Business Law Dictionary and others.
Assignment is 1500 word plus and minus 10%.
No Dictionary will be provided for Agency areas.
CA 2006 s.66 - Companies
Registry maintains a register of business names, and will refuse to register
any company with a name that is the same as
one already on that index .
CA2006 ss.58, 59 & 60 - ) Except in relation to specifically exempted companies, such
as those involved in charitable work, companies are required to indicate that they are
operating on the basis of limited liability. Thus private companies are
required to end their names, either with the word ‘limited’ or the abbreviation ‘ltd’, and
public companies must end their names with the words ‘public limited company’ or the abbreviation
‘plc’.
CA 2006 s.53 - Names which in the opinion of the Secretary of
State constitute a criminal offence or are offensive.
CA 2006 s.26(2) - Names which include a word
or expression specified under the Company and Business Names Regulations 1981 b). This category requires the
express approval of the Secretary of State for the use of any of the names or expressions contained on the
list, and relates to areas which raise a matter of public concern in relation
to their use.
CA 2006 s.67 of the Companies
Act 2006 the Secretary of State has power to require a company to alter its
name under the following
circumstances:
(i) where it is the same as a
name already on the Registrar’s index of company names.
(ii) where it is ‘too like’ a
name that is on that index.
Ewing v Buttercup Margarine Co
Ltd (1917) - the plaintiff successfully prevented the defendants from using a
name that suggested a link with his
existing dairy company. It cannot be used, if there is no likelihood of the
public being confused.
Dunlop Pneumatic Tyre Co Ltd v
Dunlop Motor Co Ltd (1907) - where for example the companies are conducting
different businesses.
CA 2006 Part 41 of the
Companies Act (CA) 2006, which repeals and replaces the Business Names Act
1985, still does not prevent one
business from using the same, or a very similar name as another business so the
tort of passing off will still have an application in the wider business sector.
Dunlop v New Garage and Motor Co (1915) - the plaintiffs supplied the
defendants with tyres, under a contract designed to achieve resale price maintenance. The contract provided that the
defendants had to pay Dunlop £5 for every tyre they sold in breach of the resale price agreement.
When the garage sold tyres at less than the agreed minimum price, they resisted
Dunlop’s
claim for £5 per tyre, on the grounds that it represented a penalty
clause. On the facts of the situation, the court decided that the provision was a genuine attempt to
fi x damages, and was not a penalty. It was, therefore, enforceable.
Cellulose Acetate Silk Co Ltd v Widnes Foundry (1925) Ltd (1933) - In
that case, the contract expressly stated that damages for late payment would be paid by way of penalty at the rate of
£20 per week. In fact, the sum of £20 was in no way excessive and represented a reasonable estimate
of the likely loss. On that basis, the House of Lords enforced the clause in
spite of its actual wording.
Payzu v Saunders
(1919) - the parties entered into a contract for the sale of fabric, which was
to be delivered and paid for in
instalments. When the purchaser, Payzu, failed to pay for the fi rst instalment
on time, Saunders refused to make any further deliveries unless Payzu agreed to pay cash on delivery. The
plaintiff refused to accept this and sued for breach of contract.
Western Web Offset Printers Ltd v Independent Media Ltd (1995) - the
parties had entered into a contract under which the plaintiff was to publish 48 issues of a weekly newspaper for
the defendant. In the action, which followed the defendant’s repudiation of the contract, the only
issue in question was the extent of damages to be awarded. The Court of Appeal
decided that as the claimant had
been unable to replace the work due to the recession in the economy and,
therefore, had not been
able to mitigate the loss, it was entitled to receive the full amount
that would have been due in order to allow it to defray the expenses it would have had to pay
during the period the contract should have lasted.
Adams v Lindsell (1818)- the defendant made an offer to the plaintiff
on 2
September. Due to misdirection, the letter was delayed. It arrived on 5
September and Adams immediately posted an acceptance. On 8 September, Lindsell sold the merchandise
to a third party. On 9 September, the letter of acceptance from Adams arrived. It was held that
a valid acceptance took place when Adams posted the letter. Lindsell was,
therefore, liable for breach
of contract.
