legal issues in sale of goods and services

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LEGAL ISSUES IN SALE OF GOODS AND

SERVICES

Project Report

Submitted in the Partial Fulfilments of the Requirement for

POST GRADUATE DIPLOMA IN MANAGEMENT

Date: 18thSeptember, 2013

Mayank KhatriPGP29220

Naina AgrawalPGP29219

Neha VaroliyaPGP29221

Raka SardarPGP29223

Rahul Singh RanaPGP29222

Guide: Prof. D S Sengar

Course: Legal Aspects of Management

Institution: IIM Lucknow


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CONTENTS

I. EXECUTIVE SUMMARY...................................................................................................................... 3

II. LIST OF CASES.................................................................................................................................... 5

III. INTRODUCTION................................................................................................................................... 6DEFINITION............................................................................................................................................. 7

IV. JUDICIAL ENFORCEMENT................................................................................................................ 8

IMPLIED CONDITIONS......................................................................................................................... 8

1. CONDITION AS TO TITLE........................................................................................................... 8

2. SALE BY DESCRIPTION.............................................................................................................. 9

3. CONDITION AS TO QUALITY OR FITNESS.......................................................................... 11

4. CONDITION AS TO MERCHANTABILITY............................................................................... 12

5. CONDITION AS TO WHOLESOMENESS.............................................................................. 14

6. CONDITION IMPLIED BY CUSTOM......................................................................................... 14

7. CONDITIONS FOR SALE BY SAMPLE................................................................................... 15

EXCLUSION OF IMPLIED CONDITIONS......................................................................................... 16

REMEDY FOR BREACH OF CONDITION....................................................................................... 17

V. HOW LAW IMPACTS NATIONAL AND INTERNATIONAL BUSINESS..................................... 18

LAWS RELATED TO DOMESTIC BUSINESS IN INDIA ................................................................ 18

VI. GOVERNING BODIES AND LAWS CREATED BY THEM........................................................... 23

VII. COMPLIANCE MECHANISM AND ITS EFFECTIVENESS.......................................................... 25

VIII. IMPACTS OF TECHNOLOGY ON LAWS RELATED TO SALE OF GOODS AND SERVICESONLINE TRADE............................................................................................................................... 30

TECHNOLOGICAL ADVANCEMENT AND ONLINE BUSINESS WITHIN THE LAW:

MANAGERS MUST KNOW........................................................................................................................ 31

1. Information Technology Act, 2000: (The Spam Act, 2003) ............................................... 31

2. Biotechnology Patents............................................................................................................ 31

3. Information Technology (Amendment) Act, 2008: (The Privacy Act, 1988) .................... 32

4. The Electronic Transactions Act 1999.................................................................................. 32

IX. RECENT E-COMMERCE HAPPENINGS AND LAW IMPLICATIONS....................................... 33

X. CONCLUSION AND GROUP LEARNINGS.................................................................................... 36

XI. RELEVANCE........................................................................................................................................ 37

XII. REFERENCES..................................................................................................................................... 38


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EXECUTIVE SUMMARY

Problem Identification:

The changing scenario in the world of technology is affecting the way buyers and

sellers interact with each other. Every day a new product or service is being

conceptualized by designers/ manufacturers and is put to display for sale to attract

customers and earn huge profits. In this pursuit, it may happen that the said product

develops a defect for any reason which may have been overlooked by the designers/

manufacturers in the hurry to launch the said product. Are Indian laws equipped to

handle this mess?

Major Recommendations:

1) Begin Properly:A product or service manufactured/developed properly and

tested rigorously will rarely result in failure to satisfy buyers

2) Awareness: About consumer laws will lead to better transaction and minimal

hassles in the product after life

3) Legal Aid: Acquire legal counsel in case there is a breach of intended

conditions to help compensate for losses

4) Maintain documents: All documents regarding the purchase of a product or

service

Legal Issuesin the sale of

Goods and

Services

Awareness

Identification

Breach of

ContractsCompliance

IPR

Electronic

Funds

Counterfeiting


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5) Proper Evaluation: Of the product and service before the purchase will help

not only to select the right fit but also be a reasonable shield against faulty

products

6) Be sure of whom you trust:

I. Anonymity gained from operating via the Internet allows counterfeiters to

more easily dupe consumers into thinking they are buying genuine products.

II. Entering a trademark owners trademark into a search engine does not

guarantee that each website in the search results (whether in the natural

results or the sponsored links) offers only genuine products of the trademark

owner.

III. Counterfeits, like genuine manufacturers achieve higher listings for their

websites. Spatial difference makes it impossible to see and handle the

original product. Fake pictures can mislead you

7) Safeguard products by purchasing Patents: Products must be guarded

against counterfeits by proper patenting. This is particularly relevant to

software where sharing of products or sale of product to third party is not

allowed due to nature of product (It can be easily copied)


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LIST OF CASES

Baldry v. Marshall (1925) 1 KB 260

Rowland v. Divall, 1923 2 K. B. 500

Niblett v. Confectioners Material Co 1921 3 K B 387 Butterworth V. Kingsway Motors, 1954, 1 W. L. R. 1286

