Contracts in Commercial Law

Contracts in Commercial Law COMMERCIAL LAW where a person contracts as agent, the contract is that of the principal, and not that of the agent and prima facie the only person who may sue is the principal and the only person who may be sued is the principal.to that rule, there are of course many exceptions Per Wright J in MONTGOMERIE V UNITED KINGDOM MUTUAL STEAMSHIP discuss the situations in which an agent may be liable to a third party. A relationship of agency arises where one person, an agent, acts on behalf of another person, a principal, in making legal arrangements with third parties that confer rights and impose obligations on the Principal. It is the Principal that can sue and be sued on the contracts made between itself and the Third Party (Richards, p.449)[1]. However, in some cases, the Agent may be personally or jointly liable to the Third Party. Where there is joint liability, the Third Party must decide whether to sue the Agent, the Principal or both. An agent will be liable when he intends to enter into an agreement as joint principal. This may be apparent from the express terms of the agreement, or from the way in which he signs it. An example of such arrangement can be found in a solicitor’s partnership, where each partner is an agent of the firm and any agreement entered into by them is as agent and joint principal (Denny, p.33)[2]. The case of Shack v Anthony (1813)[3] demonstrates that where an agent executes a deed on behalf of the principal in his own name, he will be held personally liable. For the Principal to take the benefit of the deed, he must be named on it and it is not enough that the Principal is simply disclosed. In some cases, it is trade usage and custom that give agents liability under a contract. For example, insurance brokers take liability for non payment of premiums, and ship brokers accept liability for payment of charter parties (Fleet v Murton 1871)[4]. In both examples, liability is joint with the Principal. A further commercial example is found with Del Credere agents, who take personal liability as surety for their Principal. Several outcomes can follow from contracts made with a non existent principal. If the contract is made prior to the incorporation of a company as in Kelner v Baxter (1886)[5], the Agent will be held personally liable. If the contract is entered into where the Principal is in fact fictitious, again the Agent will incur personal liability, and the same applies where the agent uses someone else’s name. If however the identity of the other person is material to why the third party entered into the contract, the agent will be liable for misrepresentation (The Remco 1984)[6]. An agent will incur liability to a third party if by his conduct he indicates that he intends to be liable to that party. He may, for example, enter into an agreement where there is no reference made to an agency, and which is signed in his own name or profession. In this scenario, he is jointly liable with the Principal. A further example of such liability that might arise can be found in Sika Contracts Ltd v B L Gill and Closeglen Properties Ltd (1978)[7], where an agent acting on behalf of a disclosed but unnamed principal signed contracts in his own name and profession, and was held to be personally liable. This situation could have been avoided had the agent added â€Å"as agent† after his signature, although the mere use of the word â€Å"agent† may indicate either a description or qualification and is not therefore conclusive (Gadd v Houghton (1876)[8], Halsburys s.184)[9]. The agent will always be jointly liable to the third party when acting for an undisclosed Principal because, for all intents and purposes, he appears to the third party to be the Principal (Halsbury’s s.183[10], Saxon v Blake (1861)[11]. Although it is the contract that the Agent has entered into that the Principal is entitled to enforce, the Third Party retains the right to elect to sue either the Agent or the Principal if he subsequently becomes disclosed (Bradgate, p.169[12], Richards p.456). The agent is not however liable where the contract is entered into with an unnamed (but disclosed) Principal, unless there is evidence of intention to be personally liable (Benton v Campbell, Parker Co Ltd 1925[13]). The above examples consider where the agent has found himself either jointly liable under the original contract, or personally liable and in fact, he becomes the principal and takes on all rights and liabilities of that contract, which is binding. However, the case of Collen v Wright (1857)[14] establishes that where an agent enters into a transaction as if he were acting for a Principal and by implication, he warrants that he has the Principal’s authority to act in the matter, if the third party acts in reliance on his representation and it transpires that he has no such authority he may be liable to the third party for breach of warranty. This principle is based on an implied unilateral contract which is formed when the agent, by implication, promises that he will warrant he has authority if the third party enters into a contract with the principal. By entering into the contract with the