Commercial Law – Fixed Price Contract – Total Failure of Consideration

January 11th, 2021 by admin No comments »

The case of Mirimskaya v Evans and Another [2007] concerned the construction of a fixed price contractual relationship between two parties. The claimant bought a house in West London (“the Property”) as a birthday present for her son. She intended to have it refurbished and extended so that it was finished to the highest standard. The first defendant, an aspiring property developer and the principal director of the second defendant company, was introduced to the claimant as being suitable to carry out the proposed works. After many informal discussions between them, it was agreed that the first defendant would be engaged to carry out ’stage one’ of the proposed works.

The parties agreed that the development of the property would be divided into three stages, namely, ’stage one’, ‘phase one’ and ‘phase two’. It was subsequently agreed that the first defendant would commence ‘phase one’ of the works once planning permission and building control approval had been received.

In order to finance the commencement of the proposed works, the claimant paid the second defendant advance payments in respect of ’stage one’ and ‘phase one’, as well as for professional fees.

Unfortunately, by November 2005, the claimant had become concerned about the lack of progress made with regards to the property. She asked the first defendant to account for the sums which he had received and to explain how they had been spent. She also informed him that she wanted the arrangements to be recorded in a formal contract. Additionally, she refused to pay any further sum of money until a schedule of payments, linked to the progress of works, was agreed.

However, the requests were ignored, and so by March 2006, the defendants indicated that they could not continue with the work without further payments since they were running out of funds and were not prepared to finance the rest of the project themselves.

An exchange between the parties’ solicitors took place in April 2006, in which each party alleged that the other had repudiated the contract. The claimant issued proceedings claiming money which she alleged that she had overpaid to the defendants. The principal issues between the parties included:

§ Whether any binding contract(s) had been made between the parties in respect of the works;

§ If so, with which defendant the contract(s) had been made and their terms;

§ Whether either party was in breach or had repudiated the contract; and

§ If so, what damages the innocent party was entitled to.

The court held:-

§ That on the evidence, the claimant had entered into two binding agreements with the second defendant in respect of ’stage one’ and ‘phase one’ of the works. The terms of those agreements were set out in the documents produced by the first claimant and constituted fixed price contracts for the sums indicated on those documents. The claimant had agreed to pay the professional fees incurred by the second defendant in respect of the planning stage to completion.

§ No contractual arrangements had been made between the claimant and the first defendant personally. The claimant had repudiated both of the agreements when, in April 2006, she had wrongly purported to accept the second defendant’s alleged breach of contract as repudiation.

§ The second defendant had not been in breach of contract by sending the solicitor’s letter dated the 30th of March 2006. On the contrary, the claimant had been in repudiatory breach herself by failing to pay the second instalments due under each contract.

§ The second defendant was not entitled to recover the two unpaid second instalments since there had been a total failure of consideration in respect of them. However, the second defendant was entitled to recover damages from the claimant on account of her repudiation of the agreements, representing the loss of profits which the second defendant would have made, had both agreements been completed.

© RT COOPERS, 2007. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

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Corporate and Commercial Law

December 15th, 2020 by admin No comments »

Commercial law is effectively the legislation that covers most transactions in the life of Joe Public, from the fine balance of a marriage contract to the more fundamental protection of intellectual property.

Corporate law, on the other hand, is the exclusive domain of big businesses and concentrates on the intricacies of corporate governance, finance and the ongoing cycle of mergers, acquisitions and insolvencies.

Although the two terms are effectively interchangeable, commercial law has a broader application in that it is not only applied to business alone; whereas corporate law is a specific branch of the law that concentrates on all aspects of business.

Thus, when one ties the knot, finances a car or house or even finds alluvial gold in the stream running through our property, we have to take advice from a commercial lawyer and follow the legislation set out in commercial law.

In South Africa, commercial and corporate law is effectively governed by a handful of Acts promulgated over the years, including:

The National Credit Act of 2005
The Competition Act of 1998
The Close Corporations Act of 1984
The Alienation of Land Act 1981
The Credit Agreements Act of 1980
The Companies Act of 1973

Commercial law applies to virtually any and all transactions and it is advisable to contact reputable attorneys before embarking on any deal or contract. Top flight lawyers will ensure that the deal is fair and, more importantly, in your favour.

South African law firms can and will give imperative advice on the following:

The administration of estates
The sale and carriage of goods
The acquisition of real estate
The protection of intellectual property
Inward and outward investment options
Tax, both personal and corporate
Marine, fire, life and accident insurance

The dedicated corporate attorney will take care of more pressing issues facing you and your business, including:

Acquisitions, mergers and takeovers
Banking and finance
Commercial contracts, including lease agreements, service and management agreements and licences agreements
Corporate finance
Empowerment transactions
Corporate restructuring
Stock exchange listings

In a nutshell then, commercial law involves the areas of law that have particular relevance to commerce and commercial transactions whereas corporate law deals with big businesses.