Bowes v. Shand, 1877, App. Cas.455

Shepherd v. Kane (1821) 5 b & Ald. 240

Varley v. Whipp, (1900) Q. B. 513

Nicholson & Venn v. Smith Marriot, (1947) 177 L. T. 189

Moore & Co v. Landauver & Co, 1921, 2 K. B. 519

Re Andrew Yule & Co, AIR 1932, Calcutta 879

Priest v. Last (1903) 2 K .B. 148

Jones v. Just, 1868LR 3 QB 197, B & Co

Thornet v. Beers, (1919) 1 KB 486

Grant v. Australian Knitting Mills AIR1936PC34

Morreli v Fitch & Gibbons (1928)2K.B.636

Chapronier v/s Mason, (1905)21 TLR633

Dr.Baretto v. T.R.Price, AIR 1939 Nag 19

Priest v Last (1903)2K.B.148

Mody v/s Gregson, L.R.4E.X.49

E & S. Ruben Ltd v/s Fair Bros, 1949 1K.B.254

Lorymer v/s Smith, (1822) 1 B&C1


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INTRODUCTION

When anyone buys a good or a service, the responsibility lies with the buyer to check

the suitability of the good, whether it suits his purpose. Anyone else cannot be held for

making the choice, if it turned out to be bad. This is called the doc tr ine of caveat

emptor. Whenever a sale is stipulated under this warning, all of the risk that the good

might be flawed or inappropriate to her needs is assumed by the buyer. This rule is

not for the purpose of shielding sellers who engage in fraud or bad faith dealing, by

claiming misleading representations about the quality of a particular product. It merely

states that a purchaser must examine, verify and test a product considered for

purchase by themselves.

But, the laws protecting consumers, however, have minimized the importance of this

rule. The Purchaser still has to examine the goods upon buying, there is increased

responsibility on the seller and the doc tr ine of caveat vendito r (Latin for "let the seller

beware") is more important.

Whenever any seller gives condition or warranty for a product; he is bound to fulfil the

condition. If in any scenario, the goods bought dont comply with the given conditions

or warranty, the seller has the liability to pay compensation the buyer. Although the

seller has not provided with express stipulations, the products are supposed to meet

with certain conditions and warranties, according to the law. The failure to fulfil such

conditions, has the same effect as the non-fulfilment of express statements.

Sale of goods Act, 1930

This act distinguishes condition and warranty in a different aspects even though both

the terms represent the assurance made by the seller. The main difference is in the

nature or type of promise made. If the promise is such that it touches the base or

purpose of the contract, then it is called a condition. If, the promise is that it is collateral

and an added function to the main purpose of the contract, then it is called a warranty.

The strictness with which the consequences of the breach are handled depends onthe nature of the promise. We will delve further to cover the topics:


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1. Definition of a condition

2. Presupposition of conditions according to law in a contract

3. Exclusions to an implied condition

4. Remedies after the breach of a condition

DEFINITION

As mentioned in the section 12 (2.) of the sale of goods Act, a condition is a

specification, which is essential for the main purpose of the contract and so, the breach

of the condition then enables a right to how to make the contract as being renounced.

Hence, a condition becomes the main basis of a stated contract, which if breached

results in an impairment to the buyer which cannot be repaired, and he has a right to

dismiss the contract of sale and has the permission to return the goods and obtain the

refund of the price which has been paid for the good. It goes to the main aspect of the

contract.

In Baldry v. Marshall (1925) 1 KB 260, the case consisted of A who referred to B, a

car dealer and referred the requirements that a car was required by him and he wanted

to purchase one for touring purposes and then got a suggestion that a Buggati car will

be fit for the purpose. With full acceptance on the advice, he bought the car. Later, it

was found that the car turned to be not at all useful for the purpose for which it was

needed by the buyer i.e. touring. So, he sued the car dealer and wanted to recover

the amount paid. The Court perceived that the suitability of the car was for touringpurpose and this was a condition as it was important, and that the non-fulfilment

changed the exact purpose of purchasing the car, which it could not fulfil. Hence, it

was held that B had to pay back the price of the car and A can return it.


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JUDICIAL ENFORCEMENT

IMPLIED CONDITIONS

If any express condition is made or not, the law assumes certain standards which need

to be guaranteed by the seller before the sale of any product. These assumptions as

to the nature of the product, its quality, and also its rightful ownership are called implied

conditions. The implied conditions in sale of goods are given in sections 14 to 17.

1. CONDITION AS TO TITLE

In case of sale, it is presumed in law that, the seller has all the right of selling the

goods, and also, in the specific case when there is an agreement to sell, the seller

would have the right to sell the goods when the time of sale arises. In such a case

that, the seller sells goods with not having any right to sell them, then the purchaser

has all the right to renounce the agreement. The term right to sell concludes that the

seller must have a valid title to the Goods. According to section 14 of this Act, In a sale

related to a contract, until the nuances of the contract give a different attention, there

exists an implied condition on behalf of the seller that--

(a) In case of a sale, the right belongs to the seller to sell

(b) If there is an agreement to sell, the seller will possess a right to sell the goods when

the time of sale arrives

In Rowland v. Divall, 1923 2 K. B. 500, the case states that A bought in repurchase, a

used car from B, who is a car dealer. The car was confiscated by the police after few

months as it turned out to be a stolen one. The court concluded that this was a breach

of the condition as to the title since B did not have an original right to sell the car. It

was then held that A could recover the entire price of the good from B.

In Niblett v. Confectioners Material Co 1921 3 K B 387, B sold 3000 tin of condensed

milk to A. Of these 1000 tins were labelled as Nissly Brand.N, but, another

manufacturer of the milk who used the brand name of Nestle, appealed that this was

an violation of their trademark. Subsequently, B had to remove all of the labels which

were already there from the tins and then needed to sell them without the brand name


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and was subjected to a loss. The court said that the seller had violated the condition

of the right to sell which he did not have.

So, whenever anyone sells goods while infringing on the copyright or the trademark of

someone else, he does not possess the right to sell those goods.

A bought car from B without the knowledge that the car could have been stolen. When

A gathered the knowledge of it B had remunerated the actual owner and attained a

legal possession of the car. Now, A cannot dismiss the contract just using the grounds

of breach of the implied condition.

