HND商法导论Outcome2_案例+答案

Case study 1

Samir

sees

a

set

of

golf

clubs

displayed

in

a

shop

window

for

?

500.

He

enters

the

shop and states he will take the clubs. The shopkeeper however says the clubs are no

longer

for

sale.

Samir

is

demanding

that

he

be

sold

the

clubs

and

at

the

price

displayed.

Identify the essential requirements of a contract and discuss whether a contract exists

here.

A contract is an agreement between parties having the capacity to make it, in the form

demanded

by

the

law,

to

perform,

on

one

side

or

both,

acts

which

are

not

trifling,

indeterminate, impossible or illegal, creating an obligation enforceable in a court of

law.

A

valid

contract

has

three

essential

features:

there

must

be

a

agreement

on

all

material aspects; at least two contracting parties and legal obligations.

A contract consists of an offer and an acceptance. If there is no offer in the first place

then there can be no contract. The basic elements of a contract include an offer

and

an acceptance.

In the case Samir sees a set of golf clubs displayed in a shop window for ?

500. He

enters the shop and states he will take the clubs. But shopkeeper says the clubs are no

longer

for

sale.

Samir

is

demanding

that

he

be

sold

the

clubs

and

at

the

price

displayed.

According to this case we can say that these is not exist a contract. In the case that a

set of golf clubs are exhibited in a shop window, thus it is not an offer. Because the

goods displayed in a shop window as a invitation

to treat, we can know that goods

displayed

in

a

shop

window

(even

when

priced)

are

classed

as

a

willingness

to

negotiate on the shops part. Invitations to treat also is considered to inquiry the price

of goods, means a party to invite the other person to make offers. Different an offer, a

willingness to negotiate only as prepared to make a contract of behavior on the issue

who is not legally binding. The customer will make the offer to buy the goods which

the

shop

are

perfectly

within

their

rights

to

refuse.

The

invitations

to

treat

are

not

legally classed as offers and therefore cannot be accepted.

Before

the

party

who

gave

off

the

invitations

to

treat

could

not

accept

the

other

people

’

s offers they

can

revocation, and then the contract

is

not

build. When Samir

asked to buy the golf clubs the shopkeeper refused hin, and there was no acceptance.

So when the shopkeeper refused Samir which is a set of golf clubs are not the good

for

sale,

it

just

be

used

as

ornament,

and

attracted

the

consumers

interested.

So

an

offer in this case is not found, either nor acceptance.A contract consists of an offer and

an acceptance, we can know that there is on offer and there is on contract.

Case study 2

Tom

is

the

top

salesman

for

ABC

Motors.

He

has

been

offered

a

job

by

a

rival

company but is concerned because there is a clause in his contract which prevents him

from working for any other car company for five years.

Tom is the top salesman because he regularly tells potential customers what they like

to hear rather than the facts. He has done this in relation to ages of vehicles, odometer

readings and vehicle service histories.

Tom

recently

completed

a

deal

to

buy

a

vintage

sports

car

for

ABC

Motors

from

now discover that Barry (not his real name) had stolen the vehicle.

Question 1

What

is

a

restrictive

covenant?

Advise

Tom

as

to

the

legality

of

the

clause

in

his

contract.

You can refer to Bluebell Apparel Ltd v Dickinson (1980) on page 146

Question 2

How would you classify Tom

’

s statements to the customers and what are the possible

consequences for Tom and ABC motors in relation to these statements?

You can refer to Smith v Sim(1954) on page 161

Question 3

What is the legal position with regard to the vehicle which Tom has purchased from

Barry?

You can refer to Morrison v Robertson(1908) on page 153

1

Restrictive

covenant

is

a

agreement

which

restrict

the

party

liberty

to

work

and

trade.

Such

contracts are VOID unless the restriction can be shown to be reasonable to both parties involved

and

to

the

general

public.

There

are

three

types

of

restrictive

covenants:

contracts

between

employer

and

employee,

contracts

between

sellers

and

purchaser

of

a

business

and

‘

solus

’

agreements. For all three types, the party attempting to enforce the agreement must prove that it is

reasonable to both parties concerned and to the general public. If they are unable to do this then

the

contract

will

be

considered

void

and

unenforceable.

(from

the

text

bookP142-142)

This

contract are legality, and the restriction was fair in this contract. Because the relationship of Tom

and ABC motor is employer and employee, when enter employment and employee may agree to

some restriction being placed on his future employment or trade. Later the employee may feel the

restriction

is

unfair

and

therefore

he

may

break

it.

In

such

circumstances

it

would

be

up

to

the

employer take him to court and seek an

‘

interdict

’

forbidding the employee to break the agreement.

They

will

consider

the

factor

the

nature

of

the

job

the

employee

was

doing(from

the

text

book

P142).

If

Tom

worked

for

any

other

company

within

the

validity

period

of

the

contract

that

he

would be in a position to harm his ex employers.