This coursework discusses legal aspects of business including exemption clause, Corporation Act 2001, and CIF contract. It covers issues, laws, applications, and conclusions.
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Running head: LEGAL ASPECT OF BUSINESS Legal aspect of business Name of the Student Name of the University Author Note
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1LEGAL ASPECT OF BUSINESS Table of Contents Coursework 2 question....................................................................................................................3 Answer to question 1 (part 1):.........................................................................................................3 Issue:............................................................................................................................................3 Law:.............................................................................................................................................3 Application:.................................................................................................................................5 Conclusion:..................................................................................................................................5 Answer to question 1 (part 2):.........................................................................................................5 Issue:............................................................................................................................................5 Law..............................................................................................................................................5 Application:.................................................................................................................................7 Conclusion:..................................................................................................................................7 Answer to question 2:......................................................................................................................8 Issue:............................................................................................................................................8 Law..............................................................................................................................................8 Application:...............................................................................................................................11 Conclusion:................................................................................................................................11 Reference.......................................................................................................................................12
2LEGAL ASPECT OF BUSINESS
3LEGAL ASPECT OF BUSINESS Coursework 2 question Answer to question 1 (part 1): Issue: The main issue of the case is to determine whether Supreme Phones Ltd can rely on exemption clause in the contract or not. Law: Contract is a legal document that has maintained certain interest in between two or more persons and the terms of the contract are mandatory for the parties once they have signed the documents. Under the Contract law, the parties are obliged to abide by the rules mentioned in the contract and they could not disagree with the terms once they have expressed their consent over the same. However, there are certain exceptions to this rule, where certain facilities have been given to the contracting parties so that they can rescind the contract or they can sue the other parties after signed the contract1. These clauses are known and termed as exemption clause. The term exemption clause is contractual in nature and under this system; either of the contractual parties can get two options. First, they can deduce the scope of the contract regarding their duties and obligation and secondly, they can make a plea for compensation from the accused party if they face any loss in subsequent events. Therefore, it can be stated that exemption clause makes a border regarding the duties of the parties. Considering the situation, an 1Loizou, Soterios. "CISG: Exemption from Liability." (2017).
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4LEGAL ASPECT OF BUSINESS exemptionclausecanbedividedintothreepartssuchasincorporationbysignature, incorporation by notice and incorporation by preceding course of dealings2. The term incorporation means anything that is included under the terms of the contract. Incorporation by signature means written consent of the parties to the contract. Incorporation by noticemeansanyclausethatdrawsattentionofthepartiesthroughanynoticeformat. Incorporation by preceding course of dealings means any course that is based on the facts of the contract. It has been observed inThornton v Shoe Lane ParkingLtd3that the contracting parties should have the knowledge of all the contracting conditions. It has further been mentioned under the case ofHollier v Rambler Motors(AMC) Ltd4that if the terms of the contract is not within the knowledge of the contracting parties, there will be no course of dealings regarding the same. It is the duty of the court to interpret the meaning of exemption clause in a logistic manner. It has been held inGlynn v Margeston5that not all the clauses of the contract are required to defeat the purpose of the contract. In addition, it is to be mentioned inHoughton v Trafalgar InsuranceCo. Ltd6that the terms of the exemption contract should be transparent and there should be no ambiguity regarding the same. The purpose of the exemption contract should be based on fairness ground and if the interest of both the parties is not secured by the clauses, no parties will be allowed to enjoy their contractual rights over other. This principle has been established inR. W.GREENLTD.v.CADEBROS. FARMS7.In the case ofOverland Shoes Ltd v SchenkersInternational Deutschland GmbH8, it has been held by the court that if the 2Brown, Jess. "Exemption clause causes division." (2016): 12-12. 3[1971] QB 163 4[1972] 2 QB 71 5(1893) AC 351 6[1954] 1 QB 247 7[1978] 1 Lloyd's Rep. 602 8[1998] 1 Lloyd's Rep. 498
5LEGAL ASPECT OF BUSINESS terms of the contract attract the provision of Unfair Contract Terms Act 1977, no parties to the contract can take the plea that the terms of the contract is unfair and unreasonable. Application: In this case, it has been observed that the documents, where Oscar has put his signature has comprised of certain clauses and all those terms were printed on the backside of the contract. The smart phone company has not aware Oscar about the facts and therefore, at the time of the contract he was completely unaware regarding the exemption clauses. Conclusion: Therefore, it can be stated that the smart phone company could not rely on the clauses as per the principle ruled out in the case ofThornton v Shoe Lane ParkingLtd. Answer to question 1 (part 2): Issue: The main issue that has been found in this case is based on certain provisions of the Corporation Act 2001. Law: The case has revealed the duties of any person who is acting as the director of the company. It has been mentioned in section 191 of the Corporation act that no director or managing director of a company is allowed to have any personal interest in any matter and should not possessed any property that goes against the interest of the director9. Further, it has been mentioned under section 180 of the Act that a director should have to profess his business 9Keay, Andrew R.Directors' Duties. Jordans, 2014.
