LW2903 Business and Law questions and answers graded A+

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Question 1 First Issue: Sandy ‘s rights against WS The first issue related to the exclusion clause. Sandy returned to pick up her clothes from WS, her downs jacket was torn, and the zip was broke... n. WS sought to rely on the exclusion clause printed on the back of the form. However, whether the form is validly incorporated? If yes, then Sandy has no claims on WS shop, on the other hand, if the exclusion clause is not incorporated, WS shop cannot exclude their liability. Determining Rule An exclusion clause is effective when the 3 conditions are satisfied, the first part is incorporation. An exclusion clause can be incorporated into the contract in several ways, by signature, reasonable notice and consistent prior course of dealings. However, the exclusion clause was not incorporated due to a misrepresentation. Analysis The exclusion clause is not validly incorporated because of lacking reasonable notice and the presence of misrepresentation. Terry as a shop assistant did not inform the Terms and Conditions displayed on the walls. That shows WS did not take reasonable steps to notify the exemption clause. In addition, Terry replied that “the form merely included an exclusion clause for damage caused to buttons and zips on the garments”. However, the reality was that the exclusion clause pertained to all possible damages that may be caused. This is a misrepresentation which relates to existing facts, Terry, as a worker of WS, just stating the half-truth and conceal the part that stating the exclusion clause includes all possible damages. Although Sandy has signed the form, the exclusion clause is not incorporated because of misrepresentation. We can take reference to Curtis v. Chemical Cleaning & Dyeing Co. The Court found for plaintiff to have a claim on a wedding dress company because the exclusion clause was not incorporated due to a misrepresentation. Advise Sandy can file a lawsuit against WS to claim her rights. WS was liable to the damages on Sandy’s clothes. Sandy might can have monetary misrepresentation to recover her damages. Second Issue: Sandy rights against Terry and Lewis Sandy called Lewis and ordered 3 bottles of Kirei Magic. Sandy transferred the money to Lewis and gave him the delivery address. In fact, both Terry and Lewis knew Sandy wanted the Japanese Kirei Magic”, but Lewis sold a similar product with the same name, produced by another manufacturer in Vietnam. They deliberately concealed this information from Sandy and three bottles of Kirei Magic from Vietnam were delivered to Sandy’s address. The main issue risen is whether a misrepresentation is present? Determining Rule This study source was downloaded by 100000761290263 from CourseHero.com on 08-13-2021 07:18:04 GMT -05:00 https://www.coursehero.com/file/80224958/LW2903Examdocx/ This study resource was shared via CourseHero.com Under contract law, a contract with defects (vitiating factors) can be set aside, the misrepresentation is a false statement that induce a person to enter a contract. Misrepresentation must relate to facts, false statement of fact, representation related to material fact and induced other into the contract. There are fraudulent, negligent and innocent misrepresentation. Analysis Sandy called Lewis and ordered 3 bottles of Kirei Magic, which is an offer. Lewis accepted the order, and Sandy transferred the money to Lewis and gave him the delivery address. There is a contractual relation between Lewis and Sandy. However, Terry told Sandy Lewis could help her buy Japanese Kirei Magic and they knew Sandy wanted the Japanese Kirei Magic. They deliberately concealed the manufacturer was in Vietnam to Sandy, which induced Sandy to a contract. The material fact that where the detergent is manufactured would affect Sandy judgment whether to enter the contract or not because clearly Sandy only wants Japanese one. Terry and Lewis committed into a fraudulent misrepresentation. Advise Sandy can file a lawsuit against Lewis and Terry because she has the claims for remedies which possibly includes rescission and monetary compensation for damages. Question 4 “The adversarial system is a powerful means of ensuring justice, but it is not without faults and arbitration/mediation is sometimes a better way of ensuring justice”. The statement above illustrates sometimes arbitration or mediation is a better way of ensuring justice. The statement can be supported by the advantages of ADR. Firstly, the decision is binding and final and are not usually subject to challenge which would be deemed as opposed to the courts. This is effective and efficient in solving dispute as the parties are bounded by the final decision. In addition, Arbitral awards enjoys great international recognition, it reduces the burden of the judicial forces and reduces the expenses. A lawsuit is costly in time and expenses, ADR comparatively consumed less efforts and become less costly. Moreover, the parties have more freedom, they could have choices on the language, place, and procedures to be followed, the great benefit is convenience. Also, arbitrators have specialized skills as they are well trained to lead the parties