What is bonding? distinguished between bonding and insurance coverage
SAMPLE ANSWER
According to Cheeseman (2012), bonding and insurance are forms of protection that guards against financial loss, but work in different forms. Bonding is a specific protection by providing coverage when the specified job is not complete to the client’s satisfaction, such that a claim can be made for compensation purposes. The bond differs from commercial liability insurance since the bond only covers the specific obligation and not broader coverage like insurance claims. In other words, the insurance protects the business owners, while the bond protects the client and this makes the tow work concurrently without any conflict of law.
Whereas an insurance coverage is a form of risk management in a two party contract between the insured and the insurance company, a bond is a contract between three parties, namely the surety, the principal, and the obligee. In this regard, the surety is issued by one party on behalf of the second party to guarantee that the second party will complete the obligation to a third party. Whereas the bond provides legal protection to the obligee, the insurance coverage protects the insured against a risk (Cheeseman, 2012). Another difference is that the premium paid for the bond is for the guarantee that the principal fulfills his obligations, while the premiums paid is for insurance coverage is designed to cover for potential losses. For insurance coverage, losses are expected and the insurance rates are adjusted to cover losses depending on many factors, however, losses are least expected for bonds since contracts are awarded to qualified persons. Bonding is a form of credit such that the principals are to pay for the claims, however, the insurance coverage claim is paid and the insurance company doesn’t expect to be repaid by the insured.
Reference
Cheeseman, H.R. (2012). Business Law 8th Edition. Prentice Hall
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explain what is meant by the right of subrogation. how may subrogation affect not only the insured but also the person who has caused the injured or damaged? indicate other means by which the insurance company may keep damages as low as possible
SAMPLE ANSWER
Subrogation is the right of the insurer to assume the rights of the insured that arise automatically as a matter of law or by the agreement as part of the contract (Cheeseman, 2012). Subrogation by contract is common and arises in insurance contracts, especially in accidents and injuries that require monetary compensation. Therefore, it is the act of insurance companies seeking the reimbursement from the person or legal entity responsible for the injury or the accident after realizing that they have paid money that ought to have been paid by another party. In other words, it is the substitution of one person or groups by another in respect to a debt or insurance claim after realizing that the other party is responsible for such claims.
According to Cheeseman (2012), subrogation can affect both the insured and the person who has caused the injuries or the damage in various ways. If the accident or the damage was caused by the insured, the insured is thus responsible for the damage caused and the insurance company is likely to subrogate against the insured. For the person who has caused the damage, the subrogation can be applied against his company so that the insurance company gets a refund for their expenses used to bail out their client.
There are other ways by which insurance companies are likely to keep their damages as low as possible in order to improve on their profitability. The insurance companies keep their damages as low as possible to carefully examining all the conditions surrounding the accident to check is the possibility of transferring the liability to other third parties. In addition, the insurance companies’ only pay for what they think is reasonable concerning the nature of the industries or the damage to their client.
Examine the impact of share price and blockhoder (e.g. hedge funds, pension funds, and institutional investor) activity on the shareholder-board-manager balance of power relationship in Listed companies. In this context (1) how should the focus on share price be addressed, and (2) should investment funds be regulated, and if so how and why?
Use Australian guide to legal citation Referencing Please
SAMPLE ANSWER
Corporation law
Introduction
This paper focuses on the impact of blockholder and share prices on the shareholder board managers’ powers in different firms. By definition, blocklolder refers to those individuals who own a large amount of shares in the company. These owners can influence the company using the voting rights which are privilege with what they hold. Strong incentives that they possess can be used to acquire information considered to be costly during losses. The losses may result from poor firm quality or long term investments. If it is the latter, the blockholders retain their stake during these difficult moments. This share price will enable managers to exploit growth opportunities that will reduce short term earnings (Holderness 2003).
Managers have enough stakes in their companies. However, large shareholders also called blockholders usually have a critical governance role in a company since their adjustable stake carry high incentives to undergo the cost of monitoring managers.
Blockholders can apply governance through two primary mechanisms. The first is immediate intervention inside a firm, also called voice. It incorporates proposing a vital change through either an open shareholder proposition or a private letter to administration, or voting against directors. While the vast majority of the early research on blockholder governance has concentrated on voice, recent writing has examined a second governance instrument exchanging a company’s shares, overall known as exit, after the “Wall Street Rule,” or taking the “Wall Street Walk.” If the director destroys value, blockholders can offer their shares, pushing down the stock cost and therefore harming the manager. The risk of exit impels the administrator to expand esteem and therefore, forcing to maximize value.
