Saturday, December 28, 2019
Critical Assessment Protections To Minority Shareholders And Their Effectiveness In Protecting The Smaller Shareholders - Free Essay Example
Sample details Pages: 9 Words: 2732 Downloads: 9 Date added: 2017/06/26 Category Law Essay Type Critical essay Level High school Did you like this example? Critically evaluate protections to minority shareholders and their effectiveness in protecting the smaller shareholders from the unfair dominance of the Majority. Date authored: 12 th July, 2014 DonÃ¢â¬â¢t waste time! Our writers will create an original "Critical Assessment Protections To Minority Shareholders And Their Effectiveness In Protecting The Smaller Shareholders" essay for you Create order Abstract In order to adequately protect holders of minority interests of a corporate entity against oppressive shareholders whose actions might be at variance with the Companys Articles, there are several remedies and protection available to minority shareholders as members of the company. Some of these remedies are inclusive of, but not exclusive to, petition on the ground of unfair prejudice, just and equitable winding up and the derivative claim principle. The majority of these remedies are firmly rooted in the common law but recently, these rules have been codified under the Companies Act 2006. For the purpose of this project, the protection afforded to minority shareholders will be critically evaluated and its effectiveness will be highlighted to portray the usefulness of the available remedies. One of the major factors indirectly responsible for the destruction of a business or corporate enterprise due to loss of management time or excessive cost of litigation is shareholder disputes.1 The earliest remedies being afforded to minority shareholders dates back to the Cohen Committee Report where corporate bodies gave the court a broad jurisdiction to ascertain what actions of the majority would amount to oppression, and what could be the preliminary hurdles to bring a valid claim against unfair prejudice. 2 The claims against majority shareholder oppression has been a long-serving legislative constant even before 1985 where the ability for a minority shareholder to bring an action against the majority was encapsulated in the Companies Act (CA). 3 Protecting the interest of the minority is mandated by law and it is part of the life of a corporate entity.4 This right however does not empower the minority to make decisions on the companys nor does it allow company policie s to be set up exclusively by the majority. 5 The vast majority of disputes involves shareholders who are in a minority capacity who wish to seek redress because it will be unreasonable for the majority shareholders to bring an action since they could exercise their voting power to seek redress without court interference. 6 Nevertheless, before an action could be brought against the majority, there must be elements of good faith on the part of the minorities because if the powers to bring a claim cannot be controlled, company stakeholders could face certain amount of oppression from frivolous law suits.7 In the case of Re a Company,8 Lord Hoffman stated that the provision of s 75 CA 9 must be carefully applied so that it doesnt become a Ã¢â¬Å"means of oppressionÃ¢â¬ . Petition on the ground of Unfair Prejudice This is an important remedy which equips the minority shareholder to petition the Court for an order against the majority. This remedy is found in s 994 CA 2006 which was formally s 459 of the CA 1985. This action can furnish an allegation if it is found that the conduct of the majority are performed in an unfairly prejudicial manner against the interest of the stakeholders including the claimant, or that an act or proposed omission of the company is or would likely be prejudicial against the stakeholders by the company. 