Verb Abstract noun Person

oJ;e delegator, delegate, delegatee

I

cicln

assign

I obligation

I

imply

intention/intent

consult

I

enactment

rebuttal

I

construe

determine

I

draft

I

transfer

Employmenlatw

ng 1: I on e p e

The following text provides an introduction to concepts related to employment law and

recruitment, including factors to be taken into account when drawing up employment

contracts, when dismissing employees and when resolving disputes.

1 Read the text quickly, then match each of these headings (a-g) with

the paragraph (1-7) to which it best corresponds.

a Termination of employment

b Employment tribunals

c Terms of employment

d Employment legislation

e Labour law

f Protecting the disabled

g Recruitment

1 (US) layoff 2 (US) labor union

,

3 (US) labor law

s: E p

2 Match these key terms (1-4) with the examples (a-d).

1 discriminatory dismissal

2 redundancy dismissal

3 unfair dismissal

4 genuine occupational qualification

a An employee is laid off because his employer had insufficient work for

him to do.

b Only female applicants are hired for jobs at an all-women hostel.

c An employee is fired when she becomes pregnant.

d A worker's employment is terminated because he took part in lawful

union activities.

3 Answer these questions.

1 What does the phrase construed as discriminatoryin paragraph 2 mean?

What do you think would be involved in proving that a job advertisement

could be construed as discriminatory?

2 What do you understand by the phrase reasonable adjustments in

paragraph 3? What factors do you think might be taken into account when

deciding if an adjustment is reasonable?

3 What do you think compensation for r..] injured feelings in paragraph 6

refers to? What kinds of work-related situations do you think could result in

such a claim for compensation?

4 Match the words to form collocations as they appear in Reading 1.

1 sex

2 marital

3 ethnic

4 holiday

5 unfair

a origins

b dismissal

c discrimination

d status

e entitlement

5 What laws govern employment in your jurisdiction? Do they regulate the same

areas (sex discrimination, race relations, disability, health and safety, and

employee rights in general) that the UK laws regulate?

Unit8 Employment law

E

ng 2: E on e p e

Thefollowing text, which appearedin an online gazettefor lawyers,dealswith changes

that would likely resultfrom the implementationof plannedEUdirectiveson

employment.

6 Look at the title and read the first paragraph of the text. What do you think

case bonanzameans? Whywill there be a case bonanza?

7 Read the first two paragraphs. What does each of the three planned directives

deal with?

Employmentlawyerswillsoon experiencea

Commissionlastmonth published plansto

basisof age!religionand sexualorientation.At present,

for claimsagainstemployerson the grounds of race,sexand

directivewould also cover! alia,discriminationbased

Furtherdirectivesare also

on the groundsof

of action!!providingpractical

issuesand for groups

Once passed!the directiveswould placea deadline on

of the member statesand might allow people to bring

other state employers,such as local councils.

The directiveswould add to a

enshrinedin UK law!such

parentalleave!which were

employment practitioners.

that Europeanlaw-makers

on any basisother than sex.

David

said: 'The

of so much

and

for

up by a

any

ElizabethAdams,

said the directives

more work for

,

8 Read the whole text and decide whether these statements are true or false.

1 A directive concerning entitlement to parental leave will soon be made into

law in the UK.

2 David Cockburn thinks the discrimination industry will expand over the next

few years because so many new laws have been passed.

3 Once passed, EU directives apply immediately to member states.

4 Elizabeth Adams thinks that the directives will make it easier for employees

to file a complaint against an employer.

9 Match these words or phrases from the text (1-4) with their synonyms (a-d).

1 to outlaw something

2 to bring a claim against someone

3 entitlement

4 claimant

a a person asserting a legal right which has been'violated

b a right to benefits specified by law or contract

c to make something illegal

d to assert a legal right alleged to have been violated

ning e p e b c

Lawyers are often consulted in employmentrights disputes,providingconsultationand

representation for clients who want to make or defend claims to an employment tribunal.

Employment tribunals are judicial bodies established in the UKto resolve disputes

between employers and employees over matters involving employment rights, such as

unfair dismissal, redundancy payments and discrimination. Do you have employment

tribunals in your jurisdiction?

Generally speaking, the handling of a claim in the UKproceeds as follows: firstly, a

claimant submits a claim, usually in person, to an employment tribunal. If there are any

outstanding issues concerning such things as witness testimony, necessary documents,

etc., the chair of the tribunal then holds a case-management discussion to clarify them.