6LEGAL ASPECT OF BUSINESS in good faith and he should have to work for the paramount interest of the company. If any director of a company or corporation has failed to perform his duties in accordance with this section, he will make a breach to the same and should have to face penalties as mentioned in section 1317E of the Act. The main purpose of Corporation act is to regulate the acts and duties of the directors of the company so that they could not go against the policies of the company. Australian Securities and Investments Commission is the regulating in this case and if any complaint has been made before them, they are conducted an investigation regarding the same. Australia is a business country and many complaints are pending before the courts regarding the breach of duties made by the directors10. There is a requirement to maintain the ethnicity of the posts of the directors. It has been mentioned in section 183 of the Act that the directors are restrained from using the information improperly. When the directors are holding a position, certain information came into their knowledge regarding the core process of the company. The information includes financial statement of the company too and they are restricted to do anything that goes against the policy of the company. If a director has failed to abide by the duties mentioned in the provisions, he shall have to face penalties that have been mentioned under section 184 and section 1317E of the Act. It has been held inASIC v Adler11that every director has certain duties towards the company and in case they are unable to maintain all the duties, they should have to hold liable for the same. The duties mentioned under section 181 of the Act are statutory in nature. It has further been mentioned under section 182 of the Act that the directors should not misuse their position. It is well-known principle that company is a legal person separate from other person12. 10Gelter, Martin, and Genevieve Helleringer. "Lift Not the Painted Veil: To Whom Are Directors Duties Really Owed."U. Ill. L. Rev.(2015): 1069. 11[2002] NSWSC 171 12Watts, Peter George.Directors' powers and duties. LexisNexis NZ Limited, 2015.
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7LEGAL ASPECT OF BUSINESS However, the directors do all the important things of a company and considering the significance of the director, they are known as the face of the company. Therefore, the position a director holds is of great importance and they are obliged not to do anything that goes against the policies of the company. The directors should always acted for the company. It has been mentioned in the case ofASIC v Cassimetes13that if a director held liable for taking any advantage during course of their business, they will be held liable for the same. Application: In this case, that Oscar has failed to perform his duties as specified under the Act and he has failed to discover that he owns the properties taken for the company. Further, it has been observed that he had failed to perform all his duties on daily basis and for the best interest of the company and therefore, the other directors of the company is eligible to take action against him. Conclusion: Oscar can be terminated from his post and may face penalties under section 184 or section 1317E of the Act. Answer to question 2: Issue: The main issue of the case is to determine the liabilities and remedies of all the parties. Law: The present case is based on the terms and policies of the CIF contract. A requirement has been made regarding the rights and duties of the buyers and sellers of the contract. Under the 13[2012] FCA 111 [14]
