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1a.Explain the duty of careThe meaning of duty of care is no liability for a failure to take due care unless there was a duty to take care in the first place. A duty of care is imposed by both the common law and by statutory law. For example, the provisions of the Health&Safety At Work Act1974. The duty of care is therefore someone whom the defender ought to have contemplated as within sufficient proximity to the defender to be owed a duty of care.you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law , is my neighbour? The answer seems to be : persons who are so closely and directly affected by my act that i ought reasonably to have them in contemplation when i am directing my mind to the acts or omissions which are called into question. In the Donoghue v Stevenson(1932) case, in this case, Mrs. Donoghue bought an opaque bottle of ginger beer for her friends in a cafe in paisley, and the shopkeeper poured some ginger beer over ice cream in a glass which Mrs. Donoghue drank. Then ,her friends find out the decomposed snail in the bottle. Mrs. Donoghue alleged because drunk the contaminated ginger beer, she suffered a serious illness. Because Mrs. Donoghue didn't have a contract with the seller nor with the manufacturer of the goods, So the only saving way is the manufacturer not taking care in the production of the product.( Business Contractual Relationships F84N 34 P279-283)b.Is Carla correct? The common law and statutory law.It not correct, The definition of Common Law Duty is a personal one to take reasonable care for the employee’s safety. He is required to take the same care as a reasonable and prudent employer would take in the same circumstances. This includes a duty to provide safe working premises. And about the Statutory Duty, the main statute here is the Health and Safety At work Act 1974 (HASAWA). This was imposed on earlier existing safety legislation which was not repealed,and so earlier legislation regulating safety in the workplace can still be relevant. And the implied terms are those which are not actually stated, but still impose obligations on the parties, and the reasons such as necessary to make the contract work, obvious or assumed, by custom and practice, by statute.( Business Contractual Relationships F84N 34 P326-329)2. The defences about the contributory negligence and V olenti non fit injuriaAbout the contributory negligence, as well as the above defences, a defender may argue that the pursuer contributed to his or her own losses. And the defender has been negligent but the pursuer’s own actions, in failing to take care for his own safety, have partly contributed to his injuries. For example, in the case about Sayers v Harlow Urban Council (1958), Sayers because of trying to climb out of a faulty locked toilet cubicle, she got hurt. And her actions were not a novus actus interveniens , the local authority was liable. However, because she tried to climb out whilst putting weight on the toilet roll fitting which was fragile, the damages payable were reduced by 25%. In the case, Chris get hurts because of he fell from the ladder he was on , no one help him with the ladder. But the company during him training always say when he do this work need a person to help him to with the ladder. But he don’t ask anyone to help, this is a contributory negligence.The meaning of V olenti Non Fit Injuria , it must be shown that the pursuer freely and voluntarily with full knowledge of the risk involved agreed to take that risk. The defender must establish that the pursuer had free choice and this would not apply if he/she acted out of duty or out of fear of losing his/her job.in the case of Walton&Morse v Dorrington(1977), a secretary worked in an office where colleagues smoked but there was good ventilation. When they were moved to another office without such ventilation the smoke became an irritant and she left when the employers would not make any changes. The employers were held in breach of a duty to provide" a working environment which is reasonably suitable." In the case, this work which Chrisalways do it, Chris know the risk of this work, but he don’t ask anyone to help, causes him fell from the ladder. This is V olenti Non Fit Injuria.( Business Contractual Relationships F84N 34 P300)3. Explain NegligenceNegligence is the most common delict and an action in delict arises where harm is caused carelessly or inadvertently. The law of negligence has developed to protect individuals from physical harm to the person(including psychiatric harm), and to property. Financial interests (with some exceptions) are only protected where the financial loss is consequential to the harm to the person or to property. in the case of Bourhill v Y oung (1943), the defender drove a motorcycle , and he collided with a car and was killed. The pursuer was on the far side of the tram when the accident occurred and did not witness the accident although she heard it. And she saw blood on the road later, then because of the nervous shock, get a subsequent miscarriage. It was held that it is not the fault of defender, because defender could not have reasonable foreseen, and would causes injury to the pursuer in her position behind the tram, she did not have the relevant proximity to the accident.