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Hi again
I intended asking you, in my previous response about Human Rights (but I forgot to ask!), what does the printed solution say and why do you (I assume) disagree with it?
Hi Simranmandhan, and a Happy New Year to you 🙂
This is an interesting question that is made even more interesting following Britain’s exit from the European Community.
However, I’m going to suggest to you that you could have got this correct (at least, you could have eliminated 50% of the options) by a careful consideration of the precise wording on those options!
Look at #2 and, in particular, ‘may strike out any legislation’. That is very heavy-handed and most unlike the wording of statutes. Statutes tend to lay out the general intention of a proviso but also tend to include exceptions to those generalities. Allowing the Courts to strike out ANY legislation that is contrary to Human Rights should intuitively have struck you as too much.
Same comment applies to option #3 – ‘must always interpret legislation’. It’s that ‘ALWAYS’ that hits me as being too prescriptive. There has to be a degree of flexibility allowing Court discretion when interpreting statute.
So #2 and #3 should be, in my mind, considered to be incorrect statements.
#4 – ‘the Courts need not consider … ‘ – this is a bit of an anomaly. Even following Brexit, the Brits have accepted that the European Court of Human Rights (and the European Convention on Human Rights) is so pertinent, relevant and important that British Courts DO consider the provisions and decisions of the Europeans when it comes to the subject of Human Rights.
And that leaves us with just option #1 – the requirement of a statement of compatibility
Does all that make sense?
It’s all covered. Certainly not in the depth that you would need to suffer if you studied using a study text, but in sufficient depth for you to approach the exam with a good degree of confidence.
And, of course, unlike when you use a study text, there is the facility here of asking questions on this forum and I shall get back to you – typically in less than 24 hours
OK?
“For this question there is a binding contract on the 4th of May because that’s when the letter of acceptance was put through the postal system right? Also, will the postal rule always apply in acceptance of offers?”
Agreed, subject to the intricacies involved in the postal rule.
Will it always be accepted?
1 Was the accepting envelope properly stamped and addressed.
2 Was it entered into the postal system through the proper channels, and
3 Did both parties consider that the postal means of communication was appropriate in the present circumstances.If any of those pre-requisites is absent then, no, the postal rules would likely not apply.
As an overall caveat to your question, tell me, when was the last time you actually sat and wrote a letter, signed it, put it into an envelope, addressed it, sealed it and stamped it before going to the local post box or post office to enter your letter into the postal system?
I’m not asking about emailing or communication through social media. I’m talking about pen (or other writing implement) and paper.
My guess would be a time span on probably at least 5 years.
The point that I’m making is that the postal rule is becoming redundant with the growth in modern electronic communication methods. It is therefore, in my opinion, an unlikely topic in any ACCA Law exam in the future.
OK?
Your next question :
“Is goods matching their description a warranty or condition?
Secondly, I’m a little confused with why the outcome in these two questions are different? Could you please explain how you would go about analyzing these two questions as well?”
Whether a term in a contract is potentially either a warranty or a condition, it would be classed as an innominate term. Only when that term is breached may the Courts determine the relative importance of the term that is breached.
Comparing the Ramsbottom case with Den’s case we can see (hopefully!) that drink containers of the wrong size could give rise to all manner of awkwardness requiring Mr Ramsbottom to decant the litre bottles into pint bottles in order to finish up with his specified instructions. Had he simply ordered 600 pints of Brown Ale and the correct quantity was delivered in litre bottles, Mr Ramsbottom would have had no claim and no right to reject. But he didn’t! He specified pint bottles so presumably the bottle volume was an important element of his order.
In Den’s case, the liquid has arrived in the correct sized bottles even though the crate size is incorrect. It would be a stretch of the imagination to consider crate size to be critical so it seems that the supplier has breached a ‘less-than-important’ term and thus it is a breach of warranty. And, as you no doubt remember, a breach of warranty is not SO important as to enable rejection / repudiation of the contract. It would give rise only to a claim for the damages suffered as a result of delivery in the wrong sized crates.
Certainly Den should not have rejected the goods and is therefore liable to compensate the supplier for any damages suffered as a result of Den’s rejection.
In this question, Den SHOULD have accepted the goods and claimed damages. What he DID do was reject the goods, and that was a course of action that he should not have taken thus enabling the supplier to claim damages.
You ask how I would go about analysing the questions – I believe that I have done that in my answers. If you need more, post again,
OK?
“Which of the following contracts could be enforced by an order of specific performance?
A. A contract with a minor
B. A contract of employment
C. A contract for the loan of money
D. A contract for the purchase of landHi Mike
For this question the answer is D, and the mark scheme says that A , B and C would be inequitable and/or unsupervisable.
Could you please explain what is meant by this and why D is the answer?”
Hi again Harjiik
Looking at each one separately:
It would be inequitable to enforce a contract with a minor – a basic premise is that minors don’t properly understand what obligations and liabilities will potentially result from their under-age actions. So where a minor does enter into a contract, this tends to be voidable at the minor’s discretion. Possible exceptions lie in the areas of ‘contracts for necessaries’ and ‘contracts for the minor’s education or benefit’
A contract of employment would not be capable of supervision by the Courts. From either perspective! Neither the employer nor the employee would likely succeed in looking to the Court for an order of specific performance. Imagine if such an order were granted. Imagine if David Beckham had been ordered to continue playing for Manchester United. What would stop him from simply turning up on a Saturday and standing alone in the centre of the pitch for 90 minutes without making any effort to utilise his (questionable) footballing skills. How could a Court supervise Beckham’s actions if he were not to play to the best of his abilities?