principal, the third party accepts the offer of the agent and provides consideration for the agent’s promise. This brings about a collateral contract between the third party and the agent. Where the Principal remains liable under the main contract, the agent is not liable as the third party has suffered no loss despite the agen t’s lack of authority (Richards, p.457). Liability under this principal can be extended to warranting the authority of a fellow agent, as was the case in Chapleo v Brunswick (1881)[15]. The agent may also find themselves liable to any third party in the transaction – for example, the mortgage company in a property transaction (Penn v Bristol and West 1997)[16]. The third party may claim damages under the usual principals of contract law, being all damages that flow naturally and directly from the breach (Hadley v Baxendale (1854)[17], the aim being to put the third party back in the position he was in had the breach not occurred (Suleman v Shahsavari 1989[18], Nimmo v Habton Farms 2003[19]). Liability is strict and there is no defence in saying that the agent acted innocently in the matter (Yonge v Toynbee 1910[20]). However, the amount that can be recovered is limited by the amount the third party would have been able to recover from the Principal so if, for example, the Principal becomes insolvent, the amount is limited to how much the third party could have claimed from the Principal’s insolvency. In addition to liability for breach of warrant of authority, if an agent deliberately or recklessless misstates his authority he will be liable to the third party in the tort of deceit (Derry v Peek 1889[21], Richards p.200). However, fraud is very difficult to prove and rarely gives right to recovery against an agent. He can also be liable for negligent misstatement under the principle in Hedley Byrne Co v Heller Partners (1963)[22] if it can be shown that there is an assumption of responsibility by the Agent to create a special relationship between the Agent and the Third Party, giving rise to a duty of care. The Agent, in failing to exercise due and reasonable care in representing the extent of their agency or the fact of its existence, breaches that duty. The Third Party would also need to show that they had suffered loss as a result of breach of that duty (Bradgate, p.175). In conclusion, although an agent is not generally liable to the third party where both the existence and name of the Principal have been disclosed, there are many exceptions to the statement of Wright J in Montgomerie v United Kingdom Mutual Steamship (1891)[23] that only a principal can sue and be sued where an agency exists. The law of agency protects third parties who must be able to rely on an agent’s assertion of authority as a matter of commercial convenience, and where that assertion is incorrect, the agent may find himself jointly or personally liable to the Third Party. As can be seen, it is preferable to explore contractual remedies including breach of warrant of authority rather than negligence or deceit, as these carry with them the strict liability inherent to the law of contract. Bibliography: Richards, P (2006) Law of Contract, Pearson, Essex Denny, R (2002) Commercial Law, ITC, Bedford Halsbury’s Laws of England : Agency Bradgate, R (2000) Commercial Law, Butterworths, United Kingdom Sealy, L.S, Hooley, R, Berwin S.J (2003) Commercial Law: Text, Cases and Materials Lexisnexis UK, England Footnotes [1] Richards, P (2006) Law of Contract, Pearson, Essex [2] Denny, R (2002) Commercial Law, ITC, Bedford [3] Shack v Anthony (1813) 1 M S 573 [4] Fleet v Murton (1871) LR 7 QB 545 [5] Kelner v Baxter (1866) LR 2 CP 174 [6] The Remco (1984)2 Lloyds Rep 205 [7] Sika Contracts Ltd v B L Gill and Closeglen Properties Ltd (1978) 9 Build LR 11 [8] Gadd v Houghton (1876) 1 ExD 357, CA [9] Halsbury’s Laws of England : Agency 7(1)(i)(184) Liabilities of Agent on Contracts – Identity of Principal Not Disclosed [10] Halsbury’s Laws of England : Agency 7(1)(i)(183) Liabilities of Agent on Contracts – Fact of Agency not disclosed [11] Saxon v Blake (1861) 29 Beav 438 [12] Bradgate, R (2000) Commercial Law, Butterworths, United Kingdom [13] Benton v Campbell, Parker Co Ltd [1925] 2 KB 410 [14] Collen v Wright (1857) 8 E E 647 [15] Chapleo v Brunswick Permanent Benefit Building Society (1881) 6 QBD 696, CA [16] Penn v Bristol and West Building Society [1997] 3 All ER 470, [1997] 1 WLR 1356, CA [17] Hadley v Baxendale 1854 9 exch 341 [18] Suleman v Shahsavari [1989] 2 All ER 460, [1988] 1 WLR 1181 [19] Nimmo v Habton Farms 2003 1 ALL ER 1136 CA [20] Yonge v Toynbee). 1910 1 KB 215 [21] Derry v Peek (1889) 14 App Cas 337, 58 LJ Ch 864, HL [22] Hedley Byrne Co Ltd v Heller Partners Ltd [1964] AC 465, [1963] 2 All ER 575, HL; [23]Montgomerie v United Kingdom Mutual Steamship Association Ltd [1891] 1 QB 370;

The aeration of the mixture of microorganisms

