The Doctrinal Basis Of Liability Essay Example for Free

The Doctrinal Basis Of Liability Essay There are three areas of doctrine of importance to banks. The first concerns the general standard of care the law expects, once a duty of care has been established, whether that be in contract, tort, or fiduciary law. Then the potential liability of a bank is explored as a fiduciary, constructive trustee, or an accessory. Finally, there is brief mention of some emerging standards of liability which have primarily a statutory base. 1. 1. Reasonable Care and Skill A duty of reasonable care and skill for anyone providing a service (including giving advice) runs through contract, tort, and fiduciary law. After a mass of conflicting case law, notably the challenge to concurrent liability in contract and tort posed by the banking case, Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank (1986), it is now settled that a claimant may seek compensation for economic loss caused through the failure to exercise reasonable care and skill in both contract and tort. As for fiduciary law, it has long been the position that a fiduciary (including a trustee) must act or advise with reasonable care and skill. There is long-established authority, in the context of bills of exchange that a bank can be in breach of its duty of reasonable care and skill in failing to make inquiries. Factors such as the standing of the customer, the bank’s knowledge of the signatory, the amount involved, the need for prompt transfer, the presence of unusual features, and the scope and means for making reasonable inquiries may be relevant. . 2. Fiduciary Law (i) Fiduciary Duties and Their Negation Apart from the duty of care key prescriptions are that fiduciaries (1)Should not permit their private interests to conflict with their duty to a beneficiary of the duty; (2)Should not permit their duties to one beneficiary to conflict with their duties to another; (3)Should not make a secret profit, i. e. a profit from their position which is undisclosed to their beneficiaries; and (4)Have a duty of confidentiality. While contracts may modify the scope of fiduciary duties, however, it cannot be that contract can be invoked to negate them regardless of the circumstance. Thus, since many private customers will not necessarily expect their bank to be conducting conflicting corporate-finance business, it will be difficult to imply a contract term negating the undivided loyalty the bank may owe if it is a fiduciary. (ii) Trustees and Agents Fiduciary duties are clearly imposed on trustees and agents. The position with trustees is relatively straightforward. In acting as a trustee of an estate or investment fund a bank must not invest with itself. But a bank will not be in breach of its fiduciary duties if the trust instrument empowers it to open accounts or make deposits or investment with itself, despite its being the trustee. The fiduciary duties attaching to an agent vary, with the nature of the agency. Thus, the bank instructed simply a buy or sell securities has fewer fiduciary duties than if it is the manager of a discretionary fund. (iii) Banks as Financial Advisers and Facilitators need: To furnish all relevant information, relevant in making investment decisions. To give best advice it can. †¢To obtain the best terms for the customers. Woods v. Martins Bank Ltd is an old authority, where the bank advised A to invest in B, which was heavily indebted to it. It is still good law although, since it predated Hedley Byrne, it was necessary to find a fiduciary relationship if liability was to be imposed for negligent advice. 1. 3. Knowing Receipt, Inconsistent Dealing and Assistance (i) Knowing Receipt For this form of liability it must be shown, first that the funds have been disposed of in breach of trust, fiduciary duty, or as a result of some other unconscionable dealing. Moneys held on trust and misapplied are obviously caught. So, too, are misapplied corporate moneys since historically directors have been treated as if they were trustees of the property of the company under their control, so that any wrongful disposition is a breach of trust. The second prerequisite to an action in knowing receipt is that the bank must have received the claimant’s funds for its own benefit. Tracing has a role here: the bank must have beneficially received funds which are traceable as representing those of the claimant. Thirdly, liability for knowing receipt demands knowledge on the part of the bank that there has been a payment in breach of trust, fiduciary duty etc. (ii) Inconsistent Dealing A bank receiving funds in circumstances which do not constitute knowing receipt can still be liable if those funds are subsequently applied for its own benefit (‘inconsistent dealing’). At that point the bank must know that the funds involved are subject to a trust or fiduciary duty and that what it is doing with them is in breach of that. (iii) Assistance Even if a bank is not liable for knowing receipt, it may be liable as an accessory for dishonest assistance. Assistance is a form of accessory liability, which sits alongside other forms