-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 for500. Heenters the shop and states he will take the clubs. The shopkeeper however says theclubs are no longer for sale. Samir is demanding that he be sold the clubs and at theprice displayed.Identify the essential requirements o

2、f a contract and discuss whether a contract existshere.A contract is an agreement between parties having the capacity to make it, in the formdemanded by the law, to perform, on one side or both, acts which are not trifling,indeterminate, impossible or illegal, creating an obligation enforceable in a

3、 court of law.A valid contract has three essential features: there must be a agreement on all materialaspects; 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 placethen there can be no contract. The basic ele

4、ments of a contract include an offer and anacceptance.In the case Samir sees a set of golf clubs displayed in a shop window for500. Heenters the shop and states he will take the clubs. But shopkeeper says the clubs are nolonger for sale. Samir is demanding that he be sold the clubs and at the price

5、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 knowthat goods displayed in a shop window (even wh

6、en priced) are classed as a willingnessto negotiate on the shops part. Invitations to treat also is considered to inquiry the priceof goods, means a party to invite the other person to make offers. Different an offer, awillingness to negotiate only as prepared to make a contract of behavior on the i

7、ssuewho is not legally binding. The customer will makethe offer to buy the goods which theshop are perfectly within their rights to refuse. The invitations to treat are not legallyclassed as offers and therefore cannot be accepted.Before the party who gave off the invitations to treat could not acce

8、pt the other peoples offers they can revocation, and then the contract is not build. WhenSamir asked tobuy the golf clubs the shopkeeper refused hin, and there was no acceptance. So whenthe shopkeeper refused Samir which is a set of golf clubs are not the good for sale, itjust be used as ornament, a

9、nd attracted the consumers interested. So an offer in thiscase is not found, either nor acceptance.A contract consists of an offer and anacceptance, 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 offered a job by a rivalcom

10、panybut is concerned because there is a clause in his contract which prevents himfrom working for any other car companyfor five years. Tom is the top salesman becausehe regularly tells potential customers what they like to hear rather than the facts. He hasdone this in relation to ages of vehicles,

11、odometer readings and vehicle servicehistories.Tom recently completed a deal to buy a vintage sports car for ABC Motors fromBarry.ABC now discover that Barry (not his real name) had stolen the vehicle.Question 1What is a restrictive covenant? Advise Tom as to the legality of the clause in hiscontrac

12、t.You can refer to Bluebell Apparel Ltd v Dickinson (1980) on page 146Question 2How would you classify Toms statements to the customers and what are the possibleconsequences for Tom and ABC motors in relation to these statements?You can refer to Smith v Sim(1954) on page 161Question 3What is the leg

13、al position with regard to the vehicle which Tom has purchased fromBarry?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 contractsare VOID unless the restriction can be shown to be reasonable to bot

14、h parties involved and to the generalpublic. 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 the agreement must prove that it is rea

15、sonable to both partiesconcerned andto the general public.If they are unableto do this then the contract will be considered void and unenforceable. (from the text bookP142-142) Thiscontract are legality, and the restriction was fair inthis contract. Because the relationship of Tomand ABCmotor is emp

16、loyer and employee, when enteremployment and employee may agree to some restriction being placed on his future employment ortrade. Later the employee may feel the restriction is unfair and therefore he may break it. In suchcircumstances it would be up to the employer take him to court and seek an in

17、terdict forbidding the employee to break the agreement. They will consider the factor the natureof the job the employee was doing（from the text book P142）. If Tom worked for any other companywithin the validity period of the contract that he would be in a position to harm his ex employers.2 The 4 ma

18、in causes of error are: innocent misrepresentation, fraudulent misrepresentation, negligentmisrepresentation and concealment of facts. And Toms statements to customers classify fraudulentmisrepresentation,A false and material statement which induces a party to enter into a contract this ismisreprese

19、ntation. Because he regularly tells potential customers what they like to hear rather than thefacts and him without caring whether it is true or false. Fraudulent misrepresentation can lead a contractbeing made void if it involved these points,first is fraudulent misrepresentation causes error in th

20、esubstantials.Second is the other party relied on the misrepresentation and it was a major influence on them enteringthe contract, third is the other party can offer restitutio in integrum. So the contracts between Tom andcustomers is void, he relied on the misrepresentation and it was a major influ

21、ence on them entering thecontract, 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 thiscontract has a error which made the contract void, the Barry stolen the car but Tomdid not

22、know beforehim 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 giveownership to Tom, and Tom does not get the car ownership actually. And in this case Tom can

23、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 carriedaway that she bid muchmore than she intended. Martina won the auction but with fees（费用）and commissions（佣金

24、）added on to the price, she cannot pay the full amount for the painting.Question 1Whatdo you understand by the termbreach of contract? Give two examples.Question 2List the main remedies available for breach of contract.Question 3What is the most appropriate remedy for the auctioneer(拍卖商)in this case

25、?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 fails to delivery.(from the text book P197)In this case study there has b

26、een 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 12thDecember 2012 ,but on that day her friend did not receive the cake.In this case st

27、udy 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 remedy for breach of contract. The object of awarding damages to someone

28、 is to placethem 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 thebreach then he will be awarded substantial or compensatory damages.In some cases no actually loss may have be

29、en 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 contractSpecific implement is to stop someone for acting in breach of contract.

30、 So specific implement may bepositive-forcingsomeone who has been in breach to fulfil theirobligations or negative -forcing someone who has been in breach to stop doing something. (from thetext book P191-192)Rescission as remedy for breach of contract.Rescission means cancellation . With this remedy

31、, 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 is notmaterial but only partial then the right of rescission does not exist

32、.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 rescissioncan be taken as a remedy.（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.1Lie n:If a person has possession（ 占有 ）of an article（ 物品 ）on which he has been employed to do workthen he can refuse to return the article to