S.85 of the Copyright,Design And Patent Act Of 1988 made provision for the right to privacy in photograph or film which has been commissioned for private and domestic purpose.
The legal issue still to be resolved by the court applies in the case of The Mail Newspaper PLC V Express Newspaper PLC,where the matter was whether husband could grant exclusive right,as it appeared that the husband and wife were joint owner of the copyright in their wedding photo.
The argument in the matter above was if the wife consent was required,yes.This because she is a joint owner and even though she has not given her consent because she was not in position to do so,the court went ahead to give the husband right.
The legal reasoning is that since the wife has not been declared dead,is not proper for the court to hold its decision on the matter in issue?
What will happen if the wife in question later recover for her state and ask for a revisit of the matter?
I strongly beleave that the court was hasty in its decision.
Saturday, November 20, 2010
Monday, November 8, 2010
FREE ON BOARD CONTRACT,NATURE,ADVANTAGES AND DISADVANTAGES.
INTRODUCTION
The nature of free on board(fob)contract in International trade law has been modified overtime to ensure that the contract of sale between the seller and the buyer are followed to the latter and are seen to be binding between parties . This is essay will look at the, nature, advantages and the disadvantages of free on board (fob) contract.
DEFINITION:
The term FOB means free on board and Staughton L J.[1]started that fob contract determines how the goods shall be delivered, how much of the expense shall be borne by the sellers, and when risk of loss or damage shall pass to the buyer. It does not necessarily decide when the property is to pass.
CLASS OF FOB
There are three major classes of fob, as mentioned in the case of Pyrene Co Ltd v Scinda Navigation Co Ltd[2] and they are
1. The Classic Fob: Under the this type of contract, the buyer nominates the ship and where it will arrive, while the seller places the goods on the account of the buyer. The seller receives the bill of lading and transfer to the buyer. The marine insurance is arranged by the buyer, but the seller bears the cost.
2. Fob Contract “with additional service” :Here, all arrangement are made by the seller on the account of the buyer but the buyer unlike the classic fob is not obligated to nominate a suitable ship
3. Fob contract “buyer contracting with the carrier” or Simply fob: The buyer here enters into a contract of carriage by sea directly or through an agent ,he nominates the ship, the seller puts the goods, The bill of lading goes directly to the buyer, usually through the agent.
THE NATURE OF FOB CONTRACT
The seller often makes the contract of carriage. It must be reasonable in terms of the nature of goods and other circumstances, If not when the goods are lost or damaged in the course of transit, the buyer may decline to treat the delivery to the carrier as a delivery to himself or may hold the seller responsible in damages.[3]
This is to say that the seller bears the burden the burden of the goods even though there is an existing contract between the parties involved but the general liability passes to the owner once the goods gets to buyer.[4] The seller has the general property in the goods at the time of the contracting and retains such property throughout the period of carriage. He is normally the proper party to sue on the contract and in tort.[5] However, where the buyer can acquire the right of sue is if he is lawfully the holder of a bill of lading irrespective of whether he has also acquired property in the goods. The buyer can also bring an action on the contract of carriage from the time when he takes possession of the consignment note, or accept the goods or ask the carrier for the consignment note for the goods or for a change to the terms of the contract of carrage.Again,a buyer who has bought goods under certain types of Fob contracts will be under a duty to make the contract of carriage and he will consequently be a party to that contract even before he comes to own the goods under a contract of sell.[6]
ADVANTAGES OF FOB CONTRACT
1. The general rule is that the buyer arranges for the freight and marine insurance, it is inconvenient for the buyer because the seller knows the whereabouts in that country to dispatch unlike the buyer.[7]
2. The buyer has control over the shipping document because he gets to select the ocean carrier and keeps the papers of all the payments made in pursuit of the transportation of the cargo.
3. The seller can easily recover the merchandise before it is on board a vessel especially in cases where the buyer defaults in payment or contract terms.
DISADVANTAGES OF FOB CONTRACT.
1The buyer suffers in the case of loss of cargo or ship in transit. Once the cargo crosses the rail of the ship, whether it gets to the buyer or not he will bear the consequences of whatever happens.
2. The seller has very limited or no possibility of recovering his merchandise after the cargo crosses the rail of the ship.
3. The seller cannot recover the price of the goods where the buyer fails to name an effective ship; his remedy lies only in damages. See the case of Petraco ltd v. petromed International S.A[8]
CONCLUSION
Before drafting the contract, some points must be considered. It must be considered if FBO contract is more beneficial than another type of contract according to subjective situation of the parties, economic climate (fluctuation) and shipping conditions.
The INCOTERM FOB still has an application in some markets, but these are more and more in the minority. Note that the use of an 'on-board' Bill of Lading or mate's receipt could be appropriate in recording the passage of risks under FOB making FOB one of the few terms still unavoidably dependant on such documents.[9]
[1] Mitsui&Co Ltd v Flota Mercante Grancolombiana SA (The ciudad de pasto and The ciudad de Nevia)[1989]1 AC 951
[2] [1954]2QB 402
[3] Sale Of Goods Act 1978 s32(2)
[4] N.kouladis,Principal Of Law Relating To Overseas Trade(Blackwell Publishers,oxford1994)
[5] <http://www/lexisnexis.com/uk/legal/results/docview/displayunit.do?accessed >assessed 1 october2010
Friday, November 5, 2010
IS MENS REA NECESSARY BEFORE CONVICTION?
