Commercial law Essay Example
COMMERCIAL LAW 6
Describe the difference between joint and several liability
Many state laws allow joint and several liabilities. Joint and several liabilities occur in situations where two or more parties are held jointly or severally liable for a debt or obligation. In a case involving joint and several liabilities, the complainant can bring a case against one or all the parties for damages. However, joint and several liabilities are different terms. People are said to be jointly liable when each individual is liable for the obligation thy have together. For instance, when a husband and wife take a loan, the two are held jointly liable for the loan. This implies that in the event that the husband or the wife dies, the spouse remaining is held liable for the whole amount owed. In the case of the partnership business, joint liability implies that the partners are both liable for the debt owed by the partnership business such that, if a creditor is awarded damages by suing one partner, the creditor cannot come back later to sue the other partners for damages. By contrast, several liabilities arise in situations where each of the partners in business is liable only for the portion of their obligation. This implies that in case partners borrow money, the creditor can only sue the partner who fails to fulfill his or her obligation.
Describe the difference between exclusive dealing and mergers
Exclusive dealing and mergers are common business practices that are affected by antitrust or competition laws. A merger is a deal involving two or more companies coming together to form a new corporation. A merger is a common strategy that businesses use to expand their businesses. Mergers can take the form of vertical or horizontal merger. A horizontal merger is that type of merger where two competing firms come together to form a new company. The vertical merger, on the other hand, is a merger where a company and its distributors or suppliers join to form one company. By contrast, exclusive dealing is a form of business contract where one of the businesses in the contract places restrictions on the other as regards what the company can do or not do. Therefore, whereas a merger agreement can involve a company and its distributors coming together to a form a new company, in exclusive dealings, a company or manufacturer restricts the operations of the distributor by putting limits on distributors for the sale of its products in a market. Therefore, exclusive dealings are normally considered an alternative to vertical merger since, in vertical mergers, manufacturers and distributors join their operations together.
Describe the difference between unfair terms and fair terms in relation standard form contracts
A standard contract can have either fair terms or unfair terms. An unfair term as applicable to a standard consumer contract refers to a term that is introduced to a contract that varies the initial terms and changes the rights and obligations of the parties to the contract at the consumer’s detriment. An example of the unfair term is that term that gives the supplier of products the right to vary or change the contractual terms. An unfair term can also arise where a term is introduced to a standard contract that limits the supplier’s liability. For instance, a term removing liability from a vendor stating that the supplier would not be liable for injuries or death arising from the act or omission of the supplier is an unfair term as this term seeks to protect the supplier of goods to the detriment of the consumer. Fair terms, on the other hand, are new terms introduced in a standard contract that does not change the rights and obligations of those involved in the contract. Unlike unfair contracts that give suppliers undue protection at the detriment of the consumer, fair terms ensure that consumers are accorded protection under the new term.
Describe the difference between common law damages and equitable remedies
A remedy refers to a kind of compensation awarded to an injured party, such as in case of breach of contract to bring the injured party back to the position that he/she was in before the injury or the wrongful act was committed. However, there are two types of remedies awarded by courts namely common law damages and equity remedies. Common law damages are compensations awarded for the pain, suffering or loss caused to an injured party. This type of damages is awarded to allow the injured party to recover the monetary damages for the injuries or loss suffered. Common law damages include damages awarded to compensate for lost profits, lost wages, restitution damages, and expectation damages. Equitable remedy, on the other hand, are remedies given mainly in cases of breach of contract. Equitable remedies are awarded by courts in instances, where common law damages or monetary compensation are not adequate to as address the issue. These remedies include requiring the person at fault to perform their part under the contract, such as requiring a breaching party to provide services or deliver goods that a customer has already paid for or for services already provided. Other forms of equitable remedies awarded to the injured party include an injunction, contract rescission, contract reformation and constructive trust.
