精选-HND商法导论Outcome2案例+答案

1、Case study 1Samir sees a set of golf clubs displayed in a shop window for 500. Heenters the shop and states he will take the clubs. The shopkeeper however says the clubs are no longer for sale. Samir is demanding that he be sold the clubs and at the price displayed.Identify the essential requirement

2、s of a contract and discuss whether a contract exists here.A contract is an agreement between parties having the capacity to make it, in the form demanded by the law, to perform, on one side or both, acts which are not trifling, indeterminate, impossible or illegal, creating an obligation enforceabl

3、e in a court of law. A valid contract has three essential features: there must be a agreement on all material aspects; at least two contracting parties and legal obligations.A contract consists of an offer and an acceptance. If there is no offer in the first place then there can be no contract. The

4、basic elements of a contract include an offer and an acceptance.In the case Samir sees a set of golf clubs displayed in a shop window for 500. He enters the shop and states he will take the clubs. But shopkeeper says the clubs are no longer for sale. Samir is demanding that he be sold the clubs and

5、at the price displayed.According to this case we can say that these is not exist a contract.In the case that a set of golf clubs are exhibited in a shop window, thus it is not an offer. Because the goods displayed in a shop window as a invitation to treat, we can know that goods displayed in a shop

6、window (even when priced) are classed as a willingness to negotiate on the shops part. Invitations to treat also is considered to inquiry the price of goods, means a party to invite the other person to make offers. Different an offer, a willingness to negotiate only as prepared to make a contract of

7、 behavior on the issue who is not legally binding. The customer will makethe offer to buy the goods which the shop are perfectly within their rights to refuse. The invitations to treat are not legally classed as offers and therefore cannot be accepted.Before the party who gave off the invitations to

8、 treat could not accept the other people s offers they can revocation, and then the contract is not build. WhenSamir asked to buy the golf clubs the shopkeeper refused hin, and there was no acceptance. So when the shopkeeper refused Samir which is a set of golf clubs are not the good for sale, it ju

9、st be used as ornament, and attracted the consumers interested. So an offer in this case is not found, either nor acceptance.A contract consists of an offer and an acceptance, we can know that there is on offer and there is on contract.Case study 2Tom is the top salesman for ABC Motors. He has been

10、offered a job by a rival companybut is concerned because there is a clause in his contract which prevents him from working for any other car companyfor five years. Tom is the top salesman because he regularly tells potential customers what they like to hear rather than the facts. He has done this in

11、 relation to ages of vehicles, odometer readings and vehicle service histories.Tom recently completed a deal to buy a vintage sports car for ABC Motors from Barry.ABC now discover that Barry (not his real name) had stolen the vehicle.Question 1What is a restrictive covenant? Advise Tom as to the leg

12、ality of the clause in his contract.You can refer to Bluebell Apparel Ltd v Dickinson (1980) on page 146Question 2How would you classify Tom s statements to the customers and what are the possible consequences for Tom and ABC motors in relation to these statements?You can refer to Smith v Sim(1954)

13、on page 161Question 3What is the legal position with regard to the vehicle which Tom has purchased from Barry?You can refer to Morrison v Robertson(1908) on page 1531 Restrictive covenant is a agreement which restrict the party liberty to work and trade. Such contracts are VOID unless the restrictio

14、n can be shown to be reasonable to both parties involved and to the general public. There are three types of restrictive covenants: contracts between employer and employee, contracts between sellers and purchaser of a business and solus agreements. For allthree types, the party attempting to enforce

15、 the agreement must prove that it is reasonable to both parties concerned andto the general public.If they are unableto do this then the contract will be considered void and unenforceable. (from the text bookP142-142) This contract are legality, and the restriction was fair inthis contract. Because

16、the relationship of Tomand ABCmotor is employer and employee, when enter employment and employee may agree to some restriction being placed on his future employment or trade. Later the employee may feel the restriction is unfair and therefore he may break it. In such circumstances it would be up to