10 The action will be against those in authority to act on its behalf and not just the conduct of a member acting in a personal capacity of a shareholder.11 The acts complained of could be in relation to a breach of fiduciary duty between director and stakeholders, breach of legal bargain between shareholders as agreed in the Articles of Association, misappropriation of assets or breach of understanding. In Re Leeds United Holdings plc 12, the court rejected t he petition which was saddled on the assertion that the shareholders did not dispose of their shares as to the manner agreed. The petition was quashed on the ground that the disposal of shares did not relate to the conduct of affairs of the company. In most cases, this remedy having been upheld by the court after petitioning under s 994, the shares of the minority shareholder/petitioner will be purchased at a fair value.13 Since this remedy is relied on by the discretion of the Court, it could then be that the court could mandate the majority to remit their shares for a fair purchase by the minority depending on the seriousness of the breach. However, before resort to the courts, it is important that the petitioner is aware of the nature of fair offer made by respondents. If the respondents i.e. the majority shareholders have made a fair offer to the petitioner which entitles him to rights enjoyable under s 994 CA 2006 but he refuses to accept, the court could strike off h is petition.14 It is worth noting that only company members have a right to petition under this remedy. A case for petition could even be instituted by a nominee shareholder as seen in Atlasview Ltd v Brightview Ltd.15 The Derivative Claim Principle It is trite law that only the company excluding all stakeholders can bring an action suo moto.16 This common law principle is derived from the celebrated case of Foss v Harbottle.17 The two major principles enunciated in this case are any matter which negatively affects the company can only be commenced by the company,18 and only the simple majority of the members can bring a claim on behalf of the company.19 Part 11 CA 2006 governs the principles of derivative claims.20 A derivative action is normally for the benefit of the company which contrasts with s 994 unfair prejudice remedy. 21 If a shareholder brings a petition against the majority instead of a derivative action, the court will not set aside the claim per incuriam but will require the petitioner to bring a derivative action if the wrongdoing is against the company.22 To bring a claim on behalf of the minority shareholders of the company, the complainant must seek the leave of court before his claim can be entert ained in court.23 It then means that an action against the majority shareholders can only be instituted under the companys name. Lord Denning MR while echoing the immortal words of Professor Gower, 24 he states that where a derivative action is allowed, a minority shareholder is not suing in his own personal capacity as member of the company or on behalf of other members but solely on behalf of the company. 25 The company is bestowed with the responsibility and authority to bring an action against the wrongdoers in its own personal capacity except if shareholders have been duly delegated such a right to bring a claim. 26 To institute a derivative action is quite a complicated exercise because the court is saddled with the responsibility of screening frivolous cases against the company which may threaten its daily operations, avoidance of multiplicity of individual actions which could be better brought jointly in one suit, etc. In the famous case of Barrett v. Duckett27 the House of Lords held inter alia that there was a more favourable method of resolving shareholder disputes instead of a derivative action which could negatively affect the shareholders relationship as members of the company. The rule in Foss v Harbottle has gone a long way to ease the constraints the common law has over derivative claims. Some of the exceptions to the above common law rule are a shareholder is permitted to bring an action against the majority which is ultra vires the Articles of association of the company, a shareholder may sue if he is denied his bona fide membership rights, a shareholder may sue the majority if certain element of fraudulent activities are committed against the minority shareholders and where a corporate decision is decided by simple majority when more than a simple majority is required. The Ã¢â¬Ëfraud on the minority provision tends to be the most popular of the common law exception because it is for the benefit of the company in contrad istinction to the other three which seeks to ameliorate the personal rights of the minority shareholder. 28 To sum it up in regards to the provisions of Part 11 CA 2006, a derivative claim may be instituted in court against any member including ex-directors or shadow directors or any other person who is directly involved in the accused breach;29 it could be brought where there is negligence, default or breach of trust and duty by a director of the who failed to act in accordance with his duties. 