Research Korner: Law Essays

MORTGAGE LAW

MORTGAGE LAW   1. Vitiating Factors   1. In Turkey v Awadh [2005], Aziza filed a case against Khalid her father to set aside the enforcement of the deed of transfer of her house on the ground of undue influence. The court held that there was no undue influence and allowed the deed transfer. Undue influence cannot be presumed because there is nothing in the facts to show that Aziza was disadvantaged by the transfer agreement since there was a sufficient consideration for the transfer, the transaction was beneficial to Aziza who cannot settle the mortgage.   Mortgage Agency Services Number Two Ltd v Chater [2003] provides that the condition of the plaintiff and the relationship between the parties is part of the test of facts to establish undue influence. In this case, a son convinced his mother to make him a co-owner of the house and take up mortgage to finance his business. The purpose noted on the loan application was for purchase. The court held that there was undue influence because the mother was not aware of the true purpose of the loan.   Yorkshire Bank plc v Tinsley [2004] involves a couple who mortgaged their matrimonial home to fund the husband’s business. However, the business failed and the bank is seeking foreclosure of the house. The wife contested the foreclosure on the ground that the mortgage was obtained trough undue influence since the husband told her that the mortgage only covers 5,000. The court held that there was presumption of undue influence and the bank has the burden of proof to prove that the transaction was in order. The presence of a solicitor does not prove acquiescence by the wife because the solicitor may have the role of enforcing the agreement and not to give advice. The wife was also vehement that had she known about the nature of the mortgage she would not have agreed to the risk. First National Bank v Achampong [2003] provides that when the solicitor did not report to the bank regarding the freely given consent of the wife in the mortgage of a family home the foreclosing bank is faced with the presumption of undue influence.   2. In the case of Maureen Niersmans v Bernard Pesticcio [2004], the appeal was denied and the previous judgment on the presence of a presumption of undue influence was upheld. The decision was based on the fact that the transferor was not given independent advice by the solicitor, who had a close relationship with the transferees and stands to gain 18 percent of the value of the property. The solicitor did not act professionally resulting to her implication in the issue on undue influence. Legal ethics provides that a solicitor should act professionally to prevent any thoughts of suspicion on the validity of his actions and to ensure the protection of the rights of the parties seeking advice. As the person given responsibility to advice the transferor over the management of his assets, she should not have any personal interest in the transfer. The solicitor was entrusted with the job to ensure the legal and proper management of property and having a personal relationship with the transferees and a personal interest in the property clouds her independent and objective advice.   2.    Rights of the Mortgagee – the right to enter into possession   Birmingham Citizens Permanent Building Society v Caunt [1962] allows a mortgagor in arrears to adjourn the possession hearing to allow for payment of arrears based on evidence of the mortgagor’s ability to pay. Section 36 of Administration of Justice Act 1970 supports this decision by allowing the substitution of court proceedings with actual installment payments of arrears. Payment may come from other sources that do not necessitate the sale of the property mortgaged. Incorporated in the mortgage as a remaining term of the agreement is the period agreed upon for completion of payment.   Cheltenham & Gloucester Building Society v. Norgan [1996] provides for the rules and remedy in applying the option given to the mortgagor to seek payment instead of continuing with foreclosure. In suspending the possession proceedings, the court should be satisfied that the mortgagor is able to pay the arrears within the period agreed upon for completion of payment. If the court sees the ability to pay then the installment payments will commence. However, if the court deems the mortgagor unable to pay, the latter is given the option to seek the court’s permission to acquire possession of the mortgaged property to put it up for sale. The latter case of Cheltenham and Gloucester Plc v Krausz [1997] provides a qualification to the option of seeking possession in order to sell the property. The decision in this case implores the mortgagor to provide evidence that the total amount of unpaid debt will be fully satisfied with the selling price of the mortgaged property. The purpose of allowing the mortgagor to sell his property is his interest to obtain the highest possible selling price.                  The Financial Services and Markets Act 2000 was enacted for the purpose of regulating previously unregulated activities to allow the fair settlement of issues without referring it to the courts to the satisfaction of the demands of the parties. The Financial Services Authority was accorded with the legal power to manage the process of putting in order and giving advice on regulated contracts such as the regulated mortgage contracts. Mortgage mediation is one of the activities managed by the Financial Services Authority because of the revisions made to mortgage laws upon the enactment of the Financial Services and Markets Act. Mortgage mediation that coincides with section 36 of the Administration of Justice Act is the initial remedy in foreclosure issues before commencing a court action in case the mediation fails.               The regulations of the Financial Services Authority provide clearer guidelines to the court litigation alternative remedy in section 36 of the Administration of Justice Act. Mortgage mediation provides the parties to engage in negotiations for scheduled payment of debts. In case of irreconcilable disagreements or conflicting points of view, it is only then that the parties will subscribe to court intervention. This is a court management solution created to relieve the courts of piling cases that may be settled through the negotiation of the parties. These laws provide a formal venue for out of court settlement of mortgage issues with the authority recognized by the parties because it is created and recognized by law.    A mortgagor falling behind in paying the amount owed and recognizing the probability that the mortgagee will file an action for foreclosure should contact the mortgagee in order to discuss the possibility of extending the period for payment. If the mortgagee accedes to the change then the mortgagor has additional time to procure money for debt payment. However, if the mortgagee refuses to extend the period for payment and commences legal action, the mortgagor is given the option to apply for court permission to cancel the proceedings in order to make way for negotiations for the payment of the arrears through instalment subject to the presentation of evidence of the ability to pay within the additional time requested. Instalment payments ensue upon the permission of the court. The case may be forwarded to the Financial Services Authority for negotiation of the terms of payment. If the court does not allow the suspension of the possession proceedings, the mortgagor may seek permission of the court to sell the property at a price that fully covers the arrears. The mortgagor should seek the greatest possible price for the property.   3.    Different types of mortgages and the power of sale               1. Welsh mortgage is the transfer of possession of a property by the mortgagor to the mortgagee for a particular consideration. The agreement incorporates the right of the mortgagor to redeem the property by paying the principal amount received during the transfer of possession. The contract also provides for the right of the mortgagee to collect income from the property to serve as interest for the money loaned to the mortgagor.                 2. Sharia law forbids both payment and receipt of any kind of interest. Muslims do not subscribe to mortgage agreements involving interest. ( 1992) Murabaha and ijara are two types of Islamic mortgages that do not involve interest payments. The primary difference in these two mortgages is the amount that a real estate property buyer has to pay as condition of the mortgage. On one hand, murabaha mortgage covers an agreement that the bank pays eighty to ninety percent of the total purchase price while the buyer pays the balance. Full payment of the property gives rise to the registration of the property under the name of the buyer. The buyer pays the money forwarded by the bank within the agreed period. On the other hand, ijara mortgage does not require the buyer to pay any percentage of the price of the property because the bank makes a full payment for the property. The transaction leads to a lease agreement with the rent constituting an installment payment of the purchase price. (1986)               However, Islamic mortgages do not appeal to non-Muslim banks because of the lack of interest incentives. Contemporary Islamic mortgages evolved to provide incentives to banks to forward full payment without violating Sharia law. There are two alternative actions. First, the bank buys the property and pays for it in full. It then acts as tenant collecting payment that is higher than the original purchase price to gain profit. Second, the bank makes full payment then resells the house at a higher price to gain profit. These alternatives benefit both Muslim buyers and banks because the buyers do not pay interest with the banks gaining profit for their part in advancing full payment. This involves trust, payment of higher price by the buyer and non-imposition of an exorbitant price by banks.   Part III of the Law of Property Act 1925 provides for the extent of the rights of a mortgagee in selling mortgaged property.  A mortgagee has the right to sell mortgaged property subject to the responsibility to obtain the highest possible market price. Obtaining a reasonable price excuses the mortgagee from any liability for losses. AIB Finance Ltd v Debtors [1998] applies the law by attaching a duty of care to obtain the highest possible price for mortgaged property to the mortgagee.           4.    Rights of the mortgagor   Section 38 of the Consumer Credit Act 1974 provides the best defense for Mr. Toad in the case for repossession on the ground of extortionate credit bargaining.  This defense is proven through agreements for grossly exorbitant payments and unfair dealing. Ideally, a mortgage contract provides equally protects the interest of the parties so that in determining allegations of extortionate credit bargaining, the court looks at the circumstances of the mortgagor relative to the mortgagee. It is known to the mortgagee, through its agent, that Mr. Toad does not have the capacity to pay a loan secured by his house, making repossession inevitable. Foreseeing eventual repossession but continuing with the mortgage involves extortionate credit dealing by the mortgagee.                  Courts are open to extortionate credit deal case but the nature of the issue limits the tools available for the courts to deal with these cases and affects the propensity of people to seek court intervention. Adjudicating extortionate credit deals involves questions of fact and there is no clear benchmark for handling the issue. People are also reluctant to go to the courts because of lack of financial resources, fear of extortionists and lack of understanding of the protection provided by law.     5.    This is your final piece of work   Studying mortgage law resulted to a split decision on its legal significance.  On one hand, the ideal and purpose enshrined in mortgage law balance the rights of the parties, provides limits and rules in the exercise of these rights, and offers remedies. The law allows people to use their property to secure loans on the premise that the elements of a valid contract are present and the transaction express fair dealings. Ideally, the law is as simple as this. On the other hand, a consideration of the actual cases shows that the application of the law is not as simple as it looks. Mortgage law is subject to the particular circumstances of the case. Seeking the protection and using the remedies provided by law is subject to the inequalities between the parties.  The law may address inequalities but only if people assert the exercise of their rights. Exercising a right requires knowledge and understanding of the right, which not all people have that explains taking advice from legal experts. However, even legal experts deviate from the law as seen in their participation and potential role in undue influence, extortion and other illegal acts.

