MOUNT KENYA UNIVERSITY

DEPARTMENT OF MANAGEMENT

COURSE CODE: BAF2105

COURSE TITLE: BUSINESS LAW

NAME:

ADM NO:
 a) Explain five general defenses available to a defendant in every action of tort,

where they are appropriate

The defenses available to a defendant in every action of tort include:

1. Mistake

When a defendant acts under a mistaken belief in some situations then he may use the

defense of mistake to avoid his liability under the law of torts. 

2. Act of God 

Under tort law, an act of God can be used as a good defense. In the case of Rylands v.

Fletcher, it was also acknowledged as a valid defense under the ‘Strict Liability' rule.

The Act of God and Inevitable Accident defenses may appear to be the same, but they are

not. Acts of God are unavoidable occurrences in which natural forces play a part and cause

harm. Heavy rain, storms, tidal waves, and other natural disasters, for example.

3. Inevitable Accident

Accident refers to an unforeseen injury, and if the same accident could not have been

prevented or averted despite the defendant's best efforts, we refer to it as an inevitable

accident. It is a strong defense because the defendant can establish that the injury could not

be prevented even after all safeguards were taken and that there was no intent to damage

the plaintiff.

4. Plaintiff the Wrongdoer

If the plaintiff's action is based on an illegal contract, he will lose his case and would not be

able to recover damages.

If a defendant claims that the claimant is the offender and is not entitled to damages, the

court will not absolve him of responsibility, but he will not be held guilty under this

heading.

5. Private Defense

The law has granted permission to protect one's life and property, and it has also granted

permission to use reasonable force to safeguard one's life and property.

(b)Explain the main remedies in respect of trespass to land.

A trespasser is someone who penetrates another person’s property without his or her

permission. Remedies in respect of trespass to land include:

1. Re-entry

If a trespasser has disrupted a person's possessions, he has the right to use reasonable

force to have the trespass removed. A person who is therefore entitled to immediate

possession and who uses reasonable force to reclaim it cannot be sued for trespassing. It is

not illegal to remove a trespasser who has a legal authority to do so.

2. Action for Ejectment

A person who has been deprived of immovable property without due process of law can

reclaim the property without having to establish a title through this quick remedy.
Even a person claiming a higher title has no authority to evict another without due process

of law, and if he dispossesses another by taking the law into his own hands, the

dispossessed will be restored to possession under the provisions outlined above.

3. Action for mesne profits

Apart from the right to reclaim land by having the trespasser ejected, a person who has

been illegally evicted from his property may also seek compensation for the losses he has

experienced during the eviction. The defendant's mesne gains are the gains he made while

occupying the premises.

An action for mesne profits is a type of lawsuit that seeks to recoup such remuneration. The

plaintiff may suit in ejectment and mesne profits in the same action if he so desires. His

claim is not limited to the benefit derived from that land by the defendant during that time

period.

4. Distress Damage Feasant/Seizure/Detention

The right of distress damage feasant allows a landowner to take trespassing livestock or

other chattels and retain them until he receives compensation for the damage done. The

objective is to compel the chattel's owner to pay compensation, and then to return the

chattel after the money has been paid.

 (c)Outline and discuss the implied conditions in every contract of sale of goods

The following conditions are implied in a contract of sale of goods unless the circumstances

of the contract show another intention:

1. Condition as to title

- The first implicit condition on the seller's part in every contract of sale is that:

He has the right to sell the products in the case of a sale,

- He will have the right to sell the products at the time the property is to pass in

the case of an agreement to sell.

- If the title is found to be defective, the buyer has the right to reject the goods and

receive a refund.

2. Sale by description

- If a contract for the sale of products by description exists, one implied

requirement is that the commodities must match the description. The buyer is

not obligated to accept and pay for products that do not match the product

description.

3. The Sale by sample

- There is an implied requirement in a contract of sale by sample that:

- The bulk must be of comparable quality to the sample;

- the buyer must have or be given a reasonable opportunity/chance to compare

the bulk to the sample;

- and the goods must be free of any defect that would render them

unmerchantable and that would not be apparent on a reasonable examination of

the sample.

