Ian Brown, first of all, has established that how the same principle is differently interpreted by two courts dealing with the same facts. On one side, there is liberal reading where hardships of ship master along with presence of implied authority within the contract of carriage has been kept at the locus of the decision. On the other hand, there is narrow reading in which the principle is looked in strict sense like nature of relationship and initiation of agency devoid of other stuff. Brown then goes on to juxtapose two cases, The Choko star case and The Unique Mariner case , former decided on the basis of latter. Both dealt with the situation of necessity and were decided on the same lines. The important distinction highlighted between these cases is on the basis of existence of express authority. In latter case, there was pre-existing express authority where as in other case the authority between cargo owner and ship master was not pre-existing. Despite such striking contrast, a judge uses the principle in the same fashion, though later it was reversed in higher court. The article …show more content…
writer has heavily criticised the decision of lower court commenting on it as expanding the express authority and making it almost unlimited in scope. Also that it would be on tough side to establish apparent authority as if ship master made salvor believe of pre-existence of authority then the appearance emanated by agent not principal, so no ostensible authority. But then, to neutralize the argument, he also supported other side that implied authority need not have its source in contract. Why so?? Because express authority is there in contract and it signifies a term in contract but not to what extent implied authority is present. Later again at different intervals, Brown is favouring Court of Appeal judgment. He called ‘the master with the requisite authority’ argument as a self-standing argument with no existing structure into which it can be accommodated. Brown by referring Fridman claims that the presumption of existence of authority may be invalidated by the principal’s proof that he would not have agreed had he been apprised of the position beforehand. The Winson case is discussed at the end to sum up all the pros and cons in which Brown makes the analysis that the approach of agent having express or implied authority is over protective.
Interpretation of this case with the help of above two case is done in a very detailed and interesting manner with clear position. He says that when agency is pre-existing, the provisions of necessity should be an expansion of the agent’s obligations and rights attached to his authority, allowing Sheen J’s balanced examination. Hence no need to create an authority rather evaluate it within that network of rules. In case, agent exceeds his actual authority, the rules of apparent authority should be applied. This approach would let principles of agency to operate in their own context simultaneously acknowledging that, outside a pre-existing agency, claims for reimbursement should be
considered.
Ans. 6 The Court can overrule the decision for terminating Paul as he was not involved in the scheme. Due to his honesty he even admitted to be aware of the scheme. Moreover, no fraud was found in his facility and he should be held responsible for the warehouse for which he is in charge. Furthermore, higher management should be held responsible for not keeping an eye on the activities of supervisors at different locations.
“Agency relationships are formed by the mutual consent of a principal and an agent.” (Cheeseman, p.487) Our book goes on to cite the Restatement (Second) of Agency,
When past services are rendered with a promise to pay, the court may enforce the promise to pay. However in Dementas’s case, the service was rendered after the promise to pay. The court found that Dementas’s services were rendered with no expectation of payment from Tallas. Moral obligation was created after some courts found the ruling to be too harsh. Even if moral obligation was applied to Dementas’s case, the court found that Dementas performed all services without expecting any payments in
Mamo v Surace (“Mamo”) examines fault and finality, in the context of an unavoidable accident. Definitional discussion emerges within the idea of “fault”, with the outcomes ultimately furthering the legal avenues of victims of blameless accidents, enabled by the separation of non-tortious negligence and “fault”. Notably, the dismissal of arguments raised at appeal furthers the notion that circumstantially, injustice must be endured for the sake of finality, to avoid greater an injustice inflicted upon the opposing counsel .
...posit is made with the whole, with no individual. The contract is equal, for each gives all. No one reserves any rights by which he can claim to judge of his own conduct” (Strauss and Cropsey 1987, 568).