MORTGAGE LAW

MORTGAGE LAW 1. Vitiating Factors 1. In Turkey v Awadh [2005], Aziza filed a case against Khalid her father to set aside t...

THEOLOGY

INTRODUCTION   According to ‘Transforming Mission’ which was written by David Bosch basically has the involvement regarding Matthew’s use of the Old Testament (OT) that could be deeply pastoral and missionary, as Bosch begins by considering  the idea of mission and how the missionary claims from the OT has evolved and been enacted in the world from a Jewish perspective and looking into the mission paradigm of post modernity, highlighting the difference between what the church perceives to be its missionary authorization and the work of God. (Bosch, 1991) It can be said that David Bosch’s engagement within the missiology of Matthew seems very interesting, as moving into discipleship in lieu to Matthew’s Gospel as it affirms an immense deal of the Old Testament experience. (Bosch, 1991) Thus, Matthew has been a journeyer attempting to live out the teachings of Christ. Bosch’s analysis of Matthew’s use of OT relates to ‘’Great Commission’’ that was enlightening to begin the journey towards intended ministry with the theme relating to the cost of discipleship. (Kinnamon, 1991) Moreover, Bosch’s claims relate to certain exploration of the Christian consent to love that, ‘’Christians should relinquish all desires to judge others; their behavior should be exemplary against the civil order’’, as it can be said that a Christian lifestyle should also be winsome and it should attract outsiders and invite them to join the community. (Kinnamon, 1991)   MAIN BODY   Bosch’s have explored the multifaceted missionary motivations relating to Matthew’s use of the Old Testament as deeply pastoral and missionary that is much greater than the traditional paradigm which was the underlying motive of the church that being ‘conversion of the heaten.’ (Cunningham et al., 1987) As Bosch made use of the ‘paradigm shift’ rather than a break in mission thinking and practice in both pastoral and missiological terms on the cusp of a paradigm shift. There was a reframing of mission whilst being positive for the continued existence of the Church through worldwide missionary work and societal maturity. (Cunningham et al., 1987) In recent years, the terms ‘mission’ and ‘missional’ have increased in use, but ‘mission’ referred to:   Ø      the sending of missionaries to a designated territory Ø      the activities undertaken by such missionaries Ø      the geographical are where the missionaries were active Ø      expansion of the reign of God Thus, David Bosch describes the post-modern paradigm for mission without doubting its value and usefulness for teaching missiology in important respects. Bosch's claim that his missiology is host-modern. The weakness of Bosch's "emerging ecumenical consensus" on mission was apparent in its very year of publication (1991) when the seventh assembly of the World Council of Churches (WCC) famously failed to find a consensus. (Cunningham et al., 1987) The tact that Bosch's paradigm can be described as a truly post-modern one, even by his criteria; it reveals both Bosch's lack of a creation theology and suggests also the limited nature of pneumatology. (Cunningham et al., 1987) Furthermore, Bosch is keen to emphasize the missionary nature of the Spirit but he stops short of discussing the mission of the Spirit in which the Spirit is an "afterthought used to explain God's activity in the church in connection with Jesus, ignoring the mystery of the Spirit as an equal modality or persona of the divine nature". (Bosch, 1991 p. 14) Moreover, the mission of the spirit is bound thoroughly to the missionary activity of the church, when Bosch seeks to broaden mission to take account of the "comprehensive" nature of salvation, he can do so only by increasing the scope of the church's missionary activity (Bosch, 1991 pp. 393-400). Henceforth, mission appears as a work to be achieved by organization and strategy and Bosch paradigm is very much in the mould of the enlightenment project and the possibilities raised by missio Dei for deriving mission from the very nature of God are not fully realized. (Ibid. p.22) There was a consequence of Bosch's involvement of the Spirit with the Church is the uncontextual nature of missiology brought to the attention of the church by theologies on the validity of a global theology but Bosch follows the traditional ecumenical approach of thinking globally and applying as his hope is in the institutional church in its Western form despite its legacy of "missionary war", holocaust and apartheid. (Ibid., pp. 384-9). Bosch acknowledges the role of the Spirit in other faiths in preparatio evangelica (Bosch, 1991 p. 484) but he hesitates to give any value to the faiths themselves. Bosch's approach of "bold humility" which recognizes an "unresolved tension" cannot point to any other way of salvation than Jesus Christ; at the same time cannot set limits to the saving power of God" (Bosch, 1991 p. 483). Matthew’s use of OT as deeply pastoral and missionary was concerned with the situation and the consciousness of God’s teachings as Matthew begins the use of OT by taking the descendants of Jesus because he wanted to show that Jesus was the son of David per se. Matthew's use of the OT is amicably written for a Jewish Christian audience living within the proximity of their homeland. (Gundry, 1967) The community for which Matthew was written for a Jewish Christian community that has encountered some original tensions in the period of renewal as it would appear that they've been there a longer time and shows the realization of an older legacy of Jesus' traditions. In Matthew, in the Sermon on the Mount, Jesus says, "think not that I've come to destroy the law and the prophets: I've come not to destroy them but to fulfill them." (Gundry, 1967 p.23) Furthermore, one of the indications of the situation of Matthew's community comes up when Matthew's use of the OT that gives regulations for how to discipline members within the society. It says if one of the members of the parishioners’ commit sins then go and tell them about it and if they refuse to listen to you, take a friend and tell them about it and if they refuse to listen to them, take them to the church and if they refuse, kick them out. (Gundry, 1967). The way Matthew told the story of Jesus draws on a lot of symbols from Jewish tradition that conveys a clear picture of Jesus. Jesus goes up on to a mountain to teach and there talks about the law as this indicates pastoral as well as missionary claims from the OT as Jesus delivers different sermons just like the five books of Torah. Matthew is to portray a Jesus whose Jewish identity is beyond doubt. Matthew takes no chances as he Jesus' lineage way back to Abraham in short, Jesus is a Jew. (Gundry, 1982) Thus, Matthew uses his resources in order to create a different narrative in which Jesus frequent teaches the people. Matthew's concern about the church is reflected as he tells the story of Jesus stilling the storm. (Gundry, 1982) According to one interpretation, this story is really a metaphor: the disciples represent the Christian community, the boat is the church. In the face of upheaval and uncertainty that challenges faith and threatens to undo the church, Jesus gives assurance to the faithful: "Behold, I am with you until the end of days." (Gundry, 1982 p. 25).  In Matthew 4:12, Matthew begins his account of the ministry of Jesus, introducing the preparatory preaching of John the Baptist (Matthew 3:1-12), the baptism of Jesus that culminates in God's proclaiming him his "beloved Son" (Matthew 3:13-17) and the temptation in which he proves his true sonship by his victory over the devil's attempt to deflect him from the way of obedience to the Father (Matthew 4:1-11). Moreover, the central message of Jesus' preaching is the coming of the kingdom of heaven and the need for a complete change of heart and conduct, on the part of those who are to receive the gift of God (Matthew 4:17). There are great discourses of Jesus, with the formula "When Jesus finished these words" (Matthew 7:28; 11:1; 13:53; 19:1; 26:1) which is an important structure of the gospel. The discourses are the "Sermon on the Mount" (Matthew 5:3-7:27), the missionary discourse (Matthew 10:5-42), the parable discourse (Matthew 13:3-52), the church order discourse (Matthew 18:3-35) and the eschatological discourse (Matthew 24:4-25:46). In Matthew 4:23 a statement of Jesus' activity speaks not only of his teaching and proclaiming the gospel but of his "curing every disease and illness among the people"; this is repeated almost verbatim in Matthew 9:35. The nature of the community that Jesus will establish is shown; it will always be under the protection of him whose power can deal with dangers (Matthew 8:23-27), but it is only for those who are prepared to follow him at whatever cost (Matthew 8:16-22) not only believing Israelites but Gentiles who have come to faith in him (Matthew 8:10-12). The disciples begin to have some insights into the mystery of Jesus' person. They wonder about him whom "the winds and the sea obey" (Matthew 8:27) and they witness his bold declaration of the forgiveness of the paralytic's sins (Matthew 9:2). The forgiveness of sins is now not the prerogative of Jesus