ASSIGNMENT INSTRUCTIONS Module Title: Business Law for Managers Module Code: BB415005S Level:...

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ASSIGNMENT INSTRUCTIONS    Module Title: Business Law for Managers    Module Code: BB415005S Level: 7    Academic Year: 2012/13 Semester: 2    Module Leader: Christina McCarthy    Instructions: Answer all questions.      Word Limit: 4,000 words    Written assignments must not exceed the specified maximum number of words. All assignments which do so will be penalised. The penalty will be the deduction of marks at the Marker’s judgement. Assignments will not be accepted without a word count on the cover sheet.    Submission Date: This assignment must be received no later than 17:00 on 15th May, 2013. Work submitted after this date will receive a mark of 0 unless an extension has been approved in advance of this deadline.    Requests for short-term extensions will only be considered in the case of illness or other cause considered valid by the Student Adviser. These must normally be received and agreed by a Student Adviser in writing at least twenty four hours prior to the deadline.    Please refer to the Academic Regulations or your Student Handbook for full details.      Further details: This assignment must be completed individually.      This assignment must be attached to a completed University Assignment Cover Sheet and accompanied by a completed University Assignment Receipt before submission.    Any attachments (such as computer discs) must be marked with your SID number(s) and securely attached to your assignment before submission.             XXXXXXXXXXBusiness Law for Managers  September XXXXXXXXXXCoursework assignment XXXXXXXXXXAnalysis of the principles underlying the law, as well as consideration of the practical application of legal regulations, is essential.    All questions must be answered XXXXXXXXXXQuestion 1    You are the manager of a ‘Business Advisory’ firm. A client is seeking advice on the following matter: he has decided to start up a business with a former colleague but is unsure of the legal constitution this business should take. The client is seeking your advice as to the advantages and disadvantages of various business and corporate forms.    Advise this client as to the legal regulation surrounding the creation, running and dissolution of the two following types of enterprise:    -a partnership  -a company    Cite relevant statutory provisions, along with supporting case law references, in support of your advice                                                       XXXXXXXXXX40 %) (1,500 words)       XXXXXXXXXXQuestion 2    Both judiciary and government favour a narrow interpretation of exclusion clauses in signed contracts as well as in unsigned notices.    By so restricting the use and application of exclusion clauses, the law aims to ensure that no ‘unfair’ term may be enforceable within a contract; particularly where one party deals as a consumer. This conservative approach further maintains that contracting parties are aware of, and assenting to, all the terms of their agreement prior to consent and legal binding.    Discuss and analyse this statement with reference to tests used to determine the validity of exclusion clauses under    i) the common law  ii) the Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Contracts Regulations 1999                          XXXXXXXXXX40 %) (1,500 words XXXXXXXXXXQuestion 3    The Tort of Professional Negligence strives to ensure that the integrity of the ‘special relationship’ between a professional and client is maintained. As such, common law reasoning aims to strike a reasonable balance between enforcing high standards of professional conduct whilst maintaining a fair and realistic understanding of the often innate risk in business transactions.    Explain and analyse the above statement with regard to common law decisions explaining the tests and standards imposed when determining professional negligence under the law of tort.                              XXXXXXXXXX20 %)  (1,000 words XXXXXXXXXXEND OF PAPER

