Business Law Questions
- (a) Explain what is meant by delegated legislation, giving examples. (5 marks)
According to Carr (2016), delegated legislation refers to the laws that are made by people or bodies to whom the government has delegated the authority to make those laws. Delegated legislation is also known as a secondary, subsidiary, or subordinate legislation. Where parliament makes Acts, a provision for delegated legislation may be made by the Principal Act and will specify who holds power to perform such dutieActf the Act. Subsidiary legislation will only be inexistent in connection with an enabling Act, which is also known as the parent Act. To ensure that all the provision of delegated legislation operate successfully, many administrative details are thus included in the delegated legislation. The process may be undertaken by various departments of the government, courts, or local courts.
Delegated legislation constitutes of statutory rules and regulations as the most forms of delegated legislation. A minister or the executive makes these regulations and regulations applicable to the general population. Sometimes through ordinances and laws, delegated legislation is made by a local government authority, and it applies to the people living in that locality. These rules usually define procedures that are to be followed in such courts delegated legislation applies to various sections of the law, and they include; native title, family law, court rules, criminal law, civil aviation, taxation law, migration law, superannuation, corporations, food standards, and energy and mining. For instance, the department of fisheries is mandated to write fisheries regulations that comprise of any orders, notices, or penalties in relation to types of fish to be caught, requirements for licensing, introducing sessions for various types of licenses on fishing and etcetera (Rodrigues 2016).
(b) What are the parliamentary and judicial controls over delegated legislation, and why do we need them? (5 marks)
According toRogers and Walters (2015), governmental control over delegated legislation is also known as legislative control. Under a democratic parliament, it is the duty of the legislature to legislate. It is also the right and responsibility of the legislature to supervise how its agents are working. It is clear that because power is delegated and the general standards of control have been put in place, the judicial control has shrunk and weakened its area. Parliamentary control is a function of an inherent constitution since, in most cases, it has a responsibility and duty to control legislative rules at two stages of delegated legislation control. The first stage is the initial stage, whereby parliamentary control decides how much power is needed to be delegated to complete a specific task. The second stage consists of direct and indirect control, whereby direct is developing a critical aspect laid down as per the specifications, and it requires that it be presented to the government before it is exercised. Indirect control of delegated legislation is where parliament and its committees control delegated legislation. The main work of indirect parliamentary control is to examine whether delegated legislation is up to theActneral Act.
The rule of law is always upgraded through judicial reviews. The court is mandated to see that the delegated legislation is within the guidelines of the constitution as approved (Rogers and Walters 2015). Judicial controls are more effective since court does not commend, but it highlights the rule which is extremely vires in nature. It is the legal control role to decide whether a specific section of the parent law has been accorded excessive delegation. Besides, the parent Act may also be confirmed irrelevant in cases where it is unconstitutional on any grounds (Brandsma 2016).
Question 2
Explain the reporting requirements of section 54 of the Modern Slavery Act 2015 on Businesses.
Under section 54 of the Modern Slavery Act, certain commercial organizations are required by law to publish a slavery and human trafficking statement, every financial year. This Slavery and human trafficking statement should elucidate the steps the organizations have undertaken to ensure that there is no modern slavery that is happening within their premises along their supply chains. The aimAct this act was to combat the slavery and human trafficking crimes, and therefore, the government gives guidance that commercial organization have a role in combating these crimes by ensuring that they are not committed within their premises(English2019)
The document clearly stipulates, who needs to publish the statement, how the statement is written, and how to approve and publish the statement. Under this act, a commercial organization has been defined as any business entity or body that deals with the supply of goods and services. It is operated in whole or part within the UK(Turner2016). The business also has to have an annual turnover of at least £36million. The reporting requirements, also stipulate that it the responsibility of the reporting organizations to ensure that they determine whether or mot the legislation applies to them and therefore ignorance of whether the legislation applied to any organization may not be a sufficient defense. It is therefore the responsibility of the commercial organization, to see legal advice to ascertain as to whether they need to publish the annual statement or not(English2019)
Under the act, also, there is a turnover requirement of £36 million or more, which is defined to mean the turnover of any commercial organization and or it’s subsidiary. This organization has to be undertaking business in whole or part in the UK. Turnover implies the amount received as payment for the provision of goods and services which fall with the normal undertakings of the organization or it subsidiary. However, the figure is arrived at after deducting trade discounts, value-added tax, and other applicable taxes. Important to note is the fact that for overseas organizations that are undertaking business in the UK, they have to have a demonstratable presence in the UK and they have to meet the above criteria for them to publish the statement. For group companies, they may choose to publish the statement at the group level or each subsidiary may decide to publish its own statement. However, there is a chance that holding companies may not meet the criteria for the publication of the statement. As for charities, they may be required to publish the statement, if they meet the criteria published above. However, when determining whether the charity has met the turnover criterion, care must be taken to include income received from business activities that the charity undertakes(Karolyi 2019).