( Business Contractual Relationships F84N 34 P278)4. Explain what ‘vicarious liability’The definition of the Vicarious Liability , in certain circumstances, someone can be liable for another’s delictual act. This can arise through agency, partnership and employment. Liability is transferred to the person benefiting or gaining by the actions of the wrongdoer(and they are more likely to be able to pay and/ or be covered by insurance).in the case of Lister v Romford Ice and Cold Storage Co(1957), a father and son were employed by the same company. The son , whilst driving a lorry, Knocked over his father who claimed damages from the company. The company's insurers paid the father and then brought a successful action against the son for the amount paid.( Business Contractual Relationships F84N 34 P266-275)5. Which latin maxim proven to successfully bring a claim for negligenceThere have to be three elements present for a delict- damnum, injuria datum- or loss caused by a wrong.As noted above there must be three elements present:Damnum is a loss or injury, such as physical or personal injury, the loss of earnings, nervous shock, distress, damage to a reputation. Loss can include damage to a person(Personal injury), damage to property, financial loss or interference with the peaceful enjoyment of propertyInjuria datum is caused by a legal wrong(wrongful conduct), an act may constitute both a crime and a civil wrong. For example, an assault can be both a criminal offence and a civil wrong. The criminal offence is prosecuted by the state, and damages may be payable after separate civil action by the injured party.Loss caused by a wrong is caused by culpa( fault, intentionally or negligently done) on the part of the wrongdoer. The pursuer should prove: causa sine qua non: a causal link must be established and the breach must be the factual cause of the loss. And causa causans of loss: the legal cause in the sense of the effective or immediate cause. Sometimes there can be two separate causes or a chain of events or several factors: the causa causans has to be found from them.In the case of Barnett v Chelsea and Kensington Hosipatal Management Committee(1969), a man had a cup of tea then persistently vomited for three hours. HE contacted a hospital doctor who told him to go home and see his own doctor. The man died and had in fact been murdered through arsenic poisoning. An action against the doctor for treating the man failed as he would have died anyway-the failure to treat him, although a breach of duty, did not cause the harm.(PPT 39)。
businesscontractualrelationships商务契约关系oue3DN97 34:Business Contractual RelationshipsCase 1Question 1At the case Tom and Danny has vicarious liability. The vicarious liability is anexample of joint and several liability as the injured party can sue both the employeeand the employer. So in the case Danny has a duty of care with McGregor. Donoghue v Stevenson【1932】Question 2The standard of care should Mrs McGregor have been entitled to expect from Dannyis the standard of care varies according o the particular circumstances. Something likedriving in a icy conditions would require a greater standard of care than in normalweather conditions. Like the case of Nettleshio v Weston(1971), a learner driverowes the same standard of care to the other road users as an experienced driver, asanother road users and pedestrians are entitled to expect a certain standard of care.From this case Danny must pay more attentions on check and repair the break ofMcGregor?s car. As a result of, Danny understand if he cannot ensure there has notany worry with the brakeof McGregor?s car, it may make the accident happen. And itwould be a terrible result. But the end Danny did not spend more time on McGregor?scar, he just worked on it for about 45 minutes. And after that he only tightened somescrews and the problem appeared to have been sorted.That?s all is Danny didn?t reachhis sta ndard of care. Question 3Question 1The liability applies to the keeper of an animal is The Animals (Scotland) Act 1987Act established provisions to clarify the strict liability for injury or damage caused byanimals-that is liability even without deliberate or negligent conduct. Itstates that aperson will be liable for any injury or damage caused by animal if three facts all apply:a)The person was the keeper of the animal at the time;b)The animal belongs to a species known as being likely;( i ) to severely injure or kill people or other animals, or( ii ) to materially damage property; andFrom the case Mark was the keeper of the dog. The dog belongs to a species known asbeing likely to severely injury or kill people or other animals. Because of the Animals(Scotland) Act 1987 Mark has strict liability with this accident.The strict liability is a legal doctrine that makes some persons responsible fordamages their actions, belongings or products, regardless of any “fault” on their part.Question 2The precautions should Mark have taken when going for a walk in the country withTricky are:a) take the dog chain; b) Sets a cap on thedog?s mouth. That may be canhelp Mark and his dog.Question 3No he can?t.Under the