of accessory liability in equity, such as the receipt of information in breach of confidence, and including breach of trust or fiduciary duty. What are the prerequisites for accessory liability? First, there has to be a breach of trust or fiduciary duty. Second element in assistance is fault. One gloss in this context is the suggestion in the oft-cited case of Barnes v. Addy (1874) that for assistance there has to be ‘a dishonest and fraudulent design on the part of the trustee’. This may be defended as a way of narrowing the potential liability of accessories such as banks. However, it is now clear that there is no need to establish fraud on the part of the trustee or fiduciary, and an innocent breach of duty is sufficient. Emerging Standard: Due Diligence, Suitability, Good Faith Due diligence as a standard emerged from securities law: in the United States a bank involved in a public offer of securities must make its own investigations (in relation to statements for which it takes responsibility), in other words it is obliged to undertake ‘due diligence’ in relation to the issuer and the issue. This seems to be part of a growing trend to make banks statutorily liable for unlawful activities which they facilitate by their operations, unless they an demonstrate due diligence. Suitability too is a concept most developed in the area of securities regulation. It imposes a liability on those marketing securities which are incompatible with the needs of customer. Closely associate good faith with notions such as fairness, honestly, and reasonableness. In other words, it means simply that in the performance of a contract both parties are assumed to agree not to do anything to impede its performanc e, or to injure the right of the other to receive its benefits. The good-faith doctrine has been invoked in the context of banking, requiring a bank to disclose material information to a commercial counterparty. 2. Duty to advise and the liability for the advice given Some situations clearly involve a bank in giving advice. Advice on reorganization, mergers and acquisitions financing, and so on is the staple diet of investment (merchant) banking. In other situations a bank may assume the role of financial adviser. However, many banking services are not associated with giving advice. The legal issue is whether there is any obligation on a bank to proffer advice in this situation. The second matter addressed is a bank’s liability if it actually does give advice, the advice is faulty, and the customer incurs a loss. 2. 1. Duty to advise (i) The General Rule Generally speaking, one party will be under no obligation to advise another about the nature of the transaction, its prudence, or other features. So, too, in banking, English courts have held that the bank providing an account for a customer need not advise on the risks, or on the tax implications, of certain payments in relation to it. Nor need it advise customers of a more advantageous type of account it is now providing. However, there is a rather clear difference between these and some of the other services and transactions of the modern multifunctional bank. Take the bank selling its own products-be they derivatives to commercial customers, or insurance policies, or interests in a collective investment scheme to private customers. (ii) Situations imposing a duty to advise The first situation where the law imposes a duty to advise is a misrepresentation –a failure to speak or act can constitute conduct which misleads. Thus a half-truth may constitute a misrepresentation, as where a bank canvasses the advantages, but not the risks, of a transaction with a customer. The bank must tell the whole story. A bank’s advertising may be relevant in this respect. Secondly, there can be liability for a failure to disclose in precontractual negotiations if there has been a voluntary assumption of responsibility to do so and reliance by the customer because the court held that the bank was liable when its manage failed to explain clearly to the wife, the effect of a charge over a joint property to secure the husband’s borrowing from the bank. Thirdly, in Cornish v. Midland Bank, Glidewell LJ said that once a bank enters upon the task of advising a customer, it is obliged to explain fully and properly about the nature of the borrowing. Fourthly, if a relationship is fiduciary in character, then disclosure is necessary if a person is to avoid liability for putting interest above duty, or duty to one above duty to another. Fifthly, at common law a bank which takes a guarantee is bound to disclose unusual features in the transaction which has been guarantee. Finally, the duty to advise can be imposed as a result of regulation. (iii) The Advice Required (If Any) Advice may translate into the legal concept of notice, as where the bank must give notice in relation to a conflict of interest. Complete disclosure of all relevant facts known to the fiduciary is required. Advice must, of course, be honestly given-otherwise it is fraudulent. Generally speaking it must also be accurate. Some advice involves highlighting the terms of the contract being entered (or at least some of them). Another approach is to require advice about the alternative on offer-in terms, say, of repayment methods, interest rates, charges, and commissions. Perhaps the most effective advice in relation to some banking transactions is advise, about the attendant risk. The standard demanded here may be objective, although it could also be associated with an obligation on the bank to take steps to ensure that this particular customer understands the risks. 