Therefore, for any organization to demonstrate that it has met the minimum requirements for reporting as stipulateActy the act, it has to update the statement every year after assessment of meeting the criterion. Secondly, the reporting requirement implies that the statement has to be published on the organization’s website, whose domain is in the UK. Thirdly, the statement must be approved by the board of directors of the organization or body of equivalent stature. An express note to demonstrate this in the statement that board approval has been obtained. If the organization is an LLP, the members have to approve the statement. Lastly, the statement has to be signed by a designated member’s director for it to be valid.
The contents of the statement should have the structure of the organization and the supply chains, the policies concerning modern slavery and human trafficking, how risks are assessed and managed, and the key performance indicators that demonstrate how effective the steps being taken are. The statement should also demonstrate the training on modern-day slavery that the organization’s staff have undertaken(Gov2015).
Question 4. Explain the rights of a consumer under a contract between a trader and a consumer concerning the sale or supply of goods, digital content, or services. (10 marks)
In the recent past, rules that relate to consumer rights changed in the beginning of October 2015 for contracts made after that. The Consumer Rights Act (CRA) has removed and combined law provisions from various legislations that are in existence which includes The Sale of Goods Act (SGA), the Supply Of Goods and Services Act (SGSA), the Unfair Contract Terms Act (UCTA) and The Unfair Terms in Consumer Contracts Regulations (UTCCR). In this case, the fundamental concepts and principles from earlier consumer legislation remain even though the rules have been upgraded and stretched to give a single set of rules that will apply to consumer contracts and supply of goods. This rule includes the rules on selling, hiring, purchasing and transferring goods and services or digital content. The Consumer Rights Act makes a few alterations to the UK competition law to make work easier for those consumers who are willing to bring actions that are private for competition law breaches. It also responsible for providing enhanced powers in the area on investigation for those who enforce consumer law, and this includes the Trading Standards (Penningtons2015).
The Consumer Rights Act on goods clearly states that quality standards apply under previous consumer legislation. The quality of goods must be satisfactory to the consumer; goods must fit the consumer’s needs and to the specifications as outlined by the consumer. Concerning the CRA, goods must match with the previous model that was seen or examined. This is fundamental to those corporations that have exhibition models on the floor of their shops. Concerning this, if a consumer examined any model, then the goods sold must match with the model that was examined. Besides, goods sold must correspond with the information that is in the pre-contract agreements. The trader provides this information concerning the goods as per the requirements by the consumer contract regulations. This information includes cancellation, information on goods, and any additional charges. This information also includes the distance and contracts made off-premises. All this information forms part of the contract; therefore, it must be updated and accurate (Burrows 2015).
Consumer Rights Act of 2015 also provides solutions for goods that are faulty. These are goods that barely meet the statutory standards of quality. These remedies are additional remedies to the damages on goods subject to prohibiting double recovery on goods. For instance, the CRA 2015 provides consumers with the right to reject faulty goods within 30 days from the delivery day. This does not apply to digital content, except when such digital content is included in the goods being supplied. Perishable goods are given a short period within which they can be rejected in case they are faulty and depending on how long the goods are expected to last. Consumers have the right of not allowing the trader to replace or repair faulty goods during the 30 days from the date of delivery if the goods are replaced or repaired the consumer’s right to reject the goods is suspended (Giliker 2017).
In cases where the trader is supplying gods together with digital content, then the CRA 2015 states that those goods must be provided with installation services and if otherwise, those goods will not conform to the contractor if they are not installed correctly. For instance, if the trader sold kitchen items to the consumer with installation services and by bad luck those units are installed incorrectly, the consumer has the right to demand the replacement of those goods(Wendehorst 2016).
Question 6
With reference to case law, explain the different methods by which an agency relationship may be created.
There are various ways through which agency relations can be created. First, an agency can be formed by Express Agreement. In this case, a principal and agent may orally or in writing agree expressly to establish the agency relationship. During the creation of the agency, the power to act on the principal’s behalf must be conferred on the agent by the principal. For the agency relationship to be legal, the subject matter of the agency must also be legal. (Rasmusen2004).