Animals (Scotland) Act 1987, the following defences are available to thekeeper of an animal:if the injury or damage was due wholly to the fault of the pursuereg where the pursuer goaded a docile animal which then attacked the pursuer indefence; where the pursuer has voluntarily accepted the risk ie volenti non fit injuria;injury or damage is caused by the mere fact that the animal is present on a road orelsewhere9 e.g. an animal straying onto a road and so causing a traffic accident )In this case, above three points are not satisfied, so Mark cannot defend for herself.Mark will carry out the strict liability.Another case likeBehrens v. Bertram Mills Circus Ltd【1957】The cases is about the plaintiffs, husband and wife, were both midgets and were onexhibition inside a booth in the funfair at Olympia, for which their manager hadobtained a licence from the defendants, when the booth was knocked down byelephants on their way to perform in the circus ring. A small dog, the property of thedaughter of the plaintiffs? manager,which, contrary to re gulations, had been broughtinto the funfair, had run out of the booth, snapping and barking at one of the elephants,which turned and went after the dog; some of the other elephants followed, and patsof the booth fell on the wife who received injuries. Evidence was given that thehusband and wife were exceptionally dependants upon each other. The court hold thecircus should have taken precautions to prevent the elephant from causing harm. Sohe circus should be liable for the injury caused to the plaintiff.Case 3Question 1Five defences available to a defender in a negligence action:a)Statutory justificationA person may have a good defence to an action in delict if he can show that hisacts are covered by statutory authority.b)Self-defenceSelf-defence is valid defence if the defender acted to preserve himself, his familyor his property, so long as the act was reasonable and in keeping with the nature ofthe threat. If a blow is struck in response only to verbal attract, there is no defence.c)CriminalityThe pursuer will be unable to claim damages if he and the defender were involvedin criminal activity.d)IllegalitySimilar to the criminality defense, a person will not be able to maintain a cause ofaction if he has to rely on couduct which is illegal or contrary to the public policy.e)Volenti non fit injuriaQuestion 2For the case …a?, Rab can defend by the defence of criminality. From the statutoryjustification:A person may have a good defence to an action in delict if he can showthat his acts are covered by statutory authority. So Rab can defend because he andJamesie were involved in criminal activity.For example:Ashton v. Turner 1981 RTR 54:The cited isHanlon v. Cuthbertson 1981:A female passenger in a taxi who was injured as a result of an accideng and he taxidriver argued contributory negligence because she was not wearing a seat belt whichotherwise have protected her in the accident. The court hold the pursuer should haveher damages reduced by ten percent as a result of the contributory negligence byherself.Question 3In the case …b? the bus driver can reduce liability by the defence of contributorynegligence. Margaret should have her damages reduced by 40% as a result becausethe action of the bus driver going across under the traffic light change to amber, didn?tbreak the law, but Margaret was not wearing her seat belt had broken the law.In case …c? cannot be successful, because in the sport, the action is normal and legal;actions refer to rule of games. In the case, Knockbuckie?s behavior was not out ofthose actions in the rule, thus he must be make obligation.。
商务契约范本，规范合作关系商务契约是商业世界中一种非常重要的法律文件，用于明确商业合作双方的权利义务，并规范双方的合作关系。
通过合理的商务契约，可以为商业合作提供明确的指导，减少合作中的纠纷和风险。
本文将介绍商务契约的概念、作用和必要性，并提供一些常见的商务契约范本，以帮助读者更好地理解和运用商务契约。
什么是商务契约？商务契约是指商业合作双方通过协商达成的一种书面文件，用于明确双方的权利义务、合作条件和交付要求等重要事项。
商务契约可以是双方自行起草的协议，也可以是根据相关法律法规制定的标准合同模板。
无论采用何种形式，商务契约都应当具备明确、具体、可执行的特点，以确保合作的顺利进行。
商务契约的作用和必要性商务契约在商业活动中发挥着至关重要的作用，其主要作用有以下几点：1. 明确双方权利义务商务契约可以明确双方在合作中的权利和义务，防止合作关系中出现理解歧义或利益分歧。
通过明确约定各方的权益，商务契约能够帮助双方更好地理解自己的角色和责任，提高合作的效率和效果。
2. 规范合作流程商务契约不仅明确双方的权利义务，还规范了合作的具体流程和操作步骤。
商务合作通常涉及多个环节和部门，合作方通过制定合作流程，可以确保各个环节衔接顺利，提高合作的透明度和可控性。
3. 规避合作风险商务契约能够帮助合作双方识别和规避潜在的合作风险。
合同中通常包含风险分担、违约责任和争议解决等条款，为双方在合作过程中出现的纠纷提供了明确的解决途径，降低了合作风险并增加了合作的可靠性。
4. 保护商业利益商务契约有助于保护双方的商业利益。
合同中通常包括保密条款、知识产权等重要内容，确保商业机密和知识产权的安全性，防止不当流失和侵权行为，维护双方的合法权益。
5. 便于争议解决商务契约作为法律文件有法律效力，可以作为争议解决的依据。
当合作关系出现矛盾和纠纷时，若有完备的商务契约，就可以依照契约的约定进行协商、调解或诉讼，提高纠纷解决的效率和公正性。
5.1.2 专题2 —货物买卖：所有权转移，合同的履行及违反所有权转移(Transfer of Property)在通过关于货物买卖的成文法之前，货物所有权在什么时候转移给买方由苏格兰普通法管辖，其规则为货物所有权在货物交付（delivery）时转移。
然而，成文法SOGA 1979 使苏格兰有了不同于其以前的所有权转移的规则。
该规则来源于英兰格普通法中关于有形动产的法律。
SOGA 1979中规定，货物所有权可以与货物交付分开而独立转移，例如在合同中约定货物所有权转移的时间。
在破产或清算中，当清算人或财产托管人与其他债权人同时对破产财产产生请求权时，上述所有权转移规则会变得尤为重要3。
相应的，如果货物产生灭失，其损失应由货物法律上的“所有者”来承担。
因为除当事人之间另有约定外，货物风险随所有权转移而转移（Risk passes with ownership）。
SOGA 1979第20条规定了两个关于货物风险转移的例外。
首先，当货物的交付由于卖方或买方的过错而被延迟时，货物灭失的风险由造成延迟交付的过错方承担。
其次，货物的买方或卖方在作为货物的管理人或运送人期间，仍对货物负有适当的注意义务（Reasonable Care）。
（在此期间，因作为货物管理人或运送人的一方没有履行其注意义务而致货物灭失的，由该方负担相应责任）。
你可能还能回忆起专题1中的两个概念：现存物（existing goods）和将来物（future goods）。
SOGA 1979还将货物分为特定物（Specific goods）和不特定物（unascertained goods）。
特定物在专3例如：当卖方将货物交付给买方占有但双方约定所有权尚不发生转移，如买方破产，则由买方占有的卖方先前交付的财产不能列入破产财产的范围，而应由卖方直接取回财产。
