Business Law

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ISBN: 9781844801732 | 184480173X
Cover: Paperback
Copyright: 5/13/2006

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This new textbook on business law is aimed primarily at non-law students doing the law element of a business studies course. It is written in everyday language that minimizes legal jargon, and links in to contemporary issues in business and the law using modern cases as well as time-honoured precedent. The book focuses on a core range of key topics, the depth of coverage of which has been determined by extensive research. In this way the book is of a manageable length and devotes more than usual space to examples and clear explanations of the law. Business Law is divided into seven main sections covering: the English legal system; contract law; tort; company law; consumer, employment and agency law; and a final revision section. There is a linking website which provides additional learning support for students and lecturers.

How to use the tables of cases and legislation

xxi

Table of cases

xxii

Table of legislation

xxviii

Preface

xxix

Acknowledgements

xxx

Walk-through tour

xxxi

Part 1 English legal system

What is law?

Learning objectives

(1)

Introduction

(1)

What is law?

(1)

Where does English law come from?

(1)

Legislation

(1)

Judge-made rules or case law

(1)

Key concepts of English law

(4)

Natural and legal persons

(1)

Jurisdiction

(1)

Common law and civil law jurisdictions

(1)

Civil and criminal law

(1)

Standard of proof in civil and criminal cases

(1)

Common law and equity

(1)

A brief history of equitable rules

(1)

Equity: the current position

(1)

Case law

(3)

The doctrine of binding precedents

(1)

The House of Lords

(1)

The proposed Supreme Court

(1)

The Court of Appeal

(1)

The lower courts

(1)

Precedents and judicial creativity

(1)

UK legislation

(1)

Types of UK legislation

(1)

EU legislation

(3)

What is the EU?

(1)

Treaty provisions

(2)

EU legislation

(1)

International treaties

(1)

The European Convention on Human Rights

(1)

Human rights and businesses

(1)

Other international treaties

(1)

Answers to in-text questions

(2)

How the law is enforced

Learning objectives

(1)

Introduction

(1)

Types of court

(4)

Civil law cases: the County Court and the High Court

(1)

Tribunals

(1)

The criminal court system

(1)

European courts: the ECJ and the ECtHR

(1)

Referrals to the ECJ and ECtHR

(1)

The dual role of the ECJ

(1)

Bringing a claim in the civil courts

(4)

Claimants and defendants

(1)

Getting legal assistance

(1)

Solicitors

(1)

Barristers

(1)

Starting the claim

(1)

Case allocation

(1)

Case management and disclosure

(1)

Settlement

(1)

The trial

(1)

The judgment

(1)

Executing judgment

(1)

Resolving disputes outside court

Arbitration

(1)

Alternative dispute resolution

The role of regulators

000

(29)

Enforcing the law against the state

(1)

Judicial review

(1)

Breaches of EU law

(1)

Breaches of human rights

(1)

Answers to in-text questions

(1)

Website summary

(3)

Part 2 Contract

Contract law: an introduction

Learning objectives

(1)

Introduction

(1)

What is a contract?

(1)

Why are contracts important?

(2)

Trust is not enough

(1)

The dangers of promising too much

(1)

Common misconceptions about contract law

(1)

Not about fairness

(1)

Not entirely logical

(1)

Key ingredients of a contract

(3)

Intention

(1)

Agreement (offer and acceptance)

(1)

Certainty of terms

(1)

Consideration

(1)

Formalities

(2)

Making contracts by electronic means

(1)

Capacity

(1)

The contents of the contract

(1)

Terms

(1)

Freedom of contract -- and its limits

(1)

How contracts are enforced

(1)

Answers to in-text questions

(2)

Contract formation: getting agreement

Learning objectives

(1)

Introduction

(1)

Intention to create legal relations

(3)

How the courts approach intention

(1)

The importance of context

(1)

Business agreements

(1)

Social and domestic agreements

(1)

Offer and acceptance

(8)

Offers and invitations to treat

(1)

When an advertisement may be an offer

(1)

Communication of offers

(1)

Withdrawal of offers

(1)

Expiry of offers

(1)

Acceptance and counteroffers

(1)

The battle of the forms

(1)

Communication of acceptance

(1)