alone but of "human beings," of the disciples who constitute the community of Jesus, the church. (Matthew 10:5-42). Jesus is moved to pity at the sight of the crowds who are like sheep without a shepherd (Matthew 9:36), and he sends out the twelve disciples to make the proclamation with which his own ministry began, "The kingdom of heaven is at hand" (Matthew 10:7; Matthew 4:17) and to drive out demons and cure the sick as he has done (Matthew 10:1) their mission is limited to Israel (Matthew 10:5-6) as Jesus' own was (Matthew 15:24) yet the perspective broadens to speak of the mission that the disciples will have after the resurrection that will attend it (Matthew 10:18). The reason given for Jesus' speaking to the crowds in parables is that they have hardened themselves against his clear teaching, unlike the disciples to whom knowledge of "the mysteries of the kingdom has been granted" (Matthew 13:10-16). In Matthew 13:36 He dismisses the crowds and continues the discourse to his disciples alone, who claim to have understood all that God has said (Matthew 13:51). Jesus is shown preparing for the establishment of his church with its teaching authority that will supplant the blind guidance of the Pharisees (Matthew 15:13-14), whose teaching is repudiated by Jesus as the norm for his disciples (Matthew 16:6, 11-12). The church of Jesus will be built on Peter (Matthew 16:18), who will be given authority to bind and loose on earth, an authority whose exercise was confirmed in heaven (Matthew 16:19). Once again, the perspective of the evangelist includes the time of Jesus' ministry but that of the preaching of the gospel after the resurrection. The narrative culminates in Jesus' denunciation of the scribes and Pharisees, reflecting that of Matthew's church (Matthew 23:1-36). In addition, Matthew's portrayal of Jesus in his passion combines both themajestic serenity of the obedient Son who goes his destined way in fulfillment of the scriptures (Matthew 26:52-54) positive of his vindication by God and the depths of fear and abandonment in face of death (Matthew 26:38-39; 27:46). Matthew offers a model for taking religious heritage seriously. Matthew's approach is one of being thoroughgoing and positive. Henceforth, faith communities need to keep people connected to their roots, finding proofs from prophecies which meant something else. Matthew's strong emphasis on the integrity of behavior and attitude and pretence are important correctives of the Christian faith which give major emphasis to religious experiences and appeal to Christian status. (Gundry, 1982) Matthew's emphasis on authority was a legacy which has not always blessed the church and his emphasis on Jesus has spawned versions of the Christian message against which one needs good news. (Towner, 1995) It is easy to hear Matthew's gospel as declaring that we should act in certain ways and have certain attitudes, because Matthew is interpreting the rightful demands of the Scripture in order to win people to the notion that God is compassionate. Matthew appears to have believed that threat of judgement from the judge to come and the promise of life on the basis of right interpretation of demand produce change in people and achieve the goals of pastoral and missionary works. (Howard, 1986) It is important to bring Matthew's gospel into dialogue about the enabling and liberating power of grace which sets people free to bear fruit. The authority structure runs through much of Matthew's theology and produces Jesus who is the supreme scribe, the authoritative interpreter of scripture. (Howard, 1986) Here the focus is on the power of the mission to which one can appeal while Matthew affirms Jesus' influence, he is at pains to demonstrate Jesus' consistency with the law and to show Jesus dependent on it as the Son of God that will emphasize Jesus' authority based on the right to power of the substance of what is said consistent with Matthew's approach to the OT scripture. (Howard, 1986) Generally, preaching from Matthew must always be more than translating Matthew into the modern terms. (Howard, 1986) Matthew does not stand alone, interpreting Matthew for preaching means listening to Matthew in its stipulations but within a critical reflection and appropriation which has hierarchy of values because the people of the society have been able to acclaim, 'this is the word of the Lord' and the acclamation is naive without the living proclamation which engages in important indication and personal encounter with thy word. It is important to realize that most of Matthew's use of the OT is so straightforward that it is not liable to the charge of OT’s misinterpretation. (Longenecker, 1975)  The use of the Old Testament since, Matthew as God’s biographer was not accountable of interpreting the scripture in ways alien to how Old Testament authors interpreted the Old Testament. (Longenecker, 1975) Thus, many of Matthew's documents are rueful in nature, as he uses and mentions the OT to show how Christ fulfilled His missionary journey within the scripture deriving from the OT meanings as a result of realization of His words to the people. Matthew was held to be using pesher approaches to the OT and that God's intent when He inspired the OT author was more intense than the OT author himself. (Longenecker, 1975) Thus, Matthew quotes texts that predicts but uses the passages that have thematic significance that exceeds the need for pastoral deeds as well as missionary works as viewed from the significance of the OT and its meaning to the people and that few concerns over Matthew's use of the OT may be tempered by a better sense of what Matthew intended when he said ‘’Christ fulfilled a scripture’’. Similarly, views noted differences of opinion be surprising giving worth and value of the nature and importance of Christian mission that implies the range of ways in which the Christian community relates to the Jewish Scriptures.   David Bosch’s treatment of mission in the Old Testament in was limited in ways and Bosch’s view that ‘’ there is, in the Old Testament, no indication of the believers of the old covenant being sent by God to cross geographical, religious and social frontiers in order to win others to faith in Yahweh’’ has been seen as unduly narrow. Then, Bosch certainly believed the Old Testament highlighted themes of importance to Christian mission and among commentators on biblical theology of mission there is attention is commonly drawn to the universal concerns of Matthew’s use of the OT as deeply pastoral and missionary along the importance of the prophets promises with Israel’s neighbors and the vision of Isaiah’s role as a ‘’light to the nations’’ in the experiences of the Church seem unduly philosophical, relevant to Christians with the temptations and responsibilities of an experience of the knowledge of God as creator mankind. (Schreiter, 1991) God-given purpose of the Church can be considered in terms of its worship, and its responsibilities towards its environment. It is a distortion of the nature of the Church to collapse the dimensions of life into its external mission. (Towner, 1995) Nevertheless, if the value of its worship and community life is not in doubt, it is useful to use the word ‘’mission’’ to refer to the responsibility of the people of God towards outside the community of faith which constitute that mission and its changes over time. (Schreiter, 1991) CONCLUSION Therefore, God as the creator and sustainer of mission, there is a need to focus on churches as reconciling and healing communities of engagement in mission raises with the ability of the Old Testament to address those does not necessarily answer the question of the missionary nature of the Old Testament, but reinforce its relevance for some issues arising out of mission such as the attitudes towards religions and cultures, attitudes towards other cultures, the role of God in realizing promises and the realities of leadership in a political world that inform the study of the Bible and the Old Testament in relation to mission. Matthew’s use of the Old Testament does not correspond in showing points of resonance with the development of the redemptive themes of pastoral and missionary claims in the OT as Matthew may show how to interpret the OT by indicating that the early scriptures have projective functions as they reiterate the theology of an earlier motif and anticipate total realization in future acts of God. Nonetheless, the use of interpretive methods in scripture significantly strengthens the confidence of contemporary missionaries who are committed of careful exegesis that honors the intent of God. Lastly, the Matthew’s use of the OT has been precisely celebrated and essential as Bosch himself points out; no paradigm is the last word in missiology (Bosch, 1991 p. 511). It may be that in retrospect Bosch's claim will be seen not as setting out a new paradigm but as seeing the old in a different perspective that relates to the reality of mission as of today’s epoch. As the modern paradigm will take into account the mission of the Spirit which is a mission that takes place in the context of supplementary spirits. Hence, in any truly missionary encounter, there needs to have a recognition of the application of the claim as the nature of the mission has discerned by the Spirit of Christ himself.