题1中也描述过其内容。
不特定物(unascertained goods)是指在合同成立时尚未指定并就其达成一致的货物。
Business contractual relationship:Assessment 1:Case one:“A contract in which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price.”A contract of sale of goods’ therefore covers both a ‘sale’ and an ‘agreement to sell’. Where the seller can transfer the goods immediately, and is willing and able to do so, then there is a ‘sale’. However, where there is some sort of condition that must be fulfilled or some act has to be carried out before the sale can take place, and then there is merely an ‘agreement to sell’.The legal effect of a ‘sale’ is that the purchaser obtains a real right over the goods as property in the goods has passed to the purchaser. However, in an ‘agreement to sell’the purchaser only holds personal right against the seller in respect of the contract.Mary can use SOGA1979 Term to protect herself right and power.Implied Terms of SOGA 1979 include that section12- SOGA 1979- Implied Terms of Title, section13-Sale by Description, section 14 -‘Satisfactory Quality’ and ‘Reasonable Fitness for Purpose’, and section15- Sale by Sample.Section 12 -- SOGA 1979- Implied Terms of TitleAt the first, the seller must have ‘title’ to the goods; the right to sell the goods. The seller must either own the goods or should have the appropriate authority from the owner to sell the goods.No third party should have any claim on the goods which would prevent the buyer from obtaining a good title and quite possession of the goods. If there is any charge or encumbrance over the goods by the third party, then all known charges or encumbrance would required to be disclosed prior to the sale.Section13-Sale by DescriptionOn the other hand, this section implies the term that the goods are to ply with their description. It is clear that if the buyer dose not sees the goods prior to purchase and buy s those relying on a description, then this section would apply.However, SOGA 1979 also makes clears that a sale by description can also apply to goods exposed for sale and selected by the customer.Section 14 -‘Satisfactory Quality’ and ‘Reasonable Fitness for Purpose’,Satisfactory QualityIn English law, there was previously an onus on the purchaser to ensure that goods were of a reasonable quality and suitable for any specific purpose required –the caveat emptor rule.In Scottish law, there was a principle that a sale of goods was a contract of good faith.Section 14 only applies where goods are sold in the course of a business so it only covers the situation where the seller is in business. It does not cover private sales although the status of the buyer is irrelevant. Section 14 applies to business buyers as well as to private buyers.The quality of goods includes their state and conditions and this would therefore means that if goods are advertised as in a sale , or seconds etc, this could have some effect on quality to be expected. There are factors that are listed in section 14 of SOGA 1979 as potentially relevant in appropriate cases :( 1)Fitness for the purpose for which goods of the kinds in question are monly supplied(2)Appearance and finish (3)Freedom form minor defect (4) Safety (5) Durability.Reasonable Fitness for PurposeUnder section 14 of SOGA 1979, there is an implied term that the goods are reasonable fit for the purpose, whether or not that is purpose for which such goods are monly supplied.In the case, Mary’s tumble dryer has quality problems and line installation defects caused by fire. This does not conform to the provisions of product safety. Because this product’ defects cause serious consequences. Of course, the hairdryer to use only two months on the problems that the hairdryer is not durability. Hence，Mary could use Section 14 -‘Satisfactory Quality’ and ‘Reasonable Fitness for Purpose’ because that Mary’s situation conforms to the content that the law stipulate.Section15- Sale by SampleIn this section there are two implied terms:That the bulk will correspond with the sample in quality: and that the goods will be free from any defect, marking them unsatisfactory, which would not be apparent on reasonable examination of the sample.Case two:Charlie can't use the SOGA1979 bill rights, because Charlie did not directly buy tumble dryer.Charlie can use the Law of Delict to protect his own power，the Law of Delict, like the law of contract , is a part of the law of obligations. A delict has been defined as: “a civil wrong mitted by a person in deliberate or negligent breach of a legal duty, from which liab ility to make reparation for any consequential loss or injury may arise”General principles of Delictual liabilityAs noted above there must be three elements present:A loss or injury, such as physical or personal injury, the loss of earnings, nervous shock, distress, damage to a reputation.Caused by a legal wrong (wrong conduct)Caused by culpa(fault, intentionally or negligently done) on the part of the wrongdoer.Charlie lung inhalation of smoke to his shock in this belongs to the serious loss. According to the case, Charlie is not negligence resulting in the fire is mainly because short circuit caused the fire.Charlie can also use the Consumer Protection Act 1987to protect his rights