Free «Business Law» Essay Paper
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The customer has remedies under the terms of contracts for the sale of goods and supply of services that protects buyers at four different levels. The seller has a right to dispose of goods if they fail to correspond to the description set. In addition, the right can be exercised if such goods fail to be of satisfactory quality (Atiyah, Adams & MacQueen 2005). If goods bought by the customer fail to meet reasonable standards, such goods can be returned by the customer under the contract for sale of goods and supply of services. Additionally, the client reserves the right to refuse to accept the goods if the seller fails to comply with the contract for sale at the time the goods were delivered.
The buyer has the right to compel the seller to repair the washing machine or replace it at his/her expense under the Consumer Rights-Faulty Goods Rules (Competition and Consumer Protection Commission n.d.). If the seller fails to replace or repair the washing machine, the buyer has the right to demand a reduction in price. The buyer has another remedy, namely he/she can rescind the contract in case of failure of the seller to repair or replace the washing machine. The customer will be put in the position that he/she was before entering into the contract with the washing machine vendor. He/she will be expected to change ownership of the machine in return for the money paid.
The buyers of dishwashers face the problem of overflowing water in their kitchen floors due to poor installation of pipework by the company’s agent, Bob. In this case, the goods were supplied along with the installation service, and such a contract is subject to the provisions of the Supply of Goods & Services Act. The seller will be expected to offer goods of satisfactory quality that are fit for their purpose. Fundamentally, it implies that the dishwashers should have been installed with reasonable care and skill under the section 13 of the Sale of Goods & Services Act. In addition, such services should have been provided within a reasonable time and at a reasonable price. Poor installation of dishwashers by Bob amounted to a breach of the customer’s rights since they were not provided with reasonable care and skill.
There exist a number of rights that are available to the homeowners under the legal rules on implied terms relating to the supply of services. The homeowners have a right to compel the seller to provide repeated service by requiring the builder to attach the dishwasher outflow pipe correctly to the sinks outflow pipe. In addition, homeowners have a right to a reduction in price in instances where the services were given without reasonable care and skill. The implied rules allow the customers to claim compensation that will include the cost of getting another builder to install the dishwater outflow pipes. The homeowners have a right to claim compensation for damages caused by the overflowing water.
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In this case, a designer-label American style fridge that had been sold to Asia was sold to Brian after the former failed to collect it within a stated period. According to the statutory provisions regarding the transfer of goods, the property in the goods including associated risks and obligations is transferred to the buyer from the seller. Thus, it means that Asia had acquired ownership of the fridge and related obligations. However, the fridge was in the possession of the seller, who had physical control and custody of the fridge. In this case, the fridge was at the buyer’s risk (Asia) irrespective of whether the delivery had been made.
In this case, Brian subsequently acquired a title to the fridge since he had purchased the fridge in good faith. However, in fact, the fridge was in the custody of the seller who retained possession of the property, whereas the ownership of the refrigerator had passed to Asia. Brian has the right to indemnity in case the fridge is reclaimed by Asia.
The Sale of Goods Act of 1979 contains regulations for damages for non-delivery such as specific performance and remedies against a breach of warranty. Damages for non-delivery arise when the seller of a particular product wrongfully refuses or neglects to deliver goods or services to the buyer. Specific performance is awarded to the buyer if the seller fails to deliver goods according to the customer’s demands and standards. It requires that the contract for the supply of goods be precisely performed. Thus, the seller has no option of maintaining control or custody of goods on payment of damages. Remedies for a breach of warranty arise where there is a significant breach of warranty by the seller or violation of any condition set under the contract for the sale of goods. If there is a substantial warranty breach, the buyer is entitled to reject the goods with the particular regard to extinction or diminution of the price and quality.
The provisions on product liability under the Consumer Protection Act of 1987 provide that manufacturers, retailers, distributors, and suppliers are responsible for any injuries caused by their products. Both the White Warehouse and the microwave manufacturer are liable under the provisions of the Consumer Protection Act. The two parties are also liable under the common law provisions that provide for product liability in case of defective products. The White Warehouse will thus be liable to compensate Ian Fuller-Carp an amount equal to the cost of the valuable Persian carpet and antiques in his house that were damaged by the fire that broke out in the microwave. However, the lawsuit concerning product liability is not limited to the White Warehouse alone; the producer of the microwave will also be jointly and severely held liable for the loss.