Acceptance by conduct

(1)

Offeror may dispense with communication

(1)

The postal rule

(1)

Answers to in-text questions

(3)

Contract formation: certainty of terms and consideration

Learning objectives

(1)

Introduction

(1)

Certainty of terms

(3)

Terms implied by performance

(1)

Previous courses of dealing and custom and practice

(1)

Agreements to agree and dispute resolution clauses

(1)

Consideration

(7)

Basic principles governing consideration

(1)

Consideration must move from the promisee

(1)

Consideration must not be in the past

(1)

Consideration must be sufficient

(1)

Performance of an existing obligation

(1)

Part-payment of debts

(1)

Promissory estoppel

(2)

Answers to in-text questions

(2)

Terms of the contract

Learning objectives

(1)

Introduction

(1)

Conditions and warranties

(1)

Innominate terms

(1)

Implied terms

(6)

Terms implied for business efficacy

(1)

Terms implied by legislation

(1)

Sale of Goods Act 1979

(1)

Dealing as a business

(1)

Satisfactory quality

(1)

Fitness for purpose

(1)

Supply of Goods and Services Act 1982

(2)

Effect of breaching SGA and SOGASA implied terms

(1)

Additional rights for consumers

(1)

Incorporation of terms

(4)

The general rule

(1)

Signed documents

(1)

Unsigned documents or notices

(1)

Terms and pre-contractual representations

(1)

Answers to in-text questions

(2)

Exemption clauses

Learning objectives

(1)

Introduction

(1)

Incorporation

(1)

Construction

(1)

Legislation

(8)

Unfair Terms in Consumer Contracts Regulations 1999

(1)

Business liability

(1)

Negligence: section 2 UCTA

(1)

Breach of contract: section 3 UCTA

(1)

SGA and SOGASA implied terms: sections 6 and 7

(1)

The reasonableness test

(2)

The importance of bargaining power

(1)

Other reasonableness test factors

(1)

UCTA and contracts with consumers: a summary

(1)

UCTA and contracts between businesses: a summary

(1)

Answers to in-text questions

(2)

Discharge of contracts, performance and remedies for breach

Learning objectives

(1)

Introduction

(1)

Discharge of contracts

(4)

Discharge by performance

(1)

Discharge by agreement

(1)

Discharge by breach

(1)

Discharge by frustration

(1)

Frustration: the 'radical change' test

(1)

Effects of frustration

(1)

Performance

100

(3)

Performance: the general rule

101

(1)

Divisible contracts

101

(1)

Substantial performance

102

(1)

Acceptance of part-performance

102

(1)

Remedies for breach of contract

103

(1)

Time limits for legal action

103

(1)

Repudiation

103

(2)

Breach of condition

103

(1)

Problems with repudiation

104

(1)

Affirmation

104

(1)

Damages

105

(4)

Remoteness of damage

106

(1)

Mitigation

106

(1)

Causation

107

(1)

Loss must be quantifiable

107

(1)

Loss of amenity

108

(1)

Dealing with damages in the contract

108

(1)

Equitable remedies

109

(2)

Damages not an adequate remedy

110

(1)

Delay and clean hands

110

(1)

Supervision and enforcement

111

(1)

Answers to in-text questions

111

(2)

Validity of contracts (1)

Learning objectives

113

(1)

Introduction

113

(1)

Misrepresentation

113

(5)

What is a representation?

114

(1)

Representation of fact, not opinion

115

(1)

Representation was false

116

(1)

Injured party believed representation was true

116

(1)

Representation induced a contract

116

(1)

Remedies

117

(1)

Mistake

118

(5)

Mistake of fact

118

(1)

Mistake and frustration

119

(1)

Mistake of fact: subject matter

120

(1)

Mistake of fact: identity

121

(1)

Mistake of fact: terms

121

(1)

Mistake of fact: non est factum

122

(1)

Other types of mistake

122

(1)

Answers to in-text questions

123

(2)

Validity of contracts (2)

Learning objectives

125

(1)

Introduction

125

(1)

Duress and undue influence

125

(4)

Effect of duress and undue influence

125

(1)

Physical duress

126

(1)

Economic duress

126

(1)

The test for economic duress

127

(1)