In criminal law,for there to be a conviction,the court usually assess the mental element (mens rea) and the actus reus( the act itself) of the defendant before conviction can take place.One question still run through my mind and its wether it is still necessary to be wasting the time of the court asking if the defendent still have the mental element when the act of the defendant can be visible before the court.
In the case for robbery,it is reguires proof not only that the defendant intended to steal but also that he intended to use force on a person or to put a person in fear of force in order to steal.
My arguement here is that since the act itself has been accertened,is it necessary to be looking further to know whether he has the mental element?It could be that the defendent had no prior intention or motive of stealing at that moment but it happened in a flash,could he be said that mental element existed in his mind.
Again what happens if it is something over his mind that he(the defendant )had no control over,can the court still convict with mens rea?
I personally think that mens rea should be discarded by our court once the actual event has been assertained..
In the case for robbery,it is reguires proof not only that the defendant intended to steal but also that he intended to use force on a person or to put a person in fear of force in order to steal.
My arguement here is that since the act itself has been accertened,is it necessary to be looking further to know whether he has the mental element?It could be that the defendent had no prior intention or motive of stealing at that moment but it happened in a flash,could he be said that mental element existed in his mind.
Again what happens if it is something over his mind that he(the defendant )had no control over,can the court still convict with mens rea?
I personally think that mens rea should be discarded by our court once the actual event has been assertained..
Wednesday, November 3, 2010
DUTY OF CARE AND THE FORESEEABILTY TEST OF A PREGENANT MOTHER.
The duty of care in tort tends to wonder whether a duty of care was owned to a child damaged by anothers negeligence before its birth..
In Burton v Islington Health Authority,it was held that a duty is owned to the unborn child ,but that duty does not crystallise until the live birth of the child.Also The 1976 Congential Disabilities (civil liability ) Act 1976 went futher to stress that law applies in respect of children born with disiabilty ;and disability is defined in terms of any deformity,diseae or abnormaliy including predispostion (whether or notsusceptible of immediate prognosis)to physical or mental defect in the future.
The intresting thing about the Act and the case law in relation to the matter in issue,is that the mothers are expressely immuned from the general liability attached to the law.Majority of the mother smokes or drinks during pregenancy inspite of the health implications to the unborn baby.This run contray to the law of holding a woman liable to damages to her child inflicted by her negligent driving of a motor vechicle when she knows or ought to know herself to be pregnant.
I stand to be corrected ,does it also not run contray to the foreseability test which creat a duty of care?
In Burton v Islington Health Authority,it was held that a duty is owned to the unborn child ,but that duty does not crystallise until the live birth of the child.Also The 1976 Congential Disabilities (civil liability ) Act 1976 went futher to stress that law applies in respect of children born with disiabilty ;and disability is defined in terms of any deformity,diseae or abnormaliy including predispostion (whether or notsusceptible of immediate prognosis)to physical or mental defect in the future.
The intresting thing about the Act and the case law in relation to the matter in issue,is that the mothers are expressely immuned from the general liability attached to the law.Majority of the mother smokes or drinks during pregenancy inspite of the health implications to the unborn baby.This run contray to the law of holding a woman liable to damages to her child inflicted by her negligent driving of a motor vechicle when she knows or ought to know herself to be pregnant.
I stand to be corrected ,does it also not run contray to the foreseability test which creat a duty of care?
THE TERM ECONOMIC VALUE IN CONSIDERATION
he law of contract,the purpose of consideration is to put some legal limit on the enforcebility of agreement even where they are intended to be legally binding and are not vitiated by some factors such as mistake,misrepresentation,duress or illegality.
Edwin Peel ,in 'treitel The law Of Contract 'went further to say that an act forbearance or promise will amount to consideration only if the law recognises that it has some economic value.
The above statement tends to bring up some legal issues in my mind in relation to the term economic value.
The law has not been fair in stateing the real value of a consideration.
In (White v Bluett),it was held that a son had not provded consideration for his fathers promise not to sue him on a promissory note by promising not to bore his father with complaints.
T he above case tends bring to an issue what is the value of consideration.if the rule state that the person that the promise was made to must forbear something,the son in question has forbeared to bore his father with his problems.
The term 'economic value of consideration' need to be addressed to make more understanable when it is economically valued by law
Edwin Peel ,in 'treitel The law Of Contract 'went further to say that an act forbearance or promise will amount to consideration only if the law recognises that it has some economic value.
The above statement tends to bring up some legal issues in my mind in relation to the term economic value.
The law has not been fair in stateing the real value of a consideration.
In (White v Bluett),it was held that a son had not provded consideration for his fathers promise not to sue him on a promissory note by promising not to bore his father with complaints.