Blockholders might as well intensify more than agency problems. To begin with, regardless of the possibility that blockholders’ activities maximize firm value ex post, their presence may decrease value ex stake: the risk of intervention may disintegrate administrative activity, and their negligible presence may lower liquidity. Second, as opposed to amplifying firm esteem, they may separate private advantages. While blockholders may ease irreconcilable circumstances in the middle of supervisors and speculators, there may be irreconcilable circumstances between the extensive shareholder and little shareholders. Case in point, blockholders may force the firm to purchase items from an alternate organization that they possess inflated costs (Edmans 2009).
Controlling the share price
Stock price is an indicator of the wellbeing of an organization. Expanded benefits, for instance, will drive the stock price up. Likewise, unreasonable debt will drive it down. The stock price has a significant impact on the organization in general. For instance, a declining share price will make it difficult to secure credit, draw in further financial investors, assemble associations, and so forth. Likewise, representatives are frequently holding alternatives or in a stock-purchase arrangement. Thus, a declining offer price can seriously dampen spirit.
In a compelling case, if offer prices fall too far, the organization can be constrained to switch the shares, and, in the end, take the organization private. Investment funds should be regulated so that the scandals which occur due to systemic failure are evaded. The rule making in the in-regulation process should involve the combination of a time disclosure as well as enhance responsibilities of key actors in the firm such as managers or the directors. Thus, blockholders and share price have a great influence in the management of a company.
References
Holderness, Clifford G. A survey of blockholders and corporate control. (Economic policy review 9, no. 1 2003).
1.Why was this case so important?
2.Why did the U.S. Supreme Court develop the “effects on interstate commerce” test?
3.Is most commerce considered “interstate commerce”? Why or why not?
SAMPLE ANSWER
Interstate Commerce
The Commerce Clause of the United States Constitution states that the Congress shall have the power to regulate interstate and foreign trade. The case was so important since commerce clause had never been construed in its narrow sense. The clause states plainly that, there is limited power to control trade between people in one country and people outside that country (Brown, and company, 1907,6).
The clause and the economy of the US has progressed and turned out to be very sophisticated. In addition, as soon as the congress engaged in addressing the social challenges in the country, the commercial law was used as the referencing point for any law that was passed. Consequently, the commerce law has developed into a very significant law for the congress for the last 50 years. The clause therefore is now one of the main referencing points for the congress authority (The Baldwin law book co, 1917,3).
Moreover, the commercial clause is very important in the US. This is simply because, a keen look at the US code clearly shows that approximately 700 provisions of the state which affect various issues revolve around interstate commerce. For instance, Supreme Court in United States v. Lopez and United States v. Morrison concluded that a gun possession law and a law concerning sexual violence were not the mandate of the congress to control. In another case Gonzales v. Raich, later confirmed the powers of the congress to control medical marijuana. The court decided that the consequences of the previous cases would be limited. The case of National Federation of Business v. Sebelius, which was challenging the role of a person to purchase health insurance, the court declared that commerce clause did not have a room for such provision. In Sebelius, the Court provided regulations in the instances where people had already chosen to involve themselves in commercial engagements (Washington : U.S. Govt,1910,7).
References
Washington : U.S. Govt. (1910). Hearings before the Committee on Interstate and Foreign , by HathiTrust)Commerce of the House of Representatives on bills affecting Interstate commerce. United States House Committee on Interstate and Foreign Commerce
Is the Law an Effective Way to Improve Academic Performance
Is the Law an Effective Way to Improve Academic Performance
Order Instructions:
Prepare a debate on the positive and negative effects of legislation regarding mandated assessments for your district’s students.
Build a case that presents the pros and cons of the issue. You may use current legislative mandates such as No Child Left Behind and Adequate Yearly Progress to prepare your case.
Present your debate in outline format. Be prepared to present a defense for either side against an opposing classmate in a mock class debate.
SAMPLE ANSWER
Is the Law an Effective Way to Improve Academic Performance
Introduction
A debate was conducted in a classroom where students provided the pros and cons of legislation regarding class assessments.
