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Example research essay topic: Business Law And The Legal Part 2 - 2,814 words

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... represents. One aspect of the bill of lading is that of the receipt for goods. A bill of lading must describe the goods put on board a carrier, and state the quantity and their condition. The process once goods are to be shipped goes as follows, first the form is filled out in advance by the shipper, then as the goods are loaded aboard the shop, the carriers tally clerk will check to see that the loaded goods comply with the goods listed. The carrier, however is only responsible to check for outward compliance.

If all appears correct the agent of the carrier will sign the bill and return it to the shipper. This process leading up to the bill called a clean bill of lading. If however a discrepancy is noted by the carriers clerk then a notation may be added to the bill of lading. This is called a clause bill of lading, which is a bill of lading indicating that some discrepancy exists between the goods loaded and the goods listed on the bill. These bills are normally unacceptable to third parties, including a buyer or the goods under a CIF contract or a bank which has agreed to pay the seller under a documentary credit on receipt of the bill of lading and other documents.

Later notations will have no effect, and the bill will be treated as if it were clean. When using bill of lading your need to distinguish between two different types, the straight bill and the order bill. A straight bill is issued to a named consignee and is nonnegotiable. The transfer of a straight bill gives the transferee no greater rights than those rights of his transferor. An order bill, on the other hand, is negotiable and conveys greater rights. One that holds an order bill has a claim to title and, by surrendering the bill, to delivery of the goods.

When a carrier is at sea they must follow the following duties under a bill of lading. First is the must make the ship seaworthy. They also must properly manning, equipping, and supplying the ship. Next they are to make the holds, refrigerating, and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage, a preservation. Finally the are to properly and carefully loading, handling, stowing, carrying, keeping, caring for, and discharging the goods carried.

All of these restrictions are strictly enforced by the courts. Like in the case of Co. Pty. , Ltd. v. Lancashire Shipping Co. , Ltd. in which cargo was damaged by water due to the negligent work of a shipfitter employed by a ship repair company.

The courts held that the carrier had failed to use due diligence in making the ship seaworthy. The next issue of carriage of goods by sea are the liability limits. In the past carriers have long attempted to set monetary limits on their liability in the event that they were found liable for loss or damage ot a cargo. One reason why there was strong international interest to amend the Hague rules was the belief that its monetary limits were inadequate.

The limits do not apply if the parties agree to higher amounts. They also do not apply if the carrier acted either with intent to cause damage, or recklessly and with knowledge that damage would probably result. Courts, not unsympathetic to their issues, have sometimes adopted these suggestions. When damages do occur the injured party must act according to certain time limits.

They must be instituted within one year after the goods were or should have been delivered. The claim may be initiated by filing suit or commencing a arbitration proceeding. Finally the last section of the carriage of good by sea are the third party rights. The Hague and Hague-visby Rules apply only to the carrier and the party or parties shipping goods under a bill of lading. To extend the liability limits of the conventions to their employees, agents, and even independent contractors, carriers have added a clause to their bill lading, known as a Himalaya Clause. The Himalaya Clause is a term in a bill of lading which purports to extend to third parties the carriers liability limits established by the Hague and Hague-Visby Rules.

Case 11 - 4 M. Golodetz & Co. , Inc. v. Cazarniko-Rhonda Co. , Inc.

The sellers contracted to sell to the buyers between 12, 000 and 13, 200 tons of sugar. The payment was to be make upon a clean on board bill of lading, meaning that the freight had been paid. Then a fire broke out on the ship and 200 tons of sugar were lost. The parties are disputing that the question is who is to stand to lose in respect of the 200 tons of sugar which was destroyed by or as a consequence of the fire. The board of appeals held that the loss must fall on the sellers. Under the terms of the contract the sellers are entitled to be paid the price on tender of clean on board bills of lading evidencing freight having been paid.

Counsel for the buyers challenged these submissions root and branch. They argue that the bill of lading was not clean, and the bill of lading was rightly rejected as being un merchantable. The judge concluded that it was a clean bill of lading and that the buyers should have accepted it and paid the price. The judge disagreed with the decision of the board of appeal and on the grounds that the decision seemed to have been based solely on considerations of law. Case 11 - 5 Barclays Bank, Ltd. v.