...aw in the US and Australia where the doctrine can be used to found a cause of action to remedy the non-performance of a promise unsupported by consideration. In the UK however, it is a means where contractual rights may be suspended, but not by which new rights can be formed. In the US, where the doctrine can be used as a cause of action and has been used in multiple cases, commentators have claimed that the doctrine is a ‘flexible means of achieving fairness’ and ‘cannot be reduced to a precise formula or series of tests’ .
Given that it lies within the domain of equity, the case law indicates a great flexibility in its application, both in the substantive requirements of proof demanded by the courts and in the manner in which the courts will satisfy the equity. It is the first of these aspects of the doctrine that I will examine in this essay. I will look at the shift in the evidentiary requirements and what a representation (or an assurance of rights), a reliance (a change of position on the basis of that assurance) and a detriment (or unconscionable disadvantage) - the three pre-requisites for a successful claim - have come to mean with regard to case law and in particular the judgement of Judge Robert Walker in the Court of Appeal in Gillett v. Holt[1], in which the plaintiff had been given repeated assurances over many decades that he would inherit the defendant's estate, and remained in service to him at least p... ... middle of paper ... ... operty, 16th Ed, Butterworths K. Gray & S.F Gray - Land Law, 2nd Ed, Butterworths Professor Cedric D Bell - Land: The Law of Real Property, 3rd Ed, Old
Having evaluated the current state of English contract law, mainly made up of piecemeal solutions, it can be seen that despite being satisfactory and doing its job, there still remain gaps within the law of contract where unfairness is not dealt with. Moreover, due to the ad hoc nature of those piecemeal solutions, the latter have often produced inconsistent justice and have manifested cases of unfairness. Hence, “a relatively small number of respected Justices have endeavored to draw attention to the fact that the application of a general principle might be useful and even necessary in English law.”
...‘Consideration: Practical benefit and the Emperor’s new clothes’ in Beatson and Friedmann (eds). Good Faith and Fault in Contract Law (Oxford University Press, 1995);
terms firstly, where it involves two other contracts respectively. Then, I will mainly analyse the duties of the shipper in the contract of carriage. Next, the most discussion will be referred to the contract of marine insurance on the relationship between the assured and insured, as well as the insurance cover. Finally, I will analyse letters of credit as a method of pay... ... middle of paper ... ...
It has been asked in the given scenario to evaluate Neuberger LJ's approach to the relationship between the doctrines of the constructive trust and proprietary estoppel. To evaluate that, it is necessary to explain the definition of the constructive trust and proprietary estoppel .
The old common law had a doctrine of absolute contract under which contractual obligations were binding no matter what might occur (Paradine v Jane, 1647). In order to ease the hardship which this rule caused in cases where the contract could not be properly fulfilled through no fault of either party but due to occurrence of unforeseen events, the doctrine of frustration was developed.
An agency relationship is formed between two parties when one party (the agent) agrees to represent another party (the principal). Normally, all employees who deal with third parties are considered agents. Principal-Agent relationships are defined as the understanding that the agent will act for and on behalf of the principal. (Cheeseman) The agent assumes an obligation of loyalty to the principal that he will follow the principal’s instructions and will neither intentionally nor negligently act improperly in the performance of the act. An agent cannot take personal advantage of the business opportunities the agency position uncovers. A principal-agent relationship is fiduciary, meaning these obligations bring forth a fiduciary relationship of trust and confidence. As such, an agency relationship is governed by employment law.
The scope of this paper is to illustrate the ways in which salvage and towage are different. The work of law experts was studied as well as a number of law cases, which assist in drawing useful conclusions.
The Lotus case garners attention due to the fact that it was among the first cases dealing with whether jurisdiction was assumed in accordance with principles of international law. While the Lotus case was heard in the context of criminal jurisdiction over a collision in the high seas, the Lotus principle has been applied in a variety of other cases in varying contexts. For this reason, the judgment of the Permanent Court of International Justice is critiqued for specifically answering only the question in the special agreement as the continued application of the Lotus Principle as a general principle in other contexts such as anti-trust regulations may lead to ambiguous results.