30 It then means that any breach of duty done knowingly or unknowingly will be actionable in court against such director. A derivative claim could also be institute by any company member however few the share capital he holds in the company. 31 There is a feeling however that without any sort of restriction on the amount of shares held by a petitioner before he can bring an action in this capacity, the tendency for it to be abused is present. Nonetheless, it will be more theoretical than real for a petitioner who has a single share in a company to bring a derivative action against the majority knowing fully well that he will pay cost as penalty if the law suit is rendered frivolous. Just and Equitable Winding Up The Insolvency Act (IA) 1986 provides shareholders with a statutory remedy in the form of a winding-up order on a just and equitable ground pursuant to certain provisions and rights inherent in the CA 2006.32 The aim of a petition via this remedy in the IA 1986 is to oblige the company to seek a validation order thereby putting pressure on the company if a petition for unfair prejudice has also been brought in tandem.33 However, the court has a certain level of discretion under the IA 1986 as to whether to allow a winding-up petition to be entertained.34 If there is a better alternative remedy apart from the just and equitable winding up such as the unfair prejudice claim, the court will most likely dismiss the former. 35 It seems quite unlikely that a petitioner will be satisfied with winding up a company where he possesses certain amount of shares as shareholder. As earlier discussed, it will be prudent for the petitioner to seek a quote on the remuneration of his shares and exit the company without the burden of pursuing a winding up order. From this standpoint, it can therefore be asserted that the just and equitable winding up remedy will most likely be useful only if s 994 CA 2006 does not satisfactorily mend the wrongdoing complained of by the minority shareholders. Conclusion It has been recognised that certain discrepancies were inherent in the common law such as the fraud on the minority and majority rule which didnt suit the minority shareholders because of its uncertain nature as to whether they had the locus standi to sue and also the disadvantage of power concentration with the majority. Crucially, the advent of the 2006 CA has now filled the void which the common law failed to address adequately. The rigid exceptions in the common law have been relatively softened by the CA. If the courts decide to condone a liberal attitude, the company will be subjected to unnecessary and trivial claims while if it adopts a strict procedure, the minority will be parachuted to the pre-2006 CA situation where the rules where quite restrictive. Nevertheless, the most important objective is to protect the minority from majority shareholder abuse, at the same time, uphold the needs of the majority. Bibliography Primary sources (Cases) Arrow Nominees Inc. v Blackledge  2 BCLC 167. Arrow Trading Investment v Edwardian group Ltd  1 BCLC 696. Atlasview Ltd v Brightview Ltd  BCLC 191. Barrett v. Duckett  1 BCLC 243. Burland v Earle  AC 84. Carlen v Drury  1 V B 154. CAS (Nominees) Ltd v Nottingham Forest FC plc  1 BCLC 613. Cooke v Cooke  2 BCLC 28;  BCC 17. Daniels v. Daniels  2 All ER 89. Estmanco (Kilner House) Ltd v. Greater London Council  1 W.L.R. 2 ;  1 All E.R. 437. Lowe v Fahey  1 BCLC 262. MacDougall v Gardiner [1875-76] L.R. 1 Menier v Hoopers Telegraph Works  LR 9. ONeill v Phillips  2 BCLC 1. Portfolios of Distinction Ltd v Laird  2 BCLC 741. Prudential Assurance Co. Ltd v Newmans Industries Ltd  Ch. 204. Re a Company (No 001363 of 1988)  BCLC 579. Re a Company (No. 007623 of 1984)  2 BCLC 99191. Re Baltic Real Estates Ltd (No 2) [1993 ] BCLC 503. Re Bird Precision Bellows Ltd  Ch. 419;  2 W.L.R. 869;  3 All E.R. 444. Re Leeds United Holdings plc 2 BCLC 545. Re Legal Costs Negotiators Ltd  2 BCLC 171. Re McCarthy Surfacing Ltd, Hecquet v McCarthy  All ER (D) 193. Re Unisoft Group Ltd (No 3)  1 BCLC 609. Re Worldhams Park Golf Course Ltd, Whidbourne v Troth  1 BCLC 554. Salomon v Salomon  AC 22 (HL). Shuttleworth v Cox  2 KB 9. Wallerstainer v Moir (No. 2)  QB 373. Primary Sources (Legislations) Companies Act 1980 