北师大珠海分校商业法考试标准答案_北京师范大学珠海分校
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Case one Iue---Was the ambulance center liable for Rose’s injury in car crash and delay of treatment? Rules—
1.Negligence liability(1)The duty of care.[Barnett v Packer(1940)][Stennett v Hancock(1939)](2)The defendant failed to perform that duty(3)As a result, the claimant suffered damage.2.Omiions to act: “false omiions” in situation with duty of care between parties.(1)Act is part of chain of events.(2)The claimant in a dependent relationship with defendant.3.Public authorities and statutory discretion: Public service providers operate in the context of statutory duties and powers.Such duties are mandatory but often widely drafted, leaving a large element of discretion to the authority about how it is implemented.4.Nervous shock(1)Primary victim(2)Secondary victim Applications---In daily life, emergency personnel have state immunity for ambulance accidents like happened in the case.But, when they have negligence in their duties, they are liable.In the case, when the ambulance center’ employees arrived at Rose’s home, they hand a duty of care.And definitely, they had a close relationship that now.However ambulance center’ employees performed their duties negligently that after.(1)The medical employees didn’t secure Rose to the portable bed;
(2)And failed to fasten the portable bed to the emergency straps in the ambulance;For those two points, both are duties that employees should have done which may prevent the damages.In some distance, for their omiions Rose had a suffering.On the other hand, after the car crash, medical equipment fell from the ambulance hitting Rose in the head causing a severe injury.In the high speed driving, it’s normal to have a brake.So, for ambulance center, they should have a sense of fastening equipment in the car.In this case, obviously, they breach their duty.For the crash happened, Rose had to be transported by another ambulance to a hospital causing a delay in treatment which may lead a nervous shock to Rose for a primary victim, and should be considered in the case.All above may not only the medical employees liable, but the Ambulance Service might also be liable for failing to properly supervise and train their employees.Also, there may be a liability of another driver failed to observe the right of way of an emergency vehicle and thereby caused the ambulance wreck in the first place.Conclusion---1.The ambulance center is liable for Rose’s injury in car crash
2.Third-party(another car in the accident)is liable for Rose’s delay of treatment.Case two Iue---Could Jenny succefully claim all loes including price of Barbie doll, other property damages and medical cost from Supertoy Company? Rules---1.The Consumer Protection Act 1987(1)Strict liability: only prove causal link between the defendant’s tortious behavior and the damage suffered.(2)Potential claimant: any person hurt, or suffered damage from defective goods.(3)Methods of supply: including gift.(4)Potential defendants a.The producer b.The supplier(5)Defective means dangerous: a.The packaging and any warnings or instructions b.The normal uses of the product c.The time when the product was iued 2.Negligence(1)The duty of care.[Barnett v Packer(1940)][Stennett v Hancock(1939)](2)The defendant failed to perform that duty(3)As a result, the claimant suffered damage.(4)The scope and influence of Lord Atkin¡¯s judgment a.Manufacturer b.Product c.The ultimate consumer 3.Pure economic lo & Consequential economic lo Applications---
In the case, the gift was playing in according to the packaging directions, however, still caused damages.And persons generally expect that Barbie dolls are safe to sleep with.So, the manufacture---Supertory Company has a strict liability in CPA.The connector in the back of the doll ignited and the doll caught fire, which also ignited a portion of Maggie’s pajamas Maggie’s arm was burned also.For the death/personal injury in CPA, Supertory Company is totally liable.However, claims are limited to those over ￡275, and pure economic lo(Barbie doll)is never recoverable.So, if other damages was le than ￡275, we take the consideration of negligence.Act as a manufacture of baby’s doll, Supertory Company should have a foreseeability of children would sleep with doll, and reasonable to prove the quality of doll in that case.Because of it’s negligence, Jenny had a suffer.In this circumstance, Jenny can claim loes including property damages and medical cost.Still the price of Barbie doll cannot be recovered.Because the lack of quality in goods does not in itself give rise to negligence liability.Conclusion---Jenny can succefully claim loes including property damages and medical cost from Supertoy Company, except price of Barbie doll.Case three Iue---Should British Aurance Company pay any money to Mr.Murphy?
