Legal Issues and Rights Relating to Joseph - Assignment Example

BUSINESS LAW AND ETHICS Customer Inserts His/her Name Customer Inserts Grade Course Customer Inserts Tutor’s Name Date QUESTION 1 Most people involved in business promote themselves as ethical, but scratch the surface and their conduct is often less than squeaky clean (Gibson, & Fraser, 2011). There is a view held by business people that Australia's business ethics are in good shape (Gibson, & Fraser, 2011). Instances of ethical failure in Australia's large businesses are, they say, rare and exceptional (Gibson, & Fraser, 2011). Ethical breaches are certainly not representative of the prevailing culture in business; they contend (Nelson, 2006). But other evidence, including evidence from those who view business from the outside, suggests this view is optimistic (Gibson, & Fraser, 2011). In the specific scenario the business name will be Sameer Phones Limited (SPL). The structure of the business will be a limited liability company (Gibson, & Fraser, 2011). A limited liability company allows the owner to take advantage of the benefits of both the corporation and partnership forms of business and profits and losses can be passed through to owners without taxation of the business itself while owners are shielded from personal liability. Limited liability company offer liability protection similar to that of a corporation and can be created with one person as a member. As the owner of the company I will be able to choose how the company will be taxed (Gibson, & Fraser, 2011). The business name is not available. Use of identical names check is not allowed in the fair practice of the business. It is therefore advisable to check a facility whether a proposed business name is identical to another name which already registered. A check must be done to avoid duplication of usernames, and also National names index on the website. Essential characteristics of a company Registration and legal entity A company must be registered. It’s an artificial person created by law. A company is a distinct legal entity and distinct from its members (Gibson, & Fraser, 2011). . This is well addressed in the case of Lee v. Lees Air farming limited, where Mr. Lee incorporated a company lees air farming limited in august 1954 in which he owned all the shares (Gibson, & Fraser, 2011). M r. lee was also the sole governing director for life thus as with Mr. Salmon he was in essence a sole trader who now operated through the corporation. Mr. Lee was also employed as chief pilot of the company. In March 1956 while Mr. Lee was working the company claimed he was flying, stoned and crushed. Mr. Lee was killed in the crush leaving a widow and four infant children (Gibson, & Fraser, 2011). The company as part of its statutory obligations had been paid an insurance policy to cover claims brought under the workmen compensation act. The widow claimed she was entitled to compensation under the act as the widow of the worker (Gibson, & Fraser, 2011). However this claim was rejected and she moved to court which was found the company and Mr. lee were distinct legal entities and therefore capable of entering into legal relations with one another, As such they had entered into a contractual relationship for him to be employed as the chief pilot of the company, They found that he could in his role of governing director give himself orders as chief pilot. It was therefore a master and several relationships. As such the titled in to the definition of worker under the act. The widow was therefore entitled to compensation. The company once incorporated is a corporate body whose entity is entirely different from the entities of its shareholders. Motive for becoming shareholders is not a field of inquiry. The law recognizes the existence of the company quite irrespective of the motive intentions, schemes or conduct of the individual shareholder. Limited liability The liability of the members of a company having share capital is limited to the extent of the nominal value of the shares held by them. Shareholder cannot be called upon to pay more than the unpaid value of his shares, whatever may be the level of indebtness of the company (Gibson, & Fraser, 2011). In the case of a guarantee company the liability of members may undertake to contribute to the assets of the company (Gibson, & Fraser, 2011). Separate property A company has every right to acquire as well as transfer property in its own name, as it is an interest in the property of the company (Gibson, & Fraser, 2011). Perpetual succession A company has a perpetual succession inspite of a change in the membership of the company its continuity is not affected (Gibson, & Fraser, 2011). It is said men may come and go but the company goes forever. Common seal The company being a legal entity as an artificial person cannot be enjoined in a contract. In most cases a company seal is used in substitute of a signature. The common seal bears the name and place of the company, and date of its in corporation engraved on it (Gibson, & Fraser, 2011). Transferability of shares In the business world, the shares of a publicly quoted company are transferable except in the case of private companies. Capacity to sue and be sued- As legal person it can sue and be sued in its own name (Gibson, & Fraser, 2011). Concept of corporate personality A company in many legal terms acts as a natural person and is capable of having legal rights and obligations similar to an individual. Like any other person a company can own and transfer property, it can also take legal action such as sue or be sued. Being a legal person, a company has separate legal entity, a personality distinct from its members or shareholders (Gibson, & Fraser, 2011). Professional management The corporate sector is capable of attracting the growing ladder of professional managers. Young management graduates willingly join companies because of the feeling that they could thereby belong to a managerial class. Their