When a seller is having no right of title to sell the goods, obtains a valid title to the

goods, even if it may be after the sale, but as long as it is before the purchaser try tofind to dismiss the contract, then the seller is complying with the implied condition, as

to title.

In Butterworth V. Kingsway Motors, 1954, 1 W. L. R. 1286, this case highlights when,

a seller who did not have any title to the sale of goods at the exact time of the sale,

but, later consequently obtains a title, then, that title feeds the faulty titles of the actual

buyer and also the following buyer.

2. SALE BY DESCRIPTION

If there is a contract to sell a particular thing, i.e. peas, then you cannot please a party

to buy beans instead of what was contracted. This rule is written in section 15, where

there is a defined regarding a contract about the sale of goods by their description,

there exists an implied condition that, the goods will agree to the contacted

explanation.

In Bowes v. Shand, 1877, App. Cas.455, the case highlights that if, the explanation of

the object offered is unlike in any way, it is not the object that the buyer negotiated for,

the other party is not bonded to buy it. Goods are supposed to be sold by description

whenever, they are described in a contract such as farm wheat is described, so can

be a Australian Apple and Indian silk etc. and the purchaser contracts with confidence

on the given description.

In Shepherd v. Kane (1821) 5 b & Ald. 240, there was a contract for a ship which wasto be sold as copper fastened vessel and was to be booked with all errors, without


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any grant for any faults at all, of any kind. But, later on, the ship proved as only partially

Copper fastened. Subsequently, the court said that that according to the implied

condition, the buyer had a right to deny the goods and reject them.

Whenever there is any usage of a descriptive word or expression in a contract of sale

for describing the good, it develops an implied condition that the purchase items will

resemble the given description. Lets take an example of a sale of Seedless fruit,

indicates that the given fruit will have no seeds at all. Then, if it is found that the fruit

contains seeds, then the purchaser is entitled to deny the goods.

The following situations are included in the sale of goods by description:

(1) When the buyer has not had the opportunity to see the goods and is dependentsolely on the description which is provided by the seller.

In Varley v. Whipp, (1900) Q. B. 513, P bought a reaping machine, which he had

brought only on the description given by Q as P have never seen it. The seller

described the good as to be new the year before and was used to cut about 50 to 60

acres only. P then upon receiving the machine found it to be very old. It was then

contented that P could return back the machine as it did not fulfil the given description.

(2) When the buyer has had the opportunity to look at the soon and even seen them,

but still believes on what is told by the seller.

In Nicholson & Venn v. Smith Marriot, (1947) 177 L. T. 189, the case describes an

auction of a set of Napkins and some table clothes. The items were described as being

from the seventh century and the buyer bought the set in the auction after seeing it.

Afterwards, it was found that the set actually did not date back to the seventh century

but belonged to the eighteenth century times, it was then held that he could discard

those goods.

(3) Packaging may be a part of the description of some goods.

In Moore & Co v. Landauver & Co, 1921, 2 K. B. 519 , Q bought 300 of Australian

Apples which were packed in cases containing 30 tins from P. P presented a significant

percentage reduction in cases comprising only 24 tins. The case held that Q could

deny all the tins as the packaging of the goods were not according to the description


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of the package as per the stated contract, since the way in which the apples were to

be packed was an important aspect of the description of the good.

Sale as per given description and by sample:

Section 15, states that if the sale is completed by sample and as per the given

description, so then it is not enough that it matches the given description but further

so it should also match the given samples.

3. CONDITION AS TO QUALITY OR FITNESS

Generally there is no such implied condition which says that the goods given by the

seller would be fit according to buyer for a particular purpose. Instead, the rule of

Caveat emptor applies. This states that it is the buyer who is responsible to look that

the goods correspond to the purpose for which they are required by him, and this

needs to be checked by him while buying. But, in the situation given below, the seller

has to assume the responsibility of the fitness of the goods.

1) The buyer makes known to the seller and askes for advice on the good stating

a purpose for which some goods are needed by him

2) The buyer and seller rely completely on the skills and decision of the buyer

3) The sellers main business is the supply of such goods whether or not he is the

manufacturer of the goods or their producer

A. The particular purpose for which the buyer needs goods must be known by the

seller. This stated purpose may be known explicitly or can also be known by

implication, it can be any of these.

In the case that the goods can be utilized for more than one purpose, the buyer has tothen make the particular purpose known to the seller; else the condition about fitness

would not hold.

In Re Andrew Yule & Co, AIR 1932, Calcutta 879, the case talks about a buyer who

ordered for Hessian cloth, which commonly is used for packaging purposes and the

cloth was delivered therefore by the seller. But, in receipt of the cloth, the buyer found

out that the cloth was not suitable for the purpose required by him, which was packing

of food products as it turned out to have an unusual smell. The buyer then desired to


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The statement above says that the condition of merchantability applies when,

a) The goods are sold by description

b) The seller deals with such goods

Thus when Manohar a shopkeeper sold his old car to Deepak, no implicit situation as

to merchantability applies.

Merchantability of a good refers to the fact that the item should be working properly

for the intended use for which it has been manufactured. For example, when clothes

are sold, merchantability requires that the clothes have their seams and buttons

attached and sewn well enough, that they will not un-seam or come out under regular

use.

In Jones v. Just, 1868LR 3 QB 197, B & Co, a firm of merchants contracted to buy

some bales of Manila hemp from S. The hemp was to arrive from Singapore. On

delivery the hemp was found wetted with sea water and was in such a spoiled state

that it was impossible to sell it in the market. It was held that the Manila hemp was not

of merchantable quality and hence it could be rejected by the buyer.

The condition of merchantability on defects does not apply in conditions where the

seller allows the buyer of the good to examine the good for defects which are not

revealed upon ordinary examination of the product.

