Basic Principles of Law Examination. May 2012 Examinations

BASIC PRINCIPLES OF LAW EXAMINATION. MAY 2012 EXAMINATIONS

SECTION A

(i) There is a duty of utmost good faith once a partnership is established although the contract of partnershipis not itself uberrimae fidei.

( a ) TRUE.

(B ) FAULSE.

(II) A partner’s ostensible authority is different from actual authority because ostensible authority is:

(a ) vested in a partner by virtue of his status as a partner.

( b ) conferred on a partner by the terms of the articles of partnership.

( c ) only applicable in trading partnership.

( d ) Only applies to retired partners.

(iii) In a trading partnership, a partner has an implied authority to:

(a ) dismiss the other partner if seen not to hard working.

(b ) Employ a lawyer to defend an action against the firm.

( c ) consent to a judgment against the firm.

( d ) Execute a deed.

(iv ) By looking at the memorandum of association of a company, one may not ascertain :

(a ) the amount of trade debts of the company.

( b ) the situation of the company.

( c ) the name of the company.

( d ) that the liability of the members is limited

( v ) The decision in the case of Salomon v Salomon & company ltd ( 1897) was about:

( a ) the powers of directors of a company.

( b ) the formalities to be followed in setting up a company.

( c ) the personal form of a company as a separate person from owners.

( d ) The issue of breaking the cooperate veil of a company legal personality.

( i) According to the principle of sabrogation; the insurers are:

(a ) allowed not to fully compensate the insured.

(b ) fully compensate the insured and then sue the one who caused the loss.

( c ) avoid the liability under the contract of insurance.

(ii) Which of the following statements correctly describes a legal characteristic of most forms of joint ownership of property.

( a ) the co owners have undivided right to use the whole property.

( b ) Upon death of any co owner, title passes to the surviving tenant.

( c ) Upon death of the co owner, the surviving co owner gains absolute ownership of the sales proceeds.

( d ) The surviving co owner loses ownership automatically and the property becomes part of the deceased estate of the died co owner.

(iii) Periodic tenancies:

(a ) run for a stated period and ends at the end of that period.

(b ) starts at a specified time and continues for successive periods until terminated.

(c ) Are terminated by the lessee without notice.

(d ) Runs for a specified period and remains renewable but can only be terminated by death of either party.

(Iv ) Under a lease agreement, a tenant has the right for quite possession. This means that:

(a ) the landlord should ensure the property remains in a quite environment.

(b) the land lord will avoid any action that will disturb the tenant from using the property freely.

( c ) the land lord will frequently be inspecting the property to ensure that it is in good state of repair.

( d ) the land lord will not be allowed to adjust the price unless the tenant accepts such adjustment.

(v ) A principal would ratify a contract entered into by the agent if:

(a ) without the use of an agency arrangement, the law would not allow the principal to enter into such a contract.

( b ) the principal himself would legally enter into such a contract with impediment of legal requirements.

( c ) the contract being ratified is of value to the principal.

( d ) the agent didn’t disclose that he was acting as an agent of the principal.

3. (i) Which of the following may not be considered as an element that is required for a contract to be legally accepted as valid.

(a)Offer.

(b)Capacity.

(c)Consideration.

(d)Sex.

(ii) An offer contains:

(a)Only major terms of the contract.

(b)The price for the intended goods or services.

(c)Terms by which the offeror is prepared to be bound.

(d)Definition of the basic features of the product.

( iii ) A display of goods in a self service store constitutes:

(a)Legally binding contract.

(b)An offer to sell which can be accepted immediately.

(c)Statement of intention.

(d)Invitation to treat.

( IV )

In the course of interpreting statutes; the judge may refer to the common law as it was before the statute was enacted. This will be when applying:

(a ) Golden rule.

(b ) literal rule.

( c ) the mischief rule.

( d ) case law.

(v) The decision in Hyde v Wrench ( 1840 ) sets a precedence on.

( a) termination of an offer by offeror.

(b) Communication of an offer to the offeree.

(c ) Revocation of an offer by offeror.

( d) Destruction of an offer through counter offers.

(I )

Where an exclusion clause is found to be part of the contract and effectual:

( a) it will enhance clarity of the contract.

(b ) it will help to address needs of third parties who may wish to be party to the contract.

(c ) it will reduce damages to awarded under the contract.

(d ) it will enable one party avoid liability he would otherwise carry.

(ii)

Both actual sales and agreement to sell are contracts of sale, the only difference being that in agreement to sale:

(a ) the price to be paid are in form of goods.

( b) the price will be determined upon manufacturing of the goods to be sold.