8LEGAL ASPECT OF BUSINESS general law, when an offer has been accepted and contract has been formed in between the parties, the terms and clause of the contract will be mandatory for the parties. Under the CIF contract, certain special duties have been provided to the parties. The sellers are imposed with most of the duties in this contract14. CIF contract is mainly made in case of voyage delivery of the goods. The full form of CIF is cost, insurance and freight. Under this contract, the sellers are delivering bill of lading to the purchaser and transport the goods to the contracted place. The seller pays the cost of insurance regarding the goods and his duties are ended when the goods are transported to the port in a secured condition. It has been mentioned inRoss T Smyth v TD Bailey15that all the shipment contracts are regulating by the CIF contract. CIF terms are denoted as the shipment term and under this contract, the seller should have to arrange the carriage process. The rights and obligation of the seller under this contract has been stated below: When certain goods are transported to one place to another place and the amount of the transportation is quite huge, certain documents are required to this effect. According to the terms of the CIF contract, the sellers are obliged to supply all the shipment documents and bill of lading to the purchasers. Further, the sellers should have to deliver the policy insurance to the purchaser too. Considering the amount of documentation in the contract, many experts are calling the contract as the transportation of documents16. Further, the sellers are obliged to send an invoice to the buyers regarding the price of the goods. This is an essential policy in case of freight process. The transportation of goods under this system acquired certain risks and 14Ahmed, Bzhar Abdullah, and Hassan Hustafa Hussein. "Avoidance of Contract as a Remedy under CISG and SGA: Comparative Analysis."JL Pol'y & Globalization61 (2017): 126. 15[1940] 3 All ER 60 16Bridge, Michael G.The international sale of goods. Oxford University Press, 2017.
9LEGAL ASPECT OF BUSINESS therefore the sellers are under an obligation to supply the paper of insurance regarding the goods and services to the buyers. If the seller has failed to provide insurance regarding the transported documents, he will be held liable for breach of duties. The terms and conditions of the bill of lading should be clear in nature and in case of any adverse situation, it will be presumed that the goods are not in a good condition. It has been mentioned in case ofHanson v Hamel and Horley Ltd17that bill of lading plays an important role in the case of CIF contract. Certain duties have also been mentioned for the purchasers in this case. Seller of the CIF contract will tender necessary documents to the purchaser and it is the duty of the purchaser to pay as against the documents. The documents are representing the fact that the delivered goods are in good condition. It is the duty of the purchaser to name the port in the contract so that the seller can transport the documents and the goods in the port. In certain cases, the buyers are required to possess certain import license. It has been mentioned under the Sale of Goods Act that until the goods are not transferred to the purchaser, the right over the goods will not transferred to him. In case ofRowlan v Divall18, it has been held by the court that the buyer has to make the payment first and only then, the rights over the goods will be transferred to him. Under the CIF contract, the risks regarding the contract have also been passed to the buyer. However, there are certain conditions to this effect too. Until the goods are on the ship, seller will be responsible for the goods transported thereto. However, as soon the ship across the territorial jurisdiction of the seller, all the risks of the goods are transferred to the buyer. It has also been mentioned under the Sale of Goods Act that if the goods are damaged without te knowledge of the seller, he will not held liable for the same. The right of the purchaser regarding make a plea for compensation will be ceased if the goods are damaged due to war. 17(1921 Lloyd's List LR 432) 18[1922. R. 2746.]
