Negligent Misstatement and Intellectual Property †Free Samples

Question: Discuss about the Negligent Misstatement and Intellectual Property. Answer: Introduction: Rob, the owner of Dental Delights Pvt. Ltd. entered into an agreement with Brad, who was a builder. Since Rob was planning to open for business, he requested Brad to finish the work three weeks prior and he also promised to pay him bonus for finishing early. Brad roped in Melaine and the work was completed as Melaine put in hard work for 10 consecutive days. After celebration and lunch, Brad promised Melaine an extra of $3000. On the next day, Melaine and Brad had a fight and Brad asked her to leave also asked her to forget the extra bonus she had paid. The parties are governed by Contract law. In the case of Williams v Roffey Bros and Nicholls (Contractors) Ltd [1990] 1 AII ER 512, it was held that when a practical benefit is received out of any contract, it will be considered a valid consideration. Therefore, the practical benefit being the early completion of work, it can be said that the consideration is valid and therefore Melaine can sue Brad. In the case Musemeci v Winadell Pty Ltd (1994) 34 NSWLR 723, the same principle was upheld that in case of an benefit received in return of an assigned work, it will be termed a valid consideration. For a contract to be valid in law, a few elements need to be taken into consideration-parties, a legally enforceable agreement and consideration. In this case, Melaine is the interior designer of Brad who was asked to work on ten consecutive days to finish the work on time. After doing so, they had a fall out and Brad decided to not make the payment as was promised. The relationship between Brad and Melaine is that of employer and employee and the consideration here is the $3000 that Brad had promised to pay Melaine for completing the work. Contract can be either express or implied. In case of an express contract, the terms are clearly laid down and in case of an implied contract, the terms are understood from the contract and they are not clearly spelled out. Contracts can again be of two kinds- oral or written. When the terms of the contract are communicated verbally, it is called oral contract and when it is done in a formal way, it is called a written contract. In this particular scenario, it was an express and oral contract with a valid consideration and therefore Melaine can sue Brad for breach of contract. Rob has bought furniture but doesnt want to keep them but the shopkeeper will not take it back because it has been used. Having no way of selling it, Rob puts and advertisements for $20,000 and responding to the advertisement, a man comes to check it. The man has an uncanny resemblance with a well-known actor Vince Colosimo and that man asks Rob to call him Vince as a result of which Rob is convinced that he is the famous actor. The truth is that he is not the actor and on the contrary, he is a rogue who looks like actor. Vince loves the furniture and gives Rob $5000 and says the remaining $15,000 he will transfer electronically in two days. Next day, two of Vinces friends come and collect the furniture. After not getting the payment, Rob takes the help of police who trace the furniture to Judy who says that she has bought from someone who looked like a celebrity. In the case of Walton Stores (Interstate) v Maher (1988) 164 CLR 387, the principle of Promissory estoppels was discussed wherein the points were laid down that would make successful claim of an estoppels. In this case, a legal relationship was assumed by Rob and based on that assumption In the current case, the rogue who looked like the celebrity Vince, convinced Rob into believing that he will pay the remaining amount by paying the $2000. From the conduct of Vince Rob was convinced that he will pay and it formed an implied contract as it could be gauged from the action of Vince, it was an assumption made on the part of Rob. Acting on that assumption, Rob gave the furniture to him and as a result of that reliance suffered detriment. The principle of promissory estoppels applies in this case because though there has been a failed compliance management, there has been an assumption on the part of Rob and based on that assumption, Rob has faced an economic loss of $15,000. Rob sold the furniture and as a result faced an economical loss. Judy had no knowledge of the legal relationship that existed between Rob and Vince and without any knowledge bought the furniture from Vince and therefore he is not liable to pay any amount to Rob. No legal or contractual relationship exists between Judy and Rob and therefore Rob cannot recover the amount from Judy. Judy had no intention to cause any economic loss to Rob and in good faith had bought the furniture from Vince. Jeff Price is an accountant having sound knowledge of his subject. Rob is a dentist who meets Rob at a party and tells his that he wants to expand his business. Jeff being slightly inebriated advices Rob to expand his business telling him that his business is in a safe position to expand, relying on Jeffs advice, Rob borrows an amount of $50,000 but it turns out that it was a bad business investment. Rob has defaulted on the Northpac loan and as a result of the failure to pay Jeff has been sued for damages. Misstatement is a false statement which has been made without taking proper consideration of facts (Roberts 2017). A misstatement is a negligent statement not made carefully and which has the capability to mislead anyone. Misrepresentation is when a party makes a false claim based on facts which are untrue and thereby induces the other party to enter into the contract, it can give rise to an actionable claim (Van, Reinecke and Lubbe 2016). A misstatement can be both fraudulent and non-fraudulent. In case of a non-fraudulent misstatement, it is very difficult to fix liability because intention cannot be gauged in such cases. Any statement made with an intention to cause harm can be termed unlawful whereas if the intention to cause any loss is missing, it is not possible to assign liability. Misrepresentation is any untrue fact which is directly linked to the terms of the contract. Again, when the person induces the other party to enter into the contract, he must have recklessly made a statement though knowing the truth. In the respondents defence, if it can be proved that the other person relied on his own judgment and not on the respondents claims, he cannot make a case of misrepresentation. Conclusion When it comes to attaching duty of care, it is not done so in cases of financial matters. Liability can only be attracted in cases where the person had reason to base his action on the persons advice. In the present case, Jeff was an accountant and he does not owe any duty of care towards Rob. Jeff was in an inebriated state and having being aware of his conditional to not give sound advice under the influence of alcohol; Rob should not have based his decision on his advice. Human rights are basic inalienable rights which are paramount for a healthy and secure living. Every human being has basic human rights which shall include health, life, dignity and liberty (Fussler, Cramer and Vegt 2017). In a globalized world, the need of the hour is to recognize that every person has the right to live with dignity and their basic human rights should be respected. A human right to health suggests that everyone has the right to get the maximum attainable health which shall be free from any abuse or torture. The UN Global Compact Human Rights which are a derivation of Universal Declaration of Human Rights mandate that everyone should be treated with equality irrespective of their gender, race, ethnicity, caste and nationality (Hakim 2015). As a practicing dentist, it is the moral duty of Rob to ensure that his patients get proper medical care and they are not discriminated on the basis of any trait which is intrinsic to their being. Rob, being a dentist has an obligation towards serving others and therefore to make sure everyones health issues are addressed and taken care, he has to take special care. His profession is to help people in need of healthcare and keeping in mind the UN Declaration of Human Rights and its basic principles, it is imperative that he treats his patients with utmost care and passion. Access to medicine is another aspect of ensuring that everyone is healthy and treated with equality (Gibson 2017). Medicine should be free to people in dire need of it and Rob should make sure that his patients get proper medicinal aid when they are in need and in cases of patients who cannot expensive medical treatment management, they should be given free medicines to ameliorate their pain. Reference Fussler, C., Cramer, A. and Van der Vegt, S., 2017.Raising the bar: creating value with the UN Global Compact. Routledge. Gibson, J., 2017.Intellectual property, medicine and health: current debates. Routledge. Hakim, F.Y., 2015. Universal Declaration of Human Rights.IJIL,4(1). Roberts, M., 2017. Negligent Misstatement in the Court of Appeal. Van Huyssteen, L.F., Reinecke, M.F.B. and Lubbe, G.F., 2016. Contract: General Principles (p. 98). Cape Town: Juta.