THEOLOGY

INTRODUCTION According to ‘Transforming Mission’ which was written by David Bosch basically has the involvement regarding Matthew’s ...

MORTGAGE LAW: TRACING

a) “Tracing is … neither a claim nor a remedy.  It is merely the process by which a claimant demonstrates what has happened to his property, identifies its proceeds and the persons who have handled or received them, and justifies his claim that the proceeds can properly be regarded as representing his property.  Tracing is also distinct from claiming.  It identifies the traceable proceeds of the claimant’s property.  It enables the claimant to substitute the traceable proceeds for the original asset as the subject matter of his claim…The successful completion of a tracing exercise may be preliminary to a personal claim or a proprietary one, to the enforcement of a legal right or an equitable one.”  Discuss.  (Lord Millett in Foskett v McKeown [2000] 3 All ER 97).     According to Smith (1997), tracing pertains to the process that allows the transmission of a claim upon the original asset to a new asset. The core idea of tracing is the necessity of one asset standing in place for another asset for legal purposes. As a result, the claims that should have been made relative to the specified original asset are permitted to be transmitted to a new asset.    The plaintiff exercises tracing by locating the asset to pursue pre-existing rights towards the thing. The plaintiff is allowed to make a claim over the new asset relative to subsequent possessors because the latter has interfered with the original rights of the plaintiff. In attempting to trace an asset, the plaintiff is in effect asserting that a new asset was obtained using the original asset. The plaintiff seeks to establish the relationship of the original asset over which a claim was previously made and the new asset to which the claim is aimed to be transmitted. (Smith, 1997)         The situation is exemplified by a defendant exchanging an asset, upon which a plaintiff has a claim for another asset. The plaintiff is able to assert a claim over the new asset through tracing. Tracing provides the crucial relationship between the plaintiff and the new asset by proving that the new asset was obtained with the original asset. Tracing substantiates the claims of the plaintiff over the new asset. This is because the exchange of assets implies that the defendant acquired the value attached to the new asset commensurate to the value of the old asset. What the plaintiff targets is the establishment of the fact that the value attached to the original asset is the same value of what is now attached to the new asset because the old asset was exchanged for the new asset changing the object representing the value but retaining the value per se. According to Smith (1997) what is being traced is value because it is the constant factor that exists before the exchange of assets and after the substitution of assets. Although, value is represented by a different object through the new asset it is still the same value attached to the old asset. This rationale justifies the claim over the new asset. Thus, tracing involves value and not property.   Prior to tracing, it is imperative that the plaintiff has a thing of value. The plaintiff must hold an asset exclusive to other people. The right is not necessarily proprietary in nature and it can refer to either a legal or an equitable right (Agip (Africa) Ltd v. Jackson, 1991; Lipkin Gorman v. Karpnale Ltd, 1991). This is an important prerequisite because it is the right that fuels the tracing of value.   Tracing was applied in Westdeutsche Landesbank Girozentrale v Islington London Borough Council (1996) where the court held that “when property is obtained by fraud, equity imposes a constructive trust on the fraudulent recipient: the property is recoverable and traceable in equity”. The case allows tracing to support claims of fraud in the acquisition of property. In Commerzbank AG v IMB Morgan plc (2004), the proceedings involved different claimants to the money in a single account with the petitioner bank. Tracing was made to determine which claims are supported by the process of tracing value since there are various claimants with conflicting claims.   Tracing is a distinct concept of claim because it is the process of tracing that justifies a claim. Claim is the assertion of a right as supported by the process of tracing. Thus, the process of claiming is also different from the process of tracing. Claiming is a process involving the determination of the issue on the right that the claimant is able to establish. It is only after the right has been established that the process of tracing becomes useful in enforcing the right.   Tracing is not also a remedy because the process does not constitute a legal or judicial manner through which a right is enforced or the violation of the right is prevented or redressed. Tracing is the process of supporting a claim and not establishing a right because the establishment of a right precedes tracing. Tracing makes way for the enforcement of a right.   b) Robert is a trustee of two separate family trust funds, the Childrens’ fund and the Grandchildrens’ fund. In September 2005, Robert’s personal account at his bank is £5,000 in credit. In October 2005, he withdrew £10,000 from the Childrens’ fund and paid it into his own account. In November 2005, he withdrew £15,000 from the Grandchildrens’ fund and paid it into his own account. In December 2005, he withdrew £25,000 from his own account and invested it in Premium Bonds, having seen the television advertisement. In February 2006, he won £50,000 on the Premium Bonds and paid it into his account. In March, he withdrew £50,000 and invested it in further Premium bonds. Robert has recently had judgment given against him in a libel action and as a result, he has now been adjudicated bankrupt.  New trustees have been appointed to both funds. Advise the trustees of both funds as to their respective positions concerning the recovery of the misappropriated trust funds.                 According to Commerzbank AG v IMB Morgan plc (2004), establishing a claim in order to share in a trust fund requires proof of proprietary right to the trust fund. The claimants have three possible bases for enforcing their rights. First basis is tracing by connecting the transfer of assets from the original source to another source, which in this case is tracing the withdrawal of money from the two trust funds and the subsequent deposit to the personal account of the trustee who is also the defendant. The rationale for doing so is to establish a claim over the new account because equity considers the money in the personal account as charged with repaying the money withdrawn from the trust funds (El Ajou v. Dollar Land Holdings plc (No. 1), 1993; Bristol and West Building Society v. Mothew, 1998; Bankers Trust Co. v. Shapira, 1980) regardless of the mixing of the money from the trust fund and the personal fund of the trustee.                Second basis is tracing to prove mistake in payment (Commerzbank AG v IMB Morgan plc, 2004). In cases where there is an identifiable trust fund, where the trustee could have deposited money in payment of the amount withdrawn after receiving the amount invested in premium bonds together with the money gained from the endeavour, the recipient does not have the right to retain the benefit of the money received especially since the trustee is presumed to have cognizance of the claims of the subjects of the trust funds (Papamichael v. National Westminster Bank plc, 2003). The claimants of the trust funds from which money was withdrawn establish their right to the reimbursement of the misappropriated trust fund by supporting their claims with tracing. The claimants may trace the flow of money from the trust funds to the personal account of the trustee to the purchase of premium bonds using the money and the receipt of the money and gains until the aggregate amount was reinvested again into premium bonds. Tracing is important to show that the value lost by claimants due to the withdrawal of the money is the same value attached to the premium bonds and the gains.               Third basis is tracing to support the payment of money for a particular purpose that was not fulfilled (Commerzbank AG v IMB Morgan plc, 2004) so that the trustee, who holds the money is deemed to do so in trust for the subjects of the trust funds (Barclays Bank Ltd v. Quistclose Investments Ltd,1970; Carreras Rothmans Ltd v. Freeman Matthews Treasure Ltd, 1985). This allows the action of the claimants to trace the transmission of value they rightly hold from the withdrawal of funds until the reinvestment of the money in premium bonds. The claimants need tracing in order to support their claims against the funds, held by the trustee, which is now being applied to the court order in favour of the petitioner in a libel suit to which the trustee is the defendant.                  These bases are congruent to the possible defences of the defendant. In relation to the first basis, the defendant may claim that the money withdrawn from his personal account and invested in premium bonds constitutes his personal funds. The claimants may support their claim of fund misappropriation by showing that the tracing of value shows that the amount withdrawn by the trustee is the same amounts deposited in his personal account. The defendant may also claim that there was a mistake of payment when instead of depositing the money back to the account, the whole amount after the monetization of the bonds were deposited to his personal account. The claimants support their claim for misappropriation of funds by tracing value from the trust fund withdrawals to the investment and reinvestment of the money in bonds without reimbursing the trust funds. On the third basis, the trustee may claim that the withdrawals were made to invest the money in behalf of the subjects of the trust. The claimants may support their claim of misappropriation of funds as supported by tracing value from withdrawal to the purchase of bonds and corresponding investment of the funds. The claimants have the right to claim misappropriation of funds as supported by tracing. Overall, tracing will help the claimants establish their claims for breach of trust and the reimbursement of the misappropriated funds relative to the plaintiff in the libel case and other claimants to the assets of the trustee.

