Blue Chi’s

The crazy frog annoying ringtone has revolutionised the definition of music entertainment. The stupid ringtone that has been advertised like crazy all over the UK media was recently released as a single and has instantly topped the charts selling more than ColdPlay. I don’t think anyone needs a better proof of how bad the people’s taste of music is in the UK…

For more info read this. And if you’re sad enough, you can buy the single from here.

An ROT clause is no magical clause, it is a basic conditional agreement to transfer the property in the goods to the buyer only upon the payment of the price. This is based on section 17 of the Sale of Goods Act 1979 which says that the title in the goods can transfer when the two parties intend to make it pass. An ROT gives some sort of security against the insolvency, for if this happened before the price is paid, the seller will be able to claim the possession of the goods as they are still his.

ROT clauses permit the buyer to use the goods in the process of manufacture and also resell the goods in the course of a business. In reality, even if this wasn’t so, a non-owner could still transfer property to a purchaser without notice under s25 SGA and s9 FA.

The condition upon which the title would transfer is usually the payment of the price of the goods, but some sellers might allow the transfer to take place upon the payment of all the debts standing between the parties. This type of clause is called an “all moneys”.

What can an ROT claim? 1 – Goods, 2- Products made from the goods, 3- Proceeds of the sale of these goods.

1 – Goods: This is the most basic right that an ROT may claim, no complexity arises where the goods remain in the same form in which they were sold as long as they are still identifiable as those of the seller. In the case of Cough Mill Ltd v Martin the seller managed to claim the goods that were not used.

2 – Products made from the goods: The seller can claim his goods only if they are still identifiable in their original form and are readily separated. An example of this is the case of Hendy Lennox Ltd v Graham Puttick Ltd the seller sold diesel generation set that was easily separated from the engines made by the buyer. If the buyer incorporates the goods into a new products in an irreversible process the seller’s title is extinguished, this happened in the case of Borden v Schottish Timber Products Ltd. If any interest existed in that situation it would have existed as a security right which is required to be registered. A different form of incorporation could be by attaching the goods to real property so that it becomes part of the property and loses their own identity, this happened in the case of Re Yorkshire Joinery Co Ltd.

3 – Proceeds of sale: A simple ROT clause does not expressly extend to a proceeds of sale. In a bailment relationship, if a bailee sells goods with or without the bailor’s consent, common law and equity will allow the owner to trace into the proceeds of sale. The case of Romalpa the seller and the buyer were in a bailment relationship making all the money received by the buyer through the disposal of the goods in question belong in equity to the seller and were actually in this case to be paid in a separate bank account which is to be held on trust for the seller. The actual Romalpa case is the only case in which a seller managed to claim the proceeds of the sale. The court limited this effect by identifying similar relationships as ones generating a charge that would be void for non-registration. In the case of Re Bond Worth, the contract retained an equitable and beneficial ownership of the yard and the proceeds of sale of goods made with yarn, but because the buyer was able to just pay off the amount to conclude the transaction and because the sellers were not entitled to claim any excess money made through the sale, this transaction was considered as a security charge that was void for non-registration.

Nothing can match the reflective metallic iPod remote, all the way from the stylish perfume like packaging and to the touch of the buttons and the small green little hold-indicator; you have to see the iPod remote to the actually realise how beautiful it looks BUT you also have to actually see it in practice to realise how impractical it is.

The problem of the remote is not its being, but in the fact that Apple does not seem to understand that we would have to attach it to some headphones to use it. The collective length of the two accessories together is taller than me standing, that’s more than 180cms, I can tie the iPod to my ankle and still easily manage to wear the earbuds and have the remote somewhere close to my hands. I first thought that I would have to use the other headphones that came with the remote, but there were identical to those that come packed with the iPod, I think that it’s seriously so stupid of Apple not to have the headphone that comes with the remote shorter than the average headphone so that we can actually clip somewhere where can access it quickly and at the same time not need to tie the rest of the headphone wire around one’s neck. It is way too long, I just hope that actually works better with a thobe (dishdasha)…

Services are governed by fault-based liability, unlike goods which are governed by the notions of strict liability. This means this a service supplier will be held liable for a defect only if it can be proved that he was at fault, unlike defective services for which the seller would be liable whether or not he was at fault. The liability for the service could exist whether it was supplied under a contract or not, as a claim could rise under tort in addition to the contract.