and interests.It contains importance extension of the privity of contract rights for consumers if goods are unsafe, so that rights also exist directly against producers and those who hold themselves out as producers.The consumer protection act 1987 deal with three main aspects of consumer protection: product liability, customer safety and misleading pricing.Product liabilityPart one of the customer protection act 1987 transport the product liability directive into the UK law.part 1 of the establishes is a principle of strict liability relating to defective products which cause damages to other property and injure to people who were injured as a result of using the product or who came into close contract with the product.Strict liability means that the plaintiff does not have to prove fault on the part of the defendant. The product liability section made producers liable for any damage done by defective products. The Act goes even further in ensuring that customers are protected from damage or injure caused by faulty goods.In the case, Charlie’s safety and healthy was threaten by the gas that he absorb in the fire. This event happened due to product defect. Therefore, this event belongs to the product liability act.Consumer safetyPart 2 of Consumer Protection Act 1987provides the safety provisions.It deal with consumer safety and allows the government to regulate the design, ponents and construction of goods which could, if defective cause injury. Charlie also fits the bill because it is due to product defects cause harm. what’s more, the tumble dryer damage his health in this event and there is a bad effect on his life. Therefore, this event is suiting to Part 2 of Consumer Protection Act 1987provides the safety provisions.Misleading pricingPart 3 of the Act makes it illegal to mislead consumes about the price of any good, service or facility. The provisions of this part are quite prehensive and cover such services as banking, gas and electricity supplies, telephone service, parking acmodation and all goodsCase 3:The boss’s word is not obe yed no clause exempting.The first does not conform to the provisions; this statement is not a fair statement. The Unfair Contract Terms Act 1977 ——regulates contracts by restricting the operation and legality of some contract terms. One of its most important functions is limiting the applicability of disclaimers of liability.Section17 UCTA1977covers attempts to exclude contractual liability in consumer and standard form contract.If a document is singed at the time of making the contract, its contents bee terms of that contract, regardless of whether they have been read or understood.If separate written terms are presented at the time a contract is made, for example by handing over ticket, those terms only bee part of the contract if it can be said that the recipient had reasonable notice of them. However an exemption clause is only incorporated into the contract if notice is given before or at the time of contracting.Case 4：Debtor –creditor –supplier agreement. Where the creditor is also the supplier of the goods. In these agreement where goods or services cost more than$100or less than $30000 the debtor can hold the creditor jointly and severally liable with supplier when he claims misrepresentation or breach of contract against the supplier –known as ‘ connected leader liability’.Examples where there would be a debtor-creditor-supplier agreement include purchases of goods from retailers where there is a pre-existing financing arrangement; hire-purchase arrangements where the finance is provided by a finance pany; and credit card transactions.Under section 75 of the CCA 1974 both the creditor and the supplier are jointly and severally liable in respect of any breach of contract. The consumer would therefore choose to claim against either the creditor or the supplier.The creditor and supplier may be the same person, and has links to a creditor or vendor who will provide loans to the vendor's customers, this is a very mon type of agreement generally suppliers belong to the intermediary in the debtor-creditor-supplier agreement, however section75 of the Act allows debit charges lenders and suppliers, If a breach of contract, plus 85 pages under section 75 Credit belongs to consumer creditor with supplier belongs to the same party this clause can Act 1974 Dave supplier creditor claims.。
SQA-HND英国高等教育文凭项目专业简章——商务会计（注册会计师方向）
培养学生掌握会计学、经济学的基本原理和现代商务管理的基本知识，熟悉我国及国际会计领域的惯例与规则。
此专业主要培养面向企业，从事日常业务核算与管理工作。
具备熟练的操作计算机、运用多种办公软件应用开发的能力，具有较强的分析和解决问题的基本能力。
具有良好的语言与文字表达、人际沟通、英语听说能力。
胜任会计主管及以下岗位群工作需要，具有与之相适应的知识、技能和能力的高等应用性会计。
