Law for business students

What was the main issue in the case was if the death was due to actual negligence of the concerning hospital. As stated above to prove if their was indeed negligence the claimants would have to show if there was a duty of care coming from the hospital. The court ruled that the doctor at the hospital should actually have checked the men prior to sending them off and thus there was a breach in duty of care. However in the facts above is stated that possibly the man would have died even if he had been checked at the hospital(and thus the damage been avoided.)

In this aspect the court ruled that due to the likeliness the man would have died even if he had been checked (due to the rareness and unlikeliness of the poisoning) was high and thus he could not have been saved. Ultimately it was ruled that the death of the poisoned man was not because of negligence and the claimants did not receive any compensation. ii) Smith v. Leech Brain & Co. Ltd [1962] "FACTS Part of the work of a galvaniser employed by the defendants involved lowering articles by means of an overhead crane into a tank containing molten metal.

He normally stood with his back to a firebrick wall situated about two feet away from the tank and was provided with a sheet of corrugated iron with which to protect himself from the spattering of molten metal, which occurred as articles were lowered into the tank. On August 15, 1950, whilst lowering an article into the tank, he turned round to see what he was doing, so that his head was outside the shield afforded by the corrugated iron, and a piece of molten metal struck him on the lower lip, causing a burn. The burn was the promoting agent of cancer, which developed at the site of the burn, and from which he died some three years later.

The cancer developed in tissues which already had a pre-malignant condition. But for the burn, cancer might never have developed, although there was a strong likelihood that it would have done so at some stage in his life. " (www. a-level-law. com/caselibrary/SMITH%2520v%2520LEECH%2520BRAIN) The main issue is this case is to what extent is the molten metal splatter the cause of the cancer and his ultimate death. The splatter came onto his lip due to insufficient protection and thus there was a lack of care. What can then be concluded is that the burn on his lip was due to negligence, however his lip was already in a pre-cancerous condition.

Now the question arises if the splatter was the drip that made the bucket spill, or was Mr. Smith already at his end. What can clearly be applied here is the egg shell rule, which "is a legal doctrine that states that the wrongdoer takes the victim in the condition that he or she finds him There is no allowance for an already weakened state of the injured party. If a defendant negligently injures someone, the defendant is responsible for all the consequences, whether they were foreseeable or not. " (http://definitions. uslegal. com/e/eggshell-skull/)

What can be concluded that even though Mr. Smith was in a weakend state, Leech Brain& CO Ltd. Is still liable for the damage caused by the metal splatter that hit Mr. Smith. Even though Leech Brain&Co Ltd. may not have anticipated that the splatter would result in cancer, they are still held liable for the splatter that hit Mr. Smith as well as the cancer that occurred later on. Ultimatley Leech Brain&CO Ltd. were held liable for negligence and Mr. Smith was awarded compensation. 3a) i) Salomon v. Salomon and Co. Ltd (1897) Salomon v. Salomon and Co. Ltd (1897) is one UK's landmark company cases that made a big difference how shareholders could not be sued by creditors.

Mr. Salomon owned a boot and shoe manufacturer. Mr. Salomon was getting at his retiring age and wanted out of the company, however his sons wanted to get in to the company . Mr. Salomon therefore decided to set up a LLC so that it's shares could be equially divided amoungst the kids and his wife. During this process a variety of governmentally organised strikes ocurred within the shoe industry (the government wanted more shoe suppliers instead of a small few. ) This had a serious negative effect on Mr. Salomons industry. Due to the downspiral of its company Mr. Salomon gave out a private loan to the company, which did not help.

Then Mr. Salomon loaned money from another party, Mr. Broderip but still the company was in decline. Not being able to meet its financial issues Mr. Salomon filed for banckrupcy. Thereafter all his assets were sold and were given to a private entity that was assigned to the LLC. Mr. Broderip gained this knowledge and noticed that Mr. Salomon had not suffered any damage while he had lost his loan and thus filed for fraud. The UK coart initially ruled that Salomon was indeed personally liable as he was in control of the company at the time.

Thereafter however Mr.Salomon decided to take it to High court and it was here that the court ruled that due to the fact that it concerned a limited liability company, Mr. Salomon could not be held personally responsible and that the company should be sued. (http://profmadams. blogspot. com/2010/02/favourite-case-salomon-v-salomon-ltd. html) I consider it to be quiet unethical that Mr. Salomon assigned himself as a secured creditor to its own company, not a great way to gain appreciation. However with the veil of incorporation the company had indeed become a separate legal entity and therefore it was just that the high court ruled that Mr.

Salomon's personal assets could be touched but that the company should be sued. 3b) i) A variety of aspects and differences between a limited liability company and partnerships have to be taken into account before I could determine which one I would prefer. I think it hard to just say I would choose one of them because it all depends what kind of situation your in and how involved you wish to be with regard to for example your personal assets. Within a partnership, everything is shared between a minimum of two people, up to a partnership of 20 people. All the profits, losses are divided amongst the partners.

That being said should my partnership go sideways I could lose my money along with my car and even my house, which seems like quiet a risk to be taking when wanting to run a company. On the other hand, a partnership can be set up quickly and rapidly without to many hassles, plus your doing it with people that you trust and generally people that you know and the work your doing doesn't have to be shared with everyone else. With a limited liability company, it has the obligation to share all it's company progress, which isn't always a good thing to be obliged to do.

Furthermore a LLC is a tedious and long process to setup and is bound by many obligations and rules. However even with the long process a LLC has to undergo to be established it has a big advantage, if one of the partners of a partnership decides to depart, the entire partnership is dissolved and seizes to exist. On the contrary once a LLC is setup shareholders can come and go as they please taking their investments and interests within the company with them making your company much more flexible to cope with changes with regard to investors and other people involved within the company.