Companies Act 1985 Companies Act 2006 Insolvency Act 1986 Secondary Sources (Articles) Bahls, S. C. Ã¢â¬ËResolving Shareholder Dissension: Selection of the Appropriate Equitable Remedy  15 J. Corp. L. 285. Chander, A. Ã¢â¬ËMinorities, Shareholder and Otherwise  113 Yale L. J. 119 Reisberg, A. Ã¢â¬ËJudicial Control of Derivative Claim  8 ICCLR 335. Secondary Sources (Textbooks) Davis P, and Worthington S, (edn), Gower and Davis: Principles of Modern Company Law (9th edn Sweet Maxwell, 2012). Dignam A, and Lowry J, Company Law (5th edn OUP, Oxford 2008). French D, Mayson S, Company Law (27th edn OUP, 2011). Gower L.C.B, Principles of Modern Company Law (3rd edn Stevens Sons Ltd, London 1969). Joffe V, Others, Minority Shareholders (3rd edn OUP, USA 2008) Secondary Sources (Working Papers/Committee Reports) Committee Report on Company Law Amendment, 1945, Cmnd. 6659 1 Steven C. Bahls, Ã¢â¬ËResolving Shareholder Dissension: Selection of the Appropriate Equitable Remedy  15 J. Corp. L. 285, 287. 2 Committee Report on Company Law Amendment, 1945, Cmnd. 6659, para. 60, hereinafter Ã¢â¬Å"The Cohen ReportÃ¢â¬ . 3 Companies Act 1985, s 459. The provisions of minority shareholder protection under the new Companies Act 2006 is contained under Part 30, hereinafter CA. 4 Anupam Chander, Ã¢â¬ËMinorities, Shareholder and Otherwise  113 Yale L. J. 119, 127. 5 Ibid. 6 See Re Baltic Real Estates Ltd (No 2)  BCLC 503. 7 See Re Bird Precision Bellows Ltd  Ch. 419;  2 W.L.R. 869;  3 All E.R. 444. 8 See Re a Company (No. 007623 of 1984)  2 BCLC 99191, 99196. Ã¢â¬Å"But the very width of the jurisdiction means that unless carefully controlled it can become a means of oppression. The threat of such proceedings by a dissident and possibly legally-aided shareholder in a small company can be used to bring pressure upon a majority to accept the price he demands for his shares.Ã¢â¬ Ã¢â¬â Per Lord Hoffmann. 9 Companies Act 1980, then became s 459 Ã¢â¬â 461 Companies Act 1985, now repealed pursuant to the Companies Act 2006. 10 See s. 994 (1) CA 2006. Also, see generally Victor Joffe, David Drake Others, Minority Shareholders (3rd edn OUP, USA 2008), Chs 5, 6. 11 See Re Unisoft Group Ltd (No 3)  1 BCLC 609. 12  2 BCLC 545. See also Arrow Nominees Inc. v Blackledge  2 BCLC 167. 13 S 996 (2) (e) CA 2006. 14 ONeill v Phillips  2 BCLC 1. In addition, the Courts decision to strike off a petitioners action for his refusal of a reasonable offer gives more credence to the claim that company shareholders should resolve their actions out of court. An al ternative dispute resolution may suffice for the purpose of severance compensation. 15  BCLC 191. 16 Salomon v Salomon  AC 22 (HL). 17  67 ER 189; 2 Hare 461 (Ch. D). 18 See Prudential Assurance Co. Ltd v Newmans Industries Ltd  Ch. 204. 19 Carlen v Drury  1 V B 154; 158. This position was also affirmed in MacDougall v Gardiner [1875-76] L.R. 1; Ch. D 13 per Mellish LJ where he was posited that if the act complained of is the responsibility of the majority of the company to correct or if the act which is performed irregularly is being required to be rectified, or if an act is done illegally but could be done in a legally, then individual litigation is of no use. 20 A derivative claim is defined under CA 2006, sec 260 (1). 21 An example of an unfair prejudice against the minority is a breach of directors duty against the members and not the company. See Atlasview Ltd v Brightview Ltd  2 BCLC 191, 207. Derivative claims are mostly aligned with protecting the assets of a company companys and violation of majority shareholder rights. See Estmanco (Kilner House) Ltd v. Greater London Council  1 W.L.R. 2 ;  1 All E.R. 437. 22 See Lowe v Fahey  1 BCLC 262. 23 See Cooke v Cooke  2 BCLC 28;  BCC 17. 24 Laurence C. B. Gower, Principles of Modern Company Law (3rd edn Stevens Sons Ltd, London 1969) p 587. 25 See Wallerstainer v Moir (No. 2)  QB 373, 391. 26 Arad Reisberg, Ã¢â¬ËJudicial Control of Derivative Claim  8 ICCLR 335. 27  1 BCLC 243. 28 See Burland v Earle  AC 84, 93. 29 CA 2006. s 260 (5) (a). 30 Ibid. 31 CA 2006. s 261 (1). See Portfolios of Distinction Ltd v Laird  2 BCLC 741. 32 The CA 2006 has no statutory power to make winding up orders bu t s 122 (1) (g) IA 1986 has provisions for a just and equitable winding up. 33 Brenda Hannigan, Company Law (2nd edn OUP, USA 2009) para. 17-103. 34 IA 1986, s 125 (2). 35 See Re a Company (No 001363 of 1988)  BCLC 579.