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10LEGAL ASPECT OF BUSINESS The buyer under the CIF contract has certain rights regarding the transported goods. The buyer will check that whether all the goods are delivered as per the terms of contract. In case of any dispute, he has a right to reject the deliverable goods. Further, if not all the documents send by the seller are in chronological manner, the buyer can also reject the documents. It has been held inKwei Tek Chao v British Traders & Shippers Ltd19that after the buyer rejects the goods, he will not be liable for making payment for the delivered goods. However, the sellers are obliged to deliver the goods as mentioned in the contract and in case of any failure to this effect empower the buyer to rescind the contract. Further, the information stipulated in the bill of lading should be matched with the delivered goods and the contract will be rescind in case the delivered goods are not matched with the quality of the goods mentioned under the bill of lading. Application: It has been observed in this case that a contract made in between two companies for the shipment of Golden Delicious Apple and the delivery has been made in two parts. Further, it has been agreed between the parties that the governing law will be based on the common law of England. Therefore, Sale of Goods Act will be imposed in this case. However, it has been observed that the company has failed to deliver the specified apple to the parties and they have delivered some other product to the buyer. However, the bill of lading includes certain provision regarding the condition of the goods. However, it has not mentioned in the bill that the goods are different from the contracted goods. The sellers are obliged to supply all the goods as mentioned 19[1954] 2 QB 459
11LEGAL ASPECT OF BUSINESS in the contract20. Therefore, it is not important whether the goods are transferred safely in the port. The goods are not in accordance with the goods mentioned in the contract and therefore, the buyer has the right to rescind the contract and in this case, they should not have to make any payment for the same to the seller as the seller has failed to perform their duties. Rather the seller is responsible in the case that they has failed to make any invoice statement to the buyer regarding the quality of the goods. The buyer can ask for compensation from the seller for the same. It has further been stated that the buyer can sue the seller for making breach to the contract. According to the contract, the seller was obliged to deliver the contracted goods. Conclusion: However, in this case, it has been observed that the seller has not maintained the standard of the goods and could not inform the buyer regarding the same. Therefore, seller will be held responsible for their performance failure. Reference: Ahmed, Bzhar Abdullah, and Hassan Hustafa Hussein. "Avoidance of Contract as a Remedy under CISG and SGA: Comparative Analysis."JL Pol'y & Globalization61 (2017): 126. ASIC v Adler [2002] NSWSC 171 ASIC v Cassimetes [2012] FCA 111 [14] Bridge, Michael G.The international sale of goods. Oxford University Press, 2017. Brown, Jess. "Exemption clause causes division." (2016): 12-12. 20Loschi, Riccardo. "Opportunistic Exercise of Termination Rights: The Commodity Trade Case-An Analysis of English Contract Law and the CISG."Bocconi Legal Papers9 (2017): 39.
12LEGAL ASPECT OF BUSINESS Gelter, Martin, and Genevieve Helleringer. "Lift Not the Painted Veil: To Whom Are Directors Duties Really Owed."U. Ill. L. Rev.(2015): 1069. Glynn v Margeston (1893) AC 351 Hanson v Hamel and Horley Ltd(1921 Lloyd's List LR 432) Hollier v Rambler Motors(AMC) Ltd [1972] 2 QB 71 Houghton v Trafalgar InsuranceCo. Ltd [1954] 1 QB 247 Isbell, Bradley, A. McKenzie, and B. Wade Brorsen. "The Cost of Forward Contracting in CIF NOLA Export Bid Market."NCCC-134: Conference on Applied Commodity Price Analysis, Forecasting, and Market Risk Management, St. Louis, MO, April. 2017. Keay, Andrew R.Directors' Duties. Jordans, 2014. Kwei Tek Chao v British Traders & Shippers Ltd[1954] 2 QB 459 Loizou, Soterios. "CISG: Exemption from Liability." (2017). Loschi, Riccardo. "Opportunistic Exercise of Termination Rights: The Commodity Trade Case- An Analysis of English Contract Law and the CISG."Bocconi Legal Papers9 (2017): 39. MacIntyre, E., 2018.Business law. Pearson UK. Overland Shoes Ltd v SchenkersInternational Deutschland GmbH [1998] 1 Lloyd's Rep. 498 R. W.GREENLTD.v.CADEBROS. FARMS. [1978] 1 Lloyd's Rep. 602 Ross T Smyth v TD Bailey [1940] 3 All ER 60
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13LEGAL ASPECT OF BUSINESS Rowlan v Divall [1922. R. 2746.] Thornton v Shoe Lane ParkingLtd [1971] QB 163 Watts, Peter George.Directors' powers and duties. LexisNexis NZ Limited, 2015.