The condition of merchantability although applies when the product has some defects

which are not readily observable or on defects which are concealed and which normal

examination of the product does not reveal any defect. This applies even if the buyer

has been able to examine the goods to his satisfaction.

In Thornet v. Beers, (1919) 1 KB 486, B wanted to purchase glue. It was stored in the

sellers warehouse in barrels. B was given every opportunity to open the barrels for

examination but B refrained from inspecting the barrels. It was later discovered that

the glue had defects which B could have easily observed only if he had taken the

opportunity to open the barrels. It was held by the court that no implied condition as to

merchantability had been breached in this case and there was no entitlement to any

relief for B.


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In Grant v. Australian Knitting Mills AIR1936PC34, B purchased underwear from S, B

carefully examined it before purchasing the product. It was revealed that the product

was harmful for his skin later on because of the presence of hidden sulphites in the

underwear, it was not possible to ascertain their presence through normal examination

of the good. It was held as a breach of implied condition of merchantability in this case.

The insight that we can derive from the cases above are that in Thornets case the

buyer was liberty to check the goods for fault but he chose otherwise. Here its not the

seller but it is the buyer of the merchant good who is expected to make the

examination.

Packaging is also of equal importance in considering the merchantability of the good.

In Morreli v Fitch & Gibbons (1928)2K.B.636, M proposed to buy a bottle of Stones

Ginger Wine at Ss shop, which was licensed to sell wines. The bottle broke when M

was drawing the cork, injuring his hand. It was held by the court that the sale was by

description and as the bottle was not of sufficient quality to be called merchantable.

Hence M was eligible to recover damages.

5. CONDITION AS TO WHOLESOMENESS

The condition of fitness or merchantability for food products require that the food

should be wholesome, they should be fit for human consumption.

In Chapronier v/s Mason, (1905)21 TLR633, C bought a bun from a bakers shop. The

bun enclosed a stone which severely damaged Cs teeth. It was held bythe court thatthe baker was responsible and should pay damages to C, as he had breached the

condition of wholesomeness.

6. CONDITION IMPLIED BY CUSTOM

The acceptable use of a particular good or service limits the implied conditions for the

fitness or quality of the particular good, which is the product is used for the task for

which it was prepared. Only in such a case will the seller be responsible for the productin case it malfunctions or defects appear in the product or service. Section 16(3), the


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In E & S. Ruben Ltd v/s Fair Bros, 1949 1K.B.254.E proposed to purchase some

rubber material from B. E was given a sample to view the quality of the good. On

receiving the bulk product, E discovered that the quality of the rubber material was

different from the sample. The court held that the bulk did not match up to the sample

provided.

In Lorymer v/s Smith, (1822) 1 B&C1, there was a sale of two parcels of wheat upon

inspection by sample. A week later, when the buyer went to examine the goods one

parcel was shown to him but not the other by the seller, as it was not there. In this

case the court held that the buyer was entitled to reject the contract of sale. It was

ascertained that the buyer was not given a reasonable opportunity to test the bulk

product with the sample properly.

EXCLUSION OF IMPLIED CONDITIONS

Section 62 of the sale of Goods Act states -Where any right, duty or liability would

arise under a contract of sale by implication of law, it may be negative or varied by

express agreement or by the course dealing by the parties or by usage, if the usage

is such as to bind both the parties to the contract

The participating parties are free to make any transaction the fancy in the contract of

sale according to the law. Sellers can exclude their liability by expressly making

provisions in the contract of sale stating that they will not be liable for any condition

not being met. The buyers can similarly waive any breach of condition in a contract.

However, a sellers liability to fulfil the basic aspects of the contract is not excluded by

it. According to Lord Harbinger, If a seller contracts to sell a horse, and expressly

excluded all conditions and warranties, express or implied, could he escape liability, if

he delivered a pig? He would be met by the simple and sufficient answer that he had

failed the one fundamental obligation.

A sold a horse to B with the provision that there is no warranty over the fitness of the

horse. If the horse passes away only a few days after its sale, then in such a case the

seller is not liable to give any compensation to the buyer.


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REMEDY FOR BREACH OF CONDITION

Buyers can avail remedy by rejecting the transaction and returning the goods to the

seller in case there is a breach in condition done by the seller earning a compensationin return. If a provision of warranty is not fulfilled, the buyer is provided a compensation

to remedy the losses incurred because of the goods which had been bought under the

transaction, but no provision has been provided for the return of goods. When a certain

condition is breached, the buyer is not allowed to end the contract by rejecting the

goods and recover damages from the seller for breach of warranty. Once the buyer

uses his option to treat a breach of condition as a breach of warranty, he cannot insist

on the fulfilment of the condition later. This rule is stated in Section 13 (1) of the Act.

In cases where the contract of sale cannot be revoked and it is proven that the buyer

has accepted the goods or any part of the goods. Any breach of condition by the seller

would be treated only as a breach of a warranty, unless there is a term in the contract,

which expressly implies to the contrary. This rule is laid down in Section 13(2) of the

Sale Goods Act.


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III. Promise - A Proposal when accepted becomes a promise. In simple words,

when an offer accepted is a promise.

IV. Promisor and promise - When the proposal is accepted, the person making the

proposal is called as promisor and the person accepting the proposal is called

as promisee.

V. Consideration - When at the desire of the promisor, the promisee or any other

person has done or abstained from doing something or does or abstains from

doing something or promises to do or abstain from doing something, such act

or abstinence or promise is called a consideration for the promise.

Price paid by the one party for the promise of the other Technical word meaning

QUIDPRO-QUO i.e. something in return.

VI. Agreement- Every promise and set of promises forming the consideration for

each other. In short, agreement = offer + acceptance.