Commissioners of Customs and Excise Bruitrix purchased 100 cartons of washing machines in February 1961 from a Dutch supplier. The delivery was against acceptance of bill of exchange to be payable 37 days after shipment. Barclays Bank were in fact also collecting agents for the shippers bank, but that fact is immaterial. On Feb. 15 1961 the consignment was shipped under a bill of lading to order of shippers. It was shipped by Hung & Pieters of Rotterdam. The documents came forward and the bill of exchange was accepted by Bruitrix in Feb. 1961.

The goods were then discharged and out into a transit warehouse and held to the order of Bristol Steam Navigation co. On June 2, 1961 Bruitrix pledged the bills of lading with the bank as security for advances made by the bank on overdraft. On Sept. 26 the shipowners asked the bank for payment of their charges. The issue is that the bills of lading were still documents of title for the goods to which they related, so that effective pledge of the goods could be made by deposit of the bills of lading endorsed in blank with the bank. The judge decided that the pledge made on June 2, bye deposit of the bill of lading was a valid pledge and as a consequence the judgement went to the plaintiffs. Case 11 - 7 Croft & Scully Co.

v. M/V Skulptor Vuchetich et al. This case is basically about the limitations that one can put on containers and how many items per container are to be considered one package. The Background is this Croft & Scully contracted to ship 1755 cases of soft drink for Houston to Kuwait. They arranged to ship the soda on board the M/V Skulptor Vuchetich, which arrived on Dec. 8, 1977. The cases were loaded into a container closed and sealed and stored till the ship came in to port.

When the ship came in the agent of the vessel prepared a bill of lading and hired shippers Stevedoring to load the containers on the vessel. Upon loading the containers with a fork lift one of Stevedores employees dropped the container and 42, 120 cans hit the ground and were damaged. Croft and Scully cued Good pasture Shippers Stevedoring and Skulptor and her owners to pick up the tab. Croft and Scully are arguing the Himalaya Clause limiting recovery to $ 500 violates public policy.

Even if liability is limited to $ 500 per package, Croft and Scully argues the cardboard cases of soft drinks rather than the 20 foot container should constitute the relevant package. The judgement was affirmed in part, reversed in part and remanded in part. In todays business world of promises and actions, sometimes contracts must be made in order to deem those promises legally binding, and that, simply put defines a contract. In general a contract is a legally binding promise (West 198). But what constitutes a contract? Contracts are simple to understand but involve many aspects which may make the concept of contract law a bit difficult to grasp.

Perhaps the best way to begin explaining contracts would be to present the four elements of a valid contract (Emerson and Hardwicke 81). According to Barrons Business Law on page 81, the following four elements constitute a contract. 1. Capacity. Both parties must possess the capacity to enter into a contract. Whether a contract is verbal or written, both parties must be fully capable of understanding the terms of the contract. 2.

Consideration. There must be a value exchanged for a promise. In other words one party agrees to a certain set of terms at a certain price. 3. Legality. The good or service being exchanged must be legal. For example, a contract with a drug dealer and a user based on credit terms would not stand up in court because drugs, obviously are not legal. 4.

Mutual Agreement. Both parties must agree on the terms of the contract. An agreement consists of both an offer and an acceptance. Perhaps one of the most questioned elements of contract law is contractual capacity. Barrons Business Law defines capacity as a legally defined level of mental ability sufficient to reach an agreement. (113) Contractual capacity questions whether or not a party of the contract understood at the time of contract and actually meant to agree under different circumstances. Contractual capacity is basically just a way for certain groups of people to rid themselves of obligations or liabilities established in a contract (Emerson and Hardwicke 113).

One exception to contractual capacity is the intoxicated (Emerson and Hardwicke 116). Intoxicate is defined by Webster as to cause to lose physical or mental control. (507) If an intoxicated person can prove he was not thinking clearly and lacked logical thinking ability than he can dismiss his and have his contract deemed voidable (Wests Business Law 243). Minors are also an exception to the laws of contractual capacity. At any point in a contract, a minor has the right to deem his contract void. Say for instance a minor sells his bicycle and his fathers gas-powered string trimmer to a friends father, when he learns his father is very disappointed at the disappearance of his items he ask for the products back in return. Since the selling party was minor he could break the contract and step over the lines that state the purchaser owner and have the products taken back (Emerson and Hardwicke 115).