Water treatment is the removal of harmful pollutants in the water so that it can be used domestically and agriculturally. It is conducted through the use of chemical, biological and physical processes. Wastewater treatment enables the recycling of water so that it can be used for various uses. Main body Secondary water treatment method involves the removal of fine and dissolved wastes that are organic by the use of a biological process of treating water. The common approaches to biological water treatment process are the activated sludge and trickling filter.Activated sludge through the aeration of the mixture of microorganisms, which are also referred to as biological sludge, and wastewater. The microorganisms are subjected under an environment that facilitates their growth (Neary, 2009). The wastewater is continuously run into the aeration tank so that the provision of oxygen is enabled. Through the provision of oxygen, the microorganisms are in a position to break down the polluta nts that are organic. In the end, the activated sludge remains in the bottom.The sludge that is in excess is removed and put into disposal. The other approach is the trickling filters that uses a bed of stones, or the plastic material that is perforated. Oxygen is picked up by the waste water and gets sprayed through the filter so that it can pass through the micro organisms . The organic materials present in the waste water are fed on by the micro-organisms due to the high amounts of oxygen. These methods bring together aerobic micro –organisms, oxygen and organic matter.Biological oxidation takes place in the water treatment system, other than in the lake or in a stream when the organic wastes are discarded there. The tertiary water treatment has many processes that include; removal of nutrient, which include Nitrogen and Phosphorous, and toxic materials removal. Tertiary treatment process combines physical and chemical treatment; however, there are still biological treatme nts that remove Nitrogen and Phosphorous.Water is pumped through carbon filters that are activated. Charcoal is activated carbon that has been treated so that it can increase the chemical bonding potential. It is after this filtration that Nitrogen and Phosphorous are removed. However, the water has to pass through chemical treatment that is specialized in order to remove some chemical pollutants. An example of the pollutants is hexavalent chromium, which is toxic and can lead to cancer. Reclaimed water is water that has been treated .this water can be used for irrigation, generation of power, controlling dust, recharging of aquifer, cooling in some of the industrial process and restoration of the natural system. This water cannot be used for drinking, cooking, swimming and irrigating vegetables. This water is beneficial because its cost is low compared to the water used for drinking. Reclaimed water reduces the use of fertilizer because Phosphorous and Nitrogen remain (Neary, 2009) . To ensure that household reclaimed water is safely used, people should become extremely aware of the hazards that may result from reclaimed water.Upon known knowing the hazard, the people should adopt strategies that are in order to manage the prevailing hazards. Conclusion I would recommend tertiary water treatment because it removes pollutants such as hexavalant chromium that is harmful to the human health and the natural environment. Tertiary water treatment is the final treatment of water and hence it is the safest method. REFERENCE Neary, J. (2009). Water Quality for Ecosystem and Human Health. Culver City, CA: Earthprint

The Advantages and Disadvantages of Conditional Fee Arrangements for Legal Aid

The conditional fee arrangement was introduced by the Access to Justice Act (AJA) 1999, as an attempt to transfer legal funding from the treasury to the private sector. This occurred as a result of an increasing and ridiculous growth in the cost of legal aid, namely from a few hundred million to well over 2. 1 billion pounds from the 1980s to 2000. Moreover, it was not because demand was growing. Rather, number of cases relying on legal aid had decreased.Due to the need to control budget, Conditional fee arrangements are used to fund many civil cases which legal aid now excludes, and the issues brought about by conditional fee arrangements have been debated over the last decade. The conditional fee arrangements are sometime known as ‘no win, no fee’ agreements, which are not used for family or criminal matters, but can be used in many types of civil action. The no win no fee concept was first introduced in the UK under the Solicitors Conditional Fee Agreements act in 199 5.The primary reason for the no win no fee system was to make sure that individuals who did not qualify for legal aid could still make personal injury claims, regardless of their personal situation. Section 58 of the Courts and legal Services Act (CLSA) 1990 permitted the Lord Chancellor to introduce conditional fee arrangements. By 2000 legal aid was actually abolished for personal injury claims, resulting in the no win no fee personal injury claim system being the normal system that most claims work under.The beauty of the policy is that if you do not win your case, you are not required to pay any sort of fees to your no win no fee solicitor. Instead, the insurance will cover any costs and expenses of all parties involved, including your no win no fee lawyer. This allows you the safety and security of knowing that