Undue influence

127

(2)

Illegality

129

(4)

Contracts for an illegal purpose

129

(1)

Restraint of trade

129

(1)

Legitimate interests and reasonableness

130

(1)

Public policy considerations

131

(1)

Severance

131

(1)

Lawful contracts that are illegally performed

132

(1)

Reform

132

(1)

Capacity

133

(2)

Mentally ill or mentally handicapped people

133

(1)

Minors

133

(2)

Answers to in-text questions

135

(1)

Website summary

136

(3)

Part 3 Tort

General principles of liability in tort and the tort of negligence

Learning objectives

139

(1)

Introduction

139

(1)

General principles of liability in tort

139

(3)

Duty of care

140

(1)

Defences to an action

140

(1)

Time limits?

140

(1)

Tort and other forms of liability

141

(1)

The tort of negligence

142

(15)

Duty of care

143

(7)

Breach of duty

150

(2)

Causation and remoteness of damage

152

(3)

Defences

155

(2)

Answers to in-text questions

157

(2)

Other business-related torts and vicarious liability

Learning objectives

159

(1)

Introduction

159

(1)

Other business-related torts

159

(10)

Nuisance

159

(3)

The rule in Rylands v Fletcher (1868)

162

(2)

Occupiers' liability

164

(1)

Are trespassers owed a duty of care?

164

(1)

Breach of statutory duty

165

(1)

Economic torts

166

(3)

Vicarious liability

169

(6)

Introduction

169

(1)

What is needed to establish vicarious liability?

170

(5)

Primary liability of an employer

175

(1)

Answer to in-text question

175

(1)

Website summary

175

(4)

Part 4 Company law

Business associations

Learning objectives

179

(1)

Introduction

179

(1)

Sole traders

179

(1)

Partnerships

180

(10)

Ordinary partnerships

180

(2)

Relationship between the partners

182

(1)

Relationship between partners and third parties

183

(2)

Dissolution of a partnership

185

(1)

Limited liability partnerships

186

(4)

Incorporated companies

190

(5)

Types of company

191

(1)

Public companies

191

(1)

Private companies

192

(1)

Small and medium-sized companies

193

(1)

Community interest companies

194

(1)

Registration of companies

194

(1)

Business names

195

(2)

Answer to in-text question

197

(1)

Incorporation

Learning objectives

198

(1)

Introduction

198

(1)

Corporate personality

199

(4)

Lifting the veil of incorporation

200

(2)

Limited liability of members

202

(1)

Promotion of a company

203

(2)

Legal position of promoters

203

(1)

Disqualification of promoters

203

(1)

Pre-incorporation contracts

203

(2)

Constitution of a company

205

(8)

Memorandum of association

205

(4)

Articles of association

209

(1)

Legal effect of the memorandum and the articles

209

(2)

Alteration of articles of association

211

(2)

Answers to in-text questions

213

(1)

Capital

Learning objectives

214

(1)

Introduction

214

(1)

Share capital

214

(6)

215

(3)

Maintenance of capital

218

(2)

Loan capital

220

(8)

Debentures and charges

221

(2)

Reservation of title clauses

223

(1)

Registration of charges

224

(1)

Priority of creditors

225

(3)

Answer to in-text question

228

(1)

Company management

Learning objectives

229

(1)

Introduction

229

(1)

Division of powers

230

(3)

Default powers

231

(1)

Removal of directors

231

(1)

The power to sue

232

(1)

Directors: nature and scope of office

233

(4)

Appointment of directors

233

(1)

Vacation of office

234

(3)

Directors' remuneration

237

(1)

Directors' service contracts

237

(1)

Company secretary

237

(1)

Qualifications of a company secretary

238

(1)

Auditors

238

(2)

Appointment

239

(1)

Remuneration

239

(1)

Removal

239

(1)

Resignation

239

(1)

Company meetings

240

(4)

Types of meeting

240

(1)

Calling of meetings

241

(1)

Notice of meetings

241

(1)

Types of resolution

242

(1)

Proceedings of meetings

243

(1)

Reform

244

(1)

Answers to in-text questions

245

(1)

Directors' duties

Learning objectives

246

(1)

Introduction

246

(1)