There are two main categories of services, the first are those services that involve the provision of possession or ownership of goods or materials (require skill and material, eg. plumber, electrician), and other ones that do not involve such provision (pure services that require skill only, eg. Doctors, lawyers or leisure, transport and cleaning). If the ‘material’ supplied under a contract for work and materials is defective, the issue would be considered as a defective product and not a defective service.

As stated initially, the claim against the supplier could be based on contract or tort, both claims could exist concurrently and the claimant would have to choose a path to sue.

1 – Contractual Liability, a contract for a service is unlike a contract of the sale of goods in that it could be supplied under any form of consideration and not only money. These contracts are governed by the implied terms of the Supply of Goods and Services Act 1982. These implied terms include the provision of the service with reasonable care and skill, the performance of the service within reasonable time, and the that consumer will pay no more than a reasonable charge for the service.

The Act defines a service in s12(1) as a contract under which a person (the supplier) agrees to carry out a service). It is required to differentiate between contract for a service and a contract for work and materials, as the contracts for work and materials include an elements of goods and skill. If the product is defective, the supplier would be strictly liable, but if the service was defective, the supplier would only be liable if he did not supply it with reasonable care.

The distinction between contracts of sale of goods and those for work and materials can be very difficult. The test for the distinction is in finding what the substance of the contract is. If the contract was substantially for the exercise of skill it is one for work and materials and if it was one which is intended for the transfer of ownership then it is one for the sale of goods. The court has decided that the making of a painting is a contract for a service (Robinson v Graves), in another occasion, the court held that a meal in a restaurant was a contract for the sale of goods. (This probably depends on the chef and actual meal.) Anyway, what is considered as goods could also be difficult to tell, in a blood transaction service, the court held that this there was no goods in the transaction (Perlmutter v Beth David Hospital), in another contract was a cow serum was supplied, the court held that it was a product (Dodd v Wilson). The only possible distinction between these two cases is that human blood is not usually a material for commercial trading.

2 – Tortious Liability, For non-contractual relationships, the supplier might still owe a duty of care. The duty could arise even in a pre-contractual situation as a form of a representation. It is possible to sue in tort even when contractual liability exists, there is a difference in the time limitation between the two forms of liability, in contract, a person can claim for his rights within six years from the time of the breach, while in tort, the period starts from the time damage was sustained.

Regardless of how the claim is established, the duty is the same, the supplier has to take exercise reasonable care and skill in the provision of his service, under contract, this is implied by s13 of the SGSA 1982, while in tort this is established by the decision of Donoughue and Stevenson either as a variety of manufacturer’s duty or as a neighbour.

For a duty to arise, a special relationship between the two parties has to exist, this is called proximity. It is usually easy to establish proximity in straight forward transactions, but that is not the case where the consumer has not requested the service but nonetheless has relied on it. In this sort of situation, as in Smith v Eric S. Bush, a surveyor was liable for his negligence even though there was no privity between the two parties, because the surveyor was aware that such a person would rely on the evaluation (Tort). For contractual liability to arise, the consumer must’ve provided payment and instructions for the service.

The required standard of care is that of a reasonable competent member of the relevant trade. (eg, a jeweler is expected to act as a reasonable jeweler not a doctor, case Phillips v William Whiteley Ltd.) Private suppliers will still be abject of tortious duty to take reasonable care though the standard of care will be lower as he is not acting in the course of a business. The level here is one of a reasonable amateur. (case Wells v Cooper)

There is no duty to actually succeed in the service, a supplier does not guarantee a result and he is not liable for the outcome result as long as they perform the reasonable amount of care and skill. A famous case is Thake v Maurice where a woman got pregnant when her partner had a sterlisation operation.

The general duty is to supply the service in a reasonable time, but if the supplier has contracted to supply the service on a specified date, failure to comply with that date is a breach of contract, but in non-commercial contracts time is not usually treated as being of the essence.

I have never experienced such an awesome customer service in my life before, after I purchased my iPod from Apple.com/uk I realised that there was a student offer of about 10% of the final price, I emailed apple AFTER I received my iPod that I did not know about the student offer and they instantly replied saying that they will refund me. Something went wrong with one of my ear buds, I emailed Apple to see what they can do about their manufacturer’s guarantee, they instantly replied saying they are sending me another one, without even asking me to give back my previous ear bud, in two days, my package arrived, but because I was not at home, a person that lives downstairs (he doesn’t even know my name) was out when the delivery man came, so this guy thought he’ll just sign for it and LEAVE IT OUTSIDE, and guess what? I couldn’t find it when I came back, I didn’t even know that it actually arrived, but I thought I’ll track where the package reached and to my surprise I read that it was signed for by the guy downstairs, I went downstairs and asked the guy if he signed for a package or something, he said: “Yes, I signed for something, it seemed very important, and I left it outside”? I didn’t spend a lot of time with the fool, someone must’ve have stolen it already. I didn’t know what to do now, so I just went back upstairs and emailed apple telling them the story, they replied saying “We sent you another one”.