MORTGAGE LAW: TRACING

a) “Tracing is … neither a claim nor a remedy. It is merely the process by which a claimant demonstrates what has happened to his proper...

Corporation and Partnerships Law in Australia

Q1 A.           First and foremost, the business relationship present between the three individuals basically constitutes an incorporated limited partnership as stated in s1 of the Partnership Act (SA) of 1891. This means that the liability of the losses incurred in the operations of UA is to be shouldered by all the partners of the firm. (s44) The case indicated that they accuse Armi of treachery or disloyalty. Unfortunately they are not covered by s30 of the Partnership Act since they represent an incorporated limited partnership. This means that they could not sue for damages for this claim since Armi is not prohibited by law to compete with the company he owns with Bruce and Clint. However, a recent case indicated that there exists a fiduciary relationship between the three partners. (Blobel & Ors v Blobel & Ors, 2005) A duty of good faith, preserving confidence, and steering clear of any possible conflict of interest is essentially needed in a partnership. Moreover, the same case similarly noted that no one should also personally profit from the partnership opportunities.     A different outcome would have taken place if the company had been a corporation. Armi has does not represent the firm when he made a deal with BIG, not to mention the fact that the technology sold to the BIG is discarded by the UA. Given this fact, the actions rendered by Armi is thus not covered by s51c(4), meaning that he have no responsibility to inform the two other partners in UA about the deal he made with UA. As recourse by Bruce and Clint, the case did not mention any dissolution of partnership made. This means that Armi is still a partner in UA, thus he holds the liabilities incurred by the firm as much as Clint and Bruce were. This means that Bruce and Clint could ask the help of the courts to call on Arni’s participation in the payment of any payables and debts incurred by UA.  On the other hand, they could also ask the help of the courts to initiate dissolution proceedings. (s35) This would mitigate their losses considering the fact that the company is nearing insolvency and has incurred a lot of debts. In this manner, the payment of the debts will be on the terms of the firm.           B.           According to s44(b) of the Partnership Act (SA) of 1891, a partnership’s losses are to be paid by the firm. In this case, the liabilities that they have incurred in the acquisition of a merchandise by Friendly Finance Ltd. This is also indicated in the Blobel & Ors v Blobel & Ors case. The said case highlighted s9 of the Partnership Act 1891 stating that every partner in an organization is legally responsible for all the payables and obligations of the organization given that the partner is still considered a partner of the firm. In this context, Arni has already departed from the partnership, this would be found on the presumption that he has been expelled by the majority. Given this fact, both Clint and Bruce are thus liable for the payment of the debts incurred to Friendly Finance Ltd since they are now the entire composition of UA. The acquisition of the merchandise did not indicate that Armi bought it on a personal whim. As stated in the facts of the case, the firm has been making good use of the merchandise. They would just have to pay off the debts to Friendly Finance Ltd. On a similar note, Bruce and Clint may have to ask the help of the court on this one, once more for the dissolution of the firm. They could indicate that Armi, when he was still connected to the firm, has breached a partnership agreement in purchasing the merchandise from Friendly Finance Ltd which costs over $30,000. They could pursue a claim for breach of contract and fiduciary duty. (Ireland v Chia & Ors, 1999) Their agreement was that Armi was only to spend $20,000 on any purchase. This could only add up to the court’s favour to decree dissolution. In any case, the firm still has to recompense the payables they have incurred to Friendly Finance Ltd.  In the case of Ireland v Chia & Ors (1999) legal dissolution of the partnership was granted by the courts.   C.           UA have the choice to tell Fast Cars Pty Ltd to take the car back. They could also tell them that they should go after Armi because they have transacted with Armi, and he clearly is guilty of misrepresentation. Armi could not be a Chief Executive Officer of UA because it is not a corporation. It is registered as a partnership which means all three have equal decision making powers in the company. Finding the letter C-E-O appended on the name of Armi may have induced Fast Cars Pty Ltd to approve the sale of the luxury car. In addition, Bruce and Clint have the option to take legal actions against the payment of the remaining balance on the Ferrari that Armi bought using a partnership cheque. They could claim that they are covered by s75(2a) of the Partnership Act (SA) of 1891 which clearly indicated that any document including cheques should be “in connection with the conduct of the partnership’s business.” And with reference to the mission statement of UA, purchasing a luxury sports car is not inherently a part of any provision of “hardcore gaming action.” In addition, the said section of the Act also indicated the abbreviation “LP” is mandatory in issuing documents such as cheques. Bruce and Clint could claim that the approval of Armi’s purchase of the Ferrari was done without any due diligence and with gross negligence considering that the mode of payment made by Armi in fact indicated that he is not a CEO of UA and thus may not have been capable of buying such merchandise. In addition, the car was bought under the name of Armi and not in the name of UA. Clint and Bruce could point to the case of Blobel & Ors v Blobel & Ors (2005) that the liability for the car payment are not covered by the company considering the fact that Armi is no longer a partner of the firm.       Q2. A. Tran should assert his right as a shareholder. There is this concept of shareholder primacy still present in corporate law. Traditionally, the concept of shareholder primacy has been considered as the primary mandate of the directors and senior officers of a corporation in the context of corporate law. Specifically, all the “energies” of the   (1995, ) board should be geared towards the advancement of the shareholders in general. This claim similarly talks about the fiduciary obligation of the board of directors to make the decision making within the organization known to the corporation and its shareholder. (p7) And with the actions made by Bigadco Ltd, this duty might have been compromised. He could take legal action against Bigadco Ltd with reference to certain infringements in the Corporate Law Economic Reform Program (CLERP 9 Act). Specifically, disclosure on the remunerations of the directors should be taken so as to avert any more instances similar to what took place in the case of One.Tel. This has been the most notable in relation to corporate failure and remuneration of the directors. Specifically, in the said case, dubious amounts of bonuses were given to the chief executive officers of the company. ( 2002) With the public knowing of the doubtful nature of the said remuneration, the share price of the One.tel took a nose dive from its existing position.   Specifically, Tran could prevent the possible ratification of the corporate decisions made by Bigadco by taking legal actions regarding the company’s failure to give it full disclosure on the report as to the affairs (RATA). This is similar to what transpired to the case of Byrnes and Australian Securities and Investment Commission [2000] when the defendant was not able to substantiate whether the financial capability of the corporation could support the activities it sought to implement. In the case of Tran, he could carry out this lawsuit and consequently allow the company to cut a deal with him so that he could meet his medical expenses. On the other hand, the said lawsuit would also buy him time to liquidate his shares before the corporation’s value totally decline.   On a similar note, Tran could also seek the help of the Australian Securities and Investment Commission to make a banning order against the corporation. In this manner, the said commission could conduct an investigation pursuant to s837 of the Corporations Law as to whether the decisions of the board to increase the remuneration of the directors and the subsequent decline of the stock value of the firm are done in an “efficiently, honestly and fairly” manner. (2001)  Thus, doing such a move will allow Tran to know whether the company has been using his investment for fraudulent means to advance their individual profits.        B. Under the Public Corporations Act 1993 of South Australia, a corporation must have a charter that will be able to distinguish the actual personality of the company. (s12) Specific areas like the scope of investment activities and operations are required to be presented in the company’s charter. In the case of Charles, there is indeed this kind of charter where it states its reason of existence: “investigate, promote and market alternative forms of healing and therapeutic interventions.” The intention of Dan, A, and B to boldly change the direction of the company generally contradicts this general purpose. With the shift from therapeutic interventions to alcohol and tobacco distribution, Charles has good reason to oppose it. Given that their organization is essentially a corporation, then the doctrine of ultra vires could come into play. Charles could sue for legal damages if the three other shareholders have pushed though with their plan. Charles could invoke s68 of the COMPANIES ACT (Cth) 1981 No. 89 of 1981 seeking to make the action void.   In the same manner, Charles could also press charges on Dan in the instance that they have taken actions realising the said bold strategic direction on the context of misrepresentation based on the Misrepresentation Act 1972. This has been reflected in the case of Carneiro & Anor V Robinson & Ors [2005] where the defendant made a claim that induced an expectation on the part of the claimant. This is identified in the case of Charles when he was induced into joining the corporation because of the objectives and products being sold by the company. Generally, Charles could claim that the change of direction of the company will essentially create an estoppel and even trigger a charge of misrepresentation because it has deviated to the inherent values advance before his accession to the corporation.   Ultimately there are two options for Charles; one is to establish to the courts that the direction of the company is going in total contradiction of what is initially stated in its charter. This means that Charles have to take the refuge of the judicial system as to protect the values and even his shares of the company. He has to establish that the decision of the company is beyond its own powers. On the other hand, Charles could also sue Dan for misrepresentation because of their use of the promise to initially “investigate, promote and market alternative forms of healing and therapeutic interventions” induced the participation of Charles in the corporation. The bold strategic direction towards which the company is heading, specifically distributing tobacco and alcohol, is the complete turn to what has encouraged him to join the organization.

