie and some other friends who were with them in the car. Negligence on the part of the Nightclub owner cannot be established. This is because the owner did not play any role in the accident and it was not the fault of the Nightclub owner that the accident occurred, given he was not responsible for Matt’s drunk driving. Proximate cause: By accepting to give Debbie a lift, Matt implied that he would take her safely to her destination but this did not happen. A legal causation therefore exists. Matt could however argue that Debbie made her own decision to get into his car and is thus not legally responsible for the injuries. Harm: Debbie indeed suffered injuries from the accident and thereby she can prove that harm was caused to her. PART B In answering this question, I found it particularly difficult to establish if Matt really had any responsibility towards Debbie since she had willingly boarded the car knowing quite well that Matt was drunk. I overcame this by understanding that the duty of care emerged immediately Matt agreed to give Debbie a lift since he took the responsibility of taking her to her destination. Reference List AUSTLII, 2011. < http://www.austlii.edu.au> Boyo v. Lambeth London Borough Council [1994] McCarthy, AP 2007, Introduction to Business Law, SAGE, London. Omnium D’Enterprises v Sutherland(1919) Read More