I am extremely pleased with Apple’s service, their products are worth every single penny you pay. Go Apple!

Out of topic, obviously I had to get myself the Sonic Blue iSkin! Sadly it almost covers completely the custom engraving on the back of the iPod, they should make a cool skin that is more translucent that this one, it is not impossible to see the engraving, but they should alter the design just to make it clear.

I’m done. I had my exam this morning, I did not stress myself much, had a good sleep and wake up at six to have a quick recitation of case names and some points for my intended essay. The plan was to write an essay question on corporate liability and just answer three problem questions along with it, I cannot say that it went well, every thing came as planned, but there was not much time, we had to answer four questions in three hours and even though I started answering the first question without even reading any other question, it still took me a hour to decide to move to the next question, my first problem question answer was good, the second was okay, but the third was complete BS. I don’t think that I can fail, so it doesn’t really matter. I have wrapped all my criminal law stuff, threw some papers in the bin, organised the file, and made up my mind to move on, I went to the library to get a new book and I am going to go back in the evening as well.

All through out history and even currently, people seem to be only able to relate criminal law and crimes to bad deeds made by certain evil individuals. Crime seems to be a sort of immoral activity that a person commits. While in reality the most dangerous crimes are those committed by corporates. Criminal law regulation of health and safety measures is probably the thing that saves our lives the most, but all of these prohibited activities in these Acts are labeled offences and not even crimes such showing how we think of these as a lower form of unlawful activities. The UK is a country where the life of the community maintained by activities of corporates, we cannot live without them any more and they almost control our lives. The criminal law has sought to regulate the activities of the corporates using various doctrines and principles.

Why do we need special principles to prosecute corporates for their crimes? A corporate is a legal fiction, it is not like a normal person that has a mind of his own or a hands that he can act with. A corporate cannot kill or steal in the traditional sense, but this does not mean that there are no crimes committed by corporates. The Interpretation Act 1978 has established that in every act a person includes a body of persons corporated or unincorporated unless otherwise indicated in the act. This means that a corporate may be criminally liable even though it has no physical existence and cannot act or think except through its directors or servants.

This still does not mean that a company could be convicted of any crime, as some crimes cannot be committed because of their very nature, examples of these are rape, incest and bigamy. This does not mean that a company cannot be held as an accessory for such an offence. In addition to the previous exception, a company cannot be convicted of a crime that is only punishable by a physical penalty such as death or a life imprisonment. Corporates are punished by the imposition of a fine and/or a compensation order.

There are four main ways of convicting a company for committing a crime: (1) Vicarious Liability, (2) The Identification Principle, (3) Personal Direct Liability o, and (4) the Meridian Decision.

1- Vicarious Liability: Unlike Tort, there is no such general principle of vicarious liability in which any employer would be held liable for torts of his employee as long as they are made within the course of employment. The traditional way of convicting an employer is holding him liable as an accessory to a crime, case Huggins > Warder allowed turnkey to murder a prisoner.

Anyway, there are exceptions to the general rule so that an employer would be held liable for his employee’s offences. There are three situations where the employer would be convicted vicariously, 1 – when the act expresses vicarious liability, 2 – when there is a delegation of responsibility, 3 – as a result of judicial interpretation of offences of a regulatory nature.

There are some general points that are examined upon the creation of vicarious liability of an offence, these include the nature of the duty laid down, the person upon who the duty is imposed, the words used, the person whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed.

What is the delegation principle? It is an exception to the general rule for offences that are not of strict liability where the mens rea would have to acquired by the employer to convict him. Under this principle, the mens rea of the employee would be sufficient to convict the employer where it can be established that the latter had delegated his responsibility to the former. The creation of this principle was required to catch cases where the offence could be committed by persons of a particular status.) An example of a case where the principle took effect is Allen v Whitehead where the manager let prostitutes making the licensee liable as he put another person in his position so that to represent him.