Posted by Kareem Davila at 11:10 AM
Friday, December 20, 2019
INTRODUCTION Wal-Mart Stores, Inc., the largest company in the world, has achieved leadership in the retail industry as a result of its efficient supply chain management practices. Setting record sales and earnings for fiscal year 2008, Wal-MartÃ¢â¬â¢s total net sales were $374.5 billion, an 8.6 percent increase over the previous fiscal year and a record for any retailer. Wal-MartÃ¢â¬â¢s mission to Ã¢â¬Ësave people money so they can live betterÃ¢â¬â¢ has impacted more than 176 million consumers in thirteen countries. A global company, Wal-Mart has positioned itself as the unbeatable price leader in offering a variety of affordable products that range from health and beauty, to apparel and jewelry to electronics and food items. While expansion,Ã¢â¬ ¦show more contentÃ¢â¬ ¦Cross-docking refers to the packing of products on incoming shipments so that they can be easily sorted at intermediate warehouses for outgoing shipments based on their final destinations. Thus Wal-Mart benefits through reductions in inventory investment, storage space requirements, handling costs and lead times, as well as increased inventory turnover and accelerated cash flow. In understanding that inventory management must include the entire supply chain, Wal-MartÃ¢â¬â¢s implementation of Radio Frequency Identification (RFID) technology at its dock doors enables operations teams and suppliers know when a shipment arrives. The data is useful to determine when to order additional stock or to figure out if a store has over ordered. Similarly, Wal-Mart has implemented Collaborative Forecasting and Replenishment (CFAR) software to help provide more reliable medium-term forecasts by using the Internet. The system allows Wal-Mart and its suppliers to work together in determining an acceptable forecast. Wal-Mart has since benefited from an improvement in in-stock position from 85 percent to 98 percent as well as increases in sales and reductions in inventory costs. Wal-Mart invests time in meeting vendors to fully understand their cost structure in order to negotiate prices and establish a lasting, mutually beneficial relationship. Wal-Mart shares proprietary knowledge and processes with suppliers in order to improve quality and eliminate unnecessary cost inShow MoreRelatedOperational Planning for Wal-Mart1747 Words Ã |Ã 7 PagesOperational Planning for Wal-Mart Introduction The first Wal-Mart was opened in Rogers, Arkansas, in 1962. By 1969 it was incorporated into Wal-Mart Stores, Inc., and in 1972 went public on the New York Stock Exchange. The company grew steadily across the United States, and by 1990 was the nations largest retailer. In 1991 and 1994, Wal-Mart moved into Mexico and Canada respectively. By 1997 it was incorporated into the Dow Jones Industrial Average. 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Wal-MartÃ¢â¬â¢s general environmental forces, which greatly impact the task environment, include technological, socio-cultural, economic, political, and legal forces. These forces tend to be challenging to identify and are affecting both the corporation and the industries in which it competes. Because they are indirect forces, which for the most part are out of managementÃ¢â¬â¢s control, they may present threats and exposeRead MoreWal Marts Competitive Advantage1744 Words Ã |Ã 7 PagesWal-Mart Stores Inc. is American multinational retail corporation that operates a chain of discount department stores and a warehouse stores. The company is headquartered in Bentonville, Arkansas and was founded by Sam Walton. Wal-Mart is the worldÃ¢â¬â¢s largest company by revenue, according to Fortune Global 500 list in 2014 and the biggest private employer in the world with over two millions employees. 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Posted by Kareem Davila at 6:59 AM
Thursday, December 12, 2019