Sometimes this is followed by a pre-hearing assessment or review [which the claimant

may attend if desired], at which time the tribunal decides whether the claim has merit.

Lastly, there is a final hearing where a decision is made as to whether the claim succeeds

or fails, and if it succeeds, the amount of damages to be awarded.

The following telephone conversation is between a lawyer [Jane) and a client [Gwen],

who is an employer defending a claim filed with the employment tribunal. They discuss

the preparations for a pre-hearing assessment. They mention a document called an entry

of appearance. This is a written notice of appearance providing the respondent's full

name and contact details, as well as a statement of opposition to the claim, including the

grounds upon which it is opposed.

10..::: Listen and tick the actions that Gwen will take following the phone

conversation.

1 attend a managers' meeting

2 contact the employment tribunal personally

3 inform the management about the status of the case

4 send an email with the requested document

5 discuss the case with the dismissed employee

6 write an exact account of the circumstances leading to the dismissal

DDDDDD

Unit 8 Employment law

E

11Choose the correct answer to each of these questions.

1 What does Jane want Gwen to do with the draft entry of appearance?

a submit it to the employment tribunal for the pre-hearing assessment

b review it, make any necessary changes and send it back to her

c decide on the basis of it whether they want to proceed with the case

2 According to Jane, when would a lawyer make an application for a prehearing

assessment?

a when the defendant believes the claimant's case is weak

b when the defendant wants to present all of the evidence at the full

hearing

c when the defendant wishes to inform the court who will be representing

him/her

3 Why does Jane think it will be better for her client if the case does not go to

final hearing?

a because it would save the parties involved time, effort and money

b because she thinks her client could lose the case

c because she thinks the good faith between employer and employee would

be lost

4 What does the client state is her firm's top priority in the case?

a finding out exactly what the dismissed employee did with the confidential

information

b resolving the dispute successfully and getting back to work

c avoiding the expense of having the case go to a full hearing

Writing 1: Attachme and

12This email was sent by Gwen to Jane as promised in the telephone

conversation. What documents are attached to the email? Underline the

sentences she uses to refer to them.

for dismissal_Myers. doc

Further to our phone conversation this morning, I attach the revised entry of

appearance form which you requested. In addition, please find attached a document

providing a complete factual account of the circumstances of the theft. Kindly let me

know if anything needs to be changed or if you require further information.

I'd appreciate it if you could let me know as soon as possible whether the case

can be handled solely on the basis of a written submission as you mentioned.

Many thanks for your assistance in this matter.

Sincerely

Gwen Hill

,

1.3Although Jane and Gwen have a friendly working relationship and are on a firstname

basis with each other, the style of Gwen's email to Jane is polite and formal.

Which words or phrases contribute to the politeness and formality of the email?

1.4Match these formal expressions (1-10) from the email on page 110 with their

more informal counterparts (a-j).