The third exception to contractual capacity is the mentally incompetent. A person who enters into a contract while unable to appreciate the nature of the agreement or the consequences of his / her actions may, upon recovery, declare the contract void. (Emerson and Hardwicke 116) The second element of contract law is consideration. Consideration is the value of something being exchanged for a promise. Consideration is based on the Latin principle known as quid pro quo which translates to something for something. (Emerson and Hardwicke 93) Consideration must be present in a contract in order for the contract to be enforceable.

A contract cannot be one-sided; it exists only if there is a promise or an action (or notation) on each side. (Barron 92) Usually the adequacy of consideration will not hold up in court. If one hires someone for a service and the total bill is twelve-hundred dollars but the customer only pays eleven-hundred dollars as the full payment and the handyman accepts. If there is not dispute over the difference than the consideration is thought to be adequate (Barron 93). Legality is just as the word states.

If the subject matter of the contract is not legal then no contract can be made that will be supported in a court of law. If the subject matter of a contract is not legal then neither party could take the case of the contract to court and expect any assistance (Barron 117). Mutual agreement is the last element of contracts. In order for a contract to be binding, both parties must agree and accept the terms and conditions of a contract. Without a mutual understanding no contract can exist. The offer and acceptance must be understood and fully agreed upon by both corresponding parties of the contract in order for that contract to be legally binding (Emerson and Hardwicke 101).

There are many types of contracts. The first, most basic type of contract is the express contract. An express contract is just as it sounds contract expressed through words, whether verbally or orally. An implied in fact contract is one in which the terms are made obvious through an action rather than words (Emerson and Hardwicke 83).

Suppose Paul Smith takes his Penn fishing reel to an authorized Penn dealer to have it maintained and repacked. He did not sign anything saying he would pay for the reel once the dealer was finished maintaining the reel but it is implied. If Smith wants his reel back, he must first pay for the services. The next type of contract is a quasi or implied-in-law contract. A quasi contact is one where no consideration or promise has actually been made before the initiation of an action but the promise or retribution for the act is implied in law (Emerson and Hardwicke 83). The best way to understand a quasi contract is with an example.

The following is a basic example. Suppose Paul Smith is also a doctor. On his way to pick up his reel at the bait shop he comes across an unconscious lady on the side of the rode who has broken her leg. He puts the lady in his car, drives her to his office puts a cast on the wounded leg and brings her back to consciousness. Obviously, the lady was not capable of telling Dr. Smith to render medical assistance but he did.

After Smith has helped her it is implied-in-law that he could request some sort of retribution for the assistance he provided her. A bilateral contract is yet another type of contract. A bilateral contract is where there is an exchange of a promise and in return another promise is expected as payment (Emerson and Hardwicke 84). For example, suppose Dr.

Smith owns a dock beside Bobby's on the waterfront and Smith tells Bobby to take his (Smiths) boat to the marina and refuel every Saturday morning before noon and he will give Bobby, in return for his service, twenty dollars. A unilateral contract on the other hand is a bit different. A unilateral contract entails a promise and an action. One party makes a promise and the other acts upon the promise to form a unilateral contract (Emerson and Hardwicke 84).

Suppose Smith grows tired of his boat and mentions the fact his boat is taking too much of his time to maintain, never mentioning the fact of selling it. The next day Bobby confronts Smith and says, sir I will buy your boat for twenty-five thousand dollars buy next month if you only hold it for me. A unilateral contract has been made and one month later Bobby presents Smith with a check for twenty-five thousand dollars. The boat is now Bobby's but no action was made until he paid Smith. Some other terminology goes along with contracts but the aforementioned are the different kinds of actual contracts. The most basic elements and types of contracts have been evaluated.

Contracts are a part of the law used when two minds meet and make an agreement (Emerson and Hardwicke 82). Bibliography: See R. C. Hoeber, Contemporary Business Law (1982); Clarkson, Kenneth W. , Frank Cross, Gaylord Jet, and Roger Miller. Wests Business Law. 8 th Edition. USA: West, 2001.

Emerson, Robert W. , and John Hardwicke. Barrons Business Law. New York: Barrons, 1987. New Websters Dictionary and Thesaurus of the English Language. Danbury: Lexicon, 1993.

D. Whitman and C. D. Stoltenberg, Commercial Law (1985); R. N. Corley, Principles of Business Law (1986).

Gaithersburg: Aspen Law & Business. One volume. Looseleaf format. Current through 2002 supplement. The Iowa State Bar Association's Business Law Practice Manual (KFI 4410. B 87)


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