Business contractual relationship:Assessment 1:Case one:“A contract in which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price.”A contract of sale of goods’ therefore covers both a ‘sale’ and an ‘agreement to sell’. Where the seller can transfer the goods immediately, and is willing and able to do so, then there is a ‘sale’. However, where there is some sort of condition that must be fulfilled or some act has to be carried out before the sale can take place, and then there is merely an ‘agreement to sell’.The legal effect of a ‘sale’ is that the purchaser obtains a real right over the goods as property in the goods has passed to the purchaser. However, in an ‘agreement to sell’the purchaser only holds personal right against the seller in respect of the contract.Mary can use SOGA1979 Term to protect herself right and power.Implied Terms of SOGA 1979 include that section12- SOGA 1979- Implied Terms of Title, section13-Sale by Description, section 14 -‘Satisfactory Quality’ and ‘Reasonable Fitness for Purpose’, and section15- Sale by Sample.Section 12 -- SOGA 1979- Implied Terms of TitleAt the first, the seller must have ‘title’ to the goods; the right to sell the goods. The seller must either own the goods or should have the appropriate authority from the owner to sell the goods.No third party should have any claim on the goods which would prevent the buyer from obtaining a good title and quite possession of the goods. If there is any charge or encumbrance over the goods by the third party, then all known charges or encumbrance would required to be disclosed prior to the sale.Section13-Sale by DescriptionOn the other hand, this section implies the term that the goods are to comply with their description. It is clear that if the buyer dose not sees the goods prior to purchase and buy s those relying on a description, then this section would apply.However, SOGA 1979 also makes clears that a sale by description can also apply to goods exposed for sale and selected by the customer.Section 14 -‘Satisfactory Quality’ and ‘Reasonable Fitness for Purpose’,Satisfactory QualityIn English law, there was previously an onus on the purchaser to ensure that goods were of a reasonable quality and suitable for any specific purpose required –the caveat emptor rule.In Scottish law, there was a principle that a sale of goods was a contract of good faith.Section 14 only applies where goods are sold in the course of a business so it only covers the situation where the seller is in business. It does not cover private sales although the status of the buyer is irrelevant. Section 14 applies to business buyers as well as to private buyers.The quality of goods includes their state and conditions and this would therefore means that if goods are advertised as in a sale , or seconds etc, this could have some effect on quality to be expected. There are factors that are listed in section 14 of SOGA 1979 as potentially relevant in appropriate cases :( 1)Fitness for the purpose for which goods of the kinds in question are commonly supplied(2)Appearance and finish (3)Freedom form minor defect (4) Safety (5) Durability.Reasonable Fitness for PurposeUnder section 14 of SOGA 1979, there is an implied term that the goods are reasonable fit for the purpose, whether or not that is purpose for which such goods are commonly supplied.In the case, Mary’s tumble dryer has quality problems and line installation defects caused by fire. This does not conform to the provisions of product safety. Because this product’ defects cause serious consequences. Of course, the hairdryer to use only two months on the problems that the hairdryer is not durability. Hence，Mary could use Section 14 -‘Satisfactory Quality’and ‘Reasonable Fitness for Purpose’ because that Mary’s situation conforms to the content that the law stipulate.Section15- Sale by SampleIn this section there are two implied terms:That the bulk will correspond with the sample in quality: and that the goods will be free from any defect, marking them unsatisfactory, which would not be apparent on reasonable examination of the sample.Case two:Charlie can't use the SOGA1979 bill rights, because Charlie did not directly buy tumble dryer.Charlie can use the Law of Delict to protect his own power，the Law of Delict, like the law of contract , is a part of the law of obligations. A delict has been defined as: “a civil wrong committed by a person in deliberate or negligent breach of a legal duty, from which liability to make reparation for any consequential loss or injury may arise”General principles of Delictual liabilityAs noted above there must be three elements present:A loss or injury, such as physical or personal injury, the loss of earnings, nervous shock, distress, damage to a reputation.Caused by a legal wrong (wrong conduct)Caused by culpa(fault, intentionally or negligently done) on the part of the wrongdoer.Charlie lung inhalation of smoke to his shock in this belongs to the serious loss. According to the case, Charlie is not negligence resulting in the fire is mainly because short circuit caused the fire.Charlie can also use the Consumer Protection Act 1987to protect his rights and interests.It contains importance extension of the privity of contract rights for consumers if goods are unsafe, so that rights also exist directly against producers and those who hold themselves out as producers.The consumer protection act 1987 deal with three main aspects of consumer protection: product liability, customer safety and misleading pricing.Product liabilityPart one of the customer protection act 1987 transport the product liability directive into the UK law.part 1 of the establishes is a principle of strict liability relating to defective products which cause damages to other property and injure to people who were injured as a result of using the product or who came into