VII. Contract- An agreement enforceable by Law is a contract.

VIII. Void agreement- An agreement not enforceable by law is void.

IX. Voidable contract- An agreement is a voidable contract if it is enforceable by

Law at the option of one or more of the parties there to (i.e. the aggrieved party),

and it is not enforceable by Law at the option of the other or others.

X. Void contract - A contract which ceases to be enforceable by Law becomes

void when it ceases to be enforceable.

2.Lawful consideration- consideration must not be unlawful, immoral or opposed to

the public policy.

3. Capacity- The parties in a contract must have capacity or legal ability to make valid

contract. Section 11 of the Indian contract Act specifies that every person is competent

to contract provided he/she

(i) Is of the age of majority according to the law which he is subject

(ii) is of sound mind

(iii) Is not disqualified from contracting by any law to which he is subject.

(iv) Person of unsound mind can enter into a contract during his lucid interval.

(v) An alien enemy, foreign sovereigns and accredited representative of a

foreign state.


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Conclusion:Thus we see that an agreement may be or may not be enforceable by

law, and so all agreement are not contract. Only those agreements are contracts,

which are enforceable by law, In short, Contracts = Agreement + Enforceability by

Law. Hence, one can conclude All contracts are agreement, but all agreements are

not contracts.

The other most important law in India related to business is

b. The Company Law: In India,the Companies Act, 1956is the most important

piece of legislation that empowers the Central Government to regulate the

formation, financing, functioning and winding up of companies. The Act covers

the mechanism regarding organizational, financial and managerial and all the

relevant aspects of a company. It empowers the Central Government to inspect

the books of accounts of a company, to direct special audit, to order

investigation into the affairs of a company and to launch prosecution for

violation of the Act. These inspections are designed to find out whether the

companies conduct their affairs in accordance with the provisions of the Act,

whether any unfair practices prejudicial to the public interest are being resorted

to by any company or a group of companies and to examine whether there is

any mismanagement which may adversely affect any interest of the

shareholders, creditors, employees and others. If an inspection discloses a

prima facie case of fraud or cheating, action is initiated under provisions of the

Companies Act or the same is referred to the Central Bureau of Investigation.

The Companies Act is administered by the Central Government through the Ministry

of Corporate Affairs and the Offices of Registrar of Companies,Official Liquidators,

Public Trustee, Company Law Board, Director of Inspection, etc. The Registrar of

Companies (ROC) controls the task of incorporation of new companies and the

administration of running companies.

The basic objectives underlying the law are:

Creating a minimum standard of good behaviour and business honesty in

company promotion and management.

Due recognition of the legitimate interest of shareholders and creditors and of

the duty of managements not to prejudice to jeopardize those interests.
http://business.gov.in/outerwin.php?id=http://indiacode.nic.in/rspaging.asp?tfnm=195601http://business.gov.in/outerwin.php?id=http://indiacode.nic.in/rspaging.asp?tfnm=195601http://business.gov.in/outerwin.php?id=http://indiacode.nic.in/rspaging.asp?tfnm=195601http://www.mca.gov.in/Ministry/pdf/official_liquidators.pdfhttp://www.mca.gov.in/Ministry/pdf/official_liquidators.pdfhttp://business.gov.in/outerwin.php?id=http://indiacode.nic.in/rspaging.asp?tfnm=195601


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Provision for greater and effective control over and voice in the management

for shareholders.

A fair and true disclosure of the affairs of companies in their annual published

balance sheet and profit and loss accounts.

Adherence to proper standard of accounting and auditing.

Recognition of the rights of shareholders to receive reasonable information and

facilities for exercising an intelligent judgment with reference to the

management.

A ceiling on the share of profits payable to managements as remuneration for

services rendered.

A check on their transactions where there was a possibility of conflict of duty

and interest.

A provision for investigation into the affairs of any company managed in a

manner oppressive to minority of the shareholders or prejudicial to the interest

of the company as a whole.

Enforcement of the performance of their duties by those engaged in the

management of public companies or of private companies which are

subsidiaries of public companies by providing sanctions in the case of breach

and subjecting the latter also to the more restrictive provisions of law

applicable to public companies.

Commencement of business

A private company or a company without share capital can commence its

business immediately after obtaining certificate of incorporation of business.

But a public company having share capital cannot commence any business

until it has obtained the certificate of commencement of business.International Business:in the era of globalization international business

laws play an important role as the most prominent names in the business

world are transnational corporations. Laws in international business may vary

widely from country to country but there are a few governing bodies who

make the laws and agreements which are accepted universally (almost).


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GOVERNING BODIES AND LAWS CREATED BY THEM

WTO-In 1995, the World Trade Organization, a formal international organization to

regulate trade, was established. It is considered to be the most important development

in the history of international trade law.

The purposes and structure of WTO organization is governed by the Agreement

Establishing the World Trade Organization, also known as the "Marrakesh

Agreement". It does not specify the actual rules that govern international trade in

specific areas. These are found in separate treaties, annexed to the Marrakesh

Agreement.

Scope of WTO:(a) provide framework for administration and implementation

of agreements; (b) forum for further negotiations; (c) trade policy review

mechanism and (d) promote greater coherence among members economics

policies

Principles of the WTO: (a) principle of non-discrimination i.e. most-favoured-

nation treatment obligation and the national treatment obligation (b) market

access related to reduction of tariff and non-tariff barriers to trade (c) balancing

trade liberalisation and other societal interests (d) harmonisation of national

regulation

Trade in goods:The GATT (General Agreement on Tariffs and Trade) has

been the backbone of international trade law throughout most of the twentieth

century. It contains rules relating to "unfair" trading practices -dumping and

subsidies.