( c ) the transfer of property in the goods is to take place at a future time or subject to fulfillment of some other conditions.

( d ) the validity of the contract will depend on the willingness of the buyer to pay the price when time comes.

(iii)

A mortgage differs from a pledge in that a mortgage involves the:

( a ) The transfer of general property in the goods the mortgaging party to the lender.

( b ) the delivery of goods by one person to another to secure payment of a debt.

( c ) the assignment of the total value of property as security of the debt.

( d ) setting aside of one’s interest in a fixed asset until all obligations are serviced.

( Iv )

Section 15 of the sale of Goods Act set conditions to be met where:

( a ) goods are sold by hand delivery.

( b ) goods are sold by description.

( c ) where goods are being sold under agreement to sell contract.

(d ) goods are being exchanged for other goods.

( v )

when sale contract is contract for sell of unascertained goods :

( a ) No property passes to the buyer unless and until they are ascertained.

( b ) property passes immediately a contract is made.

( c ) the risk passes immediately the contract is made from the seller to the buyer.

( d ) property remains in the goods passes upon payment of reasonable price.

(I )

When looking at the Bargain and Exchange as an element of an acceptable contract, courts will:

( a ) check whether consideration was adequate.

(b ) Check whether the service offered by the offeror was equal in value to the price paid by the offeree.

(c ) not examine the adequacy of consideration exchanged.

( d ) examine the durability of the items by exchanged.

(ii )

The principles of the privity of contract defines:

( a ) the party that can be sued in a contract.

( b) That party that can sue and be sued in a contract.

( C ) The privileges that a contract confers on the parties to it.

( d ) The validity of a contract.

( iii )

The resultant contract may be voidable through DURESS if :

( a ) parties have a special relationship.

( b ) one party entered into the contract because of threat.

( c ) one party entered the contract because the reward was overly attractive.

( d ) one of the contracting parties is a minro.

( iv )

A serious breach of a contract will enable the innocent party to be consider the contract as having been discharged. Such breach is a breach of:

( a ) Condition.

( b ) confidentiality.

( c ) Trust.

( d ) warranty.

( v )

Quantum Meruit means:

( a ) Specific performance.

( b ) undoing the contract and putting parties in their pre contact position.

( c ) performance has to be rewarded according to worth.

( d ) Modification of all the principle terms of the contract.

(I )

It is true that management of the company is left in the hands of the directors who make policies and day to day operational decisions. Majority share holders can however still influence policies and top management decisions through:

( a ) threatening to pull out their investment.

(b ) election of bigger number of directors to sit on the board.

( c ) Negotiation with other share holders to subscribe to their aims and objectives.

( d ) through provision of professional guidance to other members.

(ii)

The chances of members in a company making it “ alter ego” are very high in:

(a ) Partnerships.

(b ) Public limited companies.

( c ) Private limited companies.

( d ) Sole proprietorships .

(iii)

The difference between the term INSUANCE and ASSURANCE is that :

( a ) Insurance refers to cover for events that may occur while assurance refers to cover for events that must certainly occur.

(b ) Assurance refers to cover for the entire loss while insurance refers to cover for loss up to the sum insured.

(c ) Benefits under insurance will accrue to a third party while under assurance will accrue to the life being assured.

( iv )

“On ordinary principles of insurance law, an assured cannot by his own deliberate act cause the events upon which the insurance money is payable”. This principles was established in the case of :

(a ) Macaura v Northern Assurance co ( 1925).

( B ) Roselodge v Castle (1966).

( c ) Bereford V Royal Insurance Co (1938).

( d ) Darrell v Tbbits ( 1880).

(v)

“ Where the equities are equal, the law prevails”. This law principles means that:

( a ) The courts will never consider equity in settling cases.

( b ) Equity is an out dated law.

(c ) Where equitable and legal rights compete, legal rights prevail over equitable rights.

(d ) Judgment will always favour equity.

SECTION B.

(a) Millies Bank sent an offer letter to J & M Enterprises for a loan of Mk200,000. The loan was to be repaid over a period of two with an interest of 26% per annum. J & M sent an acceptance but proposed a reduced interest rate of 22%. The bank received the acceptance but before contacting J & M on the issue of proposed rate reduction, J & M issued some cheques on the strength of accepted loan offer. The bank returned the cheque with answer refer to drawer. J & M is intending to sue the bank for wrongful dishonor. Discuss with reference to previously decided cases, the possible out come of the case.