close contract with the product.Strict liability means that the plaintiff does not have to prove fault on the part of the defendant. The product liability section made producers liable for any damage done by defective products. The Act goes even further in ensuring that customers are protected from damage or injure caused by faulty goods.In the case, Charl ie’s safety and healthy was threaten by the gas that he absorb in the fire. This event happened due to product defect. Therefore, this event belongs to the product liability act.Consumer safetyPart 2 of Consumer Protection Act 1987provides the safety provisions.It deal with consumer safety and allows the government to regulate the design, components and construction of goods which could, if defective cause injury. Charlie also fits the bill because it is due to product defects cause harm. what’s more, the tumble dryer damage his health in this event and there is a bad effect on his life. Therefore, this event is suiting to Part 2 of Consumer Protection Act 1987provides the safety provisions.Misleading pricingPart 3 of the Act makes it illegal to mislead consumes about the price of any good, service or facility. The provisions of this part are quite comprehensive and cover such services as banking, gas and electricity supplies, telephone service, parking accommodation and all goodsCase 3:The b oss’s word is not obeyed no clause exempting.The first does not conform to the provisions; this statement is not a fair statement. The Unfair Contract Terms Act 1977 ——regulates contracts by restricting the operation and legality of some contract terms. One of its most important functions is limiting the applicability of disclaimers of liability.Section17 UCTA1977covers attempts to exclude contractual liability in consumer and standard form contract.If a document is singed at the time of making the contract, its contents become terms of that contract, regardless of whether they have been read or understood.If separate written terms are presented at the time a contract is made, for example by handing over ticket, those terms only become part of the contract if it can be said that the recipient had reasonable notice of them. However an exemption clause is only incorporated into the contract if notice is given before or at the time of contracting.Case 4：Debtor –creditor –supplier agreement. Where the creditor is also the supplier of the goods. In these agreement where goods or services cost more than$100or less than $30000 the debtor can hold the creditor jointly and severally liable with supplier when he claims misrepresentation or breach of contract against the supplier –known as ‘ connected leader liability’.Examples where there would be a debtor-creditor-supplier agreement include purchases of goods from retailers where there is a pre-existing financing arrangement; hire-purchase arrangements where the finance is provided by a finance company; and credit card transactions.Under section 75 of the CCA 1974 both the creditor and the supplier are jointly and severally liable in respect of any breach of contract. The consumer would therefore choose to claim against either the creditor or the supplier.The creditor and supplier may be the same person, and has links to a creditor or vendor who will provide loans to the vendor's customers, this is a very common type of agreement generally suppliers belong to the intermediary in the debtor-creditor-supplier agreement, however section75 of the Act allows debit charges lenders and suppliers, If a breach of contract, plus 85 pages under section 75 Credit belongs to consumer creditor with supplier belongs to the same party this clause can Act 1974 Dave supplier creditor claims.。
商务契约关系outcome2
第一章契约的定义与种类
契约是指双方当事人就某种事项达成的一致意见，经过法律程序的认可后具有法律效力的协议。
契约种类包括口头契约、书面契约、法定契约和约定行为契约。
第二章商务契约的要素
商务契约包括因合同产生的交易，因此其要素较为复杂包括契约对象、契约条款、契约标的、契约期限、契约价款等。
第三章商务契约的履行和解除
商务契约是双方当事人通过协商达成的合同，需要履行合同的内容。
如果在履行过程中出现问题，双方可通过合同中的解除条款来解除合同。
同时，被迫终止合同所导致的损失需由违约方承担。
第四章商务契约的争议解决方式
商务契约争议的解决方式包括调解、仲裁和诉讼。
其中，调解是一种比较流行的解决方式，但需要双方当事人达成一致；仲裁是一种公正、快捷的解决方式，但需要确定仲裁人；诉讼是一种最后的解决方式，但程序较为繁琐且费用高。
第五章商务契约管理和风险控制
商务契约管理和风险控制是商务交易中不可忽视的一环。
在契约签订之前，需要对双方当事人进行风险评估和背景调查；在契约执行过程中，需要进行风险监控和风险防范，确保契约条款的履行。
结论
商务契约关系在商业交易中具有重要的地位，要素、履行、争议解决、管理和风险控制是其中必不可少的环节，需要双方当事人充分了解并遵守相关规定，确保商务契约秩序的稳定与发展。
DN97 34:Business Contractual RelationshipsCase 1Question 1At the case Tom and Danny has vicarious liability. The vicarious liability is anexample of joint and several liability as the injured party can sue both the employeeand the employer. So in the case Danny has a duty of care with McGregor.Donoghue v Stevenson【1932】Question 2The standard of care should Mrs McGregor have been entitled to expect from Dannyis the standard of care varies according o the particular circumstances. Something likedriving in a icy conditions would require a greater standard of care than in normalweather conditions. Like the case of Nettleshio v Weston(1971), a learner driverowes the same standard of care to the other road users as an experienced driver, asanother road users and pedestrians are entitled to expect a certain standard of care.From this case Danny must pay more attentions on check and repair the break ofMcGregor‟s car. As a result of, Danny understand