Task 2-Consumer Credit
A D-C (debtor-creditor) agreement is a credit card arrangement in which the supplier of the services or goods and the provider of credit do not have any arrangement between them. In such an arrangement, any agreement to finance the existing indebtedness is made to a creditor or any other person. On the other hand, a D-C-S (debtor-creditor-supplier) mechanism arises when a pre-existing agreement is made by the supplier and the creditor. In a D-C-S credit arrangement, a financing agreement is made between the debtor and the party supplying the goods or services. In addition, under a D-C-S arrangement, the supplier of the goods or services and the provider of credit under the D-C agreement is the same party. In addition, a D-C-S arrangement exists in instances where the provider of finance and the supplier of the services are different individuals who work together under the agreement.
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According to the Financial Conduct Authority (2015), credit card companies must regularly provide their customers with the relevant information. The customers are entitled to receive regular statements in relation to their credit card transactions at least once a month. Credit card companies are also required to issue the customers with sufficient notice in a particular regard to a failure to make payments or failure to make payments in full. The Consumer Credit rules give the credit cardholders the right to terminate their relationship with the credit card issuer at any time provided they issue a one month notice.
In Amy’s case, her credit card service was discontinued, and a notice was subsequently issued for the payment of the amount within seven days. The notice of default was issued despite the fact that the customer had fully complied with all the credit card agreement including paying the amounts owed promptly. Amy can seek redress from the credit card supplier in respect of the breach of contract and misrepresentation. In addition, she has the right to appeal to the Financial Ombudsman Service for the wrongful termination of the contract and illegal issue of a default notice.
Task 3-Competitive Practices
There exist a number of anti-competitive practices in the UK in the particular regard to monopolies and mergers legislation that are aimed at preventing anti-competitive practices. These include cartels/collision, restrictive practices, and keeping competitors out through the erection of artificial barriers to entry. The current legislations governing UK competition include the Competition Act of 1998 and the Enterprise Act of 2002. These two statutes governing UK competition are the essential laws that have a national dimension. In addition, the current legislation on competition is essential in overseeing mergers, acquisitions and joint ventures in the UK. They are also crucial in eliminating abuse of dominant position by firms in the market by regulating various transactions such as price gouging, predatory pricing, and refusal to deal. In addition, the current competition laws prevent propagation of market practices that restrict free trade and fair competition in the market such as the formation of cartels.
The Competition Act of 1998 was enacted to provide provisions regarding identifying and dealing with abuse of a dominant market position and other forms of restrictive business practices. The Act was also aimed at harmonizing the UK competition law in line with the European Union competition policy. The Competition Act of 1998 had two sets of provisions as detailed in Chapter 1 and Chapter 2 of the Act (Competition Act 1998 1998). The provisions of Chapter 1 of the Competition Act of 1998 relate to the restrictive practices propagated by companies within the UK that are aimed at restricting, distorting, or preventing competition. Chapter II of the Competition Act of 1998 provides provisions in relation to abuse of the dominant position through the use of anti-competitive practices such as price discrimination and vertical restraints.
The Enterprise Act of 2002 is another current UK competition law that was enacted to govern matters relating to mergers, insolvency and bankruptcy (Enterprise Act 2002 - explanatory notes 2002). The major provisions of the Enterprise Act include the creation of a strong and practical deterrent effect and making decisions in regard to competition by independent bodies. In addition, the Enterprise Act eliminated all forms of anti-competitive market behaviour while also raising the UK competition policy profile. The Enterprise Act also provided for independence of the Office of Fair Trading and also established a new appeals body known as the Commission Appeals Tribunal. It also raised fines and jail terms for culpable directors to five years so as to act as a deterrent for cartels.
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The Competition and Markets Authority (CMA) was established to promote fair competitive practices within the UK and the EU by checking those mergers and acquisitions that restrict fair competitive practices (CMA 2015). The CMA pursues investigations and market studies where there is a threat to competition and where consumer problems are persistent. It also conducts investigations in case of the violation of anti-competitive agreements and abuse of market dominance. The Authority also monitors and collaborates with various sector regulators concerning the enforcement of consumer protection laws. In addition, the CMA can also instigate criminal proceedings against the individuals and businesses that commit cartel offenses. The Office of Fair Trading ceased operations on April 1, 2014, and its functions were transferred to the CMA on the same date. According to Quinn (2013), the roles of the CMA came into force upon its establishment on April 1, 2014.
Exploitation of a strong competitive position by a firm in a given market in order to eliminate competition results in the abuse of a dominant position. A company is said to be dominant if it can behave independently while also preventing fair competition. The abuse of a dominant position arises when a member state in the EU directly or indirectly imposes unfair trading conditions. It occurs arises when a party limits production or restricts technical development or particular markets, which is detrimental to the consumers. In addition, the abuse of a dominant position occurs when a particular individual applies disproportionate and dissimilar conditions to different trading parties, thus putting them at a competitive disadvantage.
