In relation to the law of contract, distinguish be - 考试试题及答案解析 - 读趣百科
解答题

In relation to the law of contract, distinguish between and explain the effect of:

(a) a term and a mere representation; (3 marks)

(b) express and implied terms, paying particular regard to the circumstances under which terms may be implied in contracts. (7 marks)

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This question requires candidates to consider the law relating to terms in contracts. It specifically requires the candidates to distinguish between terms and mere representations and then to establish the difference between express and implied terms in c

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In relation to company law, explain:

(a) the limitations on the use of company names; (4 marks)

(b) the tort of ‘passing off’; (4 marks)

(c) the role of the company names adjudicators under the Companies Act 2006. (2 marks)

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(a) Except in relation to specifically exempted companies, such as those involved in charitable work, companies are required to indicate that they are operating on the basis of limited liability. Thus private companies are required to end their names, eit

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TQ Company, a listed company, recently went into administration (it had become insolvent and was being managed by a firm of insolvency practitioners). A group of shareholders expressed the belief that it was the chairman, Miss Heike Hoiku, who was primarily to blame. Although the company’s management had made a number of strategic errors that brought about the company failure, the shareholders blamed the chairman for failing to hold senior management to account. In particular, they were angry that Miss Hoiku had not challenged chief executive Rupert Smith who was regarded by some as arrogant and domineering. Some said that Miss Hoiku was scared of Mr Smith.

Some shareholders wrote a letter to Miss Hoiku last year demanding that she hold Mr Smith to account for a number of previous strategic errors. They also asked her to explain why she had not warned of the strategic problems in her chairman’s statement in the annual report earlier in the year. In particular, they asked if she could remove Mr Smith from office for incompetence. Miss Hoiku replied saying that whilst she understood their concerns, it was difficult to remove a serving chief executive from office.

Some of the shareholders believed that Mr Smith may have performed better in his role had his reward package been better designed in the first place. There was previously a remuneration committee at TQ but when two of its four non-executive members left the company, they were not replaced and so the committee effectively collapsed.

Mr Smith was then able to propose his own remuneration package and Miss Hoiku did not feel able to refuse him.

He massively increased the proportion of the package that was basic salary and also awarded himself a new and much more expensive company car. Some shareholders regarded the car as ‘excessively’ expensive. In addition, suspecting that the company’s performance might deteriorate this year, he exercised all of his share options last year and immediately sold all of his shares in TQ Company.

It was noted that Mr Smith spent long periods of time travelling away on company business whilst less experienced directors struggled with implementing strategy at the company headquarters. This meant that operational procedures were often uncoordinated and this was one of the causes of the eventual strategic failure.

(a) Miss Hoiku stated that it was difficult to remove a serving chief executive from office.

Required:

(i) Explain the ways in which a company director can leave the service of a board. (4 marks)

(ii) Discuss Miss Hoiku’s statement that it is difficult to remove a serving chief executive from a board.

(4 marks)

(b) Assess, in the context of the case, the importance of the chairman’s statement to shareholders in TQ

Company’s annual report. (5 marks)

(c) Criticise the structure of the reward package that Mr Smith awarded himself. (4 marks)

(d) Criticise Miss Hoiku’s performance as chairman of TQ Company. (8 marks)

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(a) (i) Leaving the service of a boardResignation with or without notice. Any director is free to withdraw his or her labour at any time but there is normallya notice period required to facilitate an orderly transition from the outgoing chief executive to

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John Pentanol was appointed as risk manager at H&Z Company a year ago and he decided that his first task was to examine the risks that faced the company. He concluded that the company faced three major risks, which he assessed by examining the impact that would occur if the risk were to materialise. He assessed Risk 1 as being of low potential impact as even if it materialised it would have little effect on the company’s strategy. Risk 2 was assessed as being of medium potential impact whilst a third risk, Risk 3, was assessed as being of very high potential impact.