if he cannot ensure there has notany worry with the brakeof McGregor‟s car, it may make the accident happen. And itwould be a terrible result. But the end Danny did not spend more time on McGregor‟scar, he just worked on it for about 45 minutes. And after that he only tightened somescrews and the problem appeared to have been sorted.That‟s all is Danny didn‟t reachhis sta ndard of care.Question 3Question 1The liability applies to the keeper of an animal is The Animals (Scotland) Act 1987Act established provisions to clarify the strict liability for injury or damage caused byanimals-that is liability even without deliberate or negligent conduct. Itstates that aperson will be liable for any injury or damage caused by animal if three facts all apply:a)The person was the keeper of the animal at the time;b)The animal belongs to a species known as being likely;( i ) to severely injure or kill people or other animals, or( ii ) to materially damage property; andFrom the case Mark was the keeper of the dog. The dog belongs to a species known asbeing likely to severely injury or kill people or other animals. Because of the Animals(Scotland) Act 1987 Mark has strict liability with this accident.The strict liability is a legal doctrine that makes some persons responsible fordamages their actions, belongings or products, regardless of any “fault” on their part.Question 2The precautions should Mark have taken when going for a walk in the country withTricky are:a) take the dog chain; b) Sets a cap on thedog‟s mouth. That may be canhelp Mark and his dog.Question 3No he can‟t.Under the Animals (Scotland) Act 1987, the following defences are available to thekeeper of an animal:if the injury or damage was due wholly to the fault of the pursuereg where the pursuer goaded a docile animal which then attacked the pursuer indefence; where the pursuer has voluntarily accepted the risk ie volenti non fit injuria;injury or damage is caused by the mere fact that the animal is present on a road orelsewhere9 e.g. an animal straying onto a road and so causing a traffic accident )In this case, above three points are not satisfied, so Mark cannot defend for herself.Mark will carry out the strict liability.Another case likeBehrens v. Bertram Mills Circus Ltd【1957】The cases is about the plaintiffs, husband and wife, were both midgets and were onexhibition inside a booth in the funfair at Olympia, for which their manager hadobtained a licence from the defendants, when the booth was knocked down byelephants on their way to perform in the circus ring. A small dog, the property of thedaughter of the plaintiffs‟ manager,which, contrary to re gulations, had been broughtinto the funfair, had run out of the booth, snapping and barking at one of the elephants,which turned and went after the dog; some of the other elephants followed, and patsof the booth fell on the wife who received injuries. Evidence was given that thehusband and wife were exceptionally dependants upon each other. The court hold thecircus should have taken precautions to prevent the elephant from causing harm. Sohe circus should be liable for the injury caused to the plaintiff.Case 3Question 1Five defences available to a defender in a negligence action:a)Statutory justificationA person may have a good defence to an action in delict if he can show that hisacts are covered by statutory authority.b)Self-defenceSelf-defence is valid defence if the defender acted to preserve himself, his familyor his property, so long as the act was reasonable and in keeping with the nature ofthe threat. If a blow is struck in response only to verbal attract, there is no defence.c)CriminalityThe pursuer will be unable to claim damages if he and the defender were involvedin criminal activity.d)IllegalitySimilar to the criminality defense, a person will not be able to maintain a cause ofaction if he has to rely on couduct which is illegal or contrary to the public policy.e)Volenti non fit injuriaQuestion 2For the case …a‟, Rab can defend by the defence of criminality. From the statutoryjustification:A person may have a good defence to an action in delict if he can showthat his acts are covered by statutory authority. So Rab can defend because he andJamesie were involved in criminal activity.For example:Ashton v. Turner 1981 RTR 54:The cited isHanlon v. Cuthbertson 1981:A female passenger in a taxi who was injured as a result of an accideng and he taxidriver argued contributory negligence because she was not wearing a seat belt whichotherwise have protected her in the accident. The court hold the pursuer should haveher damages reduced by ten percent as a result of the contributory negligence byherself.Question 3In the case …b‟ the bus driver can reduce liability by the defence of contributorynegligence. Margaret should have her damages reduced by 40% as a result becausethe action of the bus driver going across under the traffic light change to amber, didn‟tbreak the law, but Margaret was not wearing her seat belt had broken the law.In case …c‟ cannot be successful, because in the sport, the action is normal and legal;actions refer to rule of games. In the case, Knockbuckie‟s behavior was not out ofthose actions in the rule, thus he must be make obligation.。