Dunlop
v Selfridge (1915) - Dunlop sold tyres to a
distributor, Dew and Co, on terms that the distributor would not sell them at less than the
manufacturers list price, and that they would extract a similar undertaking
from anyone
they supplied with tyres. Dew and Co resold the tyres to Selfridge who agreed
to abide by the restrictions and to pay Dunlop £5 for each tyre they sold in breach of them. When
Selfridge sold tyres at below Dunlop’s list price, Dunlop sought to recover the promised £5 per
tyre sold. It was held that Dunlop could not recover damages on the basis of
the contract between Dew
and Selfridge to which they were not a party.
Beswick v Beswick (1967) - where a coal merchant
sold his business to his nephew in return for a consultancy fee of £6·10 shillings (in pre-decimal
currency) during his lifetime, and thereafter an annuity of £5 per week payable to his
widow. After the uncle died, the nephew stopped paying the widow. When she
became administratrix
of her husband’s estate, she sued the nephew for specific performance of the
agreement in that capacity
as well as in her personal capacity. It was held that, although she was not a
party to the contract and therefore
could not be granted specific performance in her personal capacity, such an
order could be awarded to her as
the administratrix of the deceased person’s estate.
Shanklin Pier v Detel Products Ltd (1951) - the plaintiffs
contracted to have their pier repainted. On the basis of promises as to its quality, the defendants
persuaded the pier company to insist that a particular paint produced by Detel be used. The
painters used the paint but it proved unsatisfactory. The plaintiffs sued for
breach of the
original promise as to the suitability of the paint. The defendants countered
that the only contract they had entered
into was between them and the painters to whom they had sold the paint, and
that as the pier company were
not a party to that contract they had no right of action against Detel. The
pier company were successful. It was
held that, in addition to the contract for the sale of paint, there was a
second collateral contract between the plaintiffs and the defendants by which the latter
guaranteed the suitability of the paint in return for the pier company specifying that the painters
used it.
Linden Gardens Trust Ltd v Lenesta Sludge Disposals
Ltd (1994) - the
original parties had entered into a contract for work to be carried out on property with the likelihood
that it would subsequently be transferred to a third party.The defendant’s poor
work, amounting to a breach of contract, only became apparent after the
property had been transferred.
There had been no assignment of the original contract and, normally, under the
doctrine of privity, the new
owners would have no contractual rights against the defendants and the original
owners of the property would have
suffered only a nominal breach as they had sold it at no loss to themselves.
Nonetheless, the House of Lords held
that, under such circumstances, and within a commercial context, the original
promisee should be able to claim full
damages on behalf of the third party for the breach of contract.
Contracts (Rights of Third Parties) Act 1999 s1 which sets out the
circumstances in which third parties can enforce terms of contracts. In order for the third party to
gain rights of enforcement, the contract in question must, either, expressly
confer such a right on
them or, alternatively, it must have been clearly made for their benefit (s.1).
The contractual agreement must actually identify the third party, either by name, or as a member of
a class of persons, or answering a particular description. The third person need not be in
existence when the contract was made, so it is possible for parties to make
contracts for the benefit of as
yet unborn children. This provision should also reduce the difficulties
relating to pre-incorporation contracts in relation to registered companies. The third party may
exercise the right to any remedy which would have been available had they been a party to the
contract. Such rights are, however, subject to the terms and conditions
contained in the contract
and they can get no better right than the original promisee.
Contracts (Rights of Third Parties) Act 1999 s2 of the Act provides
that, where a third party has rights by virtue of the Act, the original parties
to the contract cannot
agree to rescind it or vary its terms without the consent of the third party;
unless the original contract contained an express term to that effect.
Contracts (Rights of Third Parties) Act 1999 s3 allows the promisor to
make use of any defences or rights of set-off they might have against the
promisee in any
action by the third party. Additionally, the promisor can also rely on any such
rights against the third party.
Contracts (Rights of Third Parties) Act 1999 s5 removes the possibility
of the promisor suffering from double liability in relation to the promisor and
the third party.