1 Kindly let me know

2 Further to our phone conversation this morning

3 for your assistance in this matter

4 which you requested

5 Sincerely

6 providing a complete factual account of the

circumstances

7 I attach

8 Many thanks

9 if you require further information

10I'd appreciate it if you could let me know as soon

as possible

1.5Jane has submitted the entry of appearance and the application for the pre-

~~~~1I1hearing assessment to the employment tribunal. She has also made a written

»p.;;;1 submission of the case to the tribunal, and requested that the case be

disposed of solely on the basis of this written submission.

a Here's the

b with all the facts

c if you need more information

d Tell me

e As mentioned on the phone this morning

f Thanks a lot

g Please tell me asap

h you asked for

i for helping me out with this

j Best wishes

Write an email from Jane to Gwen, informing her of the steps she has taken

and providing her with copies of the documents submitted to the tribunal. Write

the email in a formal, polite style. You should include:

0 a statement of the reason for writing;

0 information about the actions she has taken in the case since their last

contact;

0 reference to the documents attached;

0 reference to what Jane believes will be the outcome of the case;

0 a closing line offering assistance if needed.

ng 3~ in on

In the UK,the law provides for sex-discrimination casesto be brought before an

employment tribunal, which has the power to award compensation to the claimant. If the

tribunal decides that the law has been broken, it can award compensation for financial

loss, as well as for injury to feelings or health which has been suffered as a result of the

discriminatory treatment. Furthermore, a tribunal may also award aggravated damages if

the injury to feelings has been made worse by the manner in which the discrimination has

been carried out. In certain circumstances, the tribunal may even order exemplary

damages in order to punish the respondent.

The article on page 112 provides information about the outcome of a case heard by an

employment tribunal.

1.6Quickly scan the article and decide which is the most appropriate headline.

LAWYERS FINED BY TRIBUNAL

FOR DISCRIMINATORYBEHAVIOUR

HIGH AWARD OF DAMAGES IN

DISCRIMINATION CASE

TRIBUNALHEARS

CONTROVERSIALDISMISSALCASE

Unit 8 Employment law

E

17Read through the article more carefully and answer the questions below.

1 Who do you think the text was written for?

2 What was the case about? Who were the claimants, and who were the

defendants?

3 What is a 'landmark case'?

4 According to the claimants, what prevented them from becoming senior

partners at their firm?

S Why were extra damages imposed on the defendants?

6 What does the text say about the effect that the award of extra aggravated

damages would likely have on future proceedings of this kind?

7 Explain what you think is meant by a discriminatoryculture at a law firm.

ning 2:

Lawyers often advise their clients how to avoid claims arising from work-related disputes,

such as the one discussed in Reading 3, by informing them of potential risks.

In the following interview, a lawyer (Ms Brewer] tells her clients (Mr and Mrs Howard],

who are business owners and employers, about the liability risk associated with drug

testing in the workplace.

18..::: Listen to the interview and decide whether these statements are true or

false.

1 Mr Howard says that the drug problem at his company is affecting business.

2 Ms Brewer informs her clients that the issue of employee drug testing is an

unsettled area of the law.

3 If they dismiss a worker on the basis of a drug test that reveals the worker

has taken drugs, Mr and Mrs Howard risk being sued for infringing

employees' rights.

4 Ms Brewer points out that under certain circumstances, the courts have

decided that employers were entitled to dismiss an employee for workrelated

drug use.

S Ms Brewer recommends laying off the workers suspected of consuming

illegal drugs in the workplace.

9 ing

ing

opinion,

19In the course of the interview in Exercise 18, the lawyer and her clients

express opinions and agree and disagree about several points. The words and

phrases they use are shown below. Match each phrase (1-11) to its function:

0 expressing an opinion

A expressing agreement

D expressing disagreement

A+D expressing agreement, but adding an opposing view

1 Exactly!

2 I agree with you, Mr Howard, but we have to look at what the law says.

3 I don't think we can risk waiting until they have had a chance to kick their

drug habits!

4 John's right - we need to act on this now.

5 I'm afraid I have to disagree with you both.

6 In my opinion, you risk more by acting hastily, by making a knee-jerk

reaction to the problem.

7 That may be true, but we can't just sit back and do nothing.

S I couldn't agree more!

9 I see your point...

10... you're absolutely right - you do bear responsibility for the safety of

others.

11That's not a bad idea ...

20Which phrases in Exercise 19 do you think express agreement strongly?

21Look at these phrases for disagreeing and tick the ones which you think would

be acceptable for a lawyer to use with a client.

1 You're wrong about that.

2 I see what you mean, but I still feel...

3 I suppose that could be true. However, I think...

4 I agree with you to a certain extent, but...

5 I totally disagree.

6 I'm not sure I entirely agree with you on that.

7 That's not true.

S You've got that all wrong.

ng: ing ng

22Using the phrases for agreeing and disagreeing presented above, discuss

these statements with a partner.