Trade and intellectual property: The World Trade Organisation Trade

Related Intellectual Property Rights (TRIPS) agreement required signatory

nations to raise intellectual property rights (also known as intellectual monopoly

privileges). This arguably has had a negative impact on access to essential

medicines in some nations.

Dispute settlement: Most prominent in the area of dispute settlement in

international trade law is the WTO dispute settlement system. The WTO dispute

settlement body is operational since 1995 and has been very active since then

with 369 cases in the time between 1 January 1995 and 1 December 2007.


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CISG-The United Nations Convention on Contracts for the International Sale of

Goods (CISG; the Vienna Convention) is a treaty that is a uniform international

sales law. As of 6 March 2013, it had been ratified by 79 countries that account

for a significant proportion of world trade, making it one of the most successful

international uniform laws. Brazil was the most recent state to ratify the

Convention. The CISG was developed by the United Nations Commission on

International Trade Law (UNCITRAL), and was signed in Vienna in 1980.


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COMPLIANCE MECHANISM AND ITS EFFECTIVENESS

Repercussions of non-compliance of laws and how compliance acts as an advantage?

Companies usually invest a lot of time in looking for loopholes in a law which is

supposed to govern them and should be followed by various businesses. Many a

times, these loopholes results in considerable profits and benefits to the companies.

Eg. Microsoft identifying loopholes in accounting policies to improvise and customize

their balance sheet so that excess revenue can be adjusted and used for the time

when revenue collection is less, so that their balance sheet always demonstrate a

continuous growth. However, in case no such full-proof loophole is identified, some

firms may choose to break the law if it results in profits. This raises an important

question Should companies obey a law if doing otherwise is more profitable for

them?

The fact of the matter is that when a large company or a corporation is caught breaking

a law, the cost that it incurs is usually quite severe. For the company there is the risk

of being sanctioned, for the employees, the chances of being blamed for misconduct

or some stigma associated to it and for the investors, it could result in dropping of

stock prices. As an example, we have the case of Barclays PLC, which agreed to pay

fines of more than $400 million after the regulators of U.S. and U.K. found it guilty of

trying to generate profits through manipulation of the interest rate used as a global

benchmark for consumers and corporate loans. The employees involved, the

chairman and the Chief executive officers, all have been fired and forced to resign.

Apart from this, the shares have also fallen by more than 10% within a month the deal

was announced.

This is by no means a unique story or any kind of aberration. This is just one of those

which talks about the potential costs and losses incurred due to malfeasance in the

corporate sector. There is no doubt whether or not the company violated any law or

not, but questions can be raised that whether its actions were really i.e. did the

company violate any obligation which asks them to obey the law or is this only valid

for a criticism for failing to analyze the risk-benefit equation instead of proper non-

compliance.


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It is very well known that business decision makers usually encounter situations when

they can earn significant profits by making use of certain opportunities through illegal

and unethical behavior. This is more when the likelihood of getting caught is small or

the penalties or repercussions are considerably less. Therefore, when profits exceed

the cost of financial risks, should the companies be penalized for wrong actions?

An argument can be made for the view that companies and corporations do not have

any kind of obligation which forces them to follow the law is that they cannot have any

kind of moral obligations because of the nature of corporations. It is said that the

concept of morality or immorality do not hold for companies and all the rules and

regulations related to it are nothing more than bundles of contractual agreements.

It is believe that as per the company law, which sees a company as a separate entity

and not exactly as a human being, they are not "moral entities" as we are. This is one

of the arguments used to justify the action of Yahoo, when it collaborated with the

Chinese government to aid them in suppressing the human rights of journalists. It is

argued that it was merely fulfilling its sole responsibility as a company i.e. to make

money for the shareholders and ensure satisfaction of its customers.

Though the arguments seem to be valid and understandable, but are not at all practical

in nature. A company or an organization is not merely a "bundle of contracts"; instead

it is a body consisting of a number of assorted individuals who occupy a role which is

act-governed by a contract. Although it is only a "legal person" and not a physical one,

it always acts whenever the managers or the other associated and relevant employees

act on its behalf. The fact that it is these people who have a governing hand, and also

are bound by the law to respect human rights forces them not to use their power over

a position in an organization for wrong purposes. Since individuals and executives

have moral obligations through law, then there is no reason why getting employed by

a firm doing a business, exempt them from those duties and obligations.

The decisions they take and the actions they perform directly or indirectly help or harm

other people. The benefits from public goods, national defense, civil order, roads,

hospitals, schools etc. all are integral part of everyones life and decisions and

changes related to any of them affect everybody. Therefore, its notunreasonable to


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agree that a company should function as a citizen, with certain obligations, including

obeying the law, even if it might be more profitable if it to ignored.

It is a misconception that favoring law instead of profits could harm the economy of a

country or the global corporate world. This ideology was shared by quite a few

corporate leaders who believed that it is not at all wrong for their companies to violate

laws whenever the gains through that method is likely to be greater than the risks

associated.

The costs of preventing these activities or noncompliance from damaging or

undermining the economy would undoubtedly be much greater than compared to what

they are now. The need of the hour is to enforce the laws strictly and grant theregulatory agencies more responsibilities, power and funding compared to what the

citizens of a modern democracy would be willing to grant.

Hence, it is far better for a society, not just socially but also economically and politically

that the corporate leaders follow the track led by basic moral values such as respect

for the law and human rights and not profit-mongering and maximization at all costs.

Some examples of the growing seriousness towards business laws are-

1. In Serbia, many companies misunderstand tax regulation and pay penalties as

a result. Some taxpayers have taken to paying extra tax where they have no

liability just to insure against possible liability.

2. In Argentina, audited financial statements have to be filed annually regardless

of the size or activity of the trading entity.