even if you are someone who is financially struggling, you still have the right to make a claim, and you will not have to pay if you for some reason lose your case. If y ou happen to win your case, you will automatically be compensated for 100 per cent of the fees attached to the personal injury claim.The purpose of the system is to make sure that everyone involved is covered by the insurance companies. The only fees which are potentially applicable to a person filing a claim are exceptional circumstances or medical negligence cases, which will need to be discussed in advance with your lawyer. Admittedly, based on my research, the only groups of individuals who have really benefitted from this scheme are the lawyers, the claims management companies (CMCs), the banks and the insurance companies, which, is typically the supplier base for this system.In contrast, the consumers themselves have little but complaints, even though the Conditional Fee Arrangement were targeted to helping them in the first place. The introduction of Lord Justice Jackson’s report this year 2010 is new and the effects have not been visible in the current market, though we may look at the theoretical and legal implications that such an upheaval in the Conditional Fee Arrangement this would bring. A major benefit of Conditional Fee Agreements is that it allows many people access to justice, and in addition does not have to receive any funding from the Government leaving them free to fund more serious civil cases.Because of agreements like these many people have been able to take their cases to court, all that is required is that the client buys insurance against losing a case. If this requirement is met then it is unlikely that the case will not be taken on by a Solicitor. The Solicitor is also likely to work harder on the clients behalf because it has invested interest. This will then result in more competition between Solicitors and as a consequence of this, the client receiving a better service.A Conditional Fee Arrangement provides access to the courts for those who cannot afford to pay the attorneys fees and costs of civil litigation. Contingen cy fees also provide a powerful motivation to the attorney to work diligently on the client's case. In other types of litigation where clients pay the attorney by the hour for their time, it makes little economic difference to the attorney whether the client has a successful outcome to the litigation. Finally, because lawyers assume the financial risk of litigation, the number of speculative or unmeritorious cases may be reduced.In terms of access to justice, Conditional Fee Arrangement have provided for many who could not qualify for legal aid. From 2000-2005 alone, personal injury cases saw a jump in a million consumers seeking redress Conditional Fee Arrangement. This is likely because of a few reasons. For one, the strict means test introduced by the Access to Justice AJA 1999 has led to the middle income group not qualifying for legal aid, but they are not able to afford legal services either. Secondly, the Access to Justice AJA 1999 has taken away certain civil cases from its funding, personal injury as an example.Thirdly, claims management companies CMCs have been actively educating the masses as to seeking redress for personal injury cases especially, thus promoting a culture that citizens fight for their rights, and the Conditional Fee Arrangement is one avenue that they can do it for free. The statistics speak for themselves. Especially in road traffic accidents, sometimes it is not proportional the damage to apply for legal advice but now it is made possible without the burden of bearing those legal costs. Conditional Fee Arrangement has increased accessibility to justice in a way that legal aid with a budget can never provide.In terms of cost, in particular the success fee, it has been said to be an incentive, the only incentive for lawyers to ever enter into a Conditional Fee Arrangement. A huge risk of not being paid a cent should equally mean that there should be a larger chance to earn more. Lawyers themselves are taking this risk and in order to maintain a supplier base, a success fee is a must. Currently, the success fee stands at any bonus amounting to up to 100% of the normal legal fees. However, it does not mean that it is up to the lawyer’s whims and fancies to set the percentage.This sum is decided in an agreement between the lawyer and the insurance company, based on the chance of success in a case. Opposition to this has argued that the success fee leads to perverse profits, but statistics show otherwise. Since implementation of Conditional Fee Arrangement, two large firms of claims management companies CMCs have gone bankrupt within a short span of 4 years and this makes us wonder whether doing Conditional Fee Arrangement are way more profitable than regular legal work. The advantages can be summarized as: †¢Lawyers acting in any case will be confident and determined.They will have had to weigh carefully the chances of success before taking the case as their fee depends on winning. †¢There will be freedom from anxiety of having to pay huge fees. †¢There will be no need to pay fees in