Corporation and Partnerships Law in Australia

Q1 A. First and foremost, the business relationship present between the three individuals basically constitutes an incorporat...

Reflections From The Epic of Gilgamesh

Introduction             Dominance and subordination is synonymous to leader-follower scheme wherein the relationship is ideal to obtain the performance of one another’s societal functions in an effective and efficient manner.  The dominant imparts its decision-making and problem solving capabilities to uphold the welfare of people.  In return, subordinates serve the former and follow its conquest that precipitate to loyalty and respect.  The president who is widely respected by the citizenry, a husband who is loved and cared by his wife, and professors who are idolized by students are few of some dominance-subordination design in the society.             To determine such relationship is one thing, to verify the cause and extent of its existence is another.  On top of these is its purpose and implications to social order.  By analyzing the characters, their actions and their aspirations from “The Epic of Gilgamesh”, resolutions to the phenomenon can be settled and questions will be answered. Pillars of Social Order                   Because Gilgamesh has a “one-third man, two-third God” identity that resulted to super-natural strength, courage and “beauty”, he was basically known as a hero, and ultimately a king of.  For his part, he should maintain his dominance and show his capability to rule on a regular basis to retain the status quo.  This is exemplified through his stand against, challenge to demon-like and brawl against Bull of Heaven (50) that was all proclaimed victory across his name.  Every triumph was regarded a signal of competence and enduring dominance.  However, being a king who possess of powers, ill-effects of abusing it (xix) was inevitable.  But the extent of the abuse did not outweigh the extent of dominance, and so, continuing the order.  Distant from the tendencies to abuse power, Gilgamesh has a number of virtues like self-discipline (scoring marriage from Ishtar) (50) and camaraderie  which strengthened his right to rule.             The features of the main character in the epic are compatible to run a city which was regulated by deities.  The people are at peace that their kingdom will not be easily penetrated by warfare or profoundly cursed by gods.  They can rely to Gilgamesh to do the fighting to outsiders or negotiating to gods as the need arise.  They can focus more on household requirements like livelihood, raising children and develop the local economy.  With this, social order was met.  Thinking of the reverse, when people are equal in power and homogenous in status without the guide of a ruler and an established kingdom, they are highly vulnerable to threats from the outside and the gods would curse without mercy.  Civilization could be slowly attained because people are limited in their aspirations of development knowing that instability and lack of direction could annihilate their efforts in an instant.             This drive to subordination as determinant of social order, however, was partially shaken by Enkindu who hated the abusive side of Gilgamesh that ignited a collision.  Even Enkindu was lost in the confrontation, the conflict emphasized that dominance should be directed strictly to good purpose alone.  This showed that even a human from the wild is bounded to guard the acts of the ruler to assure that a certain social order does not result to ill-effects like the abusive tendencies of the dominant.  It also exemplified that the dominant-subordinate system would tend to adjust when roles of one another go beyond the rationale behind the creation of the system and deprived the other of substantial power or freedom.  Being the goddess of love, Ishtar retaliated against the refused marriage (50) she initiated partly because it is a deviation from the norm opposite her known status.  Also, the wife of Utanapishtim demonstrated this friction when she urged her husband and succeeded to reward the hardship of Gilgamesh (96) --- apart from the inherent subordination of women.                 The extent and implications of subordination was also enormous in the story.  The decision of the Council of Gods to impose a death verdict to, who had less initiative and participation to the conquest relative to Gilgamesh, illustrated that subordination can justify sacrifice on the part of a subordinate, even its life, to sustain the relative crucial role of the king in the society.  On the other hand, loyal (Utanapishtim) and valuable (Gilgamesh) subordinates in relation to its dominant ruler (Gods) would reward the former by sparing its life and renewing its glory (like Shamash intervention (40) in favor of Gilgamesh against Humbaba) or even bestow eternal life (96) (like Utanapishtim and his wife).                       Further, the subordination of women to sexual needs of men in the epic evidenced that such could be also used to achieve an end aside from the peripheral goal of obtaining the system, as in the case of the trapper’s use of harlot (2) to expel from the endowments of the wild.  In the stance of ferry-based servant, subordination meant less security in terms of tenure particularly means of living. The epic is largely immersed to the dominance of partly-god stature of Gilgamesh.  However, his crown was regulated by the full-blooded gods specifically the Council of Gods.  He had lost bargaining capacity and tamed as a subordinate when his first-ever close friend, as on the verge of death (68) and he had nothing to do to prevent it.    His dominance was eclipsed by the gods who provided guidance and protection to him to continue his reign, and ultimately, the order in the kingdom. In every chapter of the epic, the dominance of gods over men and non-pure gods seemed to be the greatest impediment for Gilgamesh to optimally celebrate the fruits of his dominance over people.  However, the revealing fact of mortality and death seemed to be an overlapping factor behind his vulnerability.  He took much pain and sacrifice to seek the key to immortality.  In the process, he submitted himself to some extent of subordination to eternal life (82, 96).  Although he utilized his status and dominance through self-proclamation to Siduri and Urshanabi , the motive was aimed to immortality and his submission to it.  Due to the blazing desire to end personal subordination of a mortal to death, he underwent the test of Utanapishtim  without doubting of possible deception.  Frustrated, the failed quest confined him back to dominating stance again.  However, this move took away the consolation prize of achieving youth rejuvenation.  The suspicion in the effectiveness of the consolation ended him going home empty-handed.  Chapter 11 of the epic implied that such was an unwise thinking coming from an experienced warrior, celebrated hero and notable king.                                                .  Conclusion              The social order in the epic was achieved through establishing levels of hierarchy in the society.  Subordination, in the likes of Enkindu and his kind including the rest of the people, resulted to ordinary people’s submission of some of their practices under the rule, decision and scrutiny of Gilgamesh because of his domineering attributes.  On the other hand, his rule is neither absolute nor universal as deities are on top of the social system.  This dominance was enforced and permitted to happen, albeit of his partly god status, primarily because of immortality demarcation.  It limits the scope of dominance not only of Gilgamesh but also all mortals when speaking of their subordination.  Dominant and subordinate individuals alike have similar bottom-line, which is death.  This provides disincentive to the ruler to abuse his power aside from good cause and remind him that such wrong doing would not last for a long time because of limitation in life.  On the other hand, people would tend to respect the ruler’s decision and abide the kingdom’s development projects to maximize their existence in the world and help improve the status of civilization keeping in mind that time ticks away from every crime or rebellion they would ensue against a fair dominant and elite.  Social order is thus seen thorough the mutual understanding and accepted vulnerability of the actors in the society giving rise to peace, and ultimately, prosperity.                    Before ending, it is fitting to quote a character in the Asian movie “Hero” which stated, “All under heaven.”  According to the story, these three words transformed the then vicious imperial army to exercise non-violent and non-fatal way of conquering lands, and eventually, meeting the kingdom’s endeavor and achieving its ends.  Finally, being dominant, subordinate and mortal keeps everyone in social order and live each lives to fullest enjoyment.  However, to install abusive and rebellious acts to power or solicited inferiority will lead to disorder and doom of a society.

