You act for SALLY and are asked to provide advice on the following issues. SALLY is a well-known UK-based salesperson in the swimming pool industry.

2024-08-26 12:55:58

Commercial Law Assessment

Candidates must submit a final draft of their Memorandum of Advice for the Module in (Commercial Law ) together with the completed Assessment Submission Sheet, in accordance with the Memorandum of Advice Assessment Submission Instructions, no later than 4pm, Monday, 27th March 2023.

 The Memorandum of Advice is worth 30 per cent of the total marks available for the module in (Commercial Law)The Memorandum of Advice (including any attachments) should not exceed 3,000 words.

As the Memorandum should be drafted and written in a practical style (with numbered paragraphs) it is not necessary to include a bibliography. Advice on the writing of a memorandum is available on the VLE (LLM Programme Information and Dissertations tab).

 Please note that no extension or deferral of this assessment can be authorised other than in strict accordance with the General Academic Regulations (available on the VLE) and pursuant to an application on the required form supported by independent evidence.

 This assessment is unsupervised. However, for guidance please refer to the notes and recordings on the VLE (LLM Programme Information and Dissertations tab – MoA Assessments).

LLM IN COMMERCIAL LAW  ASSESSMENT

MEMORANDUM OF ADVICE

You act for SALLY and are asked to provide advice on the following issues. SALLY is a well-known UK-based salesperson in the swimming pool industry. SALLY has won various national business awards and has a strong reputation and many contacts. SALLY has long been sought after as a consultant and adviser to various companies.

SALLY has recently been approached by SWIMINGO POOLS INC – a Manchester- based manufacturer of garden and home products, who are trying to get into the swimming pool manufacturing business. SWIMINGO POOLS INC want to appoint SALLY to help them launch this business, create potential business leads, promote and organise sales of their swimming pools to retailers and customers. SWIMINGO POOLS INC propose to pay SALLY a yearly retainer of £60,000; and commission of 20% on each new sale of a pool SALLY wins for them.

SALLY requests your advice on the following:

1) Advise on the extent to which a commercial agency relationship would be suitable for SALLY and SWIMINGO POOLS INC in this case? Explain your answer; AND:

2) By reference to the Commercial Agents (Council Directive) Regulations 1993, as well as the common law, advise SALLY on her obligations to SWIMINGO POOLS INC as a commercial agent.

The Agency relationship has been successful for 2 years. However, SWIMINGO POOLS INC have not been supporting SALLY in recent months. SALLY tells you that they have failed to provide her with up-to-date technical information regarding the pools’ dimensions and factory operations, and that its Manager, AHMED, recently accused SALLY of making secret kick-backs from a competitor and giving them pricing information which is confidential. AHMED emailed his accusation to SALLY and also all other senior managers. He has no evidence to support his accusation, and SALLY strongly denies it. Further, SWIMINGO POOLS INC have been withholding payment of You act for SALLY and are asked to provide advice on the following issues. SALLY is a well-known UK-based salesperson in the swimming pool industry £50,000 commission to SALLY. SALLY has sent several emails asking for payment, but with no reply.

 SALLY requests your advice on the following:

3)Does SWIMINGO POOLS INC’s conduct amount to a repudiation of the agency contract?

4)By reference to the Commercial Agents (Council Directive) Regulations 1993, can SALLY bring a claim against SWIMINGO INC, and what is the likelihood of success?

Plagiarised (Do not Copy)

To: Sally

From: [Your Name], Legal Advisor

Date: [Current Date]

Subject: Commercial Agency Relationship and Legal Obligations under Commercial Agents (Council Directive) Regulations 1993

1. Suitability of a Commercial Agency Relationship

Commercial Agency Relationship:

A commercial agency relationship is suitable for Sally and SWIMINGO POOLS INC, given the nature of the tasks Sally will perform, which align with the roles defined under the Commercial Agents (Council Directive) Regulations 1993. Sally will be promoting and selling SWIMINGO POOLS INC`s products, creating leads, and organizing sales.

Advantages:

  • Retainer and Commission: Sally will benefit financially from both a steady retainer and commission on sales.
  • Flexibility: The agency relationship provides flexibility in operations.
  • Reputation and Expertise: Leveraging Sally’s reputation and expertise enhances SWIMINGO POOLS INC’s market entry.

Challenges:

  • Dependency: SWIMINGO POOLS INC may rely heavily on Sally’s contacts and expertise.
  • Liability: Sally must adhere to her duties as defined by the Commercial Agents Regulations.

2. Obligations Under the Commercial Agents (Council Directive) Regulations 1993

Key Obligations:

  • Act Diligently and in Good Faith: Sally must act in the best interests of SWIMINGO POOLS INC, promoting their products with diligence and honesty.
  • Communicate Information: Sally must keep SWIMINGO POOLS INC informed about market conditions and any relevant issues affecting sales.
  • Follow Instructions: Sally must follow lawful instructions provided by SWIMINGO POOLS INC related to her role.
  • Non-Compete: Sally should avoid conflicts of interest, including not representing competing businesses without consent.

Common Law Obligations:

  • Loyalty: Sally must remain loyal to SWIMINGO POOLS INC, avoiding any actions that could harm their interests.
  • Care: Sally must exercise reasonable care in performing her duties, reflecting her expertise and experience.

3. Conduct Amounting to Repudiation of the Agency Contract

Repudiation Analysis:

  • Lack of Support: SWIMINGO POOLS INC`s failure to provide necessary technical information hampers Sally`s ability to perform her duties effectively.
  • False Accusations: The baseless accusation of kick-backs and breach of confidentiality, especially when shared with other managers, damages Sally`s reputation.
  • Withholding Commission: The non-payment of the £50,000 commission without justification is a breach of the financial terms of the agreement.

These actions collectively indicate a repudiation of the agency contract, as SWIMINGO POOLS INC has significantly undermined the trust and terms of the agreement.

4. Potential Claim Against SWIMINGO POOLS INC

Grounds for Claim:

  • Breach of Contract: Sally can claim for breach of contract due to non-payment of commission and lack of support.
  • Defamation: Sally may also consider a defamation claim for the false accusations made by Ahmed.

Likelihood of Success:

  • Commercial Agents Regulations: Under these regulations, Sally has a strong case for claiming compensation for termination and unpaid commissions.
  • Evidence: Success will depend on the documentation Sally has of her requests for payment and the communication regarding the accusations.

Conclusion:

Sally has a solid foundation to bring a claim against SWIMINGO POOLS INC for breach of contract and possibly defamation. The Commercial Agents (Council Directive) Regulations 1993 support her position, and the evidence she has will be crucial in pursuing this claim.

[Your Name] Legal Advisor

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