What is required for delegation is not always clear, what is required is a complete transfer of authority and responsibilities to another person AND the absence of the licensee from the premises. In Winson partial delegation was not sufficient. But in Howker v Robinson the barman’s offence was assigned to the licensee even though he did not have any real delegation, it is widely perceived that this case is wrongly decided.

There are three limitations to the principle, the first is obvious that the employer would only be responsible for acts made in the course of employment. The second limitation is that there cannot be vicarious liability for aiding and abetting, and the third is that there cannot be vicarious liability for attempts.

2 – The Principle of Identification, unlike vicarious liability, this is a direct corporate liability where the company is liable for its own acts and not those of its servants or agents, because corporate liability is a fiction, acts and thoughts of a human person are converted into those of the corporation. As in Tesco v Nattrass, this is not a question of vicarious liability, the person is not acting as a servant, or agent. He is an embodiment of the company, he speaks and hears through the persona of the company and his mind is the mind of the company. If his mind is guilty the company is guilty.

For the identification principle to take place, the jury must find a person who is regarded as having acted as the company, the corporation will only be liable where the person identified with it was acting within the scope of his office. In determining whether a person acted as the company or simply as a servant, a distinction has to be made between those who represent the mind of the company and those who represent its hands.

The fact that a person is involved in brain work rather than manual work is not the test, what is requires is that such a person represents the directing mind and will of the company and controls what it does. In Tesco v Nattrass the manager was not a person who acted as the company, no delegation by the board of directors of any of their managerial functions in respect of the affairs of he company to the branch manager. He had to take all the directions from the company and take orders of his regional and district supervisors.

Ironically, the identification principle operates not only to establish liability but it can excuse liability for certain regulatory offences where a 3rd party defence is available. In addition to this, there are four main problems with the principle of identification:

i – The larger and more diverse a company is, the more likely it is that it will be able to avoid liability, this is because the real minds of the company that control it are way too high in the hierarchy of the company and they are completely isolated from the smaller works that actually have a direct contact with the final consumer. It is almost impossible to have a person with the required amount of authority to have the specified mens rea of the offence.

ii – The principle does not fill well with many regulatory offences which do not require mens rea but have defences of the existence of a 3rd causing party. These should be dealt with using vicarious liability and not the identification principle. (eg. Tesco v Brent where a cashier sold an over 18 move it a kid, the cashier was under the control of his employer, the defence was not available.)

iii – The company will only be liable when a person, himself, individually would be liable in that he had the mens rea of the offence, this does not reflect the understanding of the modern corporate existence where an error could be caused by the error of different multiple individuals in the company as each would have a different degree of knowledge. The principle of aggregated mens rea was rejected and is not applicable under criminal law.

iv – Maridian diluted the principle.

3 – Personal Direct Liability, this is a basic form of liability created by the act as a duty that cannot be delegated. The offence can only be committed by an omission. eg, Health and Safety at Work.

4 – The decision in meridian, in this case the court managed to convict a corporate because of a the actions of a certain team that did not constitute the directing mind of the company. The court established the attribution principle on the basis of the statutory language, its contents and the underlying policy which would be defeated if knowledge on the part of those who constituted the directing mind of the company was required to be proved. This special rule would only apply where a statute was intended to apply to companies and application of the identification principle would defeat the purpose of the statute.

The offence is incitement is one that involving encouraging another person to commit an offence, it is a policy based offence that aims to prevent crime before occurring.

The actus reus required for incitement is proof of that the accused by means of encouragement, persuasion, threats or pressure sought to influence another to commit an offence. This does not have to be aimed to a specific person (case Most where a newspaper was convicted of incitement that was made to THE WORLD), the incitement does not have to be explicit as it can be implied (case Invicta Plastics Ltd v Clare where the maker of a some unlicensed apparatus encouraged the using of the apparatus), another implied encouragement is the case of Goldman where a person sent a letter to a porn magazine asking them for amature videos suggesting the commission of a children sex.

The commission is committed once it comes to the notice of the person whom it intends to incite. The accused must intend that the offence incited be committed and that any consequences in the actus reus result.

One cannot incite to do an act which is mistakenly believed to be criminal, of D KNOWS that the offence CANNOT be committed, he will not be convicted as he would not have the mens rea. If the crime is impossible to commit because of the inadequacy of the means, they would still D would still be convicted. (CASE?)

Homicide is the generic name used to label all forms of unlawful killing, the two forms that we are involved with here are murder and manslaughter.