Reflections From The Epic of Gilgamesh

Introduction Dominance and subordination is synonymous to leader-follower scheme wherein the relationship is...

INTERNATIONAL BUSINESS LAW

INTRODUCTION Rules for Offer and Acceptance Agreement involves the changing of negotiations into an agreed bargain or deal. The negotiating process is definitely not regarding contracts and the law has the responsibility to determine when that process has stopped and the stakeholders have reached finality in their commercial arrangement. The traditional process to finding the answer to the question, “Have the parties reached agreement?” is to simply implement the principles of offer and acceptance (, 2001). When a properly stated offer has been made by one party and is amenable to the other party, then there is an agreement reached at the moment of acceptance or, more accurately, at the instance of communication of acceptance. This apparently very easy process raises a number of issues which must be analyzed, such as: Was an offer made at all? Who initiates an offer in various types of transactions, for instance, in auctions or tenders? Is a price list considered an offer? Can an advertisement be considered an offer? Then it is also important to answer critical questions about the process of acceptance, such as: does acceptance essentially have to be communicated? Can a person possibly accept in silence? Can a party accept by just getting on with the commercial task?     Consideration It has already been proved that consideration includes the process of exchange. There are important rules regarding what the composition of an exchange and what things can possibly be exchanged in order to be qualified as a good consideration (, 2002). It is important to analyze these rules as well as investigating also the requisites of offer and acceptance. The relationship between the principles of offer and acceptance on the one hand and the principles of consideration on the other hand is that the process of exchange which constitutes an acceptance of an offer - in short an exchange of promises is brought about by acceptance - is at the same time the essential exchange which constitutes the consideration. All this issues will become simpler when the analysis of the principle of consideration is accomplished (, 2001). Revocation of an Offer It has already been discussed that an offer may come to an end in different ways. So long as this occurs prior to acceptance then a contract cannot come into form. And if somebody would withdraw an offer after acceptance, this would be classified as a breach of contract. There are different ways in which an offer may come to an end. The five major ways are the following: First, the party who made the offer may withdraw the offer. But this can not possible if the party who made the offer has already promised not to revoke the offer for a specified period of time. This is commonly referred to as an option. Secondly, the offer may lapse naturally, either because the party who made the offer makes it definite that it will lapse after a specified period time or because it has become null (. 2001). Thirdly, it is possible to indicate in the offer that it will come to an end if a specified situation occurs or does not occur. Fourthly, the offer may lapse on the death of the party who made the offer. Finally, the offer may become null if it is not approved by the party who made the offer, for instance when that party performs an offer to counter the first. The party who made the offer may revoke the offer at any given time prior to acceptance. This can be possible even if he or she has mentioned that it will remain open for a specified period of time (, 1998). The following cases discuss about getting the message across, that is, how does the party who made the offer make sure that the message that the offer is withdrawn can get through them? The simple answer is that the message must get through - actual communication is important.     1.         What law will govern this contract? Can the parties agree that CISG will govern their relationship? The parties involved can definitely agree that CISG will govern their relationship. As stated in  of CISG, (1) This Convention applies to contracts of sale of goods between parties whose places of business are in different States: (a) when the States are Contracting States; or (b) when the rules of private international law lead to the application of the law of a Contracting State. Also, according to  of the CISG, (1) The parties are bound by any usage to which they have agreed and by any practices which they have established between themselves. (2) The parties are considered, unless otherwise agreed, to have impliedly made applicable to their contract or its formation a usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned. 2.         The contract involves the sale of goods (including parts and assembled products) as well as the supply of services. Can the CISG regulate the entire contract? If not, what parts?   There is no problem even if the contract involves the sale of goods (including parts and assembled products) as well as the supply of services. Therefore, CISG can regulate the entire contract. As stated in  of the CISG, This Convention does not apply to sales: (a) of goods bought for personal, family or household use, unless the seller, at any time before or at the conclusion of the contract, neither knew nor ought to have known that the goods were bought for any such use; (b) by auction; (c) on execution or otherwise by authority of law; (d) of stocks, shares, investment securities, negotiable instruments or money; (e) of ships, vessels, hovercraft or aircraft; (f) of electricity. 3.         In the event that the parties agree that CISG will be the governing law, what aspects of the contract will be governed, nevertheless, by local law? First and foremost, it is important for the MBI and its subsidiaries to really arrive at an agreement that CISG will be the basis for the formation of contracts. This is a simple step, but the hardest to accomplish most of the time. As stated in  of the CISG, This Convention governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract. In particular, except as otherwise expressly provided in this Convention, it is not concerned with: (a) the validity of the contract or of any of its provisions or of any usage; (b) the effect which the contract may have on the property in the goods sold. 4.                  If the parties agree that the CISG will be the governing law, how will the provisions of the CISG be interpreted in the event there is some dispute about their meaning?  If some provision of the contract is unclear, how will it be interpreted? In this scenario, it is definitely important for the MBI and its subsidiaries to have a clear understanding of the international sales rules under CISG once they all agree upon its usage. This will prevent any unnecessary misunderstanding amongst themselves as well as their interpretations of the rules. However, there are cases when misunderstanding or misinterpretations of rules become unavoidable. In such cases, according to  of the CISG,  (1) In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade. (2) Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law. 5.                  Must the contract be in writing? Must it be under seal? According to  of the CISG, A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses. 6.                  If one of the parties makes an offer and promises to keep it open for a period of 30 days, can it later change its mind and withdraw the offer? The only critical part in this scenario is the period or duration of days where the offer remains open. If for example, the party who made the offer changed his / her mind after the 30 day period, then definitely the withdrawal process cannot be applied. According to  of the CISG, (1) An offer becomes effective when it reaches the offeree. (2) An offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer. 7.                  When does an acceptance become effective? Does it matter if the acceptance calls for minor changes in the terms contained in the offer? To put it simply, the acceptance becomes effective once both parties arrive at a certain contract agreement. Minor changes do happen from time to time as far as contract stipulations are concerned. This is a normal occurrence, but for as long as both parties are reminded of the minor changes, then they are not considered as significant hindrances towards acceptance.  of the CISG states,  (1) A statement made by or other conduct of the offeree indicating assent to an offer is an acceptance. Silence or inactivity does not in itself amount to acceptance. (2) An acceptance of an offer becomes effective at the moment the indication of assent reaches the offeror. An acceptance is not effective if the indication of assent does not reach the offeror within the time he has fixed or, if no time is fixed, within a reasonable time, due account being taken of the circumstances of the transaction, including the rapidity of the means of communication employed by the offeror. An oral offer must be accepted immediately unless the circumstances indicate otherwise. (3) However, if, by virtue of the offer or as a result of practices which the parties have established between themselves or of usage, the offeree may indicate assent by performing an act, such as one relating to the dispatch of the goods or payment of the price, without notice to the offeror, the acceptance is effective at the moment the act is performed, provided that the act is performed within the period of time laid down in the preceding paragraph. 8.                  What criteria will be used to determine if a party has breached?   Breaching of contracts is never a happy situation for both parties concerned. But there are times when suddenly one party feels unable to stand up to the merits of the contract, and therefore the only solution left is for that party to declare the contract as null and void. Chapter  of the CISG states that, A breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result.   9.                  If a party does breach, can the other parties avoid their obligations to perform? Can all of the provisions of the contract—including the choice of law clause—be avoided? Chapter  of the CISG states that, A declaration of avoidance of the contract is effective only if made by notice to the other party.   10.             