2. 2. Liability for advice given Bank’s promotional material, may lead to the conclusion that it has taken on the responsibility of the borrower’s financial adviser. There is greater chance of liability when the bank advises unsophisticated customers; in several cases the English courts have held that a bank was liable when its bank manager failed to explain clearly to a wife the effect of a charge taken over joint property to secure a husband’s borrowings. Negligent advice can obviously occur in the range of matters in which banks become involved. Examples includes credit references; failure to pass on information on when a bank enters upon the task of advising a potential borrower about the attendant risks of a particular facility; statements by bank that it will make available to a customer adequate funds to enter a contract with a third party; advice about investments; and assurances that workout plans are heading in the right direction, and that the bank is optimistic about an agreement being reached. In Hedley Byrne the bank avoided liability because of a disclaimer in the reference. In would seem right as a matter of policy for a bank to be able to avoid the consequences of giving negligent advice by suitable notice to those receiving it. As a matter of policy, whether this is regarded conceptually as aborting liability or a exempting from liability already begotten is beside the point. The central issue in practice should be whether the disclaimer of , or exemption from, liability has been made clear to those being advised so they are in no doubt that the bank is washing its hands of the consequences if the advice proves inappropriate or wrong. A small print clause in a document given to those being advised is unlikely to satisfy this test. In English law the matter is handled by applying the unfair contract terms legislation. The seminal case recognizing the tort of negligent advice, Hedley Byrne Co. Ltd. V. Heller Partners Ltd, involved advice given about a customer’s creditworthiness in a bank reference. As subsequently interpreted, Hedley Byrne liability depends importantly on an assumption of responsibility by a bank, a sufficiently proximate relationship between the bank and the customer or third party, and on there being reliance on the statement. Assumption of responsibility an proximity are, in large part, legal fictions, and in practice a court will have regard to factors such as the purpose for which the statement was made and communicated, the bank’s knowledge that the advice was needed for a particular purpose, the relationship between the bank and the person relying on the advice, and the size of any class to which the latter belongs. As regards disclosure (and this includes electronic disclosure), it is worth repeating here what was said in Woods v. Martins Bank Ltd [1959] 1 Q. B. 5 at 60, where Salmon J. said It cannot be too clearly understood that solicitors owe a duty to the court, as officers of the court to make sure, as far as possible, that no relevant documents have been omitted from their clients list. Barclays Bank v OBrien [1994] 1 AC 180. A husband and wife agreed to a second mortgage secured on their home to help out the husbands ailing company. The necessary documents were sent to a branch with instructions to ensure that the couple were aware of what they doing and to take legal advice on the matter. This did not occur. The wife signed the documents, relying on her husbands explanation of the situation (that it involved ? 60,000 for 3 weeks). When the debt reached ? 154,000, the bank ordered the house to be repossessed. At appeal, the court held that misrepresentation to the wife had occurred, the bank was fixed with constructive notice and the wifes equitable right was enforceable against the bank. The case of Royal Bank of Scotland v Etridge was decided by the Lords in a Judgment handed down on 11th October 2001. The case set standards for lending institutions where guarantees are given by a third party. It also sets standards for Solicitors who take on the task of advising those third parties. The most important point for lending institutions, thinking of enforcing their security is that cases of this nature need to be tested on their facts. It will make the lower Courts think very carefully whether cases which are perceived as hopeless should be struck out at an early stage. The decision in this series of appeals mitigates against early strike out. It could mean that lending institutions no longer have a quick route by which to realize the security and in many cases they will be locked into trials which could prove lengthy and expensive.

