加拿大维多利亚留学生委托代理人法律paper [5]
论文作者:英语论文论文属性:学期论文 termpaper登出时间:2014-09-30编辑:zcm84984点击率:14529
论文字数:4357论文编号:org201409281311398916语种:英语 English地区:加拿大价格:免费论文
关键词:Appointing an agent公司销售产品委托代理人法律关系
摘要:本文是一篇维多利亚留学生委托代理人法律paper,代理有良好的当地市场知识,并且任命代理可以让主体在市场上更好地控制产品的销售和市场营销,并与他们的客户保持联系。代理了解市场,并且他们可以帮助当事人遵守当地的规则,因为他们通常有一个已经建立的贸易网和客户群,所以当事人可以通过代理来节约成本和时间。
t is 'fair and reasonable' has made in Smith v Eric Bush. Lord Griffith suggested four points that may be considered: 1) Equality of Bargaining Powers, 2) How practical was it to obtain independent legal advice regarding the term? 3) How difficult is the task being for which liability is being excluded? 4) What are the consequences of ruling that a term is unreasonable? Conditions 1 and 2 are similar to factors (a) and (b) in Schedule 2 of the UCTA, and condition 4 highlight the significance of the availability of insurance which under section 11(4) of the UCTA, is a factor in determining whether is reasonable a clause limiting liability. Also section 11(4) state that where the exclusion clause seeks to limit liability to a specified sum of money rather than exclude it completely, the court must have regard and the resources available to meet the liability.
In St Albans City & District Council v International Computers Ltd the defendant's standard conditions limited liability to ?100,000. Scott Baker J held that the term was subject to section 3 of the UCTA and section 11(4) applied because the defendants restrict their liability to a specific sum. Also either section 6 or 7 applied. He held that the term was unreasonable because the parties were of unequal bargaining power and ICL had not justified the figure of ?100,000 which was small in relation to the potential risk and the actual loss. Also the defendant was insured for an aggregate sum of ?50m worldwide and ICL was better able than the Council to insure. This limitation was held by the Court of Appeal to be unreasonable.
In Stewart Gill v Horatio Myer & Co. it was held that reasonableness is assessed at the time of contract and the Court must evaluate the clause as a whole; it cannot sever unreasonable parts of a clause. Staughton J held in Stag Line v Tyne Repair Group that the fact that the terms of the contract are in a small print, or difficult to understand, is an argument against their reasonableness.
In Edmund Murray v BSP International Foundations, BSP supplied Murray with a drilling rig but it was alleged not to be able to do what it was contracted to do. BSB excluded on terms all its liabilities except for replacement of defective equipment. The Court identified that it was not reasonable for the party in breach to rely on an exclusion clause for failing to meet the specifications of the other party.
Equality of bargaining power
The equality of bargaining power is an important factor according to the Guidelines of the UCTA and to the decision of the House of Lords in Smith v Bush, for a clause to pass the reasonableness test.
In Watford Electronics v Sanderson CFL there was a contract for the supply of software and the claimant sought a variation of the limitation and obtained some improvement to it. Chadwick LJ noted: 'Where experienced businessmen representing companies of equal bargaining power negotiate an agreement, they should be taken to be the best judges of the commercial fairness of the agreement and of the question whether the terms were reasonable. The Court should not interfere unless satisfied that one party had taken unfair advantage of the other or that a term was so unreasonable that it could not have been understood.'
There was a similar approach and in Granville Oil& Chemicals v Davies Turner & Co. The Court stated: 'The 1977 Act pl
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