Contract Law Essays XYZ Building Services Ltd

Contract Law Essays XYZ Building Services Ltd X, the MD of XYZ Building Services Ltd, is considering drafting a standard set of terms and conditions to use in contracts with his customers. Write a report for him explaining What steps he needs to take to ensure that the standard terms are in fact part of any contract he makes with a customer The extent to which he is free to include any term he wants in his standard terms and The provisions of contract law about termination and breach of contract which he may wish to take into account when drafting his standard terms. Background: In order for the customer and XYZ to be bound by standard terms and conditions there should be a set of criterion filled. These conditions should be treated as exclusion clauses as they are the extreme conditions to be enforced. For these standard terms and conditions to be enforced there needs to be a valid contract, which means that four requirements have to be fulfilled. A valid contract must have the following elements; offer; acceptance; consideration; capacity; and intention. These are present in this contract when XYZ offers his work and the customer accepts verbally or in writing. There is also intention because there is an understanding that XYZ will turn up to work on a certain day and the customer will pay a certain fee, which is evidence of consideration as the customer is at a disadvantage.This is a valid contract, however the next area to explore is whether the exclusion clause and standard terms apply because the customer has never worked with XYZ and at the verbal con tract point does not indicate what his usual terms and conditions are. Basic Requirements of Ensuring Enforceable Standard Terms and Conditions: Under contract law there are only three ways that they can be incorporated which are: By signature even if they are not read; By notice where there has to be sufficient notice By custom where there have been previous dealings between the parties even if the clause is added in later. In every case XYZ should ensure that there is case is a signature in case there is no indication of previous dealings, hence the customer may not bound by these conditions yet. Therefore one has to consider the case of notice, off hand there is no notice as XYZ fully indicates what these conditions   and the question is whether the average person would have notice, especially as XYZ is an builder and the customer as a business and these could be construed as standard conditions in the business; but this would be easy to prove as notice was given due to XYZ giving these terms and conditions before the contract was agreed and giving a good indication of their nature at this level. Unenforceable Standard Terms and Conditions In every case that a signature is required it gives rise to the opportunity where the terms were fully expressed but under contract law there could be one problem with the contract if the customer has received the contract in their hands and failed to read it the case of Alderslade v Hendon Laundry Ltd if the exclusion clause can only be construed in negligence and in certain circumstances then it is applicable and as The customer received the usual terms and conditions before XYZ started the work, i.e. they had a chance to end the contract then they are bound by them. However, the case of White v John Warwick Co has held that liability for negligence will not normally be excluded. Therefore it is still very confusing whether XYZ is excluded from the damages that the customer is seeking, therefore the statutory provisions of the UCTA and Sale and Supply of Services Act 1982 (SGSA). Is XYZ is liable for the damages that a customer may ask for? In response there is little evidence in whether the exclusion clauses should be supported or not. Under UCTA Section 2 it holds that negligence cannot be excluded in respect to personal and/or death bat all. In relation to other loss/damage liability cannot be excluded unless there is reasonable notice. Section 11 holds that the reasonable test is that the term is fair and reasonable and whether the individual should have reasonably known or in contemplation of when the contract was made. This is similar to the case law discussion; however it is written from the point that negligence can not be excluded except in strict circumstances. There was no real notice in this case, especially when the verbal contract was made. Therefore it is very likely that this clause will not be upheld as the case of Andrews Bros (Bournemouth) Ltd v Singer and Co Ltd holds that exclusion clauses against the party seeking to rely on them. Yet in relation to the damages to the customer it has to be determined if there is remoteness of damage, whereby monetary compensation can be claimed for a failure to perform a primary obligation as this is a breach and/or the loss for any breach of a secondary obligation. In respect to the negligence that has caused personal injury to persons the law states that this cannot be excluded under Section 1(2) of the UCTA, therefore it has been shown that the customer may claim for this. Reasonableness Test, Breach and Questionable Standard Terms and Conditions Again we must turn to whether there is reasonable notice to exclude liability and under the SGSA Section 16 where restricting liability for breach of implied terms arising from Sections 13-15 