Murder is unlawful homicide committed with malice aforethought. The penality for murder is the mandatory life imprisonment. The required mens rea for the offence is the intention to kill or the intention to cause grevious bodily harm, regardless of whether D foresaw death or not). Grevious bodily harm has the natural meaning of really serious.

Manslaughter covers most of the cases of unlawful killing which do not fall under murder.The penalty for manslaughter is at the discretion of the court, it could vary from absolute discharge to life imprisonment. There are two types of manslaughter, voluntary (D killed with malice aforethoughts and could be in theory be convicted of murder, but because of some mitigating factore reduced his culpability) and involuntary (unlawful killing without malice aforethought, but still a state of mind which hte law treats culpable).

1-Voluntary Manslaughter
(A) Provocation: The defence of provocation reduces the offence of murder to manslaughter. D must be provoked to lose his self control. There are two elements in the defence, subjective and objective. The subjective element requires D to be actually provoked to lose his self control, and the objective element questions if the reasonable man would be provoked in the same way and would’ve done as D did. The jury is the one to answer the second question.

The provocation does not have to be illegal and may be something as natural as a baby crying (case: Doughty)

The subjective loss of self control does not have to be complete to the extent of not knowing what was done, but D would have to actually lose his self control, otherwise the defence would automatically fail even if the reasonable person would have lost his self control at that situation.

[I've written more than 1000 words that got deleted by mistake, I cannot bother writing these once more.]

As the exams are approaching really quickly (my first exam is next Monday), I think that I owe the readers a little detail on how the system works of here. Unlike the other majors of study, in Law, we take a very limited number of subjects each year. For the same number of credits, 120, an Engineering student could take up more than 10 modules and sit the same number of exams every year, while a Law student in my university could currently have a maximum number of 5 modules and site the same number of exams at the END of the year only.

While the whole story depends on your choice of modules, a regular choice would be four modules each worth 30 credits. Some students take three modules in their last year and decide to write a dissertation to complete the 30 credits left, this means that this student would have to sit only three examination only in the entire year. It is worth mentioning that there are modules, such as Sociology of Law, which do not have any exam papers and are completely graded on the basis of two written essays. Did I also mention that on average, each module has two weekly hours of lectures only and a one hour long tutorial session every two weeks. This means that on average, a student only has eight lectures weekly and two tutorial session every week. Of course attendance of lectures is no mandatory.

At first instance, this might sound like the easiest of all majors, a maximum of five exams per year, and only eight hours of school every week, who on Earth could dream of a more relaxed timetable? The truth is that for each tutorial session we are expected to do an average of 15 hours of reading, which basically means that you have to go and study everything on your own. The quantity is massive and the content could be seriously complex. We take a very small number of modules because the actual weight of our topics is massive.

Unlike many students who study Law in the UK, I have made the decision not to take the subjects required by the Law Society in the UK, which means that my degree would not qualify me to practice as a lawyer in the UK without taking a special qualifying course. This would not matter to me because I have no intention of practicing in the UK. I am studying this year Intellectual Property, Consumer Law, the Sale of Goods and Agency, and Criminal Law. Each of these modules is worth 30 credits. I have submitted a 25% essay for IP, Consumer and SoGA, and now I have to sit a 75% exam for each of these modules, in addition I also have to sit a 100% Crim exam. (Those %s are in relation to the 30 credits of the module).

Most of my modules this year are topic based, due to the limitation of time in the examination time, we are required to answer 3 questions only in the exam (except for Criminal which is a 4 question exam, but these are to be answered in the same time period as the others, 3 hours!). In most of our exams, except for Criminal, there isn’t usually any overlap between the various topics within the module in each question, this means, that if we for example have 10 topics in the module of Intellectual Property, and we have 10 questions in the exam, each question will involve one topic from the syllabus, and the fact that we have to answer three questions only a smart student could get away by studying only three topics, but in reality, the number of questions is usually lower than the number of topics taught in the course, this means that you would have to study a higher number of topics than the number of required answers. For IP, Consumer and SoGA, I am going to revise only four or five topics, while for Criminal Law I am obliged to study the whole syllabus as a problem question usually involves all the different topics taught in the course.

My Criminal Law paper is on the 23rd of May, the rest of my exams are on the 4th, 6th, and 8th of May. I am going to spend the whole of this week on Criminal, and then spend the 10 or so days on the other subjects which I have already touched a little bit previously anyway. Let’s see how it goes!