1 Sex discrimination cases will decline as women are now enjoying more

equality in the workplace.

2 Drug testing in the workplace is an infringement of an individual's right to

privacy, a right which the courts should continue to protect.

3 It is an employer's responsibility to help its employees overcome problems

with addiction or substance abuse.

4 Women should be able to resume their careers where they left off after

taking time off to bring up a family.

Unit8 Employment law

E

ng ..

r

Thearticle belowandon page115presentsanalternativemeansof dealingwith employmentrights

disputes.It appearedona websiteofferingnewsandanalysison Europeanindustrial relations.

23The article is divided into three parts. Readthe three headings. Which of the three

sections do you think primarily contains opinions and attitudes?

24Look at the first section of the text. Underline the explanation of how employment

tribunals work, as well as the four adjectives describing the new arbitration scheme.

25Read the whole text. Whose opinions of the arbitration procedure are reported? Why

does the writer describe the introduction of the new scheme as ironic?

Key features of the scheme

There are significant differences between the new arbitration scheme and the conventional

employment-tribunal process. The key features of the ACASarbitration scheme are as follows: . The scheme is entirely voluntary and is available only in respect of unfair dismissal claims. It

can be used only where both parties agree to it and waive certain rights they would have at an

employment tribunal. . Hearings will be held in private in such places as an ACASoffice or a hotel and will normally

be completed within half a day. Written statements of their case may be submitted by the

parties in advance. .The case will be heard by an experienced arbitrator, chosen by ACAS, not the parties

. themselves. Legal representatives may be used by the parties. There is no set format for the hearing. Arbitrators have a general duty to act fairly and impartially

between the parties, giving each party a reasonable opportunity to pleadhis or her case and

respond to that of the other party. The process is intended to be 'inquisitorial' or 'investigative',

. rather than adversarial as in tribunal hearings - no cross-examination will take place. Each party covers their own costs in attending the hearing. However, if a dismissal is found to

be unfair, the arbitrator can include in the calculation of any compensation a sum to cover

. the costs incurred by the employee in attending the hearing. Arbitrators are required to apply EC law and the Human Rights Acts 1998 (on which a legal

adviser may be appointed to provide guidance), but otherwise, instead of applying strict legal

tests and case law, the arbitrator's decision will have regard to 'general principles of fairness

and good conduct in employment relations'.

. As with unfair dismissal cases determined by an employment tribunal, reinstatement, reengagement

and compensation are the available remedies if the dismissal is not upheld.

Unlike tribunal cases, however, the award is confidential to ACASand the parties, and the

. arbitrator's decision will be final and binding. There is only very limited scope for appealing or challenging the arbitrator's award.

,

Commentary

It remains to be seen what impact the new arrangements will have. Lawyers and other

commentators are uncertain about the merits and likely attractiveness of the new scheme. Some

have expressed concern that, because the criteria for arbitrators' decisions ('general principles of

fairness and good conduct in employment relations') differ from the statutory tests applied by the

tribunals, a 'two-tier' system of justice may develop. It has also been suggested that the arbitration

scheme offers employers and employees less certainty of outcome, and that the confidentiality of

awards may mask variable standards within the arbitration scheme.

Some lawyers think that the confidentiality of proceedings under the arbitration scheme may be a

significant attraction to employers who want to avoid the damaging publicity sometimes

associated with tribunal cases. Conversely, however, some lawyers predict that the fact that the

process is private may make arbitration less attractive to dismissed employees. According to this

view, arbitration lacks the 'embarrassment value' of public tribunal hearings which may lead to

favourable out-of-court settlements for dismissed employees. The limited grounds for appealing

against an arbitrator's decision are considered a disadvantage for employers.

The irony of the new arbitration scheme is that employment tribunals were themselves intended

as an 'easily accessible, informal, speedy and inexpensive' alternative to the ordinary courts for

dealing with individual employment disputes when the UK's unfair dismissals legislation was

first introduced 30 years ago.

26Read the article again and decide whether these statements are true or false.

1 Arbitration is intended to be faster and less formal than the traditional

process of resolving employment disputes.

2 In the arbitration scheme, parties will not be questioned by the other party's

representative.

3 In reaching a decision, an arbitrator is obliged to apply case law and legal

tests.

4 Some lawyers fear that arbitration will lead to double standards in the

resolution of employment disputes.

5 The confidentiality of arbitration appeals to those who have been dismissed

from work, as it causes less embarrassment.

6 Employers regard the fact that it is difficult to appeal a decision made by an