Health, Safety and Nutrition Essay -- Health Nutrition Pyramid Diet

The reason I chose to do my project on a game that can hit all three areas safety, health, and nutrition, is because all three areas are important to children and their families. As a parent I can easily justify the role a teacher has on the lives of our children. It is usually a parent does not know anything and the teacher is always right. In the eye’s of a child.   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚     Ã‚  Ã‚  Ã‚  Ã‚  Many times well most of the time what you teach a child it usually stays with them, and if it is presented in a fun way it is almost certain that to stay with them longer. More important children like to share their new information with their families, some of the information may be new. So not only are you teaching their children you are also teaching them.   Ã‚  Ã‚  Ã‚  Ã‚  Before I introducing this game I would send out information to each child’s family so they will be familiar with some of the questions. Of coarse it is important not to send to much information so it will not become overwhelming. It is also important to get the families input, any way to get parents involved is important.   Ã‚  Ã‚  Ã‚  Ã‚  Why safety? Safety is important no matter where your child may be. Any information that a child learns in safety can easily be reinforced. From talking to strangers to playing with fire. This is important everywhere, not only in school but at home or in public places. Many times parents as well as teachers tend to overlook simple things like how unsafe playing with sharp objects, can be, such as pencils. Also taking simple precautions, as covering outlets, or not leaving cords hanging from drapes. This is why safety is important and why it can be life saving to many families.   Ã‚  Ã‚  Ã‚  Ã‚  Not long ago, many safety issues were not addressed the way they are now. Why has it changed so much in the past several years? I stop and look back at my life as an infant and a child many things have changed drastically. When I was a infant car seats were not required, to think the safety of my life was at risk, I can recall a time being involved in a accident and I was lucky I did not fly out of the windshield, being that I use to like to stand up o... ...e a good choice or a family member makes a good choice. Sometimes it takes something like a game with fact to have families more aware of the choices that they make the good and the bad. We are only human and we can easily fall off track, I know that I am thankful when my children put me back on the correct track. It is also a good feeling to know that they are aware of their choices and that sometimes we don’t always make the correct ones. It also reassures our children that we as parents, grandparents, and teachers, also make mistakes and sometimes bad choices.   Ã‚  Ã‚  Ã‚  Ã‚  Still I feel that the most important thing is to model for children, take the time to talk to them and of coarse to listen to them. We all like to be heard at some point in our lives even when were small. Work Cited http://www.llu.edu/lluch/safekids/safek4.html 5/2/05 http://www.cdu.gov/nccdphp/hnpa/5aday/faq/important_3.htm 5/2/05 http://www.nut.safe._heatlh/faq/safe4ki.html 5/2/05 http://ific.org/publications/bro/tentipkids.cfm 5/7/05 http://safeforchildren.families/ 23.htm Http://www.llu.edu’‘lluch/safekids/safek8.html 5/7/05 Robert Gonzales 5/9/05 Dorthoy Aguilar 5/9/05

The Nature of the Beast: An Analysis of the Genre of Science Fiction

All modes of inquiry correlate with each other due to their tendency to coalesce in their emphasis on questions, which raise issues on autonomy, justice, and politics. The differences of literary theories, for example, merely spring from their construal of the relationship between the exercise of power and the text. Structuralism views the relation in terms of the relationship of the formal elements in a linguistic system. Marxism assesses the relationship in terms of the role of such relations in the existence of social structures.The same method is used by Psychoanalysis, with the emphasis on the conscious and unconscious mind. Deconstruction, on the other hand, perceives the texts’ role in destabilizing oppositional modes of power. Despite of these differences amongst discursive procedures, it does not overshadow the fact that these theories give emphasis on their analysis of the political and institutional structures within society. A concrete example of this can be seen i n the opposing theories of constructivism and essentialism.Despite their adherence to competing narratives of oppression and resistance [constructivism places emphasis on multiple identities thereby opposing essentialism’s stance on singular categorization] both theories show interest on the subject’s position within society and how this position can affect the development of his identity. In fact, if one isolates the discussion of identity and narratives of oppression in both discourses, one will notice that the ultimate commitment of the theories they adhere to gives emphasis on the idea of political justice.Politics within these discourses is seen as a collective action of