Positive Source: Legislation is important in ensuring that academic performance improves in our schools. According to the No Child Left Behind Act of 2001 (NCLB), the government decided to improve the standards of education through legislating education reforms which will set high standards and create a methodology for crafting measurable goals for individual better results in education. The required standards in education can only be achieved through quality assessments conducted through examinations. Legalizing assessment based education (Adequate Yearly Progress), is important since it will be the responsibility of every participant in the education sector to ensure that better results are achieved by the students. Standardized tests encourage competition which is a vital component for the active learning process hence the need for legalizing assessments.
Negative Source: Legislation on the need to conduct assessments annually on students is not a prudent decision for achieving sustainability in the education sector. The mandated standardized tests are a waste of tax payers’ money since the tests occupy most of the students and teachers time hence significantly reducing the time used for instructional active learning. Students have different learning problems which can be addressed through alternative methods but not test oriented mechanisms.
Conclusion: Legislation ensures that standards in the education sector are set and achieved for the improvement of performance in schools.
Indicate the nature of hotls claim, an express an opinion as to the outcome of the case.
SAMPLE ANSWER
The issue in question is related to the sale of goods law since the ownership has been passed from the owner to the buyer. The confusion at the library display made Holt to believe that the book he is buying is in good shape. According to Tepper (2011), the sale of goods law requires that the seller should pass goods of good quality to the buyer so that the buyer can get quality for his money. In this case, Holt believed that he was purchasing a book in good quality in accordance to the price quotation. Since he has been given the book he never intended to buy, Holt has an actionable claim against MacPherson. In his claim, Holt can argue that the property passed to him by the seller was not corresponding with the description he gave for the property in accordance with the sale of good law. In addition, the sale of goods law demands that the property passed from the seller to the buyer should be fit for purpose and this was not in this case of Holt and MacPherson (Tepper, 2011). MacPherson is liable under the sale of goods law which requires that the quality of goods passed to the buyer should correspond to the sample that was put in the library display. In this regard, Holt ought to have been given a reasonable opportunity to compare what he wanted to buy and what he has been given as the actual product to assess whether the goods have any defects. This accord the buyer an opportunity not to be duped into buying goods that does not reflect the amount of money paid on them. Therefore, MacPherson is liable for passing goods which are not of the right quantity to the buyer.
Reference
Tepper, P. (2011). The Law of Contracts and the Uniform Commercial Code. Cengage Learning; 2 edition
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George then sued francis, the owner of the snowmobile, his son, evan who was driving at the time of the accident dr.foote, dr cutter, and the hospital for the injuries he suffered. explain what torts have been committed, the arguments that can be used in defence, and the liability which will likely be imposed on each of the parties.
SAMPLE ANSWER
Since George has suffered from the civil wrongs done by the owner of the snow mobile, his son, Dr. Foote and Dr. Cutter, he has a right to due them for tortious liability. In this case, there were actsof negligence in these four accused persons that resulted in a series of damages realized by George. One of the arguments that can be used in defense is that the person who caused the accident was a minor who could not reason enough to avoid injuring George. However, the law allows a minor to be sued for tort by the name of the parent or the guardian (Teppler, 2011). Therefore, all these persons, including the son of the snowmobile owner can be sued for tortious liability. In the law of tort, a minor is equally liable for his actions just the same way the adults are liable for their actions. When it comes to negligence, minority can be used as a defense to reduce liability since young persons have no developed mental ability to reason for themselves. However, this is different when the minor was under the control of the adult as in this case where the owner of the snowmobile was with his son (Teppler, 2011). Since this minor was under the control of the father while driving the snowmobile, his father is liable for the damages caused to George. On the other hand, the two doctors who treated George can also be sued for negligence by breaching the duty of care. The doctors owed George the duty of care and were fully aware that acting negligently would amount to damage to their client.
Reference
Tepper, P. (2011).The Law of Contracts and the Uniform Commercial Code.Cengage Learning; 2 edition
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Gibson comes to you, his lawyer, asking you to explain the legal positions of all the parties. how would you respond?