Commercial Law – Why It’s So Important for Businesses to Have Legal Backup

December 8th, 2020 by admin No comments »

The business environment can be tricky, and sometimes just plain nasty. Small businesses find themselves in a legal minefield/maze without warning, when a client, employee or business associate turns difficult. It’s always a good idea to have a working relationship with some commercial lawyers who know the business and understand the issues involved, to have someone on your side when you need backup.

Commercial law is often extremely complex in terms of its application to specific situations. Non-specialist lawyers often can’t help much, because this is a particularly demanding area of law. The sheer range of possible issues needs expert management.

For example, these are some of the areas covered by commercial law:

· Contract law
· Public liability
· Commercial practices
· Consumer law
· Commercial disputes
· Commercial property
· Supply chain issues

There are also possible combinations of these issues, and they’re never simple. There may also be multiple parties involved in a dispute, which further complicates the issues.

This is a typical case in point:

· Business A is a contractor installing kitchens for Business B. The situation is:
· Business A is waiting for kitchens to be supplied by Business C, an importer.
· Business B is complaining about breach of contract, because the kitchens are supposed to be installed by a due date under the terms of the contract.
· Business B further claims that an onsite accident was caused by Business A’s truck, injuring a construction worker.
· Business B is threatening legal action on both counts.

· Business A wants to put pressure on Business C to get the kitchens delivered by being sourced elsewhere.

This isn’t the sort of situation which a business can or should handle for itself. If legal action results, legal representatives need to be hand. They also need to get up to speed ASAP, to manage the situation. So it’s better to have legal representatives on standby at the start, not after the situation has escalated to the point of no return.

In this case, there are quite a lot of legal options:

· Business A can negotiate the contract issues with Business B on the basis that it’s simply unable to obtain the kitchens. In practice, contracts can’t be expected to require the impossible. Business A has been acting in good faith, and the efforts to get Business C to source the kitchens elsewhere is proof of its attempts to deliver on its contract obligations.

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A Beginner’s Explanation to Corporate Law and Commercial Law

November 23rd, 2020 by admin No comments »

Many Legal Secretaries and people working outside of law find it useful to gain an understanding of Corporate and Commercial Law. These two areas are often referred to collectively as Business Law, to the rest of us. Why is there such an interest in these areas in particular. That is simple because it relates to Business and Commercial activity, so it is the most lucrative area of law. Most business will run into Commercial or Corporate law. Therefore, business people have an interest in gaining an overview in Business Law. Legal Secretaries, Executives and other legal professionals can also gain from moving into this vibrant part of law, due to the large amount of work in this area.

What does Commercial Law really cover.

The main areas covered under Commercial Law will be Contract Law, Intellectual Property, Copyrights and Consumer Law.

Contract Law refers to drawing up of a contract and how to the contract should be completed it. Also, how to discharge a contract and what obligations are under a contract.

Consumer Law refers consumer rights and protection of a consumer in the purchase of goods. This can merge into other related areas such as misrepresentation of a contract, contract breech, specific performance and other related legislations.

There are sometimes variations of these points across jurisdictions.

What is exactly included in Corporate Law.

This looks at Company law largely, addressing Dividends, Shares, what a company is and much more.

In essence, it will focus on how to create a company and the different types of companies available to a new director. They will look at how to file returns and produce legal documentation for the various types of company enterprises.

You will look at Share issuance, dividend payments, auditors and many other areas. This area will look at Companies House and all filing compliances that are legal requirements.

An Overview of Commercial Law

November 5th, 2020 by admin No comments »

Having a basic understanding of commercial law is very important for entrepreneurs who want to succeed in the business world.

Legal matters are usually unavoidable if you are running a company. First off, you will need to follow requirements set by the law for you to be able to operate legally in your area. Other than that, you also have to observe legalities when it comes to dealing with your employees and business contacts.

In many ways, working side by side with a commercial law firm can be for your great advantage. Professional lawyers will be your best source of information and assistance if you want to do things the right way. These specialists have wide knowledge and experience when it comes to handling legal issues, especially those that directly deal with business, property and employment matters.

You may encounter a dispute with another company regarding copyright infringement. In such instances, a commercial lawyer will know what to do and will do his or her best to make sure that your legal rights are observed.

Feeling a little uncertain about a contract you need to sign? Consulting with an attorney is also a wise move. In fact, your lawyer is not only capable of helping you decipher contracts but he or she may also provide assistance if you need to create contracts of your own. They will make sure that no laws will be violated and your best interest will be a priority at the same time.

Sensitive topics such as those regarding shares, share alteration, transfer of shares and share transfer limitations will be thoroughly inspected by these legal practitioners as well. They will make sure that there are no possible loopholes in all your dealings for your own security and protection.