17、the employer take him to court and seek an interdict forbidding the employee to break the agreement. They will consider the factor the nature of the job the employee was doing（from the text book P142）. If Tom worked for any other company within the validity period of the contract that he would be in

18、 a position to harm his ex employers.2 The 4 main causes of error are: innocent misrepresentation, fraudulent misrepresentation, negligent misrepresentation and concealment of facts. And Toms statements to customers classify fraudulent misrepresentation,A false and material statement which induces a

19、 party to enter into a contract this is misrepresentation. Because he regularly tells potential customers what they like to hear rather than the facts and him without caring whether it is true or false. Fraudulent misrepresentation can lead a contract being made void if it involved these points,firs

20、t is fraudulent misrepresentation causes error in the substantials.Second is the other party relied on the misrepresentation and it was a major influence on them entering the contract, third is the other party can offer restitutio in integrum. So the contracts between Tom and customers is void, he r

21、elied on the misrepresentation and it was a major influence on them entering the contract, thus customers can acquire compensation. Or cancel the contract or both of them.3 Tombrought a car from Barry,but Tomdiscovered that Barry had stolen the vehicle. And in this contract has a error which made th

22、e contract void, the Barry stolen the car but Tomdid not know before him brought, so he can not get the car s ownership. An error concerning the identity of the parties. Barry stolen the car so he haven t ownership of this car and sold car, therefore, he can not give ownership to Tom, and Tom does n

23、ot get the car ownership actually. And in this case Tom can onlylodge a claim to Barry.Case study 3Martina recently attended an auction for the first time. She was very keen（ 渴望的 ） on a particular painting and when the bidding commenced （开始） she got so carried away that she bid muchmore than she int

24、ended. Martina won the auction but with fees（费用） and commissions （佣金）added on to the price, she cannot pay the full amount for the painting.Question 1Whatdo you understand by the term breach of contract ? Give two examples.Question 2List the main remedies available for breach of contract.Question 3W

25、hat is the most appropriate remedy for the auctioneer (拍卖商) in this case?1、Where one party fails to fulfil his or her legal obligation under a contract.(from the text book P183)example1Tony and Jane have a contract where Tony will pay June $100 for her car and delivery.Tony pays the $100 but Jane fa

26、ils to delivery.(from the text book P197)In this case study there has been a Breach of Contract by Jane as she has failed to delivery the car.Example2Shirley and Oliva have a contract where Shirley brought a cake from Oliva forher friend and asked Oliva sent the cake to her friend on 12th December 2

27、012 ,but on that day her friend did not receive the cake.In this case study there has been a breach od contract by Oliva as she failed to sent the cake.2、If there is a breach of contract then the innocent party will have the rightto seek a remedy for the breach.(from the text book P184)Damagesas a r

28、emedy for breach of contract. The object of awarding damages to someone is to place them in the position they would have been in had the contract been completed.So damages are really awarded as compensation- if the party has actually lost money as a result of the breach then he will be awarded subst

29、antial or compensatory damages.In some cases no actually loss may have been incurred as a result of the breach.If is still possible that damages may be awarded for trouble and inconvenience-these are know as nominal damages.(from the text book P185)Specific implement as a remedy for breach of contra

30、ctSpecific implement is to stop someone for acting in breach of contract. So specific implement may be positive-forcingsomeone who has been in breach to fulfil theirobligations or negative -forcing someone who has been in breach to stop doing something. (from the text book P191-192)Rescission as rem

31、edy for breach of contract.Rescission means cancellation . With this remedy, the innocent party has the right to rescind(cancel) the contract if the other party has been guilty of a material breach of contract.The main factor to be considered is what is meant by a material of contract. If the breach

32、 is not material but only partial then the right of rescission does not exist.Many contracts contains a number of conditions, some of which are more important than others.If the contract specifically states that some are material then breach of these will mean that rescission can be taken as a remed

33、y.（from the text book P193-194）The Defensive Remedies for breach od contractThere are two defensive remedies that can be taken by the party who is not in breach. Lie n:If a person has possession（ 占有 ） of an article（ 物品 ） on which he has been employed to do work then he can refuse to return the articl