is subject to the reasonable test and provisions of the UCTA, where the reasonableness test is based upon the common law officious bystander test that is defined in Sir Law v Southern Foundries Ltd which is a stricter test for exclusion clauses where it has to be so reasonable and that the notice is sufficient that the officious bystander would agree to its terms. This basically holds that there are implied terms such as a reasonable quality of goods and services and that it should be completed in a reasonable quality and should be usable. This means that the exclusion of liability for faulty equipment and liability for faulty work cannot be excluded. This means that these two exclusion clauses cannot be upheld. In respect to the negligent completion of work i.e. was there reasonable excuse for the negligence. Yet it was an express term of the contract and without reasonable excuse this exclusion clause it is possibly not going to be upheld, this is rule from an early common law principle. Yet there is the question whether this is reasonable exclusion for the trade.   However, as in the case of Edmund Murray Ltd v BSP International Foundations Ltd it was held that it was not fair and reasonable for the party in breach to rely on an exclusion clause for failing to meet the specifications of the other party. Therefore this again will be subject to the reasonableness test where the test applied to the whole term and to the particular reliance on it. Therefore if it is a specific term of the contract to be finished by the certain date and made clear by The customer and XYZ did this as it was then it is very likely it can be excluded because it is a trade standard. Finally, if one considers the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR) if the term does not create an unfair balance in detriment to the consumer it can be upheld. Yet as this does create an unfair balance and puts the customer at a loss then they will be protected from the exclusion clause as a consumer, even though she is acting for her business. However are the circumst ances of this variation sufficient enough for the customer to claim? If the swimming pool was properly marked the work would have been finished within the time period would variation to the contract be acceptable? Therefore is there a reasonable excuse for the variation and did both the customer and XYZ have equal bargaining power? The first question to ask is whether the circumstances that lead to the variation of the contract would have frustrated the contract, if the variation is perfectly acceptable as long as the customer was not put under duress to accept the new terms. Bibliography J. Beatson (1998) Anson’s Law of Contract 27th Edition, Oxford University Press Buyer (The), 2002, Aspects of Frustration, Buyer 24(12) Groves,   2004, Force Majeure,   Bus Ad 2.10 (2) David Kelly, Ann Holmes Ruth Hayward (2002) Business Law 4th Edition, Cavendish Lunney Oliphant, 2000, Tort Law: Text Materials, Oxford Uni Press Ewan McIntyre, (2004) Business Law, Longman

Influence of Advertising Essay

The Influence of Advertising The Influence of advertising on our lives for both children and adults has been enormous. In today’s society, it stands for communication, motivation, opportunities, information as well as art. However at the end, the purpose of all of these factor is business. Every advertisement has a clear purpose, no companies will put out an ad on tv or radio without a clear purpose because the cost for putting out an ad in today’s society is immense. In today’s society, beauty ads have large party of advertising, beauty ads not only have effects on the older generation, they also have effects on the young generation. For the young generations, beauty ads convey the message of the secrets or methods to stay young, and for the older generations, beauty ads convey the message of how to become and look young again. The beauty ads today are not only advertising their product but advertising the belief they’re trying to sell to the people, mostly females. The companies are trying to make their customer believe that if they use the product they’ll look ten years old younger even though it is not true. For those people who are old â€Å" To age is to learn the feeling of no longer growing, of struggling to do old tasks, to remember familiar actions. As curtin mentioned. However As the belief of beauty product can make people stay young, more and more older generations started to forget their ages because of their temporarily younger appearance . For those people who are young, the companies are trying to sell them the idea of the secret of retaining young. It is a false method to make the young generation to believe they can stay young forever because eventually one day they will wake up and realize all the money they spent on their beauty product was a waste, and there is nothing that can keep them young forever. The negative effect of beauty products that apply to all generations is the obsession of buying these products, and pay too much attention about their physical appearance. This negative effect will create a false sense of needs in people, when in fact they do not really need the items and the products that they are buying. and thanks to advertisements, this illusion is easily perpetrated, The products being offered through advertisements appear to be the tickets to happiness and ageless.