A loan contract – remember that an order for specific performance is an equitable remedy and will only be granted where the common law remedy of damages would not be a sufficient remedy. Even in a worst case scenario where a potential lender has told the potential borrower that the lender is not going to go ahead and lend $5,000 at a great interest rate of 0.05%. So the borrower can look elsewhere and borrow $5,000 at 3% from a different lender and sue the original potential lender for the extra 2.5% by way of a claim for damages.
Specific performance will typically be awarded in a situation where the subject matter is unique. A contract for the purchase of land would fit that requirement. A piece of land is a definitive subject – it’s THAT piece of land. So an award of damages would not be a sufficient remedy and thus option D has to be the chosen one.
OK?
You write ‘I remember that under CIF even though the seller is responsible for cost, insurance and freight, but the risk already passes to the buyer when the goods are placed on the ship.’
In fact, under CIF, the seller bears the risk right up until the carrying ship (or plane of other type of carriage) arrives at the destination port.
Under CIP, the seller bears the risk right up until the goods arrive at the designated place of delivery.
So, in the case of Javine and Katrina, it’s Javine that has to bear the loss!
OK?
In the case of a public company, the calculation of distributable profits is ‘accumulated realised profits less accumulated unrealised losses’
Effectively, a plc must, in the calculation of distributable profits, retain sufficient in revenue reserves to be able to cover the extent of the unrealised losses in the event that those losses crystallise.
Note, this restriction does not apply to private companies!
Option C does not ‘hold back’ sufficient distributable reserves to cover the accumulated unrealised losses
OK?
Hi again, Harjik
The Ami / Cis case is similar to the case Williams v Roffey. Put that in your search bar and read the detail (it’s not long!) For Williams, read Cis and for Roffey read Ami.
Now, the question!
Past consideration / Not past consideration – Ami’s initial payment of £1,000 – past consideration. The initial payment is made before any work has been started
Past consideration / Not past consideration – Cis’s initial agreement to complete the work by 31 March – we’re looking at this from the end of the contract. This is part of the initial agreement so not past consideration
Past consideration / Not past consideration – The work that had been done by Cis at the end of February – by the time of the revision at the end of February, the work already performed by Cis is past and insufficient to support the revision that we are now facing
Past consideration / Not past consideration – Ami’s agreement to pay the further £1,000 – is the promise of a further £1,000 supported by consideration moving from Cis? That’s the big issue. According to the decision in Williams v Roffey, yes. The extra effort that Cis presumably has to put in to finish the contract on time according to the original contract was deemed by the Court in W v R to be sufficient to support the promise of the additional payment promised by Ami
The work already done by Cis as at the end of February is, without doubt, past consideration. But the extra effort required from Cis to support the promise of additional payment IS sufficient.
Is that any better for you?
Hi Harjot
The key element in this question is the £500 offered by Ben. Other than that £500, there is no consideration mentioned in the question moving from Ben. OK, domestic contracts are often seen to be unenforceable. But in the Ben / Alan situation, there is clear intention by Ben to pay Alan for Alan’s professional services.
So, it’s a commercial agreement.
If the question was that Ben had asked Alan to prepare the tax return, and there had been no mention of money until the work had been completed by Alan (who then said ‘There you go Ben. Now give me £500), then it’s likely the Courts (if it had gone to Court!) would have said that the filling of the tax return was past consideration and that the £500 was unsupported by any further consideration
OK?
You know (from your studies) that a company is a separate person in law. It exists, just as you and I exist. If I sell everything that I own (or give it away or lose it) then I shall have no assets left. But I shall still exist.
Same with a company! In a pre-pack, the assets, the bank of customers, its business, its goodwill are disposed of by the administrator. But the company still exists … and will continue to exist until the process of liquidation officially kills the company.
Better?
Hi again
You yourself correctly pointed out that ‘the declaration should be made at the earliest opportunity’
I believe that I have established that 15th June is not appropriate as the earliest date.
As for the 15th July and 15th August options, these clearly would not satisfy ‘the declaration should be made at the earliest opportunity’
So that leaves us with option B
Is that better?
Yes, there’s nothing in the question to suggest that Lucy had any knowledge at all of Zed’s interest in RST. In fact, she didn’t buy her shares until 16 days after the matter was discussed at Zed’s board meeting and that suggests that, before that date, she had no established interest in RST.
Clearly the |July and August options are not applicable. Even if there had been an option of 30th June as in “Tomorrow I intend to buy some shares in RST” would not necessarily have been notifiable – because, until the actual purchase of those shares, she always had the opportunity to change her mind.
OK?
Maybe!
If you held 25% of a company’s voting shares, do you think that you would have significant control?
Maybe!
But what if now I tell you that I hold the other 75%.
Now, do you have significant control?
You cannot prevent me from passing an ordinary resolution (because I have > 50%)
And you’re not even in the market place to stop me passing a special resolution! Because I have 75%
So, I ask again – do you have significant control?
But!!!! What if I am the second largest shareholder (after you and your 25%) and I now have only 0.01% of the voting shares? Yet again, same question – do you have significant control?
In answer therefore to your original question … maybe yes, maybe no.
OK?
They certainly are! And, should you have any more queries, post them on the Ask ACCA Tutor forum and I shall get back to you. OK?
I looked at the website
and it gave me this:
The statutory redundancy notice periods are as follows: a. At least 1 week’s notice if the individual has been employed between 1 month and 2 years b. 1 week’s notice for each year if they have been employed between 2 and 12 years c. 12 weeks’ notice if they have been employed for 12 years or more
OK now?