arbitrator to be a considerable advantage of the arbitration system.

27Match these adjectives from the text (1-5) with their synonyms (a-e).

1 voluntary

2 key

3 vast

4 confidential

5 conventional

a huge

b traditional

c private

d important

e optional

28Match these verbs (1-6) with their definitions (a-f). The verbs are in italics in

the article.

1 to waive a to formally request that a decision of an inferior body be

reviewed by a superior one

b to argue a case in court

c to give something up

d to make use of something (when deciding a case)

e to question something

f to listen to a case at a relatively formal proceeding

2 to hear

3 to plead

4 to apply

5 to appeal

6 to challenge

Unit8 Employment law

E

29Match the verbs (1-6) with the nouns in the box that they collocate with in the

article. Some of the nouns go with more than one verb.

I an award

a law a case rights

1 to hear

2 to waive

3 to plead

Can you add any more?

4 to apply

5 to appeal

6 to challenge

30How does the arbitration procedure described in the text compare with the

arbitration system used for handling employment disputes in your jurisdiction?

ng on

in el l

A lawyer has received a request from a client who employs a large number of people and

has to deal with employment rights disputes on a regular basis. The client has asked for

general information about the arbitration process described in Reading 4 in a short, easyto-

understand memo. He wants to know how it compares with employment tribunals, and

what the advantages and disadvantages are of arbitration from the point of view of an

employer.

31Read this email, written in response to the above request. Some of the

information it contains is incorrect. Find three factual mistakes and correct them.

Dear Mr Mason

In your email of 9 April, you asked for information concerning the new arbitration procedure. You

specifically requested an assessment of the advantages and disadvantages of arbitration from the

point of view of an employer. The following summary presents a selection of key features of both

the new arbitration scheme and the existing employment tribunal process.

Speed: Unlike hearings held before an employment tribunal, the new procedure can be

completed faster, usually in one week. This is clearly advantageous for an employer, as it would

save a great deal of time and money.

Confidentiality: In contrast to the public hearings held by employment tribunals, the new

arbitration process is conducted in a private setting, such as a hotel, and is completely

confidential. This prevents an employer from getting the unwanted bad publicity that often

accompanies public proceedings. A further advantage of confidentiality from the point of view

of an employer is the fact that high out-of-court settlements for employees (which are typically

reached in order to avoid the embarrassment of public proceedings) are thus much less likely.

Appeals: Both the decisions of an employment tribunal and those reached in arbitration can be

appealed. Naturally, this can be regarded as a significant advantage for an employer.

On balance, I would say that the new arbitration scheme is attractive from the point of view of an

employer, and I recommend that you consider making use of this new process to deal with all kinds

of employment disputes.

Please do not hesitate to contact me if you would like further information. I have attached an

article about this topic to this email which may be of interest to you.

Yours sincerely

Elisabeth Stephens

,

32When comparing complex ideas in a clear and simple way, it is advisable to

decide on an overall organising principle. Generally speaking, two approaches

to organising ideas are available to the writer:

A Listing and explaining the advantages and disadvantages of one system and

then the other;

B Choosing key points - such as confidentiality - and discussing each system

in respect of these criteria.

1 Which method of organising a comparison is used in the email you have just

read?

2 Which sentence in the email announces the organising principle to the

reader at the beginning of the text?

3 Underline the phrases in the email which are used to compare and contrast.

4 Which phrases are used to point out advantages?

33Rewrite the email on page 116 using method A to organise the information.

SAMP~E Correct the factual mistakes and make use of some of the following phrases ANSWER

»P.294 for comparing and indicating advantages/disadvantages:

X has a number of advantages, such as ...

However, it also has some disadvantages/drawbacks ...

X differs from / is different from Y with regard to / in respect of ...

The first system / The former has the advantage/disadvantage of being ... ,

while the second system / the latter has the benefit/drawback of being ...

D

(~\ Unit 8

To improve your web-based research skills, visit www.cambridge.org/elt/legalenglish.click on

Research Tasks and choose Task 8.

Unit 8 Employment law E

Vocabulary: distinguishing meaningWhich word in each group is the odd one

out? You may need to consult a dictionary to distinguish the differences

dismissal redundancy

prohibit forbid

3 solely exclusively primarily only

4 confidential certain private secret

5 essential key conventional important

6 speedy fast vast swift

Adjective formationAdd the prefixes in-, non- or

to form its opposite. The words marked with * have more

form.

layoff

1 attractive

2 certain

3 confidential

4 conventional *

5 discriminatory

6 fair

7 lawfUl

8 necessary

9 reasonable

10specific*

11voluntary

WordcboiceThese senteflt:esarepaxt

1996. In each case, choQsetM t:6rrecLwqrq or