How does media censorship violate freedom of expression and impact businesses Essay

Discuss how censorship of the media is a violation of the freedom of expression and its impact on businesses in Malaysia. Censorship is the resistor of information and ideas distributed within a society, or can be defined as the act of changing a message, including the change of deletion (complete elimination of the message), between the sender and receiver. Censorship is a tool that can be used to accomplish good or evil but must be used carefully and only when truly necessary. Media censorship takes many forms in the way you get your news, while most information is edited at length some information is edited to keep delicate information from the public and this is usually done to protect a person’s privacy and also to protect media outlets from corporate or political fallout. Freedom of expression is the right to express ones ideas and opinions freely through speech, writing and other forms of communication but without deliberately causing harm to others character and/or rep utation by false or misleading statements. An example of freedom of expression is freedom of press. Freedom of expression is an important human right. It also underpins most other rights and allows them to flourish. The right to speak your mind freely on important issues in society and to access information plays a vital role in the healthy development process of any society. Censorship is an expanding issue in Malaysia as they want to reach a knowledge based economy which is an economy that uses knowledge to generate tangible and intangible assets and using technology to transform a part of human knowledge to machines. Malaysia having one of the world’s firmest systems of media censorship with about a hundred movies being barred in the past 10 years on the ploy of upholding morality and the internet however remains unconstrained in line with keeping civil liberties and preserving democratic spaces. Article 10 of the Federal Constitution of Malaysia states that everyone has a right to freedom of expression but on many occasions people’s right to implement their freedo m of expression is restricted and selectively based on the freedom of choice of the government. The restrictions are justified under the maintaining racial harmony and public order. Professor Dr. Shad Saleem Faruqi argued that the constitution offers a rather weak provision for freedom of speech predominantly as a result of adjustments following the May 1969 clashes. The right includes freedom to give opinions and to obtain and convey information and ideas without disturbances by public authority  irrespective of borderlines. To exercise freedom, it comes with duties and responsibilities, and may be exposed to formalities, conditions, restriction or penalties set by the law (The Sun, 2005). In the case of Chai Choon Hon v, Ketua Polis Daerah, Kampar and Government of Malaysia (1986), Choon applied for a license to hold solidarity dinner in public space. His application was accepted but stamped with seven restrictions, two he felt were unfair. The speakers should not exceed seven and that no speech to touch on political issues. It was turned down when he sued at that federal c ourt but was granted to go ahead by the supreme-court judge. In this case we see how the government’s power to regulate meetings and event is not absolute. Such right is easily abused especially towards businesses and rival politicians, this comes to show that freedom of assembly remain safeguarded and only restricted when it is absolutely necessary. Daniel J.Boorstin, who was known as the leading intellectual public position in the nation argued that any sorts of censorship â€Å"has no place in a free society.† Hence, media censorship is deemed unlawful or in violation of human rights and should undergo judicial review1. Even the Malaysian Press Institute chairman Datuk Azman Ujang himself claimed, â€Å"Media censorship will not really aid the country because Malaysia needs a free press that shows maturity and progress in order to evolve.† Although he rejects complete press freedom due to existing laws and sensitivities of certain areas, â€Å"press freedom is essential when the foreign community reflects on our country2.† Exclusion of the media is an extremely ruthless constraint on freedom of expression and information in these boundaries should only be placed where there are obvious safety concerns. An unfortunate example would be when the MIC President, S. Samy Vellu had the authorities charge Awang Se lamat under the Sedition Act because of an article â€Å"Malays betrayed?† even though open and civil discussions on race and religion are essential in the evolvement of the nation’s ethical boundaries3. Hence, to ban certain views is a grave violation of freedom of expression for the individual and the community. An appealing argument favoring media censorship however is the security of secrets. For example, in 2008 when Mumbai was attacked by terrorists, media censorship could have been used against news reporters who revealed the counter-terrorist’s operation clearly because terrorists in their hideout could have been pre-warned of the impending actions of the counter-terrorists. Hence, some information is best unknown. Nevertheless, if a foreign press is producing an unbiased discussion on the leadership of our country and the ruling coalition bans such information from the nation, democracy would be no different from dictatorship. Moreover, if knowledge does not spread, it will lead to intellectual stagnation which would not have brought humanity to its present day. Basically, it is about the balance and authorities need to identify the rationale behind that censorship and censor the media as per that rationale4, not according to the selfish benefits of the ruling authorities. Subsequently, Malaysian officials have ordered bookstores to stop selling ‘Where did I come from?’ by British author Peter Mayle, a sex education book which intends to help parents explain to children topics regard ing sex, conception, and birth5. Children should be acknowledged with such topics to avoid mistakes that could have been made in their future. It is not necessary to ban such books as bookstores nowadays significantly display books that have been banned in the past and it took personal courage and long, hard work to undo that ban which should not exist in the first place. Many older teenagers are knowledgeable about sex beyond the imaginations of their parents and are