3. In Venezuela, companies must keep their accounts in the Spanish language

and it is obligatory to keep them up to date. There are sanctions if the books

are more than one month behind.

4. If a company in the Netherlands with a history of late filings should face

bankruptcy, the liquidator is allowed to assume that the statutory directors

are personally liable for the bankruptcy unless proven otherwise.


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Benefits of adherence to laws

Most companies break laws mostly because of the profits they can earn in a short run,

because of which they dont see the bigger picture. Adherence to laws may not help

in short run, but its benefits are conspicuous in the long run.

Companies and corporations rebel against rules, regulations and laws without

understanding the fact that they are there for their own benefits and not somebody

elses. For example, consider the consumer laws. Many traders fail to understand that

these laws are instrumental in order to improve the consumer-company relationship.

The strength of this relation is what defines the prestige of a corporation. Strong

relationship results in improvement in the status of the markets for better sales on the

part of these firms.

Instead, they go against the laws again and again and this causes more damage to

them in the long run, even if it helps in the short run. Laws are everywhere in each and

every field and proper adherence to them will ensure peace, impunity, harmony andbetter co-existence and confidence in various relationships.

Other benefit could simply be boosting the image of a company in the eyes of

consumers as a law abiding company. Good image of the company is instrumental in

making employees feel more dignified and may increase job satisfaction and

consequently higher productivity. The boost in employee morale directly impacts

growth and dynamics of a firm.

Compliance with the norms, rules and laws helps in preventing activities which may

hurt the name of the firms permanently. These activities include criminal conduct by

corporations also. Getting a bad name could be extremely detrimental to a company

as the confidence of the consumers, employees, investors and shareholders depends

on the brand image, which is easily broken if any legal issues occur.


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Another benefit which corporations can obtain is that they can save themselves from

huge expectations of the investors and therefore the consequences faced by them

when they are unable to fulfill them. What is meant here is that, if a company uses

illegal or wrong means to gain an upper hand in their business and succeed, then they

are expected to perform in a similar way. However, if the company works honestly,

then they may not deliver as well as they did earlier and it may raise suspicious or

reduce the companys stature.

Therefore, if a company works to its full potential while adhering to all the governing

laws, which is clearly measurable through its profits, turn-over and stock-price

analysis, then it can surely deliver up to its real capacity and maintain that efficiencythroughout. This is true because the efforts were sincere and the performance up to

true potential. It would also be devoid of any external interference. This way, correct

expectations can be associated to the company and it can work in a much more certain

environment, matching the investors and consumers expectations.


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IMPACTS OF TECHNOLOGY ON LAWS RELATED TO SALE OF GOODS AND

SERVICES ONLINE TRADE

THE ERA OF DOT COMS AND CHANGES IN LAW

Scenarios which can occur in online sale of goods and services; and consequences

in language of law:

1. Online Contracts

If there is a link on the site which says "Terms & Conditions of Website Use" &

then it links to any contract which governs use of that site, then in that case,

contract is enforceable, no matter web surfer has read it or not.

2. Digital Signatures (faxed)

One can enter into a contract with a digital or faxed signature and this does not

come under the fact that a signature should be in actual writing because such

a transmission signal is an audio signal via a telephone line which is containing

information and from which a writing can be accurately duplicated. But at the

same time, transmission of beeps & chirps along a telephone line is not a

writing, as that term is customarily used. Indeed, a facsimile transmission can

be created, received, transmitted, read and stored without a writing, or in the

conventional sense, hard copy in the technical vernacular, as having ever been

created.

3. Long distant courtrooms

Any website can give a power to court in a faraway state or country to hear a

case against other company. Being hauled into a faraway court can be

extremely expensive to the company & stressful for owners. One is more likely

to run into a problem here if his/her website takes orders from distant placesthan if the website is really nothing more than an online brochure. Still, one

should consult with his tech lawyer about how to deal with these laws of distant

places. Some of the valuable recommendations might include having different

websites for the different countries to help ensure compliance with their local

laws, and also creating a user agreement that requires web surfers to litigate

any disputes in your local courthouse, and not in their courts.


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TECHNOLOGICAL ADVANCEMENT AND ONLINE BUSINESS W ITHIN THE LAW:

MANAGERS MUST KNOW

1. INFORMATION TECHNOLOGY ACT, 2000: (THE SPAM ACT, 2003)

An Act to provide legal recognition for transactions carried out by means of

electronic data interchange and other means of electronic communication,

commonly referred to as "electronic commerce", which involve the use of

alternatives to paper-based methods of communication and storage of

information, to facilitate electronic filing of documents with the Government

agencies and further to amend the Indian Penal Code, the Indian Evidence

Act, 1872, the Bankers' Books Evidence Act, 1891 and the Reserve Bank

of India Act, 1934 and for matters connected therewith or incidental thereto.

Information Technology Act 2000 addressed the following issues:

Legal Recognition of Electronic Documents

Legal Recognition of Digital Signatures

Offenses and Contraventions

Justice Dispensation Systems for Cybercrimes

2. BIOTECHNOLOGY PATENTS

Apart from usual goods and services, a patent can also be reserved for a

biological product which is none other but a genetically modified organism

or any other genetic material. It is a patent introduced for the inventions in

the field of biology which gives patentee a right to exclude others from using,

selling, making, import or export of invention for a limited period of time. This

is an emerging patent existing in Australia, Europe, Japan and United States

as of now.


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3. INFORMATION TECHNOLOGY (AMENDMENT) ACT, 2008: (THE PRIVACY

ACT, 19 88)

To cater the needs of the worldly known Privacy act, India passed and

added new rules to the existing IT act and these two sections are,

Section 43A, which deals with the implementation of sensible security

practices for delicate and sensitive personal data or information, thus

providing the compensation for the same of the person affected by wrongful

loss or may be wrongful gain.