independent functioning as managers is assured because of the fact that there is no human employer and the shareholders exercise only a formative control and that also in name only. Such an act also gives them opportunities to develop extra- ordinary managerial capabilities with the financial backing that the companies are able to provide; they are able to develop the business to a considerable extent (Gibson, & Fraser, 2011). Finances The Company is the only media of organizing business which is given the privilege of raising capital by public subscription either by way of shares or debentures. Further public financial institutions lend their resources more willingly to companies than to other forms of organizations. The facility of borrowing and giving security by way of the floating charge is also an exclusive privilege of companies. Capital in many cases is the lifeblood of a concern and it is always the great misfortune where the development of a business is arrested or restricted by want of capital. Rules used to internally manage the company The source of the rules is either from the constitution or the act. T he replaceable rules are included in the Act as replaceable rules. Section 141 of the act sets out the provisions of the act that apply as replaceable rule. A company may take advantage of the replaceable rules in the act to govern its internal management it does not need to have a written constitution of its own. This means that companies choosing to be governed by the replaceable rules will not incur the expense of keeping their constitutions up to date with the law- even in the event that the replaceable rules are amended. S198E (1) sets out the powers of directors of single director/ single shareholder proprietary companies. S198E (2) Deals with the power of a single director / single shareholder proprietary company to sign, draw, accept, endorse or otherwise execute negotiable instruments. S202C deals with remuneration of a single director who is also the single shareholder of the company and reimbursement of all expenses incurred by that director in connection with the company’s business. S201F Sets out special rules for the appointment of directors for single director / single shareholder companies (Gibson, & Fraser, 2011). Duties of officeholders of the company Duty of care to the company as provided in section 35 and 36 of the civil wrongs. As a director of a company one should be truthful and straightforward and be aware of the company’s transactions. Make sure that your company can pay its debts on time (Gibson, & Fraser, 2011). See that the company keeps proper financial records (Gibson, & Fraser, 2011). Act in the company’s best interests, even if this may not be in your own interests, and even though you may have set up the company just for personal or taxation reasons and use any information you get through your position properly and in the best interests of the company (Gibson, & Fraser, 2011). A director who has personal interest in the transactions of a company should disclose such interest before hand at the company’s general meeting. Control the company’s business. Be fully up to date on what your company is doing. Find out and assess for yourself how any proposed action will affect your company’s business performance, especially if it involves a lot of the company’s money (Gibson, & Fraser, 2011). In making important decisions one should outside external professional help before these decisions are made. Questions managers and staff about how the business is going (Gibson, & Fraser, 2011). . Take an active part in directors meetings. Only be a company director or a company secretary if you are willing, able and have enough time to put in the effort (Gibson, & Fraser, 2011). Avoid any company where someone offers to make you a director or secretary on the promise that you won’t have to do anything and just sign here (Gibson, & Fraser, 2011). Avoid anything to do with illegal fundraising. See that company records are up to date financial records that correctly record and explain its transactions including any transactions as a trustee and explain the company’s financial position and performance (Gibson, & Fraser, 2011). QUESTION 2 Baltic shipping co. v Dillon (1993) 176 CLR 344 The case was an Australian contract on the incorporation of damages and exclusion clauses for breach of restitution or contract for unjust enrichment (Gibson, & Fraser, 2011). Main facts: A widow Mrs. Joan Dillon bought a cruise from a charters travel brochure on the cruise ship ms Mikhail Lermontor named after the Russian poet, Mikhail Yuryevich Lermontor. The condition was that once the booking form was availed and the deposit paid on 6th December 1985, the ticket was to be issued. Mrs. Joan Dillon got the ticket on 24th January 1986 that stipulates a limited liability for personal injury (Gibson, & Fraser, 2011). Mrs. Dillon lost some valuable and sustains injuries but she sent a loss form without reference to personal injuries (Nelson, 2006). On condition that she signs the release form the company offered her an exgratia sum to settle the loss (Gibson, & Fraser, 2011). She consent and places her signature. Later in 1987 Mrs. Joan Dillon and the insurance company sued to recover damages for the loss and the injury she sustain (Gibson, & Fraser, 2011). Issues / legal questions rose A total of 51000 pounds paid for the loss of the valuable, injuries sustain compensation for distress and disappointment, damages for cruise and interest was restituted (Gibson, & Fraser, 2011). Majority/minority judges decision The issue of the restitution of the sum paid for the cruise which was awarded was reversed in the high court, So far as incorporation of the exclusion clause went, he held that the contract was made on 6th December so no new terms could be introduced when the balance of the cruise fare was paid. The terms were insufficiently notified. The trade practices Act 1074 in section 74 and 68 which is