David · Accepted Answer

ANGLIA POLYTECHNIC UNIVERSITY
Business Law for Managers
Module Code: BB415005S
 
Level:
7
Academic Year: 2012/13
Semester: 2
Module Leader: Christina McCarthy
TABLE OF CONTENT
	S.No.
	Particulars
	Page no.
	1. 
	Answer 1
· Partnership
· Company 
	3
3
5
	2. 
	Answer 2
· Exclusion Clause under
· Common Law
· UCTA, 1977
· The unfair terms in consumer contracts regulations 1999
	8
8
10
12
	3. 
	Answer 3
· Professional Negligence – Law of Tort
	13
13
	4. 
	References
	16
Answer 1
A Partnership 
A. Formation of a Partnership
Partnership is the relation between persons who have agreed to share the profits of the business carried on by all or any one of them acting for all.
A partnership is brought into being when two or more show interest in carrying out a business 
i) It must be a result of an agreement between two or more persons.
ii) The agreement must be to share the profits of the business.
iii) The business must be carried on by all or any of them acting for all.
· Capacity to be a Partner
Generally, any party competent to make a contract can be a partner. A minor is also allowed to enter the partnership legally but the partnership stands void if the minor disagrees to be in partnership. 
· Financing the partnership
There is no requirement for the partners to contribute any finances in order to exchange their interests of partnership business. To the extent that they do make a contribution, an account is credited with the value of what is contributed. The account is further credited or charged with the partner’s share of any undistributed profits or losses.
B. Operation of Partnership
In the absence of any written agreement/any agreement, the partner in a partnership business carries equal rights in the business. Management rights and voting powers are not based on the amount contributed.
· Required Approval
If there is no particular agreement in context of approvals, then all the partners have equal rights to act upon it and as per the majority of votes the decisions are taken in the business.
Examples of the areas requiring unanimous consent includes:
· Admitting new partners
· Confessing a judgement or submitting a claim to arbitration
· Making a fundamental change in the partnership business
· Making changes in the agreement of the partnership business; and
· Assigning partnership property to other.
· Limitations- Transactions beyond regular progression of business
The partners a partnership business hold no right to enter any transactions that is beyong the regular course of business activities. The following activities do not make place in the agreement because these are out of the scope of the partnership business:
i) Confessing a judgement against the partnership or submitting an issue to arbitration;
ii) Selling the partnership’s goodwill (eg. Selling the use of company’s name);
iii) Committing an act that would prevent the partnership from continuing in the business; and 
iv) Changing the partnership agreement.
· Ratification 
If a partner acts without actual or apparent authority, the partnership can still become bound if knows of the material facts of a transaction and assent (i.e. ratifies), either expressly or by accepting the benefits of the transaction.
· Partner’s Liability to take charge of damages
Any partner who takes any action that is beyond the actual authority that he holds, then for any damages arising due to his decisions will be his responsibility entirely.
C. Dissolution of Partnership
In general, a partnership business comes to an end or should be closed if any of the following events takes place:
· A partner in a partnership at will (i.e. a partnership without a specified duration) gives notice of intent to withdraw;
· In a partnership for a definite term: 
i) All partners consent to dissolution,
ii) The term has expired; or 
iii) 90 days after the death of partner the dissolution is to be taken place automatically since it was already agreed upon in the agreement.
iv) A legal announcement on request of a partner or a creditor to dissolve.
· Partnership continues after dissolution
A partnership continues to exist after dissolution until its business is wound up, at which time the partnership is terminated.
· Distribution of Assets
When a solvent partnership gets disassociated and its assets are converted to cash, then cash must be used to payoff the partnership’s liabilities in the following order
· Creditors: Including associates, who are creditors, shall be paid on priority even before the non-creditor partners receive any payment.
· Partners: Once the payment is being made to the creditors then is time to payoff the payments to the each partner.
The mutual right and duties of partners are regulated by the contract between them. Such contract need not always be express; it may be implied from the course of dealing between the partners. The rules regulating the conduct of the business by the partners and mutual rights and liabilities. It contain particular rules which may become useful and important while determining the relations of partners to one-another. As regards third parties, a partner is the agent for all purposes within the scope of the partnership concern. His rights, powers, duties and obligations are in many respects governed by the same rules and principles which apply to the agent. The implied authority of the partner to bind the firm is restricted to acts usually done in the business done in the business of the kind carried on by the firm. A partner may in some circumstances become liable on equitable grounds for obligations incurred by a co-partner in doing acts in excess of his authority, real or implied. He may also become liable for unauthorized acts of his co-partner on the ground of estopple.
 A Company
A. Formation of a Company
A company is formed by filing articles of organization with the secretary of state.
· Contents of Articles
Most states require the articles to include the following:
· The article should contain the type of company being formed.
· A statement that the entity is a Company;
· The name of the Company, which must include an indication that it is a Company;
· Notice of the registered address with the name and address of the agent;
· If management is to be vested in managers, a statement to that effect; and
· The names of the persons who will be managing the company.
· Number of Members
Most states allow one person to form a Company.
· Financing
Members may contribute cash, property or services already performed, and in many state promissory note and other promises to make contribution are also acceptable contributions.
B. Operation of a Company
· Generally all members may participate in management
Unless the articles or an operational contract provides otherwise, all members have an entitlement of taking part in management decisions of the company.
· Voting strength proportional to contributions
Although all members may participate in management, they do not have equal voting strength. Voting strength is proportional to contributions. For example, member who contributed 5% of the company’s current capital is entitled to 5% of the total vote.
· Profit and Loss allocated according to contributors
As in a company, unless the articles or an operating agreement provides otherwise, profit and losses of a company are allocated on the basis of the members’ contribution in states. Under the uniform company act,

ASSIGNMENT INSTRUCTIONS Module Title: Business Law for Managers Module Code: BB415005S Level: 7 Academic Year: 2012/13 Semester: 2 Module Leader: Christina McCarthy Instructions: Answer all questions....

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