ravenous to scrutinize serious issues concerning life and to have their ideas taken seriously6. Hence, further knowledge should not be stopped from them. After all, books that have no prospect of school purchase can, and do extend freely to infinite possibilities of the English language. Nevertheless, readers and audiences are normally unable to choose what to present and what not to present in the media because everything is already out there unconsciously. The only choice they could make is to select what kind of information and ideas they want to obtain. However, in Malaysia, all contents which are deemed as inappropriate or sensitive are subject to censorship from being reported to the society, be it external forced or â€Å"self-censorship†. The Malaysian government strictly limits the print media from both legislations i.e. reduce citizens’ freedom of expression and free flow of information. There are very few independent publications among Malaysia’s media due to the restrictions of obtaining a publishing license8. It is much easier for magazine publishers to obtain a license compared to  newspaper agencies because most of the magazine topics regard lifestyle issues. For foreign publications in Malaysia, there is a history of threatening censorship, delaying issues, and sporadically the complete banning of an issue of a magazine. Research showed that there were infrequent attacks on foreign journalists and foreign publications because they have published some supposedly censored news about Malaysia. For example, during the Bersih 3.0 rally when Al-Jazeera stressed that they have not been censored in this manner by any other distribution platform in the world and condemns Malaysia for that9. The Printing Presses and Publications Act 1984 (PPPA) is one of the harshest of the media laws in Malaysia. Its statute in section 4(1), 7(1), and 9(1) of the act demonstrates how stern the law is regarding the censorship of the print media of the nation10. This Act required all print media to acquire an annual publishing license despite the home minister’s authority to suspend or revoke publishing permits easily11. The government has extensive seizure powers over printing presses and publications license. Ong Boon Keong, one case in Penang that shows the PPPA reduce the freedom of expression, Ong Boon Keong the Community leader was accused for breach of the PPPA and the Aiyoh Penang, a bulletin which was published unlicensed. This action has not been taken by the police on pressing charge on Ong till today. Section 3 of the Act gives the Internal Security Minister a legally permit license and also refuse any application for a license. The Internal Security Act 1960 deals with publications which forbid materials that contain substance such as violence, not accordance to the law and causing disruption to the peace and security In Malaysia. Action is allowed to be taken by the minister against all print media where the publishers’ writing has not taken â€Å"reasonable measures† to substantiate the truth of the news. Contravention of this Act will causes an RM 2,000 fine and, or up t o three years imprisonment. Nevertheless, numerous international parties including the UN Human Rights Committee as well as a number of constitutional courts globally have declared that, bans in publishing â€Å"false news† are deemed to breach the guarantee of freedom of expression. As the European Court of Human Rights mentioned, â€Å"Freedom of the press provides the public an ideal means of discovering and forming an opinion of their political leaders’ ideas and attitudes†. The International Covenant on Civil and Political Rights (ICCPR) imposed formal legal obligations on State  Parties to abide its term and had elaborated many of the rights including the Article 19 of Universal Declaration on Human Rights (UDHR). The right to freedom of expression stated in Article 19 of the ICCPR collateral is closely similar to that in Article 19 of the UDHR as â€Å"Everyone shall have the right to freedom of expression which shall comprise freedom to seek, receive and impart information and id eas of all kinds†. Although Malaysia is an authoritative elaboration of the rights set out in the UDHR, it has no confirm with the ICCPR. Censorship is a growing issue in many countries in the world and has direct effect in businesses. Businessmen today need truthful news or information that is important for their business. However, because of censorship they sometimes could not get the real news and end up with false news. Media censorship forces companies to take many steps to get proper news while the censorship board finds various ways to keep certain information hidden from becoming public. There are some businesses that actually run depending on the media and public. The newspapers and magazines give such information that helps businessmen to promote and run their business home and abroad. If the censorship board attempts to bar news that is relevant to certain businesses, the effects could be unspeakable. Thus, businessmen have to look through foreign news although foreign print media is often c ensored as well. The fact that Malaysia’s ruling parties control almost the entire press media including the New Straits Times, Malay Mail, The Star, Sin Chew Jit Poh, Guang Ming Daily, Nanyang Siang Pau, and China Press, not to mention Tamil newspapers like Malaysia Namban, Tamil Nesan and Makkal Osai12, political parties could always try to hide their news from others parties which may be related to important business information. So, often other businessmen receive fake or incorrect news that hampers business a lot. This is how censorship is affecting Malaysian business, by not letting foreign news agencies and magazines promote their news in Malaysian newspapers or magazines. The journalists in Malaysia always try to cover the whole true story behind any news or story. Sometimes, they have to bear physical harassment and can often sacrifice their lives to cover the real story. But their efforts get wasted for the obstruction of censorship. Businessmen are generally seen early every morning , eager to read the newspapers to get the latest news about the Business world. Censorship has always created a wall between the truth and  lie. Malaysian government has banned many international newspaper agencies from entering into the Malaysian market. Some businesses fully depend on print media and Malaysian businessmen often need global information to cope with faster moving trends and fashions if they are