applied to loss of luggage said the clauses limiting liability for loss were invalid/void. By s 87, the widow was entitled to treat the release form as void abnitio because the company had intended to deceive and mislead the widow into thinking her rights under the contract of carriage were limited to the points under the loss form (Gibson, & Fraser, 2011). The forms were substantially and procedurally unfair and void abnitio under the contracts review act 1980 (Gibson, & Fraser, 2011). At 594 Caruthers J who had awarded the restitution looked at it from another point of view and said, “if there was no concluded contract until the ticket had been issued and accepted, it would follow that the defendant could at any time prior to the issue of the ticket, have ended what on its view, would have been more than negotiations for a contract (Gibson, & Fraser, 2011). Thus at virtually the last moment the plaintiff plans for a cruising holiday could have been unilaterally terminated although she had paid the full passage money (Gibson, & Fraser, 2011). (The comments by Mr. Justice Brandon in the dragon to which I have referred above are opposite in this regard).” Such an analysis of the transactions is wholly unacceptable (Gibson, & Fraser, 2011). In addition it was the intention of the aggrieved party that no contract was to come into existence prior to the issues and acceptance of the ticket, no consideration moved from the defendant to support the defendants right as asserted in the booking form to retain the fare if the passage is cancelled within 60 days of sailing (Gibson, & Fraser, 2011). An example could be the Justice Brenham case (at p 401) should be illustrated incidentally. An issue arises as to whether the contract made on December 6th 1985 was contained in the ticket terms and conditions. The booking form, in my opinion, formed part of the contract which was perfected on December 6th 1985 (Gibson, & Fraser, 2011). I have already adverted to the fact that the booking form declared that it was “not a travel document” and provided that contract of carriage for travel as set out herein will be made only at the time of the issuing of tickets and will be subject to the conditions and regulations printed on the tickets (Gibson, & Fraser, 2011). Although, as I have held the contract of carriage was made on December 6 1985 prior to the issue of the ticket, contrary to the assertions made in the booking form, it is necessary to consider whether the provisions of the booking form had the effect of introducing into the contract the ticket terms and conditions. There is now clear authority for the proposition that where an exemption clause is contained is contained in a ticket or other documents intended by the carrier to contain the terms of carriage yet the other party is not infact aware when the contract is made than an exemption clause is intended to be a term of the contract, the carrier cannot rely on the clause unless at the time of the contract the carrier had done all that was reasonably necessary to bring the clause to the passengers notice. Part B How do I find a report cited in a Study Guide or the Recent Developments in Law? If the case is cited in a Study Guide or Recent Developments in Law, the citation itself will give you all the information you need in order to find the case. In order to find the case, you will need to know which law report is represented by the "AC" abbreviation. One of the best ways to find out the meaning of a legal abbreviation is to look in the Cardiff index to legal abbreviations, available on the Internet. Using this index will reveal that AC stands for the Law Reports, Appeal Cases. The next stage is to find out which electronic database includes the full text of the Appeal Cases Reports. The best way to do this is to check “find the case report on line” table. This will reveal that the Appeal Cases are included on two different databases. You can also search the journal finder to find out which database contains a case report series. After logging into website, select the "Cases" link from the menu at the top of the page. On the following screen, try typing R v Z in the "Party names" field and then click on the "Search" button. You will notice that 41 hits are retrieved. What should you do now to narrow your search? Click on the "Edit Search" button in the top left corner of the screen to return to the "Cases Search" screen. Now try also searching by the citation by typing [2005] 2 AC 467 into the citation search field and click on "Search". You will notice that you have now retrieved the 2005 case R. v Hasan (Aytach). When you click on the case analysis link you will see that the case is also known as R. v Z. When your search results are displayed in website, you will notice that you get a summary of the case such as the subjects and keywords, citations of where the case has been reported, and links to full text documents available in website. To view the abstract, of the case you need to click on the link to the Case Analysis document. The Case Analysis document also contains cases cited; legislation cited and related journal articles. Please note that you will need to click on the [2005] 2 AC 467 link (in the documents section) in order to view the full text of the case reported in the Appeal Cases Reports. Problem encountered When finding cases through electronic system a number of problems are encountered. For one to able to follow a given link appropriate abbreviation must be used. A lot of information that exist in the internet is similar and without using the correct abbreviation of the cases, it is difficult to find the cases needed. Flow chart Restitution Damages Has there been: Unjust Enrichment; Partial Performance; OR Benefit knowingly conferred but not under contract? No Restitution damages Is Plaintiff the breacher? Damages will be benefit conferred but limited to contract price QUESTION 3 Negligence means carelessness amounting to the culpable breach of a