When time comes that you will need to retire, commercial lawyers can help make a smooth transition for business ownership from you to your intended successor. The same can be said in time of unexpected death or other serious circumstances.

To find the best service in your area, try asking for recommendations from those you know in the business community. Many of your associates and contacts have already hired attorneys in the past and you would definitely benefit if you seek referrals from them.

Other than that, you may also do your own research via the internet. Relevant details can be easily accessed as you visit commercial law firm websites.

When Do You Need a Commercial Law Firm

October 22nd, 2020 by admin No comments »

No matter what kind of business you are in there will come a time when you will the need the services of a commercial law firm. The reasons for this are many; some of the important ones will be covered here. The fact is that we live in a litigious society today and if your business is growing at a healthy rate at some point you will need a lawyer to help you navigate through the judiciary jungle. A commercial law firm will be able to help your business protect its assets and help you in times of legal dilemmas.

Some people would rather wait until a situation arises to get the help of a commercial law firm. The problem with this is that there may be situations where getting the help of a commercial law firm will be of no help. In other words it may be too late to get help and you will have to follow the course of the law. Needless to say this can be a very unpleasant situation for somebody who has worked hard to grow their business. There are many examples of this happening in the business world today.

One scenario businesses find themselves in today is sharing of marketing secrets. This involves a business that pioneers a certain marketing or manufacturing technique. What happens is that, an employee may leave the company and reveal your trade secret with another business. If you had consulted a commercial law firm in advance you would have known that there ways to keep your hard earned business techniques a secrete by making the employees signing a employee confidentiality contract. If this is not done, then you’re hard earned business tactic will become fair game for your competitors.

It is not only for employee confidentiality reasons as to why it is important to have commercial law firm on your side. Whenever a business agreement is reached between 2 different companies, you will need proper legal guidance to make things run smooth. This situation is known as a partnership agreement. If you are running a business that requires giving out contracts, then you will need lawyer to review the contract and make sure your business interests are protected. Legal help will also be needed if there is any trade mark or patent situations involved.

Many people do not know their rights when it comes to bill collecting. When you are running a business, you may find yourself being harassed by bill collectors. When dealing with bill collectors it is important to know what can be done so that you can run your business smoothly. With the help of a commercial law firm, it will be possible to enjoy peace of mind when dealing with this type of problem.

Commercial Law Firms

October 15th, 2020 by admin No comments »

A Commercial Law Firm, with the help of specialized legal expertise, can solve a wide range of issues related to business, property and employment. They help to solve complex corporate disputes, besides helping the companies to do a whole range of legal work including the preparation of legal agreements. The lawyers involved in these firms are bound to have extensive knowledge in various avenues like limitations of liabilities, indemnity and compensation laws since the cases taken up by commercial law firms falls under the Civil Law jurisdiction

A commercial law firm’s assistance starts right from the start up of the company. They look into matters like issue of shares, alteration of shares, share transfer approval and limitations related to transfer of shares and so on. Subsequently after commencement of company, they are involved in operations like purchase or sale of assets of the company, its valuation, mortgage of property, debts, borrowings and other financial and legal aspects of the company. They also look into other legal matters related to inheritance of companies, properties in case of retirement or death of owner or partner, and sale or transfer of shares in such cases.

The firm also coordinates with the companies’ clients on its behalf. They negotiate with the clients about contract agreements and other legal work. They closely watch the implementation of various deals and agreements with the clients. They coordinate with all parties of the work in specific cases. They also train their lawyers to properly represent the companies in court. In some cases, they may even council the party for a settlement outside the court to solve disputes quickly and economically.

From the employee’s point of view, commercial law firm aids the employees regarding their job contracts, rate of pay, working hours, terms & conditions and any other employee related issues including their health and safety during their work.

The team in the firm should be up to date with the changes and developments in the laws, to enable them to provide better service. They should keep the clients informed about the laws and any changes in this regard and its impact. Good performance by reputed lawyers would augur well for not only the firm’s growth and progress, but also for the companies. So, from the companies’ point of view, its important they choose the right commercial law firms, preferably one that has experienced lawyers who are well-versed in every part of UK law.

How Commercial Law Firms Help

September 25th, 2020 by admin No comments »

For any business owner, it is important to use a commercial law firm for a variety of reasons; it governs commerce and business. This law is especially important for those who deal with transactions on a regular basis. Other activity this law regulates is the hiring practice, sales, corporate contracts and consumer goods. This law is a branch of the civil law and is used to deal with the public (and private) law.

A corporation or business owner would find the assistance of a commercial law firm less stressful than trying to handle certain situations on their own. It also deals with merchant shipping, bills of exchange and partnership. Because of the recession, many people are falling behind on their bills including rent. This forces individuals to get behind on their payments, which increases their chances of breaking corporate contracts. Sometimes, in order for a landlord to get their owed funds, they may need to seek the assistance of a firm who knows how to handle certain situations like this.