When John realised the potential impact of Risk 3 materialising, he issued urgent advice to the board to withdraw from the activity that gave rise to Risk 3 being incurred. In the advice he said that the impact of Risk 3 was potentially enormous and it would be irresponsible for H&Z to continue to bear that risk.

The company commercial director, Jane Xylene, said that John Pentanol and his job at H&Z were unnecessary and that risk management was ‘very expensive for the benefits achieved’. She said that all risk managers do is to tell people what can’t be done and that they are pessimists by nature. She said she wanted to see entrepreneurial risk takers in H&Z and not risk managers who, she believed, tended to discourage enterprise.

John replied that it was his job to eliminate all of the highest risks at H&Z Company. He said that all risk was bad and needed to be eliminated if possible. If it couldn’t be eliminated, he said that it should be minimised.

(a) The risk manager has an important role to play in an organisation’s risk management.

Required:

(i) Describe the roles of a risk manager. (4 marks)

(ii) Assess John Pentanol’s understanding of his role. (4 marks)

(b) With reference to a risk assessment framework as appropriate, criticise John’s advice that H&Z should

withdraw from the activity that incurs Risk 3. (6 marks)

(c) Jane Xylene expressed a particular view about the value of risk management in H&Z Company. She also said that she wanted to see ‘entrepreneurial risk takers’.

Required:

(i) Define ‘entrepreneurial risk’ and explain why it is important to accept entrepreneurial risk in business

organisations; (4 marks)

(ii) Critically evaluate Jane Xylene’s view of risk management. (7 marks)

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(a) (i) Roles of a risk managerProviding overall leadership, vision and direction, involving the establishment of risk management (RM) policies,establishing RM systems etc. Seeking opportunities for improvement or tightening of systems.Developing and prom

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Big Cheese Chairs (BCC) manufactures and sells executive leather chairs. They are considering a new design of massaging chair to launch into the competitive market in which they operate.

They have carried out an investigation in the market and using a target costing system have targeted a competitive selling price of $120 for the chair. BCC wants a margin on selling price of 20% (ignoring any overheads).

The frame. and massage mechanism will be bought in for $51 per chair and BCC will upholster it in leather and assemble it ready for despatch.

Leather costs $10 per metre and two metres are needed for a complete chair although 20% of all leather is wasted in the upholstery process.

The upholstery and assembly process will be subject to a learning effect as the workers get used to the new design.

BCC estimates that the first chair will take two hours to prepare but this will be subject to a learning rate (LR) of 95%.

The learning improvement will stop once 128 chairs have been made and the time for the 128th chair will be the time for all subsequent chairs. The cost of labour is $15 per hour.

The learning formula is shown on the formula sheet and at the 95% learning rate the value of b is -0·074000581.

Required:

(a) Calculate the average cost for the first 128 chairs made and identify any cost gap that may be present at

that stage. (8 marks)

(b) Assuming that a cost gap for the chair exists suggest four ways in which it could be closed. (6 marks)

The production manager denies any claims that a cost gap exists and has stated that the cost of the 128th chair will be low enough to yield the required margin.

(c) Calculate the cost of the 128th chair made and state whether the target cost is being achieved on the 128th chair. (6 marks)

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(W1)The cost of the labour can be calculated using learning curve principles. The formula can be used or a tabular approach wouldalso give the average cost of 128 chairs. Both methods are acceptable and shown here.(b) To reduce the cost gap various method

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Section A – This ONE question is compulsory and MUST be attempted

Hesket Nuclear (HN) is a nuclear power station in Ayland, a large European country. The HN plant is operated by Hesket Power Company (HPC), which in turn is wholly owned by the government of Ayland. Initially opened in the late 1950s, the power station grew in subsequent decades by the addition of several other facilities on the same site. HN now has the ability to generate 5% of Ayland’s entire electricity demand and is one of the largest nuclear stations in Europe. At each stage of its development from the 1950s to the present day, development on the site was welcomed by the relevant local government authorities, by the businesses that have supported it, by the trade union that represents the majority of employees (called Forward Together or FT for short) and also by the national Ayland government. A nuclear reprocessing facility was added in the 1980s. This is a valuable source of overseas income as nuclear power producers in many other parts of the world send material by sea to HN to be reprocessed. This includes nuclear producers in several developing countries that rely on the cheaper reprocessed fuel (compared to ‘virgin’ fuel) that HN produces.