Describe the difference between vicarious liability and strict liability
Vicarious liability and strict liability are some of the basic liabilities under tort. Vicarious liability is that liability that arises where one person is held responsible for the tortuous act committed by another person. Vicarious liability commonly arises in principle-agent cases in which the principle is held liable for tortuous actions committed by his or her agent acting within the realm of employment. Vicarious liability is better explained by the doctrine of respondeat superior, which holds that an employer would be held liable for the tortuous actions of an employee committed with the scope of employment. However, to establish vicarious liability, three things must hold. These include demonstrating that the tortuous act was committed within the period authorized by the employer; the employee was motivated by the need to serve an employer and that the act is of the kind that the employee was hired to perform. Strict liability, on the other hand, arises where liability is imposed on a party without of proof of negligence or intentional fault. In strict liability, all that the plaintiff has to show is that the defendant was responsible for the tort that occurred. An example of strict liability is where dogs belonging to a person escapes from the cage where they are kept and goes to cause injuries or harm to another person. In this case, the owner of the dog is held personality liable for the actions of the dogs.
Strict liability and vicarious liability is often confused because sometimes the two overlap. For instance, if X, who is Y’s employee serves alcohol to a minor knowingly and X is held liable, then Y is said to be vicariously liable, but not strictly liable since Y acted with mens area. However, if X happened not to have known that the customer was a minor, thus not held liable, X become strictly liable. In the event that Y is also held liable, Y now becomes both vicariously and strictly liable.
Describe the difference between S.18 and S.24 of the CCA
The Competition and Consumer Act is an act of parliament passed into law in 2010 to promote competition, fair dealing between parties, as well as ensuring that consumers are protected. The CCA also gives people and businesses certain rights for private action. Section 18 and Section 24 are some of the most important sections of the law. Section 18 of CCA is that part of the law that prohibits an individual from involving in acts that are deceptive or those that are meant to mislead or deceive others. Section 18 of the Act, therefore, provides protection against misleading or false representation about services or goods, the sale of land, employment, gifts and advertisement among others. Therefore, in the event that a court establishes a violation of section 18 of the CCA, the court might award the injured party remedies that include damages, or contractual avoidance, as well as variation. Google Inc v ACCC is one of the cases brought before the courts by ACCC alleging that Google had breached section 18 of CCA by using deceptive advertising. However, the courts found that there was no proof that Google’s actions were deceptive, misleading or false. On the other hand, section 24 of the CCA deals with unfairness. This section spells out the terms in a contract or transaction that is fair or unfair. This section states that a term is deemed unfair if causes imbalance in the rights and obligations of the parties under contract and unreasonably disadvantage one of the parties. For instance, section 24 of the Act considers a term unfair if the term benefits only the person introducing it to a contract, such as a supplier to the detriment of the consumer. Therefore, whereas section 18 seeks to promote competition, fair dealing, and consumer protection, section 24 only seeks to protect consumers from the unfairness of terms.
Describe the difference between undue influence and unconscionability
Undue influence and unconscionability are doctrines that are established to ensure fairness is achieved in dealings by providing the injured party with remedies to overcome the adverse effects of unfair dealings. However, undue influence and unconscionability are distinct and arise in different situations. Undue influence is a situation that arises when a weaker party is induced into a contract or agreement. Undue influence can take the form of «actual» or «presumed.» Actual undue influence arises where a person is induced into a contract or agreement through coercion without being left to make an independent decision. For instance, when A uses coercion to force B to enter into a contract, the contract will be said to have been entered into under undue influence because B may not have entered into the contract were he allowed to make an independent decision. Presumed undue influence arises where an assumption is made based on the existing relationship between the parties. Unconscionability dealing, on the other hand, is a doctrine that is designed to prevent someone in authority or the party with more power from using such powers to exploit the weaker party. For example, unconscionability may arise in a situation where one party or dominant party uses his power to take advantage of the weaker party because of their age, lack of education or illiteracy to exploit them. In cases where the court establishes that unconscionability dealing was involved, courts normally set aside the transactions as unconscionability. Unconscionability dealing was proved in Louth v Diprose (1992) and Bridgewater v Leahy (1998) cases, where the courts the courts established that the emotional dependence of an older person was a kind of ‘special disadvantage.’ The other case illustrating unconscionability is that involving Bridgewater v Leahy where the courts determined that an adult family member took advantage of their position to exploit an old man.
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