Felthouse v Bindley ‘Conduct Argument”

Felthouse v Bindley ‘Conduct Argument”

Madam Chairman, with regards to the Pename case cited by my learned friend opposite I would like to point out that; the notary public of London is not in favour.

In respect to deduction from wages, this does not enable an employer to make a deduction based on the conduct of the worker.

This is highlighted in Section 13 (5) where it states that:

For the purposes of this section a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorize the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.

And under Subsection 6; it concludes the same principle of law but; For the purposes of an agreement or consent signified by a worker.

Thus, A deduction cannot be made based on conduct, Irrespective of whether worker has consented to such deductions.

Additional (full subsection 6 )

For the purposes of this section an agreement or consent signified by a worker does not operate to authorize the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

Carriage of Goods

Carriage of Goods

Goods have to often be transported considerable distance, whether at the instance of seller por buyer and a carrier is often employed to effect that transport. In essence, it is being hired to carry goods safely from A to B in own vehicle.  3 forms of common carriage; Land, Sea and Air.

LAND – A carrier will either be private or a common carrier. Construed as making a continuing offer to carry open to acceptance by anyone i.e. service available to public see. Barr & Sons v Caledonian Railway (1890)

Most carriers expressly contract out of common carrier status – relationship is then regulated by contract. Deemed to make a continuing offer to carry which can be accepted by anyone. If refuse to carry = damages (unless refusal justified). Bound by any advertised rates. Strict liability for loss/damage to goods various exceptions to strict liability exist such as;

  • No capacity in vehicle; – Spillers & Bakers v GWR [1911]
  • Goods not delivered in time for loading; – Garton v Bristol & Exeter Ry Co (1861)
  • Carriage of goods dangerous; – Barnfield v Goole & Sheffield Transport Co [1910]

If no advertised rate, must charge reasonable rate. Carrier strictly liable for damage to goods (AKA edictal liability). Except: Act of God; Act of Queen’s enemies Inherent vice of goods; Fault of consignor But, liability will still arise if carrier contributed to loss. Strict liability, Carriers Act 1830 s1, no common carrier shall be liable for loss or injury to parcels containing certain articles exceeding £10.

Exclusion of liability Unfair Contract Terms Act 1977 applies to all contracts of carriage -for Scotland – s15 (2) (c) carriage contracts. Contract term will have no effect insofar as it excludes liability: if it was not fair and reasonable to incorporate the term in the contract, s16 (1) (b). Any limitation clauses are construed contra Proferentem. Graham v Shore Porters Society 1979 SLT 119

AIR – Amended by 1995 Hauge Protocol and 1975 Montreal Convention 1999. The convention contemplates that the consignor deliver a document known as an air waybill – which is a record of cargo receipt. It should be signed by all parties.  Article 18 –The carrier is liable for damage sustained in the event of the destruction or loss of or damage to, cargo. Condition – that the event which caused the damage took place during the carriage by air. Again series of exemptions in art 18. Not liable if Act of war, inherent defects, act of public authority.

SEA – Under strict liability at common law, same as road Wood v Burns 1839. Hague-Visby Rules; If the loss or damage is not apparent, the notice must be given within three days of the delivery of the goods. The notice in writing need not be given if the state of the goods has, at the time of their receipt, been the subject of joint survey or inspection.  Art 4 Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy and to secure that the ship is properly manned, equipped and supplied

Unforeseen challenges… Ebola virus – the legal challenges 129 September 2014By Edward Hicks

Rights in Security QUASI – SECURITY

Rights in Security QUASI – SECURITY

Heritable securities granted by third parties are envisaged by Conveyancing and Feudal Reform (S) Act 1970. No personal obligation by owner, debt due only by debtor. Many small business funded by banks. Require security over family home. Where owned jointly spouse required to grant security

The standard security held over any land or real right in land may be registered in the register of Sasines or land register in Land reform 1970 act. Once it is registered the security will have a real right.

This is not caution. Sterilising use of family home as security would inhibit commerce. No duty of care or duty of disclosure at common law or so it appeared. No duty of disclosure under cautionary obligation either

Position in England began to change in1980s in Court of Appeal and law was finally clarified in House of Lords in Barclays Bank v O’Brien (1994) Held creditor owed duty to advise spouse because ought to be aware of propensity of spouse to unduly influence other

House of Lords reached same result in Smith v Bank of Scotland. Law of cautionary obligations where there was no duty of disclosure was clear. Use made of exceptions such as French v Cameron. Settled on contractual good faith as basis of new principle. Creditor obliged to advise ‘spouse-cautioner’ to be separately advised

Typical mortgage is secured by ‘all sums’ security. Where granted by both spouses for joint obligation eg. House purchase. Both benefit –duty never arises. Royal Bank v Wilson (2003) – Even when security subsequently used for husband’s business debts. Does principle only apply to Matrimonial home? Not clear

Duty is based on good faith of creditor. If creditor reasonably believes spouse has been separately advised still in good faith even if not the case – Broadway v Clydesdale Bank (2000 + 2001) and Forsyth v Royal Bank (1999)

England HL has developed requirements considerably in Royal Bank v Etridge [No 2] Not followed in Scotland, Clydesdale Bank v Black & Thomson v Royal Bank. Current state of Scots law uncertain and unsatisfactory

A standard security may be transferred in whole or in part via assignation with the two forms prescribed by Sch.4. It is possible for a debtor to grant more than one standard security over the same property, the first has highest priority however open to challenge. Holder of standard security may find he has competition, thus he can seek to inhibit the debtor form alienating his heritable estate.

Where a debtor is in breach of some non-monetary obligation, the creditor may serve a notice calling on the debtor to remedy the default within a month S21.