Rules---1.Corporate A corporation is a legal entity separate from the individual shareholders and employees that contribute to it.2.Contract(1)Consideration---consideration must move from the promise.(2)Privity of contract 3.The veil of incorporation Once registration has been succefully completed, a new legal person is created.Its legal liabilities are entirely separate from those of its members.Applications---In the case, Irish Sawmills Company is a legal entity, it separates from the individual shareholders and employees that contribute to it.The total aet belongs to corporate instead of its shareholders.Mr.Murphy had a contract with British Aurance Company in his own name which is a nature person.The timber which was damaged by fire did not belong to Mr.Murphy, but to the company.If Mr.Murphy claims that he represents the company for the only shareholder, then British Aurance Company can lifting the veil of incorporation that Mr.Murphy was directly prejudiced by the paucity of the company’s aets, not by the fire.Conclusion--British Aurance Company should not pay any money to Mr.Murphy
Case four Iue---Was Mr.White personally liable for his company’s current busine against Smart Motors?
Rules---1.Contract Once the contract has been made, the both party of the contract has liability to perform the contract.2.Duty of director(1)Promote the succe of the company(2)Avoid conflict of interest 3.Legal entity A corporation is a legal entity separate from the individual shareholders and employees that contribute to it.4.The veil of incorporation Once registration has been succefully completed, a new legal person is created.Its legal liabilities are entirely separate from those of its members.Applications---In this case, Mr.White has a written employment contract with Smart Motors stating that he would not solicit any customer for his own benefits or purposes either when he was managing director or after he left Smart Motors, it his duty to perform the contract.Acting as a managing director, Mr.White should take the interest of the company in the first place, and must be honestly for the benefit of the busine.However, for his own benefit, Mr.White subsequently left Smart Motors, and started a new company to supply spare parts for Smart Motors’ customer at a very undercutting price.Even though, the company which is newly registered by Mr.White is a legal entity, the purpose of creating the company was to avoid performing the contract, which is a fraud.Mr.White was personally liable and must perform the contract.The veil of incorporation did not protect him.Conclusion---Mr.White was personally liable for his company’s current busine against Smart Motors
Case five Iue---Who will be liable for the payment of design fees?
Rules---1.The creation of agency(1)By implication – implied by conduct.(2)Expre agreement – either verbally or in writing(3)By ratification – if Agent exceeds his authority or duty.[Kelner v Baxter(1866)(retrospective authority)](4)By neceity-operation of law(automatically)2.Agency by estoppel
In many situations, principal authorizes another person(agent)to act on his or her behalf, a third party may presume that person has the authority of an agent and enforce a resulting contract against the principal.3.Apparent authority Apparent authority is a term used in the law of agency to describe a situation in which a principal leads a third party to believe that an agent has authority to bind the principal, even where the agent lacks the actual authority to bind the principal.4.The duty of agency(1)Performance(2)Reasonable skill
Applications---In this case, The Top One Real Estate Company has never given authority to Mr.Smith to sign any contract.However, because Mr.Smith who, with the knowledge of the board of director, the development of the land(the company’s busine)left to him.So, he always acts as managing director.That we can see, the relationship of agency between The Top One Real Estate company with Mr.Smith is existing by implication.The third party(design firm)believes that Mr.Smith is the agent of Top One Real Estate Company, and had a contract with The Top One Real Estate Company is reasonable, Where the company is estopped from denying that the relationship exists.In fact, we can see, Mr.Smith made the contract is for the benefit of the company in his knowledge not for his interest, which did not go against the duty of the agency.Conclusion---the company was bound to pay design firm for their design fee.