1 An employee who waives

the end of her maternity leave period shall

than seven days' information / /

intends to return.

2 If an employee attempts to

maternity leave period with,

subsection 1, her employer shall be

postpone her return to a date s

that he has seven days' notice

3 An employer is not entitled to /

employee's return to work to

period.

Use ofpr~positions Complete the senteqces below using the prepositions in

the box. The sentences are taken from the texts in this Lln.it.

against against

to under via

from

with

from in of off on on to

1 It is unlawful for a person to discriminate another based on sex or

marital status the hiring process and in respect of the terms and

conditions of employment.

2 After the employee hired, protection is generally provided the

Employment Rights Act 1996.

3 A voluntary arbitration procedure unfair dismissal cases is available

employers and employees as an alternative the

traditional way of resolving such cases employment tribunals.

4 Solicitors employment law cases being brought

5 The employees sex

discrimination and pervading the firm

prevented women senior partners.

6 The or five

years

7 grounds

awarded

incurred

decide heard includes

issue

dismisscd file

pay resembles

goes

'If you you can

2)employment

tribunal. A It hears

to

a hearing,

6)qualified legal and two non-legally

qualified who may have experience as employers or union

representatives, for example. whether your

dismissal was unfair or not. If your case is successful, the tribunal will also

decide whether compensation should be 8), and if so, how much.

The tribunal or the

by the other

party.'

,--9~r

Saleofgoods

Reading 1: Introduction to sale of goods

legislation

The following text gives an overview of the area of law which relates to the sale of goods.

This can relate to a wide variety of transactions, from buying something tangible in a

shop or on the Internet to paying for a service, such as repairs.

1 Read through the text quickly and complete the sentences below using the

words in the box.

contracts disclaimers exclusions title transfer warranties

1 A sale can be defined as the of in a good.

2 Implied do not need to be expressed as they are implied by law.

3 Twomeans of limiting warranty liability are and .

4 The CISGsets forth rules that govern .. for the internationalsale of goods.

The sale of goods entails a broad area of the lawwhich is largelygoverned by legislation. Where

an aspect of the law is not regulated by legislption, it is governedby the commOnlaw or often by

general principles of laWl:nnOQ.,~pmmQ.Iia\1w

The applicable legislationsets forth the nature of what is involvedin the sale of goods. Naturally,

this includes definitionsof what constitutes a sale and goodsl. Asale entails the transfer of title in

a good fromthe seller to the buyer.Goods can be defined broadlyas some type of tangible chattel.

Applicationof the legislation depends upon: the type sale}whether the mercbant or

not;'and, seHeris w.ftfiather'IJEHs in'the cd£1t'se bUS"ihess.

The aspects of sale of goods governed by legislation include such things as contract formation,

price, passage of title, warranties of title, implied warranties, express warranties, disclaimers

of warranties, remedies for breach delivery and acceptance of goods, and the

passing of risk. in the UKis the Sale

(including its amendments).

Contract formation in this context includes the requirements applied to contracts in general with

some added details such as agreements implied by conduct of the parties. The price to be paid for

the goods usually relevant legislationwill

determine the price if this term left is generally required to pay a

reasonable price. Contractual provisions concerning the transfer of title dictate when good title is

transferred, for example between a person who has possession but not title to a third-party buyer.

Generally, good title cannot be transferred to a third party from a person not authorised to do so by

the holder of title. Naturally, aspects of good faith and apparent authority 'come into

context.

Differentwarranties playa major role in the sale of goods. Impliedwarranties are such

warranties which do not need to be expressed but whichthe law implies. Some of these types of

warranties would include warranties of title, fitness for a particular purpose, and quality or

3 1 (US) good can be used in the singular in US English

..

go

2 WarrantiesMatch these types of warranties and concepts related to warranties

(1-7) with their definitions (a-g).

1 express warranty a a warranty that the goods being sold are suitable for the purpose

for which the buyer is purchasing them

b a warranty that the seller of the goods owns them (e.g. the goods

have not been stolen or already sold to someone else)

c a violation of a warranty when the goods do not comply in some

regard with an express or implied promise at the time of sale

d a spoken or written promise made by the seller about the quality,

performance or other considerations concerning the goods covered

by the contract which would affect the buyer's decision to purchase

e a negation or restriction of the rights under a warranty given by a

seller to a buyer

f a warranty that the goods being sold are of a quality that generally

conforms to ordinary standards of similar goods sold under similar

circumstances

g a warranty which is not explicitly stated but that is imposed by the

law due to the nature of the transaction

2 implied warranty

3 warranty of fitness

4 warranty of merchantability

5 warranty of title

6 breach of warranty