Landlords are not the only ones who can benefit from this type of firm; online businesses and e-commerce stores can also use the assistance of a commercial law firm. Buying anything over the Internet can be risky. The increase of Internet fraud has increased including, phishing scams, reverse payment scams and much more. Online merchants and credit card companies may not always be able to protect the seller or the buyer. Because it is hard to determine if goods were shipped (because the transaction took place over the Internet), it would the seller’s word against the buyer’s. A law firm can assist clients in claiming their case if they were scammed or ripped off.

Many other countries have adopted various civil codes due to the increase of online transactions. There have also been efforts made to create a unified body in the United States related to commercial law. The Uniform Commercial Code has been the most successful attempt at creating this unification. Other states included are the District of Columbia, U.S. Virgin Islands, Guam and Commonwealth of Puerto Rico.

Commercial law is important to regulate how commerce is regulated. This law actually protects the consumer and the seller (and in some cases; employees). Since this law is held under certain safety and privacy laws, unethical business practices can be examined if brought to court. This is why it is essential to seek the services of a such a law firm if a certain level of transactions will take place.


What is Commercial Law

August 10th, 2020 by admin No comments »

Law and the legal system is usually one of those subjects that is confusing and frustrating to the general population. There are so any different types of law and it changes on such a frequent basis it can be obscure to most. It can be simply explained so that you don’t have to be a law student or certified lawyer to understand it.

If you are just a regular layman and you’re wondering about some differences such as what is commercial law? Read on for a basic grasp of the topic. Commercial law is concerning legal issues that surround various types of business and commerce. There are several different areas covered under commercial law.

One of the first areas covered under this type of law is that every business and even regular folks need from time to time is contracts. A contract is usually a written document that is legally binding between two parties. The contract is the agreement between client and customer, usually about what work and when it will be done by one for the other. Sometimes a dispute or disagreement may occur and that is when law firms will help to sort it all out.

Employee contracts are also an issue that you may sometimes need help with from a law firm. Employer or employee may not be faithfully abiding by a contract that states salary, work hours or specific work conditions.

Employment law also falls under the this type of laws. Employment laws make sure that the rights of workers are covered. You have the right to be compensated correctly for performing your job, not work an excessive amount of hours and to not be discriminated against under any circumstances.

Commercial law also covers mergers between two businesses or when there is a business takeover. There are always certain agreements made in this type of transactions and the law requires to keep all agreements in good faith. This could be such as when or how payments are to be made or other conditions imposed by the acquisition agreement.

Health and safety is an extremely important issue when it concerns employees or customers. Commercial law firms will take the necessary steps to insure that any employees or customers are not put at risk for accidents by any company. Finance is another issue in business and therefore law is involved. Commercial law can govern the relationship between business and financing institutions, such as banks.

What Commercial Law Deals With

March 13th, 2020 by admin No comments »

Commercial law is the law that is charged with governing business, and includes the legal ramifications of business dealings and encompasses the entire scope of commercial transactions. It is very important to individuals and organizations that are engaged in day-to-day business and commercial transactions. The commercial legal field ensures that all applicable laws governing business and commercial transactions are followed, which creates an atmosphere of fair and just business dealings. Without the governing rules provided by commercial law statutes, the business world would be a free for all of unfair and unjust business dealings, which would follow no ethical guidelines. The field is usually considered a branch of civil law due to its emphasis on controlling the civil actions conducted by businesses, but the ramifications of breaking this code of law could result in both civil and criminal actions being taken against those who break commercial business laws.

Commercial law is unique because of the fact that it governs many different facets of business. Contracts law is one such area that is governed by commercial law, which seeks to ensure that all contractual agreements are fair, just,and equitable to all parties involved in the process. The commercial legal statutes also help to ensure that legally binding contracts are not in opposition with any present civil or criminal laws. Consumer goods are another important area that is governed by commercial law, which helps to ensure that both the producer of goods and the consumer of those goods are protected from any foreseeable harm through the manufacture and or use of these items. Hiring practices is an area covered by commercial law that seeks to ensure fair and equitable hiring practices by individuals, businesses and institutions. Without the fair and equitable hiring practices that are enforced by commercial legal statutes, the best qualified individuals for positions may not be hired for the jobs that they are suited for. Unfair hiring practices have been greatly reduced through the introduction and practice of commercial law, which has helped many to avoid racial and other discriminatory pitfalls when seeking employment.

The legal ramifications contained within the commercial legal field, sets up the rules and regulations that govern arbitration practices between individuals, organizations, and other institutions. It provides a method in which to govern arbitration practices, in order to ensure that the practices are conducted in an equitable and just manner, that results in a fair business agreement between the parties involved.

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