4. Sale by a sample as well as by description

- When products are sold on the basis of a sample as well as a description, the

implied condition is that the bulk of the products delivered must match both the
 sample and the description. The buyer has the right to cancel the contract if the

items match the sample but not the description, or vice versa.

5. Condition as to quality or fitness

- In most cases, there is no implicit condition regarding the quality or

appropriateness of items offered for a certain purpose. The condition of

reasonable appropriateness of goods for a certain purpose may, however, be

implied on the seller's part if the buyer wants them for that purpose. The

following are the requirements to be met:

6. The Condition as to Merchantability

- This is only suggested where the sale is by description and the items are of

"merchantable quality," that is, the products must be fairly saleable under the

description by which they are known in the market.

7. Condition as to wholesomeness

- In the case of eatables and provisions, in addition to the implicit requirement of

merchantability, there is another implied condition that the items be healthful.

(d)Explain the '' nemo dat quod non habet'' rule as provided by the Sale of Goods Act

‘Nemo dit quod non habet,' according to a Latin aphorism, no one can give what he does not

have. This is the fundamental premise of title transfer.

A non-owner of commodities can transfer a better title to the buyer in the following

scenarios:
 1. A Mercantile Agent's Sale

Consider a mercantile agent who has the items or a certificate proving ownership of the

commodities with the owner's permission. When functioning in the ordinary course of a

mercantile agent's business, such an agency can sell the commodities. The transaction is

valid if the buyer acts in good faith and has no cause to believe the seller lacks the legal

authority to sell the items. In this instance, the title transfer is lawful.

2. Sale by one of the Joint Owners 

Frequently, products are purchased as a cooperative venture. The products are frequently

retained in the custody of one of the joint owners with the approval of the other co-owners.

The property in the products is passed to the buyer if this individual (who has sole

possession of the commodities) sells them. This is true as long as the buyer acts in good

faith and has no cause to fear the seller lacks the legal authority to sell the items.

3. Sale by a Person in Possession of Goods under a Voidable Contract

Consider someone who obtains possession of things as a result of a contract that is

voidable due to force, misrepresentation, fraud, or undue influence. If this person sells the

items before the original owner of the items terminates the contract, the buyer obtains a

good title to the commodities.

4. Sale by a Person who has already sold the Goods but Continues to have

Possession 
Consider a person who has sold things but still owns them or the documentation that prove

their ownership. This person might be able to sell the things to someone else.

Even if the property in the products was transmitted to the first buyer, if this buyer acts in

good faith and is unaware of the prior sale, he will have a solid title to the items. A seller in

possession's pledge or other disposition of the items or title documents is also valid.

5. Sale by Buyer obtaining possession before the Property in the Goods has

Vested in him

Consider a buyer who, with the seller's approval, gains possession of the items before the

property in them is transferred to him. He has the option to sell, pledge, or dispose of the

commodities to a third party.

The second buyer obtains a fair title to the goods if he obtains delivery of the commodities

in good faith and without knowledge of the lien or any other claim of the original seller.

This regulation does not apply to a hire-purchase arrangement, which gives a person

custody of the goods while also giving them the option to buy if the sale is not agreed upon.

6. Estoppel

The buyer receives a good title if an owner of goods is prevented from opposing the seller's

authority to sell by the behaviour. To obtain a good title by estoppel, however, it must be

demonstrated that the original owner actively endured or represented the seller in issue as

a person authorized to sell the goods.

7. Sale by an Unpaid Seller

If an unpaid seller exercises his right of lien or stoppage in transit and sells the products to

another buyer, the second buyer obtains good title to the commodities as opposed to the

first buyer. As a result, title will be transferred in this circumstance.

8. Sale under the Provisions of other Acts

The purchaser will receive a legitimate title if the sale is made by an Official Receiver or

Liquidator of the Company.

- Under some conditions, purchasing things from a finder of goods will result in a

legitimate title.

- A pawnee's sale might give the buyer a valid title.

 (e)Explain five ways in which an agency comes to an end by operation of the law.

Under the circumstances outlined below, an agency may be terminated by operation of law.

1. Business completion

When an agency's business is accomplished, it automatically comes to an end. For instance,

A hires B to sell his products. As soon as the sale is completed, B's authority to sell products

expires.