It provides, therefore, that any damages awarded to a third party for a breach
of the contract be reduced by the amount
recovered by the original promisee in any previous action relating to the
contract.
(Hastings) v Gulliver (1942) -In that case, the directors of a company
owning one cinema provided money for the
creation of a subsidiary company to purchase two other cinemas. After the
parent and subsidiary companies had been sold at a later date, the directors were required to repay the profit they
had made on the sale of their shares in the subsidiary company on the grounds that they had only been in the
situation to make that profit because of their positions as directors of the
parent company.
Boardman v Phipps (1967) - It is not necessary to prove an actual
conflict of interest, merely the possibility of such a conflict, and the
rigorous nature of this principle
may be seen in.
Companies Act 2006 s.182 places
a duty on directors to declare any interest, direct or indirect, in any
contracts with their companies, and provides for a fine if they fail in this regard. A director’s disclosure
can take the form of a general declaration of interest in a particular company,
which is considered sufficient to
put the other directors on notice for the future.
Companies Act 2006, s.183 criminalises any failure to comply
with the requirements of s.182.
Simmonds v Dowty Seals Ltd (1978) - Simmonds had been employed to work on the night shift. When his employer
attempted to force him to work on the day shift he resigned. It was held that
he could treat himself as constructively dismissed because the employer’s
conduct had amounted to an attempt
to unilaterally change an express term of his contract.
Woods v WM Car Services (Peterborough) (1982) - it was further held
that there is a general implied contractual duty that employers will not,
without reasonable or proper cause, conduct themselves in a manner that is
likely to destroy the relationship
of trust and confidence between employer and employee and that such obligation
is independent of and in addition
to the express terms of the contract.
Blyth v Birmingham Waterworks Co (1856) – a breach of duty
occurs if the defendant:
Fails to do something
which a reasonable man, guided upon those considerations which ordinarily
regulate the conduct of
human affairs, would do; or does something which a prudent and reasonable man
would not do.
Nettleship v Weston (1971) - a learner driver must drive in the manner
of a driver of skill, experience and care.
Glasgow Corporation v Taylor (1992) - the provision of a
warning notice was not considered sufficient to absolve the corporation from liability of
injury sustained by young children eating poisonous berries in its park.
Haley
v London Electricity Board (1965) - the defendants, in order to carry out repairs,
had made a hole in the pavement. The precautions taken by the Electricity Board
were sufficient to safeguard a sighted person, but Haley, who was blind, fell into the hole, striking his
head on the pavement, and became deaf as a consequence. It was held that the
Electricity Board was
in breach of its duty of care to pedestrians. It had failed to ensure that the
excavation was safe for all pedestrians, not just sighted persons. It was clearly not reasonably safe
for blind persons, yet it was foreseeable that they may use this pavement.
Latimer v AEC Ltd (1952) - a factory belonging to
AEC became flooded after an abnormally heavy rainstorm. The rain mixed with oily deposits on the
floor, making the floor very slippery. Sawdust was spread on the floor, but it
was insufficient to cover the whole area. Latimer, an employee, slipped on a
part of the floor to which sawdust had not been applied. It was held that AEC Ltd was not in breach of
its duty to the plaintiff. It had taken all reasonable precautions and had
eliminated the risk as far
as it practicably could without going so far as to close the factory. There was
no evidence to suggest that the reasonably prudent employer would have closed down the factory and, as
far as the court was concerned, the cost of doing that far outweighed the risk to the
employees.
Watt v Hertfordshire CC (1954) - injury sustained by
the plaintiff, a fireman, whilst getting to an emergency situation, was not accepted as being the result of
a breach of duty of care as in the circumstances time was not available to take
the measures that
would have removed the risk.
Paris v Stepney BC (1951) - not wearing safety
glasses in a foundry was
common practice but it was in itself essentially negligent and the defendant
could rely on it as a defence.
Roe v Minister of Health (1954) -a patient was paralysed
after being given a spinal injection. This occurred because the fluid being
injected had become contaminated with the storage liquid, which had seeped
through minute cracks in the phials. It was held that there was no breach of duty, since the doctor who administered the
injection had no way of detecting the contamination at that time.
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