If a party fails to perform, can a court intervene and order the party to perform? Are there any limits on what a court may order a party to do? In the situation of MBI where it has subsidiaries in Ghana which abides by a civil law legal system and the other in Nigeria which has a common law legal system, then a court can definitely intervene because they are not under the jurisdiction of the CISG.  of the CISG states that, If, in accordance with the provisions of this Convention, one party is entitled to require performance of any obligation by the other party, a court is not bound to enter a judgment for specific performance unless the court would do so under its own law in respect of similar contracts of sale not governed by this Convention.   11. If nothing is said in the contract, where must the seller deliver the goods? This is a very unusual scenario, but it does happen because of negligence of both parties concerned. As part of a well-constructed contract, the destination of delivery for a product or service is always an integral part of it. Missing this information is simply a terrible mistake. Fortunately, the CISG has a rule for such weird situations, and according to Chapter  of the CISG, it states that, (1) If the seller, in accordance with the contract or this Convention, hands the goods over to a carrier and if the goods are not clearly identified to the contract by markings on the goods, by shipping documents or otherwise, the seller must give the buyer notice of the consignment specifying the goods. When must delivery be made? Delivery of the products or goods is always crucial, especially if the products involved are perishable or hazardous if stored for a long time. Based on the contract, there must have been a place, an exact date and time of delivery.  states that, The seller must deliver the goods: (a) if a date is fixed by or determinable from the contract, on that date; (b) if a period of time is fixed by or determinable from the contract, at any time within that period unless circumstances indicate that the buyer is to choose a date; or (c) in any other case, within a reasonable time after the conclusion of the contract. Where and when must documents of title be turned over?  states that, If the seller is bound to hand over documents relating to the goods, he must hand them over at the time and place and in the form required by the contract. If the seller has handed over documents before that time, he may, up to that time, cure any lack of conformity in the documents, if the exercise of this right does not cause the buyer unreasonable inconvenience or unreasonable expense. However, the buyer retains any right to claim damages as provided for in this Convention. 12.       What must a buyer do to reject nonconforming goods? Nonconforming goods are unacceptable. It is a shame for such things to exist after an agreement or acceptance has been made by both parties. Again, this situation clearly reflects that one party is not sincere in the process of abiding by the agreed rules of the contract. Nonconforming goods are defined by the CISG, in , as follows: (2) Except where the parties have agreed otherwise, the goods do not conform with the contract unless they: (a) are fit for the purposes for which goods of the same description would ordinarily be used; (b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgement; (c) possess the qualities of goods which the seller has held out to the buyer as a sample or model; (d) are contained or packaged in the manner usual for such goods or, where there is no such manner, in a manner adequate to preserve and protect the goods. The buyer’s obligation, on the other hand, is stipulated in of the CISG, which states, (1) The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances. (2) If the contract involves carriage of the goods, examination may be deferred until after the goods have arrived at their destination. (3) If the goods are redirected in transit or re-dispatched by the buyer without a reasonable opportunity for examination by him and at the time of the conclusion of the contract the seller knew or ought to have known of the possibility of such redirection or re-dispatch, examination may be deferred until after the goods have arrived at the new destination. In order to reject non-conforming goods, the buyer must do what  says, The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it. 13.       When must the buyer make payment?  of the CISG states that, The buyer must pay the price on the date fixed by or determinable from the contract and this Convention without the need for any request or compliance with any formality on the part of the seller.   14.       At what point in time will the buyer become liable for any accidental loss or damage suffered by the goods?  of the CISG states that, Article 66 Loss of or damage to the goods after the risk has passed to the buyer does not discharge him from his obligation to pay the price, unless the loss or damage is due to an act or omission of the seller. Article 67 (1) If the contract of sale involves carriage of the goods and the seller is not bound to hand them over at a particular place, the risk passes to the buyer when the goods are handed over to the first carrier for transmission to the buyer in accordance with the contract of sale. If the seller is bound to hand the goods over to a carrier at a particular place, the risk does not pass to the buyer until the goods are handed over to the carrier at that place. The fact that the seller is authorized to retain documents controlling the disposition of the goods does not affect the passage of the risk. (2) Nevertheless, the risk does not pass to the buyer until the goods are clearly identified to the contract, whether by markings on the goods, by shipping documents, by notice given to the buyer or otherwise. Article 68 The risk in respect of goods sold in transit passes to the buyer from the time of the conclusion of the contract. However, if the circumstances so indicate, the risk is assumed by the buyer from the time the goods were handed over to the carrier who issued the documents embodying the contract of carriage. Nevertheless, if at the time of the conclusion of the contract of sale the seller knew or ought to have known that the goods had been lost or damaged and did not disclose this to the buyer, the loss or damage is at the risk of the seller.   15.       What duty does a party have to keep the damages caused by another party’s breach to a minimum? of the CISG states that, Damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract.   16.       What must a seller do if it wishes to seek damages—avoid the contract or obtain specific performance? As stated in  of the CISG, If the contract is avoided and if, in a reasonable manner and within a reasonable time after avoidance, the buyer has bought goods in replacement or the seller has resold the goods, the party claiming damages may recover the difference between the contract price and the price in the substitute transaction as well as any further damages recoverable under article 74.   17.       What must a buyer do if it wishes to seek damages—avoid the contract or obtain specific performance? As stated in  of the CISG, If the contract is avoided and if, in a reasonable manner and within a reasonable time after avoidance, the buyer has bought goods in replacement or the seller has resold the goods, the party claiming damages may recover the difference between the contract price and the price in the substitute transaction as well as any further damages recoverable under article 74.   18.       What excuses are available to a breaching party to justify its non-performance?  of the CISG states that, 1) A party is not liable for a failure to perform any of his obligations if he proves that the failure was due to an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences. (2) If the party's failure is due to the failure by a third person whom he has engaged to perform the whole or a part of the contract, that party is exempt from liability only if: (a) he is exempt under the preceding paragraph; and (b) the person whom he has so engaged would be so exempt if the provisions of that paragraph were applied to him. EVALUATION Based on the case study of Mega Branch Industries (MBI), the rules for international sales as stipulated under the CISG achieve the dual aims i.e. the rules are certain enough to establish when a contract is formed yet flexible enough to cater for varied arrangement to the following extent: 1) Ample time is saved. Since the rules for international sales are certain, defined and very clear, the definite result is the optimal usage of time. Since the objectives are known, time allotted to achieve these objectives is equally distributed and adjusted depending on situations. Otherwise, the time that will be used on achieving these objectives will exceed more than what is needed. 2) High quality service is maintained. The CISG rules for international sales achieve its dual aims by helping improve the quality of contract management output. Without the rules, the contract management will be put into total disarray because of confusion. 3) Clarity of the contents and merits of the contract is maintained. The CISG rules for international sales help achieve the dual aims in terms of making the content of the contract more concise and accurate. The stakeholders involved will have an easier time reaching an agreement because the approach will be direct to the point as specified by the defined rules and objectives. Without the rules, the content of the contract will be disorganized and difficult to understand (. 2001). 4) Unnecessary expenses and costs are prevented. The CISG rules for international sales help achieve the dual aims in terms of helping to make the contract become more cost-effective.  Expenses on unnecessary components of the contract can be avoided. Without the rules, the valid contract formation effort will result into a lacklustre spending that will bring forth no good results at all. 5)     A sense of direction is established. The CISG rules for international sales help achieve the dual aims in terms of providing a sense of direction by virtue of the establishment of the valid contract. The rules will provide the framework towards giving a sense of direction to the contract to be pursued by the stakeholders involved.       REFERENCES

INTERNATIONAL BUSINESS LAW

INTRODUCTION Rules for Offer and Acceptance Agreement involves the changing of negotiations into an agreed bargain or deal. The negoti...