resistance, which aims for change in the hopes of attending to the problems evident in the formation of identity and agency. It is important to note that literature as a repository of human experience has always been influenced by politics. Exercise of power within society is associated with and d ependent on the mass production of certain kinds of literature, which allows the cultural qualification of ideas.The relation between literature and politics can also be seen in literary theory’s assessment of the formation of consciousness and unconsciousness, which is related to the maintenance, and transformation of the predominant modes of power made possible by literary output (Eagleton 210). It is also dependent upon the ahistorical positioning of the literary text, since this allows the continuous creation of meaning for a particular text. This mode of relationship invokes the aesthetic character of literature. Literature as a form of discourse enables the perception of aesthetics as a process of communicating while remaking a work.The aesthetic act becomes the incarnation of meaning rather than a demonstration of truth. This is possible since in the process of reading a text, the subject -which can be both the reader and the author- produces another text which is the same as the earlier text yet entirely different from it. Perceived within the dialogic process, the interconnectedness of completion and fragmentation can be understood by recognizing that it is in fact the fragmentation of the text, which allows the completion of the text itself.Within this perspective, the aesthetic act becomes political through the social interaction necessitated by the creation and continual recreation of an artistic work. Literature, in this sense, becomes the locus of a condensed and social evaluation. Intersubjectivity precedes subjectivity wherein the production and repression of meaning is seen as a socio-ideological process rather than an individual process. In this scheme, the text is allowed the character of fluidity. No permanent theoretical stipulation and ethical meaning can be attached to it since to do so is tantamount to denying the ahistorical character of the text.This character is invoked since in the end when one considers a text, what is given importance is not necessarily the historical reading of the text but the various readings made available by the literary theories and ethical standpoints that one may attach to the text. Within this process, there is an emphasis on the reassessment and creation of new standpoints since the interpretation of the text involves the consideration of both the act of writing and reading the text.The re-conceptualization of a literary text through reading enables the individual to undergo a process of analyzing the truth connected with the discourse in which the text is situated, while at the same time reassessing its connection to his self. Due to this, assessing a text becomes a personal and political act wherein the common adage â€Å"the personal is political† can be phrased into an equally influential counter notion that â€Å"the political is personal†. It is important to note that there is a big difference between these two adages.To say that the â€Å"personal is po litical† is only tantamount to equating political importance to personal experiences whereas to say that the â€Å"political is personal† involves following an ideology and political theory in making decisions in everyday life. The function of the verb† is† in both adages is not that of identification. This process, wherein the reading of a text becomes a vehicle for self-realization and self-transformation is emphasized within the literary genre of science fiction. The Genre of Science FictionGenres, as systems of classification, are means of strategic control. Within the field of literature, it is believed that the continuous division of literary works into different genres leads not only to the classification of the work and the text but also to the imposition of values and ideals to those people who read the works belonging to a specific genre. Through genre categories like ‘Romance’, ‘Horror’, or ‘Mystery’, those i n control of the modes of production control both the reader and the author of the work.By promising the readers a familiar set of meanings and controlling the demand for the production and formation of those meanings, those who are in control of the modes of production direct the construction of narratives. Within this context, it is possible for the stories that are produced within society to be a part of a broader form of social classification. Due to this, there is the construction of a particular set of meanings, which can only be understood within specific systems of classification. Genres in this sense become instruments of control.This is evident if one considers that genres â€Å"encode rules that constrain the†¦production and reception of meanings†¦communicated through a large number of meta-texts† (Hodge 27). These meta-texts become the basis for the production of knowledge. All knowledge is positioned as knowledge in itself and knowledge produced from an d within body. As soon as both forms of knowledge are connected