7 disclaimer of warranty

3 Buying and sellingComplete the table below using the words in the box.

commodity consumer customer to deal in merchandise

merchant to offer for sale to pay for to purchase purchaser

retailer supplier vendor wares

Unit9 Sale of goods €

4 Most of the words in the right-hand column of the table in Exercise 3 are not

exact synonyms but are used in slightly different ways. Read this excerpt from

a student's vocabulary notebook on the definitions and uses of two of the

words for goods.

Word

wares

Definition

small items for selling

in a market or on the

street, but not usually

in a shop; or, a

company's products

(formal style) goods

that are bought

and sold

merchandise

Sample sentence

The company must do

more to promote their

wares overseas.

Being allowed to

return or exchange

merchandise is a

privilege, not a

legal right.

collocations/usage

to promote / to peddle (= sell) wares

word ending: -ware

hardware, tableware,

kitchenware

Also: warehouse

used / damaged / retail /

wholesale merchandise

merchandising:products tied in

to popular film, etc.

1 What do you think of the way vocabulary is recorded in the excerpt above?

2 How do you record vocabulary?

5 Choose one section of the table in Exercise 3, such as 'words for goods', and

look up each word in a dictionary. How do the meanings differ? Find out if a

word is used in some contexts but not in others.

9 e 1: n 0

Lawyersoften assist suppliersof goodsin drawingup standardterms and conditionsof

sale. Theseterms and conditions may be incorporated into contracts for the sale of goods

or may be relied on as the legal framework of consumer sales. Legal counsel ensures that

the terms and conditions are relevant to the specific circumstances of the seller in his

particular trade, and that they provide adequate protection of the seller's rights.

6 These clauses are typically included in a company's general terms and conditions of sale. Match the

clause types (1-10) with their descriptions (a-j).

1 claims and credit

2 changes or cancellation

3 delivery

4 indemnification of vendor

5 limitation of remedies

6 orders

a Contains provisions governing the payment of the monetary

consideration for the goods. It may include, among other things,

terms governing the manner and time of payment, as well as

modification of the amounts charged for the goods.

b Contains, among other things, provisions governing the ownership

of the goods and exactly when the peril of loss is shifted from the

vendor.

c Provides that, despite the fact that the purchaser has taken

possession of the goods, the vendor maintains ownership thereof

until some condition (usually payment) is fulfilled.

d Contains provisions governing the manner in which orders for

goods are submitted by the buyer and accepted by the vendor.

e Contains, among other things, provisions regarding the time,

limitations and manner of which the sale of the relevant goods

becomes complete and final if payment has been made.

f Contains provisions governing the time and manner of any

complaints by the purchaser regarding the goods.

7 prices and payment g Contains, among other things, the terms and conditions governing

any express warranties, often including provisions regarding

inspection of the goods by the seller and liability, and limitations

thereof, of the seller for breach of such warranties. Often matters

related to notice of defects and disclaimers are included.

h Contains provisions restricting the vendor's legal responsibility to

pay damages due to, among other things, errors in the goods and

in many cases governing the maximum amount payable by the

vendor for such things.

i Provides that the purchaser guarantees any possible loss the

vendor might incur connected with any use of the goods, including

violation of any intellectual property rights.

j Contains provisions governing modifications by the purchaser

regarding, among other things, the character or manner in which

the goods are manufactured, payment of any expenses related

thereto and termination of any orders placed.

7 Decide which kind of clause each of the sentences (1-5) below would most

likely be found in. Then explain them in your own words.

8 retention of title

9 title and risk

10warranties

EXAMPLEP:rices and charges are subject to change without notice.

PrLces o..ncL p<A.ymeYlt cW..L.tse

It meRYlStYloJ; tYle prLces o..ncL otYler fees W-YI be d1o..ngecLoj; o..ny time,

o..ncLtYley cLoYl't Yleed.-to g~ve you o..ny GW"vo..nceYlotLce.

1 Title in the goods shall pass to the buyer on delivery of the goods.

2 Vendor's interpretation of a verbal order shall be final and binding where

shipment is made prior to receipt of written confirmation.

3 Vendor does not make any representations or warranties except that those

goods shall conform to the specifications supplied by Purchaser and that all

processing applied by Vendor is performed in a good workmanlike manner in

accordance with applicable industry trade standards and practices subject to

any tolerances and variations consistent with the usual trade practices or as

specified by Purchaser.

4 Purchaser hereby agrees to indemnify and hold harmless Vendor from and

against all loss, damages, expenses, claims, suits and judgments arising,

directly or indirectly, out of the design, installation, maintenance or operation

of the goods.

5 Vendor may accept Purchaser's request to change the specifications or

processing of the goods, but shall reserve the right to charge Purchaser for

all costs and services necessary for such changes.

..

.

In9 on n9