HPC is loss-making and receives a substantial subsidy each year from the government of Ayland. HPC has proven itself uneconomic but is deemed politically and environmentally necessary as far as the government is concerned. The government of Ayland has reluctantly accepted that large subsidies to HPC will be necessary for many years but considers nuclear power to be a vital component of its energy portfolio (along with other energy sources such as oil, gas, coal, renewables and hydroelectric) and also as a key part of its ‘clean’ energy strategy. Unlike energy from fossil fuels (such as coal, gas and oil), nuclear power generates a negligible amount of polluting greenhouse gas. HN also provides much needed employment in an otherwise deprived part of the country. The HN power station underpins and dominates the economy of its local area and local government authorities say that the HN plant is vital to the regional economy.

Since it opened, however, the HN power station has been controversial. Whilst being welcomed by those who benefi t from it in terms of jobs, trade, reprocessing capacity and energy, a coalition has gradually built up against it comprising those sceptical about the safety and environmental impact of nuclear power. Some neighbouring countries believe themselves to be vulnerable to radioactive contamination from the HN plant. In particular, two countries, both of whom say their concerns about HN arise because of their geographical positions, are vocal opponents. They say that their geographical proximity forced them to be concerned as they are affected by the location of the HN plant which was not of their choosing.

The government of Beeland, whose capital city is 70 km across the sea from HN (which is situated on the coast), has consistently opposed HN and has frequently asked the government of Ayland to close HN down. The Beeland government claims that not only does ‘low-level’ emission from the site already contaminate the waters separating the two countries but it also claims that any future major nuclear ‘incident’ would have serious implications for the citizens of Beeland. There is some scientifi c support for this view although opinion is divided over whether Beeland is being irrational in its general opposition to HN.

The government of Ceeland is also a vocal opponent of HN. Ceeland is located to the north of Beeland and approximately 500 km away from Ayland. Some nuclear scientists have said that with such a large stretch of water between the HN plant and Ceeland, even a much-feared incident would be unlikely to seriously impact on Ceeland. Some commentators have gone further and said that Ceeland’s concerns are unfounded and ‘borne of ignorance’. FT, the trade union for HN employees, issued a statement saying that Ceeland had no reason to fear HN and that its fears were ‘entirely groundless’.

HN’s other vocal and persistent opponent is No Nuclear Now (NNN), a well-organised and well-funded campaigning group. Describing itself on its website as ‘passionate about the environment’, it describes HN’s social and environmental footprint as ‘very negative’. NNN has often pointed to an environmentally important colony of rare seals living near the HN plant. It says that the seals are dependent on a local natural ecosystem around the plant and are unable to move, arguing that the animals are at signifi cant risk from low-level contamination and would have ‘no chance’ of survival if a more serious radioactive leak ever occurred. NNN points to such a leak that occurred in the 1970s, saying that such a leak proves that HN has a poor safety record and that a leak could easily recur.

Each time an objection to the HN power station is raised, FT, the trade union, robustly defends the HN site in the media, and argues for further investment, based on the need to protect the jobs at the site. Furthermore, the radiation leak in the 1970s led to FT uniting with the HPC board to argue against those stakeholders that wanted to use the leak as a reason to close the HN site. The combination of union and HPC management was able to counter the arguments of those asking for closure.