To whom duties are owed

247

(2)

Fiduciary duties of directors

249

(6)

The no-conflict rule

249

(2)

Misuse of corporate property

251

(2)

To act bona fide in the interests of the company

253

(1)

The proper purpose rule

253

(2)

Duties of care and skill

255

(1)

Liability of third parties

256

(1)

Statutory provisions

256

(1)

Section 310 CA 1985

256

(1)

Section 727 CA 1985

257

(1)

Reform

257

(1)

Answers to in-text questions

258

(1)

Shareholder protection

Learning objectives

259

(1)

Introduction

259

(1)

Majority rule

260

(5)

The rule in Foss v Harbottle (1843)

260

(1)

Exceptions to the rule in Foss v Harbottle (1843)

261

(4)

Statutory protection

265

(6)

Winding up on the just and equitable ground

266

(2)

Unfairly prejudicial conduct

268

(3)

Company investigations

271

(1)

Reform

272

(1)

Answers to in-text questions

273

(1)

Corporate insolvency

Learning objectives

274

(1)

Introduction

274

(1)

Methods of dissolution

275

(1)

Proceedings by the Attorney-General

275

(1)

Dissolution under a scheme of reconstruction or amalgamation

275

(1)

Defunct company may be struck off

275

(1)

Compulsory and voluntary winding up

275

(1)

Alternatives to winding up

276

(3)

Reconstructions

279

(2)

Fair dealing provisions

281

(1)

Website summary

281

(3)

Part 5 Consumer, employment and agency law

Consumer protection

Learning objectives

284

(1)

Introduction

284

(1)

Consumer protection: an overview

285

(1)

Criminal conduct

285

(2)

Examples of criminal offences

286

(1)

What the prosecution must prove

286

(1)

Licensing

287

(3)

Scope of the CCA

287

(1)

How the CCA protects consumers

288

(1)

Reform

289

(1)

Imposing additional liability

290

(2)

How the CPA makes it easier to claim

290

(1)

Defences under the CPA

290

(1)

Sale of goods legislation

291

(1)

Contract terms

292

(4)

Unfair Terms in Consumer Contracts Regulations

293

(1)

Core terms and individually negotiated terms

293

(1)

The UTCCR and UCTA: different definitions of consumer

293

(1)

The UTCCR and fairness

294

(2)

Plain intelligible language

296

(1)

Regulators and consumer bodies

296

(2)

Stop Now Orders

297

(1)

Consumer representative bodies

297

(1)

Voluntary schemes

298

(1)

Answers to in-text questions

298

(4)

Aspects of employment law

Learning objectives

302

(1)

Introduction

302

(1)

Contract of employment

303

(1)

Pay

304

(2)

Employer's duty to pay the employee

304

(1)

Equal pay

304

(2)

Acting faithfully

306

(1)

Health and safety

306

(4)

Health and safety at common law

307

(1)

Health and Safety at Work Act 1974

307

(3)

Dismissal

310

(4)

Unfair dismissal

311

(3)

Redundancy

314

(1)

Eligibility

314

(1)

Offer of suitable alternative employment

314

(1)

Nature of claim

314

(1)

Discrimination

315

(6)

Sex Discrimination Act 1975

316

(2)

Race Relations Act 1976

318

(2)

Other discrimination

320

(1)

Answer to in-text question

321

(1)

Agency

Learning objectives

322

(1)

Introduction

322

(1)

Types of agent

323

(1)

Commercial agent

323

(1)

Factor or mercantile agent

323

(1)

General agent

324

(1)

Special agent

324

(1)

Creation of agency

324

(2)

Express appointment

324

(1)

Implied appointment

324

(1)

Agency by estoppel

324

(1)

Agency of necessity

325

(1)

Ratification

325

(1)

Rights of an agent

326

(1)

Right to receive remuneration

326

(1)

Right of indemnification

326

(1)

Duties of an agent

327

(1)

Reasonable skill and care

327

(1)

Fiduciary duties

327

(1)

To perform duties personally

328

(1)

Duty of obedience

328

(1)

Authority of an agent

328

(4)

Actual express authority

329

(1)

Actual implied authority

329

(1)

Apparent or ostensible authority

330

(1)

Usual authority

331

(1)

Effect of agency on contractual relations

332

(1)

Relationship between agent and third party

332

(1)

Relationship between principal and third party

333

(1)

Termination of agency

333

(1)

By express revocation

334

(1)

By death or bankruptcy

334

(1)

By execution of the contract

334

(1)

By other events

334

(1)

Irrevocable agencies

334

(1)

Answer to in-text question

334

(1)

Website summary

335

(3)

Part 6 Test your knowledge

English legal system

What is law?