Section 72A, which suggests for a fine up to Rs. 5,00,000 and/or the

imprisonment for a period up to 3 years for the accused who causes

wrongful loss or wrongful gain by releasing or disclosing personal

information or sensitive data of another person while providing services

which might be under the terms of contract.

4. THE ELECTRONIC TRANSACTIONS ACT 1999

The ETA is based on two principles:

1. Functional equivalence

Paper documents and electronic transactions are treated equally by the law.

2. Technology neutrality

The law does not discriminate between different forms of technology.

The ETA allows business and government to fulfil, in electronic form, any of

the following requirements:

Giving information in writing;

Providing a handwritten signature;

Producing a document in material form; and

Recording or retaining information.

The ETA also provides a legal framework for electronic contracting. The Act

is technology neutral in that

It enables electronic transactions to occur without prescribing the use of

particular types of technology.

The key sections are:

Section 8General


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A transaction is not invalid because it took place wholly or partly by means

of one of more electronic communications.

Section 10Signatures

If the signature of a person is required, that requirement may be met by use

of an electronic method as long as:

The method is used to identify the person and to indicate their approval

of the transaction;

The method is as reliable as appropriate for the purposes of the

Transaction; and

The signature recipient consents.

Section 11Documents

A person can produce a document in the form of an electronic

communication where other laws require the production of a paper

document.

Section 12Records

If a person is required to record or retain information or documentation in

writing, that requirement can be met by retaining or recording the

information in electronic form.

In order to achieve national uniformity all States and Territories have passed

Electronic Transactions Acts that complement the commonwealths ETA.

This layer of state legislation therefore covers private sector transactions

RECENT E-COMMERCE HAPPENINGS AND LAW IMPLICATIONS

Cases filed against Google

1. By bharatmatrimony.com to the CCI

Recently, there was a case which has been filed by a matrimonial site

Bharatmatrimony.com against Google citing the discriminatory trade practices

related to its special AdWords program. This has been alleged by the appellant

that Google has abused its power of dominance by engaging itself in

discriminatory, unfair and retaliatory practices related to AdWords.2. By CUTS, a non-profit consumer advocacy group


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Internet related medical issues in India even before these issues become sources of

health hazards and big nuisance for Indian citizens.

Online Gambling and Betting Legal in India

The golden rule to decide that whether the online gambling is legal or not in India is

based upon many factors which depends upon the facts and conditions of each case

and also upon state to state. There are a lot of states in India where gambling is legal

and few where even online gambling and betting is legal. However, there are also

some states like Mumbai wherein online gambling is specifically prohibited and there

is a punishment or penalty for such act. So it depends entirely upon state where onewish to carry out online gambling & betting business.

Finally, taxation and economic legislations like tax laws in India, company bill, anti-

money laundering laws, etc. are involved while operating online casinos, online

gaming platforms and online gambling and betting. Provisions of all these economic

legislations are very rigorous in nature and may cause great damage to the owner or

the operator of online casino, gaming or gambling and betting website.

E-commerce compliances and regulations in India

E-commerce is the latest emerging entrepreneur bandwagon of India. Hundreds of e-

commerce portals have recently emerged from the year 2012. However, in the

keenness of earning profit, major legal and compliance requirements relating to e-

commerce have been ignored by all the e-commerce portals.

Even the government of India is lax in implementing regulatory and compliance

requirements against illegal online pharmacies, online betting and gambling portals

and other similar portals.

There are a lot of techno legal compliance requirements which the e-commerce portals

should comply with. Internet intermediary liability, cyber law due diligence for Indian

companies must be keep in mind by several e-commerce websites or players.


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CONCLUSION AND GROUP LEARNINGS

It is necessary that we understand the compliance issues regarding the sale of goods

and services. The explicit and implicit conditions show how detailed each issue faced

in the sale of goods and services is outlined. The judiciary has taken an active role in

ensuring that all parties receive fair treatment and anyone cannot be taken advantage

of by another party. The remedies available in the act ensure that judiciary can prevent

such errors. But, there is an ambiguity in the implied conditions and such uncertainty

can be overcome with reference to practical cases.

With the advent of e-commerce, and the trend of purchasing shifting towards it, the

complexity regarding any kind of sale has increase manifold and more stringent

compliance measures need to be followed.

Group Learnings:

Implied conditions on a sale are a guaranty by the seller weather stated or not

If a customer returns a good and complains, the seller can check the date claimed

Remedies are available to a buyer in case there is a breach in condition by a seller

Concept of digital and faxed signatures in e-commerce

Insights of company billwhat to do and what not to do as a business manager

Genetically modified organisms comes under Biological products and can be

patented for a limited period of time

Taxation laws imposed on traders even in online trade

A web surfer is liable to contract of Terms and conditions of use when he/she uses

any website even if he has not read them, and this contract is enforceable by law


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RELEVANCE

As a business manager we would be involved in industries where we would be

involved in providing goods and services to our customers. We need to know how this

act affects our customers and how can we be protected by the law with the use of this

act. Customers can claim refunds and exchanges which might be related to the

company policy, the time till which they can claim such refunds need to be known. We

need to understand that we as retailers are responsible for the quality of the goods we

sell. Weather we are an agent or the principle, we cannot change the right a customer

has. But regardless, the customer needs to be aware and check the goods before he

bought them. All such nuances are extremely important to know for the day to day

functioning of a retail business. As a decision maker, we need to understand to make

correct decisions when faced with a customer service issue and act within the

boundaries of the law. Lack of knowledge on this topic would result in serious loss to

the business as a whole.

Hence, the study is very important from the point of view of any aspiring business

manager.


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