enter in fair and calm discussions. Last but not least, it has high level in confidentiality. However, is it always a better way of ensuring justice, that is not a must. Sometimes, ADR means have their drawbacks. To start with all formalities are bypasses. We cannot always ensure the fairness because there is no court judgement between the disputes. This study source was downloaded by 100000761290263 from CourseHero.com on 08-13-2021 07:18:04 GMT -05:00 https://www.coursehero.com/file/80224958/LW2903Examdocx/ This study resource was shared via CourseHero.com Moreover, as stated before, once they accepted the final decisions, it become an agreement between parties, the decisions are binding and final and usually not subject to challenge, it may not be possible to review the decisions as we have no rights to appeal that. Last but not least, the judicial system upholds the principle of rule by law, however, the ADR is more kind of rule by man. The parties do not need to strictly bear the liability according to the law, they can have compromise and some parties might let go the right to sue in return of money. The rule by man concept is one of the concerns. The adversarial system is a powerful means of ensuring justice. Thus, both Civil and Criminal litigation is implemented in Hong Kong, to maintain a justice system. Their difference is related with what they concerned. Civil litigation concerned with the rights and duties of individual towards each other. Criminal litigation concerned with the offences against the state and punishable by state. Also, Civil litigation seeks for compensation, but Criminal litigation seeks for punishment. Moreover, under Civil litigation, the legal action begins by an individual to establish rights against another citizen or group of citizens. However, under Criminal litigation, it is enforced on behalf of the state against a citizen or a group of citizens. The parties in Civil litigation are plaintiff and defendant, but the parties in Criminal litigation is prosecutor and accused. The burden of proof under Civil litigation is on the plaintiff to establish rights against the defendant based on a balance of probabilities and the burden of proof under Criminal litigation is on the prosecutor to establish the case against the accused beyond reasonable doubt, every person is presumed to be innocent until the prosecutor proves that he/she is guilty. Also, the Civil litigation will be dealt with by different courts including Lands Tribunal, Small Claims Tribunal. However, the Criminal litigation only dealt with by Magistrate Court, District Court and above. Question 2 Issue Robert started work on 1 August 2019 as a trainee solicitor, her supervisor, Rachel asked him to work every single day of December including Statutory holidays. Rachel never mentioned, nor arrange a break for Robert. Does Rachel violate Robert’s rights under the Employment Ordinance? Rachel threatened Robert and asked for sexual favours in order to maintain his training contract. Did Rachel commit into a tort? Robert also concerned the restraint of trade; we need to analyse whether it is enforceable. Determining rule This study source was downloaded by 100000761290263 from CourseHero.com on 08-13-2021 07:18:04 GMT -05:00 https://www.coursehero.com/file/80224958/LW2903Examdocx/ This study resource was shared via CourseHero.com Under Employment Ordinance, rest days are protected for employee, they should have at least one day rest which is not less than 24 hours in every period of seven days. Employer must not compel an employee to work except for an emergency. Also, a restrictive covenant may be enforceable only if employer is able to show the covenant protects a legitimate business interest, extends no further than is reasonably necessary to protect interests and it is not contrary to the public policy. Application and Analysis Rachel violates Robert’s rights under Employment Ordinance, Robert is ensured by the law that he had at least a day rest in every period of seven days. However, Rachel requires him to work every single day in December breached the statutory obligation. Robert can claim for his loss against the violation caused by Rachel. Furthermore, Robert can file a lawsuit against Rachel of torts. Rachel has a tortious liability arises from a battery tort. She threatened Robert and asked him for sexual favours in order to maintain his training contract. Rachel is liable for the victims. Finally, the clause in Robert’s training contract prohibited him from working as a solicitor for 12 months in Hong Kong after leaving the law firm is not enforceable. The employer has to show the covenant protects a legitimate business interest including trade secrets, confidential information, client or customer connections and stability of workforce. Robert is just a fresh graduate. His position in the company is just a training solicitor, it is not reasonable for a training solicitor to conduct works with confidential information or get close connections with major clients. Therefore, the clause on the employment is not enforceable. Advise Robert should sue Rachel and seek for remedies to recover the harms imposed by Rachel [Show More]

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