Questions: 1.Paul has come to you for Advice on whether any action can be taken against Rajeev as he had signed the Registration transfer Papers. He wants to know whether he is Entitled to any Damages or Compensation Money. 2.Advise Bhanu whether Rescission Could be used as a Remedy in Resolving this Issue with Rajeev. What would you Advise Bhanu to do?3.Can Bhanu Enforce the Contract with Shane? Answers: 1.Issues Whether there is a valid contract between Rajeev and Paul? If yes, then are there any remedies that can be availed by Paul for breach of contract? Law A Contract is said to exist between parties, when the parties are in an agreement with each other and that agreement is enforceable as per law. In case the agreement cannot be enforced as per the law of land, then, the contract cannot said to be in existence between the parties. An agreement comes into existence when there is an offer made and the same is accepted. But for an agreement to be categorized as a contract there must also be intention of the parties to be in legal relation, consideration, parties must be capable of entering into contract with each other(Clark, 2010). Thus, the basic ingredients to form a contract are:(McKendrick, 2014) An offer is an intention of the person called offeror to the offeree to do some act/omission for the achievement of objective. A valid offer must be simple, clear and unambiguous and is only complete when communicated to an offeree. An offer is different from an invitation. In invitation, the offer is invited by a person and when offer is made to him, he can accept or reject them, for example, auctions, advertisements, etc (Pharmaceutical Society of Great Britain v Boots ]. An acceptance is said to be complete when the offeree to whom an offer is made confirms the offer. An acceptance must be same as an offer and it must be made before withdrawal of an offer. An acceptance is complete when communicated to the offeror [Shogun Finance Ltd v Hudson. Consideration is the benefit which is given in exchange for the performance of the promise. It may be in cash or kind. The consideration can be future consideration or present but must not be past (Combe v Combe. The parties must be capable of contracting with each other i.e. they must be major and of sound mind. The intention to be in contract must be there between the parties, then only there can be a valid contract. In domestic and social relations this element is generally absent unless proved and in case of commercial transaction this element is presumed to be there unless disapproved (Shahid v Australasian College of Dermatologists FCAFC 72].(Gibson Fraser, 2013) Application of law Rajeev wanted a car. He saw an advertisement in paper. An advertisement is an invitation and thus an offer is made by Rajeev to Paul wherein he intends to buy the car and signed the registration papers and asked Paul that he will come back next day with money. This offer is accepted by Paul. But, Rajeev did not paid anything and on next day did not turned up. Thus, Paul was furious. Thus, Rajeev made an offer which is thus accepted by Paul. Both the parties have intention to bind by the terms of the offer and acceptance. Also, both are major (presumed) and are sound mind. Also, there is a valid consideration though not paid but was to be paid in future and decided at the time of execution of contract. So all the ingredients of contract are present hence there is a valid contract. Since, the contract is not comply with by Rajeev, thus, there is breach of contract. So, Paul can sue Rajeev for breach and claim damages. Conclusion Since all the ingredients of a valid contract are present hence there is a valid contract between the parties. Rajeev had breached his commitment in this case and thus he will have to pay damages and the contract can also be rescinded by Paul along with demanding damages from Rajeev and he can also sue Rajeev for specific performance of a contract. 2.Issues Whether a contract is made between Rajeev and Bhanu and if yes, the weather Rajeev has violated the contract by breaching the term? What remedies can be availed by Bhanu for breach of contract term? Law To make a contract, every offer made by the offeror must be supported by an acceptance which should be supported by consideration and the parties must have legal intention to support such contract(Latimer, 2012). When a contract is made then the parties who make the contract decide the terms of the contract. Some terms are very important and some are less important. Thus the terms are divided into two broad categories(Hodges, 2012). When the terms are the basis of any contract without which the contract cannot be performed, then, such terms are called conditions. These are soul of every contract and are the essence of the contract Poussard v Spiers(1876). If such terms are breached then the aggrieved party has the right to cancel the contract and ask the defaulting party to compensate the plaintiff for the damages sustained by him. When the terms are not the essence of the contract and which are not the heart and core of the contract, then, such terms are called warranties (Bettini v Gye(1876)). These are the supportive terms to the conditions and if these terms are not performed