to a knowing subject, the subject becomes ensnared to the poststructuralist dictum of the unity and independence of the self, which leads to the formation of the narratives of the self.Narratives then display the imprint of culture and its institutions on the individual’s sense of identity. Since self and language are mutually implicated in an interdependent system of symbolic behavior, the language that one uses for the creation of literary narratives dictates the creation of identities. The modern era thereby places the individual in a kind of political double bind as it coerces the individual to conform to normalizing and disciplinary forms of narrative construction evident in the â€Å"domestication of literature† (Suvin 373). Science fiction, however, as a genre eludes the monopolizing character of other genres.As a genre, it is at the intersection of various fields. It draws on the elements of popula r culture, science, and all types of social relations (James and Mendlesohn 1). This is evident if one considers that it employs a methodology and an approach, which enables the specification of a new set of values through the depiction of a radical form of reality. In this sense, science fiction is less of a genre if one is to conceive of a genre as specifying a particular text’s subject matter and approach to themes. As opposed to the other literary genres, science fiction cannot be expected to employ a specific set of elements and tropes.It may however be depicted as a form of ongoing discussion since the texts within the genre may be perceived as mutually referential due to their characteristic opposition towards a naturalistic and empiricistic conception of reality. Science fiction as a genre is thereby defined by its critical stance towards the normative depictions of reality. However, to state that this is the defining characteristic of the genre provides problems for the genre itself. This is evident if one considers that it leaves the genre open to other forms of literary texts with the aforementioned characteristics such as fantasy and myth.Contrary to this, science fiction stands in opposition to the aforementioned forms of literature. Science fiction is neither totalizing nor deterministic as it presents a predetermined conception of the conception and end of reality [myth]. Furthermore, it is neither based upon a conceptual scheme that posits the impossible as ordinary [fantasy]. James and Mendlesohn state, â€Å"the sense of wonder is the emotional heart of science fiction† (3). David Nye refers to this as the appreciation of the sublime evident in science fiction texts.Such a description further echoes Frederick Pohl’s description of science fiction as â€Å"a way of thinking about things† (qtd in Malzberg 38). Generally, this â€Å"way of thinking about things† may be†¦ All of these will show that the spo ntaneous and habitual orientation of attention is inimical to the maintenance of reality. Therefore, scientific fiction provides a reorientation of attention and a kind of ontological conversion, which affects the aesthetic, ethical, and political perceptions of the reality. This reorientation also affects the ontology of the world.

Personal Narrative- My Near Drowning Experience Essay

Personal Narrative- My Near Drowning Experience Have you ever had a moment in time that seems like minutes or hours even though it was only a few seconds? Have you ever seen everything before you play out in slow motion, where you are aware of everything around you, yet not knowing what was going on? I have, and as I look back on it, I feel very blessed and protected. On March 21, 1987, I decided to take a little swim in our swimming pool and almost drowned. On that fateful day in March, I was a couple months shy of my third birthday. My family and I lived in New Mexico at the time and were renting a house with an outdoor in-ground pool. The day was beautiful. I was outside with my oldest sister Rachel and my father. Rachel†¦show more content†¦I walked over to the shallow end of the pool and looked down into the water. One thing that sticks out vividly in my mind is what I was wearing. I had on maroon colored sweat pants and a matching sweatshirt. The water was crystal clear and shimmered brightly in the afternoon sun. I dunked the large cooking pot in the water, and it started to sink. I watched it for a moment before reaching down to grab it. The pot sank faster than I could reach. I then ended up leaning too far over the edge of the pool. Rachel screamed when I fell in, and my mother came running out of the house. The lawn mower stopped as my father also ran to my aid. My mother, clothes and all, jumped in the pool and grabbed me. She saved me from a fate that threatened to take my young life. My father told me later that when he looked in the pool, I was looking up at him with wide blue eyes. Even though I was right in the midst of danger, I did not realize it. Being as young as I was, I did not understand what exactly happened. Looking back on it now, though, I see how blessed I was to have the Lord on my side. This conveys to me now that he has a different plan for my life. 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