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In the proposed acquisition of Canarie by Redmayne, the proposed acquisition will limit the markets and technical development of the products due to the prejudice of the customers. Canaries has a 28 percent market shareholding in France, thus acquiring it will result in a limited market in terms of restricting consumer choice in the French market.
Redmayne International has an alternative of entering the Belgium market by making an arrangement with both Canarie and Robyn SA. In this arrangement, no party will sell its products to any distributor in Belgium if they have already been supplied by one of the others. Redmayne controls 3 percent of the Belgium market while Canarie and Robyn control 2 percent and 4 percent of the Belgium market respectively. There exists an exemption for the distribution agreements in a distribution or production chain. The exemption is provided in Article 101(1) of the Functioning of the EU Treaty given that the arrangement will create substantial benefits that outweigh any potential anti-competitive effects (Pinsent Masons 2011).
Task 4 - Intellectual Property
The new text for the company’s web page built by the R & D unit is regarded as intellectual software property. There exist a number of intellectual property rights that are protected by the law in relation to new software material developed such as copyrights, trademarks, patents, and trade secrets (Freibrun 2015). The patent is a form of intellectual property in which an exclusive monopoly is granted to a party in connection with the effort and time taken to come up with an invention. A copyright is given to the particular form in which the idea is expressed, whereas a trademark is a recognizable emblem that differentiates a company’s product from competitors’ products. In addition, a trade secret is a form of intellectual property that protects the formula, pattern, process, compound, and mechanism from exploitation by others.
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Patent rights are granted to provide protection to processes and products over a period of over twenty years. Under the UK patent rights, the license that was issued to Adam was valid given that the technology was novel, inventive, had industrial application capability, and was not excluded from patentability. Patent infringement takes place when ascertained tasks are made without the consent of the patentee such as using a patented process and supplying an essential element of the patented product. In addition, patent infringement takes place when there is a disposal of the product that was directly obtained by the patented process (Schechter & Thomas 2003, p. 256). In this case, Adam had patented the product in his name, and this gave him specific rights such as the right to transfer or dispose of the patent at will. In addition, Adam has the exclusive right to use the invention at his will.
Copyright protection in extended towards some piece of creativity or work’s expression that is of permanent or tangible nature such as musical works, literary works, computer software, artwork, and any other intellectual works. Copyright infringement rules protect the form of the of the intellectual property invention from unauthorized use or exploitation. It thus protects the arrangement and choice of words, colours, shapes, and musical notes from use without the consent of the inventor. In addition, the copyright holder is entitled to moral rights and economic rights that enable one to take actions regarding the preservation of his/her work and deriving financial rewards from the use of the technology by others. Thus, the production of a similar product to the Oil Fish by Purple Phones is not protected under the copyright rules.
A trademark is a form of intellectual property that is used to protect the brand name of a business, and it is usually associated with the trade name (IP Australia 2014). A trademark thus distinguishes the goods or services of a company from those of a different company, and it gives the organization an exclusive use of the trademarks. On the other hand, business name is protected under the trade name in which the company normally does business. It is the name that the business typically operates; it identifies the owners of the company and must be registered before the company can commence business (Beesley 2013).
Task 5 - Agency
There exists a significant difference between “exclusive” and a “non-exclusive” agent. An exclusive talent agent is involved in every event in which the artists are involved, and they are entitled to commissions. In this arrangement, the artist only agrees to work with one agent. On the other hand, a non-exclusive agent represents the artist in various events. In addition, the artist can work with more than one agent. In the Two-Tone Agency case, non-exclusive arrangement is the most applicable.
A broker is a party or an individual that is involved in the arrangement of buyer-seller transactions in return for a brokerage commission upon execution of the deal. The broker acts as a third party facilitator between the two parties and can represent either the buyer or the seller. On the other hand, an agent acts as a legal representative of a given party (the principal) through apparent authority, by contract, or through employment (Spiro, Stanton & Rich 2003). The agent thus binds the principal in the form of contract and can create legal liability in the course of the agency relationship. On the other hand, a broker only acts as a third party facilitator.
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The agent is entitled to a number of rights in an agency agreement via the right of retainer in which the agent is entitled to retain the amount owed to him by the principal (Estate Agents Authority 2011). The agent can claim reasonable remuneration from the principal in proportion to the cost of agency services offered. In addition, the agent has the right to lien and the right to indemnity in the course of the agency relationship. The duties of the agent include following the principal’s orders, remitting the amounts owed to the principal rightly, and desisting from making secret profit by using the principal’s reputation.