In case law, for instance, In the case of Miss Gray Ltd v Earl Cathcart, the facts of the case state that a wife incurred a debt of 215 pounds in the name of her husband in a shop. When the owner of the shop demanded payment from the husband, he refused on the grounds that he had sufficient allowance. The court held that the husband was not liable to pay the wife’s debt since she had no express or implied authority to incur the debt on behalf of the husband.
The second manner of creating an agency is through Implied Agency. An agency can be deemed to be implied by considering the facts or circumstances surrounding an individual’s actions on behalf of another. If there is sufficient ground to demonstrate that the principal acted in a way that there was the intention to act on his behalf, then, in this case, there may be an implied agency. It should be noted that the parties to the implied agency relationship are not obligated to understand the law of agency(Rasmusen2004).
Agency can also be crRatificationification. In this case, if an individual undertakes specific actions on behalf of the principal, and the principal doesnot expressly or impliedly authorizethese actions, but the principal recognizes and agrees to the actions of the agent, then the agency relationship is deemed to have been crRatificationification. In the case of Keighley Maxted and co. v Durant, an agent, was required by the principal to purchase wheat at a specific price. When purchasing the wheat, the agent exceeded his authority and bought the wheat at a higher price. However, in signing the contract, he did it in his name. The court held that the principal was not liable since the agent had not disclosed his agency status when entering into the contract(Rasmusen2004).
Agency by Estoppel is a situation where a third party relies on the representation of an agent that he has express authority to act on behalf of the principal. In this case, the principle will be bound by the actions of the agent. In general, the principal must act or fail to act in a manner that causes the third party to reasonably believe that the agency relationship existed. In the case of Freeman and Lockyer v Buckhurst Park Properties, four directors of a company entered into a contract with a third party without the other directors. The other directors were aware of the contract, but they failed to inform the third but that in the actual sense, the director did not have the authority to contract on behalf of the company. Therefore, the third party had sufficient ground to believe that the director had contractual authority. The court held that the company was estopped from denying that the director was a company agent(Masek2017).
Lastly, an agency can be created by necessity. This agency relationship arises when one party makes a binding decision on behalf of another party that has no ability to do so(Rasmusen2004).In the case ofPrager v Blatspiel, Stamp, and Heacock (1924) at the time of plaintiff, who was a Romanian contracted to purchase fur from a defendant who resided in LonplaintiffPlaintiff made the payment, however, due to the war, the agent could dispatch the furs to him. The skins appreciated in value, and the agent sold them at a higher price and claimed to have done so under the agency of necessity. The court held that in this case, there was no agency of necessity because there was no possibility of the furs dropping in value and that they could easily be preserved by storage(Vollans2008).
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References
Rasmusen, E., 2004. Agency law and contract formation. American Law and Economics Review, 6(2), pp.369-409.
English, E., 2019. Section 54 of the Modern Slavery Act 2015 and the Corporation. SOAS LJ, 6, p.87.
Vollans, T., 2008. Global Technology and Modern Commercial Agency of Necessity. J. Int’l Com. L. & Tech., 3, p.188.
Gov, H., 2015. Transparency in supply chains etc. A practical guide.
Karolyi, B., 2019. Combating Modern-Day Slavery-To what extent is the existing legislation on the national and international level able to protect victims of forced labor in global supply chains? (Master’s thesis).
Turner, R.J., 2016. Transnational supply chain regulation: extraterritorial regulation as corporate law’s new frontier. Melb. J. Int’l L., 17, p.188.
Masek, Z., 2017. A Sample of Legal Writing for the Sandra Day O’Connor College of Law at Arizona State University Based on Company Law Assessed Coursework at.
Carr, C.T., 2016. Delegated legislation. Cambridge University Press.
Rodrigues, U.R., 2016. Dictation and Delegation in Securities Regulation. Ind. LJ, 92, p.435.
Brandsma, G.J., 2016. Holding the European Commission to account: the promise of delegated acts. International Review of Administrative Sciences, 82(4), pp.656-673.
Rogers, R., and Walters, R., 2015. How parliament works. Routledge.
Burrows, A.S. ed., 2015. Principles of the English law of obligations. Oxford University Press, USA.
Penningtons, M. C, 2015. Consumer rights: changes to the law on the supply of goods, services, and digital content to consumers. UK. https://www.lexology.com/library/detail.aspx?g=22b1d120-cb2a-457a-88a1- 687d69e6e39c.retrieved on 19th may, 2020.
Giliker, P., 2017. The Consumer Rights Act 2015–a bastion of European consumer rights?. Legal Studies, 37(1), pp.78-102.
Wendehorst, C., 2016. Platform intermediary services and duties under the e-commerce directive and the consumer rights directive. J. Eur. Consumer & Mkt. L., 5, p.30.