operating their businesses internationally. Censorship causes problems such as businesses being not comprehensive enough of the circumstances of other countries causing logistical inefficiencies because of possible delays due to strike or any other corruptions in a certain country. Expectedly, the Malaysian business industry suffers much loss due to lack of information from the print media. The government has taken a few steps to make its control over the print media as a way to control the political scenario of the country. Subsequently, a safe campaign in 1998 led by Malaysia’s ruling party, Barisan National which enabled its constituent partie s to obtain corporate control over the four main Malaysia daily newspapers which are the News Straits Times Group, the Utusan Melayu Group, Star Publications and the Karangkraft Group. Operation Lalang was implemented on 27 October 1987. Two daily newspapers, The Star and Sin Chew Jit Poh, and two weekly newspapers, The Sunday Star and Watan, were shut down for a few months in this operation. Their publishing permits were also suspended temporarily. The Star which was the primary English newspaper that gave news in the Oppositions’ perspective was banned as its action was considered under the Sedition Act and during Operation Lalang, this newspaper was shut down. Most of the employees were being let go and become unemployed and also held behind bars under the Internal Security Act. The Sisters in Islam (SIS), an Islamic institution in Malaysia, was wondering why was the book that consists of research papers assembled by the activists and academics from Southeast Asia and the Middle East being banned in 2005 by the Home Ministry of Malaysia. It becomes a question because the book mainly focused on the trials and tribulations that Muslim women faced in their c ountries. The book also stresses on the women’s rights and how to avoid injustice. The newspaper, Suara Keadilan has their permit terminated in June 2010. This is because it was run by the opposition party led by Annuar Ibrahim and according to the Home ministry the news being published in the newspaper were not correct and misleading. All of these actions on the media have negative impacts on their  businesses. When these publications were stopped, those of them who advertised their business in these publications were affected. They will lose financially because less people will know about their products. As for the publication house itself, it will have greater loss as it has no production which leads to no sales. This in turn means no income or profit. There will be opportunities given by the government to those who support them. On the other hand, those who promote the oppositions’ views or support their print media will have a hard time in obtaining government assistance for their businesses. Nevertheless, it is very important to know the government policy and the political trends to succeed in the business world. In conclusion, we find that censorship of the media is a violation of the freedom of expression and has a big impact on businesses in Malaysia. Malaysia being strict and firm on the issue of censorship is a legal constraint which limits and reduces the people’s freedom of expression and free flow of information. While censorship has pros such as preserving secrets of the nation and protecting the citizens of the nation, plagiarism and political motivated propagandas are avoided. Negative effects of censorship hinder ability for citizens to speak out and share their views, and rights to freedom of speech. Freedom of expression is compromised as it takes away the right of citizens’ big businesses inclusive to know and not allowing people to learn about products and therefore business can’t communicate certain information. This causes an increa se in costs and financial hardship to companies. Due to censorship, information received is imperfect and gathering of such information becomes harder. Any type of increase on cost to a business is bad hence having lower profits which means that businesses cannot reach full capability. As Print Media is the common use of communicating information to citizens, having limitation on the information broadcasted could hinder progress to businessmen as most businesses run and depend on print media i.e. Newspaper articles. Media censorship law Printing Presses and Publications Act 1984 (PPPA) should be loosened with a decrease in restrictions to allow businesses to be dependent on media to blossom and give equal opportunities of success to all businesses. Article 19 of the UDHR and ICCPR should be implemented to keep justice within the nation and freedom of expression can be exercised more and fewer conflicts can take place in the nation. The government should not  control people by censorship as it is a force against globalization and it works against creativity of businesses. In fact, censorship could show a different image to what is really going on which is the abuse of human rights.

Chad Pregracke from CNN and Odysseus are Heroes - 724 Words

A hero is a person who is admired or idealized for courage, outstanding achievements, and/or noble qualities. A hero doesn’t have to be a fictional character. Heroes can be found in the real world too. CNN Hero of 2014, Chad Pregracke is known as a hero. This is because he is highly self sacrificing when it comes down to keeping the Earth clean. Odysseus, from the epic poem â€Å"The Odyssey†, is known as a hero also. The reasoning behind this is because on his way back home to Ithaca, he overcomes many obstacles and shows many traits while doing this. Chad Pregracke and Odysseus both display a number of heroic qualities. Chad Pregracke, an average everyday human being, is not so average after all. He is known as a modern day hero. He shows these traits that make up his hero like description through his thoughts, words, and actions. Pregracke, through his thoughts, shows that he is caring for the environment and its condition. People intentionally dumped (these) in the river and also littered, Pregracke said. Even 100 miles away, (trash) will find its way into a creek or a storm drain and into, ultimately, the Mississippi River.(CNN.com) Pregracke is heroically caring because he takes in mind what is going on in the world that could be effecting the environment negatively instead of ignoring it like most people do today. He never thinks about how it could just be ignored or moved past but how the garbage being dumped is hurting the environment and that it should not