advance. †¢There will be no delays or worries with legal aid applications. A major disadvantage of the Community Legal Service Fund is that they have a budget in which they have to stick to. Of course they cannot be blamed for this, however criticisms have been made about the way they use the funding to fund civil cases.It is thought that they tend to fund cases that do not necessarily deserve of public money. Once the fund has run out someone who is deserving of the funding may then have to look elsewhere for help and may find themselves again being denied access to justice. Because Conditional Fee Arrangement works on a no win, no fee basis many Solicitors will not want to take on cases that are not likely to be successful and as a result denying the individual access to justice. Because of this certain legal problems such as clinical negligence have to be state funded because they are more likely to be unsuccessful.Another major disadvantage is that many solicitors who carry out Conditional Fee Arrangement will not take on a case unless the individual has taken out insurance against losing. However many cannot afford the insurance premiums, this again throws up the problem of many people being denied access to justice because of these kind of circumstances. Having said that it has now become harder to gain access to public money in order to fund a civil claim. Two tests have now been introduced, the merits test and the means test.These tests are used to see if a civil claim deserves to be funded and how likely it is to be successful, this makes it a lot harder for people to get legal aid for civil cases. The quality of justice has been described by the Citizens Advice Bureau CAB as appalling ever since the claims management companies CMCs have started to act as middlemen for lawyers and clients in setting up a Conditional Fee Arrangement in personal injury c ases. Claims management companies CMCs use hard-selling marketing tactics which pressures victims into entering into a contract with them.Often, they start by saying that they do not need to come out with a cent in seeking compensation but later on in some tiny footnotes they would write that the client may be subject to some payment. Essentially, not paying a cent is true, where legal costs is concerned, but damages are not always enough to pay back the interest rates of applying for a bank loan, which was meant to supply the insurance premiums. Because of the straightforwardness of some cases, some lawyers also take advantage of the situation to drag the case so that they may be paid more legal fees.Many consumers have complained that Conditional Fee Arrangement cases are so inefficient that they find it hard to resume their daily lives. Some straightforward cases were said to take up to months. The one-way cost shifting is also a disadvantage for the defendant. If the defendant h as failed to take up before the event insurance BTE, then he might find himself burdened with high legal costs from the other party when he loses. What is worse is that he also has to pay the other party’s success fee, which means he could be paying up to 2 times the price of a normal fee.This is not fair to the defendant. Another issue is that the defendant cannot control the legal costs of the other party and explained earlier this could be abused. Statistics have shown that the market for before the event insurance BTE is still very premature and hence defendants ending up bankrupt as a result of Conditional Fee Arrangements are a reality. Contingency fees do not guarantee civil justice, or even access to the courts. Lawyers sometimes â€Å"cherry pick† only the strongest claims which are most likely to succeed. Not all cases are immediately transparent.Some require extensive investigation before the chances of success can be properly assessed. Such cases might be t urned away because even the initial assessment of their strength is costly and risky. Next, we look at the former aims of Conditional Fee Arrangements. Conditional Fee Arrangements were meant to help those who were too poor for legal advice but failed the means test for legal aid. Recent cases such as Campbell v Mirror Group Newspapers Ltd have seemed to imply that Conditional Fee Arrangements are available to just about anyone.This issue was brought up in the London Seminar as they said that for â€Å"Hollywood actress Sharon Stone, footballer Ashley Cole, supermodel Naomi Campbell†¦ none of these were seen denied justice on financial ground†. While this does not seem to bring about any problems since it is still applied as a Conditional Fee Arrangements, what we are introducing is a whole new culture of people who tries to take advantage of a no-risk system to earn a quick buck. In the case of Campbell, Naomi sued for breach of confidence, and earned ?3500.To note this case, it was also â€Å"mortifying to find that†¦ they (MGM) were made to pay legal costs in the sum of ?1,086,295. 