then the aggrieved party has the right to sue the defaulting party only for damages. The aggrieved party has no right to cancel the contract and the contract subsists. Application It is submitted that Rajeev and Bhanu entered into a contract wherein they both decided that Rajeev will take the painting of Bhanu on lease. Thus, there is an offer and acceptance that is exchanged amid the parties. Both the parties exchanged consideration and have legal intention to support the contract. Thus, there is a valid contract amid the parties. Now, one of the term upon which the painting was provided by Bhanu was that the painting must be insured. It is submitted that the paintings were rare and thus the insurance of the painting is very important and must be carried out by Rajeev. It is the core term upon which the painting was provided by Bhanu to Rajeev. Thus, it is a condition. But, this term is not performed by Rajeev. So, a condition is breached. Thus, there is a clear contract amid the parties and such contract is breached by Rajeev by non performance of an essential term. Issue 2 Since a condition is breached by Rajeev, thus, Bhanu has an option to treat the contract as rescinded and he can cancel the contract and sue Rajeev for the claim of damages and compensation for the rare paintings that are destroyed by Rajeev. Conclusion It is thus concluded that there is a contract amid Bhanu and Rajeev. Further, there is an essential term which is breached by Rajeev which has shattered the essence of the contract. so, Bhanu has every right to rescind the contract and sue Rajeev for damages. 3.Issues There are two main issues that are raised: Is there is any kind of contractual relationship that is established amid Bhanu and Shane? If yes, then whether there is contractual breach and what remedies can be availed by the aggrieved party? Law There are four main elements required to make a contract(Latimer, 2012): Offer is the first element and is initiated by an offeror. The desire to carry out any act/omission must be communicated by an offeror to an offeree, either orally, by conduct or in writing, and must receive the offeree. This communication is called offer and is normally made with the hope of approval. Acceptance is the confirmation given by an offeree to the offer that is made to him by an offeror. an acceptance should be the mirror image of the offer and must receive by an offeror in order to be complete and valid. The contract should be hold by some gain or benefit which is consideration and which makes any promises amid offeror and offeree enforceable(Clark, 2010). The parties should also hold legal intention, irrespective whether they are in domestic or commercial relationship. When all these elements are met, then a contract is made but when any one element is missing then there is breach of contract. Now, if there is breach then what are the remedies that are normally available? Some of the remedies are: Injunction In Jaggard v Sawyer(1995), it was held that when the defendant is under some act which the plaintiff wants him to stop, in such situation, he can seek the help of court for order of injunction(Andrews, 2016) Damages In State Transport Authority v Apex Quarries it was submitted that when the plaintiff wants to reinstate his position so that no loss ios caused to him then he can simply ask for damages(Kohl, 2000). Specific performance where in the plaintiff wants the defendant to do something which he is not willing to perform. This remedy is granted when providing damages is not an adequate remedy (Prince v Strange (1978).(Bryan Vann, 2012) Restitution In Bhanu Attorney General v Blake it was held that when the property of the plaintiff is wrongly held by the defendant then the remedy for restitution can be sought in order to recover property from the defendant.(Byrne, 1995) Application The law is now applied to the facts of the case. Communications took place between Bhanu and Shane wherein Bhanu decided to sell her house to Shane. Thus, there is mutual offer and acceptances of offer and acceptance. Now, these promises are supported by 10% deposit which is paid by Shane to Bhanu. So, there is consideration. both the party are ready to enter into the agreement with legal intention. Thus, all the contractual elements, that is, offer, acceptance, consideration and legal intention are present. Thus, there is contract amid the parties. Now, there is contract between Bhanu and Shane. Now, Shane has to pay the remainder 90% deposit to Bhanu in next six weeks time. But, he did not comply with his