ANSWER:

In a situation where an offer is answered with another offer, the first offer is destroyed as the second offer is called a counter offer. The decision in the cases of Hyde v Wrench ( 1840) where a farm was offered at GBP 1000, but the offeree suggested GBP 950. The offeror refused, the offeree then suggested GBP1000 as acceptance of the first offer. The court held that the first offer was no more valid as it was destroyed by the counter offer.

In view of the above situation we would conclude that the loan offer by the bank was destroyed through a counter offer and therefore there was no loan arrangement.

The bank was therefore right to return the cheques. This action by J & M is likely to fail.

10 marks.

(B)

When customers are depositing cheques into their bank accounts, it is common practice for the bank receiving the deposit to impose a stamp on both the deposit slip and the cheque. Why do you think it is relevant to stamp even on the cheque. 5 marks.

Answer.

Such stamping constitutes a special crossing of the cheque specifically to the bank whose stamp features on the face of that cheque. This is actually confirmation that it is that bank whose stamp features on the face of the cheque that has acted as a collecting bank of the cheque.

(c ) State any two actions by the buyer which according to section 36 of the Sale Of Goods Act are recognized as acceptance of the goods from the seller.

Answer:

The following are the actions:

(I ) Intimate to the seller that he has accepted them.

(ii) if he does anything to the goods which is inconsistent with the ownership of the seller such sub-selling and delivery of goods.

(iii) Retains the goods after a lapse of reasonable time without intimating to the seller that he has rejected the goods.

5 marks.

(a)

X has approached Z who is an estate agent to help him sell his house. However as Z was still looking for the market, X found a buyer on his own and sold the house. Z is arguing that since he was appointed as an agent he must still be paid his commission. Discuss whether z is really supposed to paid his commission. 5 marks

ANSWER.

For an agent to earn a commission, the event for which he was engaged must have occurred and occurred through the actions of the agent.

The general rule is that an estate agent does not earn his commission until the sale is completed and no commission is payable if the vendor finds a buyer privately and not through the agent.

In the case at hand therefore z is not entitled to any commission.

(b)Give five examples of criminal offences against property: 5 marks.

Answer.

(I ) Theft.

(ii) Robbery.

(iii) Burglary.

(iv) obtaining property by false pretence.

(v ) False accounting.

(c)During the new year festive season a certain newly wedded couple decided to spend their honey moon at one of the lakeshore resorts. They paid at the reception to stay at the resort for one week. When they entered their room they saw a notice which read “the proprietors will not hold themselves responsible for any property lost or stolen at the resort unless handed to the manageress for safe custody. The couple lost a bag containing all the money received during the wedding including their marriage certificate. The owners of the resort are refusing to compensate the couple, saying the notice in the room was enough disclaimer. Discuss the possibility of success of legal action by the couple against the resort owners. 10 marks.

Answer:

While the notice may really be viewed as an exclusion clause and the resort owners may try to rely on it to avoid liability, this notice may not qualify to have formed part of the contract between the two parties, mainly on the grounds that the notice was brought to the attention of the couple later after they had already paid. In fact we could say after the contract between the two parties had already been formed.

The facts in the matter at hand are similar to that of Olley Vs Marlborough court hotel ( 1949). In that case after paying for a room at the desk, a couple saw a notice inside their room where the hotel owners were excluding themselves from responsibility of any loss that may occur to the items of the couple during their stay at the hotel.

In this case the court held that while the notice had been communicated effectively enough, the communication was post-contract and could therefore not be part of the contract. The hotel owners were therefore still liable.

On the basis of the facts stated above, the newly wedded couple could succeed in their action against the resort owners.

9.(a)

ANSWER.

For an agent to earn a commission, the event for which he was engaged must have occurred and occurred through the actions of the agent.

The general rule is that an estate agent does not earn his commission until the sale is completed and no commission is payable if the vendor finds a buyer privately and not through the agent.

In the case at hand therefore z is not entitled to any commission.

(d)Give five examples of criminal offences against property: 5 marks.

Answer.

(I ) Theft.

(ii) Robbery.

(iii) Burglary.

(iv) obtaining property by false pretence.

(v ) False accounting.

(e)During the new year festive season a certain newly wedded couple decided to spend their honey moon at one of the lakeshore resorts. They paid at the reception to stay at the resort for one week. When they entered their room they saw a notice which read “the proprietors will not hold themselves responsible for any property lost or stolen at the resort unless handed to the manageress for safe custody. The couple lost a bag containing all the money received during the wedding including their marriage certificate. The owners of the resort are refusing to compensate the couple, saying the notice in the room was enough disclaimer. Discuss the possibility of success of legal action by the couple against the resort owners. 10 marks.

Answer:

On the basis of the facts stated above, the newly wedded couple could succeed in their action against the resort owners.