HN places a great deal of emphasis on its risk management and often publicises the fact that it conducts continual risk assessments and is in full compliance with all relevant regulatory frameworks. Similarly, FT recently pointed out that HN has had an ‘impeccable’ safety record since the incident in the 1970s and says on its website that it is ‘proud’ that its members are involved in ensuring that the company is continually in full compliance with all of the regulatory requirements placed upon it.

The board of HPC, led by chairman Paul Gog, is under continual pressure from the government of Ayland to minimise the amount of government subsidy. Each year, the government places challenging targets on the HPC board requiring stringent cost controls at the HN power station. In seeking to reduce maintenance costs on the expiry of a prior maintenance contract last year, the board awarded the new contract to an overseas company that brought its own workers in from abroad rather than employing local people. The previous contract company was outraged to have lost the contract and the move also triggered an angry response from the local workforce and from FT, the representative trade union.

FT said that it was deplorable that HPC had awarded the contract to an overseas company when a domestic company in Ayland could have been awarded the work. The union convenor, Kate Allujah, said that especially in the nuclear industry where safety was so important, domestic workers were ‘more reliable’ than foreign workers who were brought in purely on the basis of cost and in whose countries safety standards in similar industries might not be so stringent. HPC said that it had done nothing illegal as the foreign workers were allowed to work in Ayland under international legal treaties. Furthermore, it argued that pressure by FT to raise wages over recent years had created, with the government’s subsidy targets, the cost pressure to re-tender the maintenance contract.

On HN’s 50th anniversary last year, NNN published what it called a ‘risk assessment’ for the HN power station. It said it had calculated the probabilities (P) and impacts (I) of three prominent risks.

Risk of major radioactive leak over the next 10 years: P = 10%, I = 20

Risk of nuclear explosion over the next 50 years: P = 20%, I = 100

Risk of major terrorist attack over next 10 years: P = 10%, I = 80

Impacts were on an arbitrary scale of 1–100 where 100 was defi ned by NNN as ‘total nuclear annihilation of the area and thousands of deaths’.

The governments of Beeland and Ceeland seized upon the report, saying that it proved that HN is a genuine threat to their security and should be immediately closed and decommissioned. HN’s risk manager, Keith Wan, vigorously disagreed with this assessment saying that the probabilities and the impacts were ‘ridiculous’, massively overstated and intended to unnecessarily alarm people. HN’s public relations offi ce was also angry about it and said it would issue a rebuttal statement.

Required:

(a) Distinguish between voluntary and involuntary stakeholders, identifying both types of stakeholders in Hesket Nuclear. Assess the claims of THREE of the involuntary ‘affected’ stakeholders identifi ed. (12 marks)

(b) The trade union, Forward Together, has had a long relationship with HN and represents not only the main workforce but also the employees of the maintenance company replaced by the foreign workers.

Required:

Explain the roles of employee representatives such as trade unions in corporate governance and critically evaluate, from the perspective of HPC’s board, the contribution of Forward Together in the governance of HPC. (10 marks)

(c) Explain what an agency relationship is and examine the board of HPC’s current agency relationship and objectives. Briefl y explain how these would differ if HPC was a company with private shareholders. (10 marks)

(d) As a part of HPC’s public relations effort, it has been proposed that a response statement should be prepared for the company’s website to help address two major challenges to their reputation.

Required:

Draft this statement to include the following:

(i) Referring to the NNN report, explain why accurate risk assessment is necessary at Hesket Nuclear. (8 marks)

(ii) Explain what a social and environmental ‘footprint’ is and construct the argument that HN’s overall social and environmental footprint is positive. (6 marks)

Professional marks will additionally be awarded in part (d) for drafting a statement that is clear, has a logical fl ow, is persuasive and is appropriately structured. (4 marks)

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题目答案

(a) Distinguish and identifyVoluntary stakeholders are those that engage with an organisation of their own choice and free will. They are ultimately (in the long term) able to detach and discontinue their stakeholding if they choose. Involuntary stakehold

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