contract. Now, Shane was not complying with his contractual obligation so there is clear breach. In such situation, Bhanu can sue Shane for specific performance and damages. He can compel Shane to perform his part because if the contract is not comply with then Bhanu will face damages and thus he must also ask for damages in order to restore his position. Restitution cannot be asked for as there is no wrongful possession and injunction is not required because Bhanu wants Shane to perform something and not to restrict anything. Conclusion Since all the ingredients of a valid contract are present hence there is a valid contract between the parties. Rajeev had breached his commitment in this case and thus he will have to pay damages and the contract can also be rescinded by Paul along with demanding damages from Rajeev and he can also sue Rajeev for specific performance of a contract. It is thus concluded that there is a contract amid Bhanu and Rajeev. Further, there is an essential term which is breached by Rajeev which has shattered the essence of the contract. so, Bhanu has every right to rescind the contract and sue Rajeev for damages. Thus, there is a valid contract between Shane and Bhanu and Bhanu must ask specific performance from Shane so that he does not face any damages. Bibliography Andrews, N. (2016). Arbitration and Contract Law: Common Law Perspectives. Springer, (p. 304). Australia. Bryan, M., Vann, V. (2012). Equity and Trusts in Australia. (p. 33). Cambridge University Press. Byrne, M. (1995). Restitution and Equity. QUT Law JL. Clark, E. (2010). Cyber Law in Australia. Kluwer Law International, (pp. 432-434). Australia. Gibson, A., Fraser, D. (2013). Business Law 2014. Pearson Higher Education AU. Hodges, S. (2012). cases and Material on Marine Insurance Law. Routledge. Kohl, U. (2000). Injunctions v Damages (The Age of the Internet) old Battle of Remedies Revisited . J1LawInfoSci 12. Latimer, P. (2012). Australian Business Law. CCH Australia Limited, (p. 294). Australia. McKendrick, E. (2014). contract Law: Text, cases and Material. Oxford University Press. P, L. (2012). Australian Business Law. CCH Australia Limited. Australia. VAnn, B. . (2012). Equity and Trusts in Australia. (p. 33). Cambridge University Press. Cases Bettini v Gye(1876) QBD 183. Bhanu Attorney General v Blake UKHL 45. Combe v Combe 2 KB 215. Jaggard v Sawyer(1995). Prince v Strange (1978). Poussard v Spiers(1876) 1 QBD 410. Pharmaceutical Society of Great Britain v Boots  1 QB 401. Shahid v Australasian College of Dermatologists FCAFC 72]. State Transport Authority v Apex Quarries VicRp 26. Shogun Finance Ltd v Hudson UKHL 62
Posted by Kareem Davila at 3:29 AM
Wednesday, December 4, 2019
Attempts to answer the question of how a non-monotheistic religion, such as Jainism, offers a credible alternative to a monotheistic religion, such as Christianity. The author of this paper looks at the language of logical argumentation, and its need for proofs which he contends has a grounding in the cultural zeitgeist born of monotheistic Christianity. He further contends that the purpose of both is to somehow escape the historically and socially located perspectives from which we see or speak, seeking for incontrovertible, singular, and non-contradictory Truths. From the paper: Should we not, ethically speaking, imagine that Jainism is not in anyway dependent for its worth on the lens through which it is observed? Does it not, in a certain sense, already have an experience-independent existence, unless we assume phenomenology? But the problem is that the philosophical inquiry in Yandell begins with the assumption that religions need to somehow defend the truth value of their claims. We will write a custom essay sample on The Language of Jainism or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page While monotheistic Christianity dwells in the house of dependency and the subjugation to the prying eyes of a radical Other, like God; Jainism does not. Should we not, ethically speaking, imagine that Jainism is not in anyway dependent for its worth on the lens through which it is observed? Does it not, in a certain sense, already have an experience-independent existence, unless we assume phenomenology? But the problem is that the philosophical inquiry in Yandell begins with the assumption that religions need to somehow defend the truth value of their claims. While monotheistic Christianity dwells in the house of dependency and the subjugation to the prying eyes of a radical Other, like God; Jainism does not.
Posted by Kareem Davila at 3:11 PM