In order to protect the rights and interests of a client, a lawyer will try to anticipate

possible disputes arising from contracts entered into by the client. Careful drafting of

contract clauses can provide protection for the contracting parties in the case of a breach.

The following listening text is an excerpt from a legal writing seminar on drafting

contracts, attended by both junior and senior members of a law firm. This part of the

seminar deals with the drafting of retention of title [ROT)clauses in contracts of sale.

Unit9 Sale of goods ~

8 .. ~ Listen to the first part of the presentation. Accordingto the speaker,why is

it a problem if the ROTclause is interpreted as a charge?

9 .. ~ Listen to the second part and take notes as if you were attending the

seminar yourself. What are the five tips for drafting effective retention of title

clauses? Compare your notes with a partner.

1.0Choose the best answer to each of these questions.

1 What is the main purpose of a retention of title clause?

a to prevent the liquidation of the buyer

b to protect the seller in the event of the insolvency of the buyer

c to enable the seller to profit from the manufacture of the goods sold to

the buyer

2 Why don't sellers register every ROT clause as a charge?

a It would be too expensive to register everyone.

b It is not permitted to register everyone.

c It would be too time-consuming to register everyone.

3 Why does the speaker advise putting a serial number on all the goods sold?

a so the seller can prove to a liquidator which goods belong to him

b so the seller can keep a record of which buyer has bought his goods

c so the seller knows exactly how many goods he has sold

4 Why should an ROT clause say that the buyer has a right of entry to recover

the goods?

a so that the buyer will not claim additional property that does not belong to

him

b so that the goods are not used to produce a product, thus becoming

impossible to recover

c so that the buyer will have access to the place where the goods are

stored

1.1.Complete the retention of title clause below using the words in the box.

buyer due in full

supplied value

premises recover seller solvency

The ownership of the goods 1). '''''''''''''''''''''. to the buyer shall remain with the

2). until payment 3)for all the goods shall have been

received by the seller in accordance with the terms of this contract or until

such time as the 4). sells the goods to its customers by way of

bona-fide sale at full market 5). If such payment is overdue in

whole or in part, the seller may 6)or resell the goods or any part of

it and may enter upon the buyer's 7).for that purpose. Such payment

shall become 8). . immediately upon the commencement of any act or

proceeding in which the buyer's 9). is involved.

1.2Does the clause above have the five characteristics of a well-drafted ROT

clause mentioned by the speaker?

3 1 (US) security interest

b .

nUlg 2:

Lawstudents are often required to summarise the facts and outcome of a case in the

course of their studies. Practising lawyers also encounter situations in which they are

asked to provide a case brief, either orally or in writing; a colleague may want to be

briefed on the particulars of a certain case, for example, or a superior will request a

written report on cases and rulings in an area of the law in which the firm is currently

preparing a case for trial.

In a university law seminar, students are often asked to present case briefs which then

form the basis of group discussion and debate. In the following exercise, you will hear a

law student presenting the brief of a case involvingan issue related to the sale of goods.

The issue is known as 'shrink-wrap contracts'.

13..:;: Listen to the case brief. What exactly is the product involved in the

dispute? What is the central legal issue in the case?

14Decide whether these statements are true or false.

1 In the first instance, the court held that the sales contract was binding and

in full force and effect.

2 In the viewof the Court of Appeals, the purchaser could have returned the

software if he did not agree with the terms and conditions.

3 The Court compared buying shrink-wrapped software with buying an airline

ticket, as both involve payment before the terms of sale are fully known to

the consumer.

4 The UCCstates that a vendor may not propose limitations on the kind of

conduct that constitutes acceptance of the terms of a contract.

S Accordingto the Court, the respondent had to acknowledgethe terms of

sale, since he could not use the software without doing so.

b

15Read the transcript on pages 271-272 of the case brief of ProCD, Inc. v.

Matthew Zeidenberg and Silken Mountain Web Services. Underline the

paragraph where the speaker gives an overview of his brief. The speaker

explicitly mentions the sections of the brief. What are they?

16On two occasions in the presentation, the speaker uses a particular device to

introduce a new topic. What is this device? Underline the two examples.

17Complete the spaces (1-9) in the explanation on page 126 of how to prepare a

case briefing using phrases in the box (a-i).

a The court pointed out / noted that...

b In the first instance, the court ruled ...

e The question before the court is whether...

d The court reversed the ruling of the first instance.

e The court drew the conclusion that...

f The court upheld/affirmed the decision of the lower court.

g The issue in this case is ...

h The instant case involves the following circumstances...

i The court remanded the case back to the lower court for further

proceedings.

Unit9 Sale of goods

E

Date: 2015-12-11; view: 1272