SAMPLE ANSWER
From the above case, it is evident from the beginning that there was a clear manifestation by both parties to enter into a contract. Despite the offer being brought into the table, the law allows for the revocation of the offer at any time before the offer is accepted and such revocation must be communicated. In this case, Campbell revoked the offer made to Gibson after getting a good deal from another client. However, the revocation never reached his client in good time due to postal delays. According to Tepper (2011), revocation of the offer only becomes effective when the notice is received, to imply that Gibson was right to accept the offer since he was yet to receive the revocation letter. An offer is irrevocable after the acceptance and an offer is also irrevocable if the offeree has commenced to perform acts that constitutes acceptance. In this case, Campbell had already revoked the offer to Gibson since he found a better deal elsewhere. Therefore, Campbell is not justified to force Gibson into buying his property since his letter of revocation was finally received by Gibson. In this regard, there is no offer and acceptance between these two parties since Campbell rejected Gibson’s offer and Gibson also changed his mind after realizing that he is not financially prepared. Therefore, Campbell has no legal reasons to sue Gibson for breach of contract since he contributed to the contract to being successful. On the other hand, Gibson is free from this contractual agreement since he received the revocation letter from Campbell that erased their contract. Despite Campbell commencing performance regarding the offer, he has no legal claim for this since he does this after rejecting the offer between him and Gibson. Therefore, Campbell has no legal reasons to due Gibson and Gibson has no liability for the breach of contract.
Reference
Tepper, P. (2011). The Law of Contracts and the Uniform Commercial Code. Cengage Learning; 2 edition
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Discuss how a court will determine whether there has been a wrong dismissal and the remedies that the court can award for wrongful dismissal
SAMPLE ANSWER
Wrongful dismissal
Wrongful dismissal involves the termination of an employee’s contract of employment in a manner that breaches the terms of employment contract. In the US, there is no specific law that establishes the factors for determining whether or not there is a wrong dismissal. Courts have, however, established acts that constitute wrongful dismissal (Sealy & Hooley, 2009).
The courts have established that an employer does not need to be nice or even rational to the employees. Employees can be dismissed for various reasons as long as they are not prohibited by public policy or law. According to the ‘employment-at-will’ doctrine, an employer is not bound to maintain a relationship with the employee and he or the employee, may end it any time. A claim on wrongful dismissal may be based on various grounds including: breach of contract claims, violation of freedom of speech, refusal to provide necessary work leave, whistleblower or retaliation claims, sexual harassment, public policy violations, and discrimination. Discrimination on grounds of age, gender, medical condition, disability, sexual orientation, national origin, religion, and race is the most common ground for wrongful dismissal on which many employees file their claims.
The remedies that may arise from the claim of wrongful dismissal include monetary compensation for the wrongfully dismissed and/or reinstatement of the dismissed employee. The remedy is intended to put the plaintiff employee back to the position in which he was prior to the wrongful dismissal. Compensation may be in terms of damages in terms of salary and benefits lost in the course of the wrongful dismissal. Additionally, the wrongfully dismissed employee may be awarded punitive damages, damages for suffering and pain, attorney fees, and any other remedies.
Reference
Sealy, S. L. & Hooley, R. J. A. (2009). Commercial Law: Text, Cases and Materials. OUP.
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The remedies available to buyer and the remedies available to the seller when there is a defaults in a contract to which the sale of goods acts applies.
Order Instructions:
discuss the remedies available to buyer and the remedies available to the seller when there is a defaults in a contract to which the sale of goods acts applies.
SAMPLE ANSWER
Sale of goods Acts
Introduction
The general principles of the law of contract that relates to remedies such as damages and restitution apply to the sales of goods act in an action either to the seller or the buyer.
The remedies available to the seller are;
1 Action for price
Under the contract of sale, and where the property in the goods or items sold has already passed to the buyer and the buyer willfully refuses to honor his part of agreement by either not paying the price agreed or defaults on a major condition of the contract, the seller may maintain institute an action to recover the price of goods from the buyer (Hare, 2003).
2 Action for damages for non-acceptance of goods
Where the buyer unlawfully or wrongfully refuses or neglects to accept goods delivered to him after a lawful agreement, the seller may maintain an action for damages against the buyer for non acceptance.
Specific performance
In an action instituted for breach of a contract, the court may compel the defaulting party to perform his part of the contract without the option of retaining the goods or payment of damages.
Buyer
Damages for non-delivery
Where the seller unlawfully or wrongfully refuses or neglects to deliver the goods after a lawful agreement, then the buyer may maintain an action for damages against the seller for non delivery (Hare, 2003).
Specific performance
In an action instituted for breach of a contract, the court may compel the defaulting party to perform his part of the contract without the option of retaining the goods or payment of damages.