duty. Tort of negligence refers to a breach of duty or a failure of one party to exercise the standard of care required by law, resulting in damage to the party to whom the duty was owed. In other words it may mean carelessness by a party supposed to be responsible. But in 1934 Lord Wright said: ‘In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.’Lochgelly Iron and Coal Co v McMullan [1934] AC 1 at 25) Negligence suits have historically been analyzed in stages, called elements, similar to the analysis of crimes. A significant concept related to elements is that if a plaintiff fails to prove any one element of his claim, he loses on the entire tort claim. For example, let's assume that a particular tort has four elements. Each element must be proven. If the plaintiff proves only three of the four elements, the plaintiff has not succeeded in making out his claim. (Gibson, & Fraser, 2011). Common law jurisdictions may differ a little in the correct classification of the elements of negligence, but the elements that must be established in every negligence case are: duty, breach, causation, and damages. Each is defined and explained in better way in the paragraphs below. Negligence can be conceived of as having just three elements - conduct, causation and damages. More often, it is said to have four (duty, breach, causation and pecuniary damages) or five (duty, breach, actual cause, proximate cause, and damages). Each would be correct, depending on how much specificity someone is seeking. "The broad agreement on the conceptual model", writes Professor Robertson of the University of Texas, "entails recognition that the five elements are best defined with care and kept separate. But in practice", he goes on to warn, "Several varieties of confusion or conceptual mistakes have sometimes occurred." Failure to do something that a reasonable man that is an average and responsible citizen could do or doing something that a reasonable man could not do. It also means tort consisting of the e breach of the duty of care resulting in damage to the claimant. Negligence in the sense of carelessness does not give rise to civil liability unless the defendant’s failure to confirm to the defendant was a breach of duty of care which has caused damage to him. It consists of duty of care, Breach of duty, injury to plaintiff. In this case it is quite evident that their existed a contributory negligence. Contributory negligence means a persons carelessness for his own safety or interest which contributes substantially to damage suffered by him as result partly of his own fault and partly of another person(s). Thus careless driving knowingly traveling by a drunken driver and while traveling in motor vehicle are contributory negligence in highway accidents. In this case, Matt gave Debbie a lift while he knew he was drunk as well as Debbie knew that Matt had been drinking while in the night club but decided to accept the lift so that she could get home. Matt by offering a lift to Debbie while he knew that he was drunk amounted to him owing a duty of care to Debbie and then he should be liable for any breach to this duty. A duty of care is well addressed in the case of Donoghue v. Stevenson (1932) which was laid down by lord Atkin in the landmark judgment. He described a duty of care as duty to take reasonable care to avoid acts or omissions reasonably foreseeable as likely to cause injury to your neighbor. According to lord Atkin a neighbor in law is any person so directly and closely affected by your act that you reasonably have to have him in your contemplation (Gibson, & Fraser, 2011). The case stated that the plaintiff suffered injuries as a result of consuming a bottle of ginger beer which contained decomposed remains of snail. The retailer from whom it was bought had obtained it from a manufacturer in a sealed opaque bottle and thus had no occasion to examine the contents. It was held that where a manufacturer produces goods in such a way that there is no possibility for immediate inspection he owes a legal duty of care to the ultimate consumer. Whether a duty of care exists or not depends upon whether what took place was reasonably foreseeable (Gibson, & Fraser, 2011). In this case Debbie is partly to blame because she was aware that Matt had spend all her time drinking in the night club and went ahead to accept her lift and when Mark and Joe were leaving the night club, she was not ready to go home. In the case of contributory negligence even if you were partly to blame for an accident and you are under alcohol influence yourself it still possible to claim especially if another negligent driver was also affected by drink. The amount of the compensation award will depend on the percentage of blame attributed to the driver. A court may also reduce or extinguish damages paid to a passenger if the person knew or ought to have known that the driver of the vehicle in which they were traveling was drunk. Debbie will thus have an action of negligence against Matt but not the night club owner. This is because the driver of any vehicle has a legal duty of care for the safety of his neighbors in law and proving liability in a drink driving accident claim is much easier if the driver was convicted of an alcohol offence hence in this case Debbie and Matt’s two friends can claim for compensation of the injury because there is a prove that the accident caused was caused by the breach of duty of care and the consequence was foreseeable hence Matt is liable (Gibson, & Fraser, 2011). QUESTION 4 A lease is a contractual agreement by which one party conveys an estate in property to another party for a limited period, subject to various conditions in exchange for something of value but still retains ownership (Nelson, 2006). Leases are governed by statutes and common law or precedential cases. A lease is created when property owner the offeror makes an offer to another party the offeree and the offeree accepts the offer. Like any other contract lease