338

(4)

Summary

338

(1)

Key terms

339

(2)

Quick quiz

341

(1)

Quick quiz answers

341

(1)

How the law is enforced

342

(5)

Summary

342

(2)

Key terms

344

(1)

Quick quiz

345

(1)

Quick quiz answers

346

(1)

Contract

Contract law: an introduction

347

(3)

Summary

347

(1)

Key terms

348

(1)

Quick quiz

349

(1)

Quick quiz answers

349

(1)

Contract formation: getting agreement

350

(4)

Summary

350

(1)

Key terms

351

(1)

Quick quiz

352

(1)

Quick quiz answers

353

(1)

Contract formation: certainty of terms and consideration

354

(3)

Summary

354

(1)

Key terms

355

(1)

Quick quiz

356

(1)

Quick quiz answers

356

(1)

Terms of the contract

357

(5)

Summary

357

(3)

Key terms

360

(1)

Quick quiz

360

(1)

Quick quiz answers

361

(1)

Exemption clauses

362

(3)

Summary

362

(2)

Key terms

364

(1)

Quick quiz

364

(1)

Quick quiz answers

364

(1)

Discharge of contracts, performance and remedies for breach

365

(6)

Summary

365

(3)

Key terms

368

(1)

Quick quiz

369

(1)

Quick quiz answers

370

(1)

Validity of contracts (1)

371

(4)

Summary

371

(1)

Key terms

372

(1)

Quick quiz

373

(1)

Quick quiz answers

374

(1)

Validity of contracts (2)

375

(5)

Summary

375

(2)

Key terms

377

(1)

Quick quiz

378

(1)

Quick quiz answers

378

(2)

Tort

General principles of liability in tort and the tort of negligence

380

(4)

Summary

380

(2)

Key terms

382

(1)

Quick quiz

382

(1)

Quick quiz answers

383

(1)

Other business-related torts and vicarious liability

384

(3)

Summary

384

(1)

Key terms

385

(1)

Quick quiz

386

(1)

Quick quiz answers

386

(1)

Company law

Business associations

387

(4)

Summary

387

(1)

Key terms

388

(1)

Quick quiz

389

(1)

Quick quiz answers

390

(1)

Incorporation

391

(4)

Summary

391

(1)

Key terms

392

(2)

Quick quiz

394

(1)

Quick quiz answers

394

(1)

Capital

395

(3)

Summary

395

(1)

Key terms

396

(1)

Quick quiz

397

(1)

Quick quiz answers

398

(1)

Company management

398

(5)

Summary

398

(2)

Key terms

400

(2)

Quick quiz answers

402

(1)

Quick quiz answers

402

(1)

Directors' duties

403

(3)

Summary

403

(1)

Key terms

404

(1)

Quick quiz

405

(1)

Quick quiz answers

405

(1)

Shareholder protection

406

(3)

Summary

406

(1)

Key terms

407

(1)

Quick quiz

408

(1)

Quick quiz answers

408

(1)

Corporate insolvency

409

(3)

Summary

409

(1)

Key terms

410

(1)

Quick quiz

411

(1)

Quick quiz answers

411

(1)

Consumer, employment and agency law

Consumer protection

412

(7)

Summary

412

(4)

Key terms

416

(1)

Quick quiz

417

(1)

Quick quiz answers

417

(2)

Aspects of employment law

419

(5)

Summary

419

(3)

Key terms

422

(1)

Quick quiz

423

(1)

Quick quiz answers

423

(1)

Agency

424

(3)

Summary

424

(1)

Key terms

425

(1)

Quick quiz

425

(1)

Quick quiz answers

426

(1)

Index

427

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Business Law

Summary

Table of Contents

Supplemental Materials