This last aspect is one of my most decisive ones to prefer a LLC, if I intend to setup a company I would not want it to lay in the balance of one of my partners leaving, if I set a company up I would want it to become a permanent fixture. Aside from that aspect should something go wrong it would not mean I would lose all my assets, which I hold dearly. 3c) i) Any franchise agreement is the essential document between franchisee-franchiser relations. It is a documented agreement that authorizes the franchisee to start up and operate under the franchise system.

By doing so the franchisee gets the perks of working under that franchise name and being able to offer its products whilst making easy money for the franchisor. There isn't really a standard form of a franchise agreement (due to a variation of conditions) but usually it entails; the obligations of the franchiser and the franchisee, the employee training, your territory, franchisor support, what royalties you will be obliged to pay etc. To get a clear image as an entrepreneur whether or not you want to get into the franchise business I think it would be wise to interview franchisees and see what there experiences are with large brand names.

And as an entrepreneur one of the strives is to have personal control, and one the main downsides is that your not completely your own boss. 4a) i) Different forms of intellectual property protection are available for the company to protect its various aspects. Unfortunately there isn't a single intellectual property protection that can protect the entire company, a variety of intellectual property protections are available to ultimately protect the entire company at listed below; 1)-Patent

Patents are regulated by the patents act 1977 (PA 1977) and are utilized so that an inventor (if the product is new) can gain monopoly over its invention. In the case of the software company the actual software could be patented. However a patent is hard to acquire, the product would have to be new (there isn't any other like it) and/or must be a inventive step, it also has to be capable of industrial application. Once registered a patent generally lasts for 20 years and can also be extended. 2)-Trademarks Trademarks are used as a marketing strategy to make sure that the company's products are easily recognizable for their customers.

In the case of the software company its name and sign could be trademarked. A company name, logo, image etc. that represents the company can be trademarked to protect the company. This protection is essential for a company so that competitors cannot copy it to confuse consumers. Moreover trademarks can be registered as well as non-registered, depending on whether they're verbally communicated or non-verbally communicated. Once registered a trademark has a protection life span of 10 years, which, like the patents, can be renewed again after those 10 years. 3)-Copyrights

Copyright is regulated by the Copyright, Designs and Patents Act 1988 (CDPA 1988) The copyright protects literary, Dramatic, and other artistic works, as well as film, T. V and sound recording and other published works. In the case of the software company the clientele catalogue book can be placed under copyright. Due to the originality of the book it can be considered copyright. No formal process exists for copyright, it is automatically acquired once the "author" has completed its work thus it has to be tangible. The lifespan for a copyright is 70 years.

(Adams, A (2010). Law for business students. 6th ed. London: Pitman Publishing imprint. 512-530) 4b) When aspiring to acquire a patent you can go through two organizations, either through your national patent office as well as through the EU patent organization. When have gone through the process of acquiring your patent at the national patent office, your patent is registered but is only applicable within your countries borders, Whereas if you register at the EU patent organization; you get a bundle of patents from all the participating countries.

This was established by the European Patent Convention (EPC. ) What can be concluded is that it would seem more wise to got through the EU patent organization, by doing so your product is protected over a far larger range. Now looking at the given scenario, the Dutch individual has acquired a EU patent, giving him a monopoly over his exploitation throughout the contributing countries. The Spanish individual copies and markets the invention in Spain, and due to the fact that the Dutch individual does in fact have a patent certificate for Spain means the Spanish individual is infringing the patent.

As stated above, film TV Music and other artistic works are protected under copyright. As stated as well there is no formal process to acquire copyright but is obtained once the artists has completed it. Naturally the movie itself (the images) are unique, and thus if an individual has intentions to copy it, he or she has to have permission before going on such an endeavor as suggested in the given scenario. Obviously George failed to do so and is thus infringing copyright.

And due to the fact that he is uploading he is taking the owner's exclusive rights without lawful authority and is thus making a direct infringement. To concur I think that JK Rowling or Pathe are not entitled to compensation, even though George is doing wrong, he is ultimately just a user in a far larger network, and that network should be held accountable. 4d) i) As stated above trademarks are used as a marketing strategy to enable providers of goods or services that their products are immediately clearly recognized by their potential customers.

In 1994 the original act of 1938 was expanded by the Trade Marks act, this act implements an EC Directive aimed at harmonizing trademark laws throughout the EU. In this expansion the Trademark law went beyond signs and logos, making it possible to trade mark packaging, letters and numerals down to jingles that are accompanied with your brand. The expansion of this act has made trademarks "safer" throughout the EU, making it less easy to just copy some ones brand. In my opinion the harmonization was a big leap forward, however further steps definitely have to be undertaken.

To this date trademark is still being done on a large scale, especially within Asian countries brand logos (such as Louis Vuitton) are copied without issues and sold without any issues within the country, and then brought back to the west. Especially considering the rapid development of Asia, I think it is crucial to further expand the trademark laws internationally to secure brand uniqueness. (Adams, A (2010). Law for business students. 6th ed. London: Pitman Publishing imprint. 514-516) ii)

Names of people can be trademarked under the condition that they are represented in some way that makes them distinctive and immediately recognizable. To achieve this the name can be done as a unique signature (like Walt Disney) or by unique lettering. However companies may prefer to work under made up names to ensure company distinction. So as a new entrepreneur I would be able to register my name as a trademark, if by doing so I would make the logo unique enough. (Adams, A (2010). Law for business students. 6th ed. London: Pitman Publishing imprint. 513)