have element of the contract. A contract is a legally binding or enforceable agreement that is voluntarily entered by two or more parties. The contract of lease obliges parties to it to do or fail to do something for the other party and still give each party the right to demand for the performance of what is promised by the defaulting party. In case of breach of the agreement made between the parties, the remedy is payment for damages or a monetary compensation. To create a valid lease contract, there must be an offer and acceptance. That is, one party referred to as the offeror, makes an offer which upon its acceptance by the other party referred to as the offeree, the agreement becomes binding. The offer must be clear and need to be communicated properly to the other party. Similarly, there must be a clear communication of the acceptance to the offerer. For a legal lease contract to be formed there must also be consideration where a party receives a benefit in return for the fulfillment of the agreement. Incase of a breach of contract by one of the parties, the party not on breaching is free to work of the contract and enter into a new contract with a new party. If there was no consideration exchange between the parties contract become null and void once a party to contract is in breach. Consideration is recoverable to non breach party and not breaching party. Non breaching party can also claim for damages from breach party on top of recovery of the consideration. An offer may be terminated incase of the death of the two parties that is, either the offeror or the offeree. It may also be terminated by the lapse of time which happens if the offeror had put a time limit on the offer and therefore it will lapse at the end of the stipulated time. However, the requirement is that the offer will come to an end after a reasonable time and what amounts to reasonable time or period will depend on the circumstances. The basic rule is that the parties to the contract need to perform as stipulated or specified in the contract unless the two parties agree to change the terms of the contract. Breach of the contract refers to the failure of the one party to perform his or her contractual obligations. The non breaching party therefore has the right to take remedial action to address the breach. Breach of the contract by the non performing party allows the other party to seek for damages. The breach of contract relieves the aggrieved party of his obligations. There are exemptions to the breach of the contract and the offeree is therefore not held to be in breach of the contract. Factors that are beyond the control of either party are examples of these exemptions. These factors include the major catastrophes that are considered as the act of God and the offeree or the offeror have no control over them. Examples are fire, earthquakes, floods, famine among others. The fire that broke at the factory in Taiwan who was the only suppliers of Homebuilt Ltd is a factor that is beyond their control. The delay of the delivery was caused by the fire and this means that if the fire did not broke, they could have supplied the buses within the time limit given. An event can only be considered as unforeseeable where it could not reasonably be predicted by the parties during the time of making the contract. However, it shall not be deemed to be unforeseeable if it happens due to the action of the person who avails himself during the period of the contract. On the issue of the delay caused by the third party, the Homebuilt cannot defend themself in court on this ground. This is because the suppliers from the factory in Taiwan were not part of the contract. The doctrine of privity provides that no one else have the right to the contract except those that are parties to it. The Homebuilt were supposed to make sure that they look for a supplier that will not delay the supply. On the other hand, the Taiwan factory did not sign any where with ACTION that they were to supply the buses. This means that any delay caused by the supplier is not an excuse by the offeree of his failure to honour the contract. The offer must authorize the offeree to possess and use property owned by the offeror for a certain period of time without gaining ownership (Gibson, & Fraser, 2011). A lease must also contain consideration which means that the offeree must give something of value to the offeror (Gibson, & Fraser, 2011). Legal issues and advice in relation to ms Jones As part of an agreement Ms Jones was given the condition to refurbish all the three floors of the building and make substantial renovations, it’s clear that this was a condition in relation to the offer given to her and it was not binding. Ms Jones has a legal right to part performance in fulfillment of the contract and in this case she can prove it by verbal evidence even though there was no writing or signing of the contract. According to CF AUSTRALIAN PROVINCIAL ASSURANCE CO. V CORONEO (1938) 38 ST (NSW) 7001893, the act of part performance must be capable of referring solely to the contract sought to be enforced, the contract to which the alleged act of part performance refers must itself be capable of specific performance by the court and damages are met adequate remedy. The doctrine is generally applied contracts of leases and sale of land. In this case Ms Jones can claim damages for the part performance of the renovations. Legal issues and rights relating to Joseph Joseph left his full time job in order to do the renovations for his aunt ms Jones. In this case he had already done part of the renovations and thus he can bring a defence against his aunt for undue influence, but he cannot sue the fashion afloat since there is no special relationship hence there cannot be presumption of undue influence. He is also supposed to receive reasonable amount for his part performance (quantum basis) References: Gibson, A and Fraser, D (2011), Business Law. 5th Edition Pearson, Education Australia Read More