47†. Lastly, on the point of abuse, it seems that lawyers doing Conditional Fee Arrangements are paid better hourly rates than a normal lawyer. Based on statistics, a Conditional Fee Arrangements lawyer easily earns 103-115% of the normal lawyer fee based in London. Because their demand is not cost-led, it is easy to see instances of over-claiming and over charging of fees.The Jackson Report this year has led to many changes to the Conditional Fee Arrangements scheme and though the effects have not been felt there has been much feedback. For one, the Conditional Fee Amendment Act 2010 aims to reduce the success fee from 100% to 10% maximum. This is something targeted to help the defendant as there has been much feedback that success fees are perverse to a point of landing people into bankruptcy. However, many such as the Law Society and the Manchester Law Society have spoken up for the lawyers saying that the 100% success fee should maintain.Many lawyers also seem to object to this move. This goes on the grounds that it is important that there are incentives for lawyers to do Conditional Fee Arrangements work. After all, if they lose the case, they are not paid, and these lawyers are really gambling out there. Based on my opinion, what this amendment does will cause severe repercussions. This will not stop the problem of cherry-picking. Rather, it will result in more cherry-picking because there is a tendency to do almost no-risk work.Also, this would mean that many people would lose the option to enter into a Conditional Fee Arrangements as supplier base would probably decrease due to less sure-win cases. Next, to look at the problem of dragging cases to increase profits, this might actually persist and get worse in order to earn more. Hence I would feel that this is an effort, despite its good intentions, that would be difficult to bear fruit. Secondly, there is a proposal to shift costs from the defendant to the claimant. Rather than bearing the full cost, it is suggested that the success fee be paid by the claimant.Courts have shown an apprehensive attitude towards this as the adversarial system has always been one that has a principle that the losers should pay the winner’s cost. This again is a move aimed to help the defendants. However, having this in play would mean that the claimants have less damage to recover. Yet, to look at it from another perspective, this would mean that lawyers can now no longer abuse success fee setting. It would shift the demand of this market to the hands of the claimants. In a way, this provides competition, keeping success fees low and efficient.It would also solve the problem of case dragging, since lawyers would be pressured by claimants not to take so much time. Although this means more lawyers would exit the market because of low profits, I would feel that it is still an advantage as it increases efficiency and cost. In conclusion, there are many disadvantages and little advantages of the old Conditional Fee Arrangements system as I have researched and analyzed but the new reforms by the Jackson Report might actually be able to solve some of those disadvantages so that Conditional Fee Arrangements become a good substitute for legal aid.

Small And Medium Enterprises ( Smes ) - 1423 Words

Introduction Small and medium enterprises (SMEs) normally share the characteristic of limited scale in their operations, and they play significant important role in economic development in many countries around the world (Kotelnikov, 2007). Although SMEs contribute lots of stimulus to the national economy, they commonly suffer from a lack of nationwide geographical presence and an inability of provide their services 24 hours a day and 7 days a week. The implementation of e-commerce eliminate these adverse conditions and promotes SMEs to extend wider markets without expanding their physical presence (Quaddus Hofmeyer, 2007). E-commerce has a strong appeal to SMEs because it is able to make geographic locations, distances and time†¦show more content†¦In the realty, due to various products carried and the low profit margin, the retail sector gradually become the pioneer of the implementation of e-commerce to improve efficiency and thus it is able to provide an appropriate and useful conte xt to investigate e-commerce implementation (Reardon Hopkins, 2006). In addition, this sector have a great influence on in economic development in Australia. The definition of e-commerce E-commerce is short for Electronic Commerce and over years there are different definitions of it. Since e-commerce is identified diversely by various scholars, many researchers normally used the term e-commerce based on their research scope. In this study, the definition of e-commerce provided by Turban, Lee, King, Mckay, and Marshall is adopted since it is simple yet comprehensive. According to Turban et al. , e-commerce is to the process of buying, selling, or exchanging products, services and information via computer networks, including the Internet† (Turban et al. ,2008; p. 4). When e-commerce is implementation successfully, it can provide companies with a wide range of chances for improving some important business activities, for example, trading relationship, exchanging information, co-ordinating logistics and communication through regional or global supply chains (Humphrey, Mansell, Pare, Schmitz, 2003). Benefits of implementation of e-commerce in SMEs In recent years, there are