2. Death or insanity of the Principal or Agent

If the principal or agent dies, or if either becomes insane, the agency is automatically

dissolved. Even though the agent is unaware of it, the principal's craziness brings the

agency to an end.

3. Insolvency of the Principal

The agent's authority is terminated if the principal is insolvent.

4. Time Expiration

When an agent is appointed for a set period of time, the agency comes to an end when the

term expires (assuming the term of the agency was not extended), regardless of whether

the agency's purpose has been met or not.

5. Destroying the agency's subject matter

Destroying the agency's subject matter automatically puts an end to it. A, for example, hires

someone to manage his rental property. In the event of an earthquake, the home will fall,

and the agency will cease to exist.

(f)Explain five duties of agents  

1. To behave in the principal's best interests

a. When a principle appoints an agent to facilitate or negotiate a transaction on his or her

behalf, the agent owes the principal a responsibility to operate in the principal's best

interests within the scope of the agent's powers.

b. In practice, the agent's responsibility to act under the best interests of the principle

necessitates the agent using his due diligence and expertise to negotiate transaction terms

on behalf of his principal with a third party to his principal's greatest advantage in the

circumstances.

2. There are no conflicts of interest.

a. If the interests of principal B clash with the interests of principal A, an agent who has

accepted an appointment to act for one principal ("A") should not accept an appointment to

act for another principal ("B"). However, if the agent clearly reveals the agent's interests

under the two appointments, as well as the fact that he operates for both principals at the

same time, and obtains each principal's approval to the dual agency, he may continue to act

for both principals. As a result, an estate agent who represents both the vendor and the

purchaser in a property sale and buy transaction must inform both the vendor and the

purchaser of the fact.

b. The agent's obligation to avoid conflict of interest extends to situations in which the

agent's or his close relatives' interests clash or may conflict with his duties to the principal.

The agent may still act for the principal if he or she fully discloses such interests to the

principal and obtains the principal's consent. Failure to make full disclosure to the

principle is a breach of the agent's fiduciary responsibility, and the agent is responsible for

any profit generated from the transaction, in addition to the principal's other remedies for

the agent's breach of duty.

3. There is no hidden profit.

An agent must not profit or gain any benefit in the course and matter of his agency without

his principal's knowledge and consent, according to common law. This type of profit,

referred to as "hidden profit," is not limited to money and can include anything of value,

such as an interest-free loan, a club membership, and so on. In addition to any other

remedies available to the principal for the agent's breach of duty, an agent who has made

secret profit must account to the principle for such profit. The situations below are some

examples of hidden profit:

4. Confidentiality obligation

a. Due to the fiduciary connection between a principle and his agent, the agent shall not,

without the principle's approval, divulge any information about the principle or any

sensitive information entrusted to him by the principal to any third person.

b. The principal's information may comprise his name, Hong Kong identity card number,

address, phone number, and so on.

c. Any information that is not easily available to the public is considered confidential

information entrusted to an agent. Information that is freely available to the public usually

comes from government departments and is available for review by the public.

5. Obligation to use caution and skill

a. In performing his duties, an agent is required by common law to operate with care and

competence. Agents who fail to achieve this criterion are considered negligent in the first

instance.
b. In general, an agent in a particular profession, trade, or calling who performs his or her

duties with the care and competence anticipated of a reasonable, average member of the

relevant profession, trade, or calling satisfies the requisite level.

REFERENCES

1. Gaurav, Akrani. (2013, January 08). 4 Main Components of Marketing. Retrieved

from https://kalyan-city.blogspot.com/2013/01/4-main-components-of-

marketing.html

2. Nikki, Jones. (2020, September 09).Behavioral Segmentation defined using

examples. Retrieved from https://www.yieldify.com/blog/behavioral-

segmentation-definition-examples/

3. Anubhav, Pandey. (2018, November 12). General defenses under Law of torts.

Retrieved from https://blog.ipleaders.in/general-defences-under-law-of-torts/

4. Diva, Rai. (2020, November 19). Trespass to land. Retrieved from

https://blog.ipleaders.in/trespass-to-land/