T he above case tends bring to an issue what is the value of consideration.if the rule state that the person that the promise was made to must forbear something,the son in question has forbeared to bore his father with his problems.
The term 'economic value of consideration' need to be addressed to make more understanable when it is economically valued by law
Monday, November 1, 2010
OUSTING THE JURISDICTION OF COURT.
It is a trite principal of law that the jurisdiction of court can not be ousted whether in a common agreement or in contract.Going by the above statement one will then ask why the law still allows;Agreement to maintenance and arbitrational clause.
In agreement to maintenance,a man may agree to pay the wife some money in a sepration agreement, in return the wife will agree not to sue in court for it.But by statute,the wife can ,if the the agreement was in writing ,sue the husband for the promised allowance ,inspite of the fact that her promise not to sue.
The second one is the arbitration clause othewise called the gentleman agreement.Under this, parties tends by agreement to resort to abitration first before going to court.
The court has generally frowned at these ousting and has gone ahead to take some important decetions on some of the matters.
In Hyman v Heyman,it was held that wife can sue the husband inspite of the fact that her own promise not to apply to the court.
In arbitration,even though the court does not see it generally as ousting its jurisdiction,but as the reason for the underlying nature of the parties traction transactions,it does frown at it when the intetion is to oust its jurisdictions.
I will strongly argue that going by some of the above started fact,since the court can do away with some of the rules and laws that oust its jurisdiction,why the do parties to contract and litigations still add some of these clauses.Be that as it may,i suggest that a law should be put in place to aviod parties from going into such agreement and thereby reducing the waste of time in adjudications of matters in court..
In agreement to maintenance,a man may agree to pay the wife some money in a sepration agreement, in return the wife will agree not to sue in court for it.But by statute,the wife can ,if the the agreement was in writing ,sue the husband for the promised allowance ,inspite of the fact that her promise not to sue.
The second one is the arbitration clause othewise called the gentleman agreement.Under this, parties tends by agreement to resort to abitration first before going to court.
The court has generally frowned at these ousting and has gone ahead to take some important decetions on some of the matters.
In Hyman v Heyman,it was held that wife can sue the husband inspite of the fact that her own promise not to apply to the court.
In arbitration,even though the court does not see it generally as ousting its jurisdiction,but as the reason for the underlying nature of the parties traction transactions,it does frown at it when the intetion is to oust its jurisdictions.
I will strongly argue that going by some of the above started fact,since the court can do away with some of the rules and laws that oust its jurisdiction,why the do parties to contract and litigations still add some of these clauses.Be that as it may,i suggest that a law should be put in place to aviod parties from going into such agreement and thereby reducing the waste of time in adjudications of matters in court..
Friday, October 29, 2010
CHILD LABOUR,LAW,EVIL AND GOOD.
Child labour has been an issue that refuse to go away in the mind of those that really care for the welfare of the chilldren .
In respons to child labour in the developing world,it is presumed to be those work that are harmful to any child.
Alot of international and local legislation has tried to curtail this trends but has not been succesful,this because 99% of the child labour issues or problems are praticed in the third world countries like Nigeria,india and many african and asian countries.Infairness to some of these countries local legislation has been made to aviod this problem for example in nigeria,The Childs labour Act of 2009 for lagos state,in india,The 1986 Child labour(prohibition and Regulation Act.)and even in the developed countries like the US,The 1992 Child labour Reterrence Act, which sort to sanction the importation of product made by children.
The issue that need to be address when it comes to the developing countries or third world countries is that 40% of the daily meal of these families are provided by these children.this due to scarcety of jobs for their parents.
In nigeria,these children hawk waters to pay for their school fees and surpport the family.while in some south asian countries,it is a bonded labour which arieses when an indebted family puts their children to work off their debut.
Inconclution,we can rightly say that this is a necessary evil that is very hard to be avioded.The politcal elite should try and put economic programmes that impove the welfare of their counties,and when this done families can now impove on themsleves.
No parent will want to see his or her child suffer.
In respons to child labour in the developing world,it is presumed to be those work that are harmful to any child.
Alot of international and local legislation has tried to curtail this trends but has not been succesful,this because 99% of the child labour issues or problems are praticed in the third world countries like Nigeria,india and many african and asian countries.Infairness to some of these countries local legislation has been made to aviod this problem for example in nigeria,The Childs labour Act of 2009 for lagos state,in india,The 1986 Child labour(prohibition and Regulation Act.)and even in the developed countries like the US,The 1992 Child labour Reterrence Act, which sort to sanction the importation of product made by children.
The issue that need to be address when it comes to the developing countries or third world countries is that 40% of the daily meal of these families are provided by these children.this due to scarcety of jobs for their parents.
In nigeria,these children hawk waters to pay for their school fees and surpport the family.while in some south asian countries,it is a bonded labour which arieses when an indebted family puts their children to work off their debut.
Inconclution,we can rightly say that this is a necessary evil that is very hard to be avioded.The politcal elite should try and put economic programmes that impove the welfare of their counties,and when this done families can now impove on themsleves.
No parent will want to see his or her child suffer.
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