Mirza Mohammad Rifat.:Who are competent to become a members of a company.

Q. Who can become the members of the company & under what circumstances membership can be terminate?

All persons who are competent to contract may, in general, become members of a company. There are, however, some special considera­tions to which reference must be made.

(1) Company.

A company may become a member of another com­pany if it is authorised by its memorandum or articles, or if it takes the shares of another company by way of a Compromise or Arrange­ment.

A company cannot, however, buy its own shares. Also, subject to certain exceptions given in Section 42, a company cannot buy shares of its holding company.

(2) Hindu undivided family.

A Hindu undivided family can purchase shares in a company through its Karta, i.e. the karta only shall become the member of the company.

(3) Firm.

A partnership firm cannot become a member of a com­pany, as it is not a legal person having a separate entity from that of partners. Partners may be registered as joint holders in which case each of them becomes a member.

(4) Joint holders.

The shares of a company may also be held jointly by two or more persons. In the case of. a public company every joint shareholder is counted as a separate member (Narandas Man Mohandas Ramji & Sons vs. Indian Manufacturing Co. Ltd.) but in the case of a private company joint holders are treated as a single member [Section 3(l)(iii)].

(5) Registered society.

A society registered under the Society registration Act, I860, is competent to hold shares in a company in its own name, if it is so authorized by its memorandum or articles of association.

(6) Insolvent.

An insolvent may be a member of the company (Morgan vs. Grey), although the beneficial interest in his shares will be with the Official Receiver. He does not cease to be a member of the company on becoming insolvent, unless provided otherwise by the articles of association.

(7) Minor.

A minor or lunatic, being incompetent to enter into a contract, cannot be allotted shares of a company. "If directors, in ignorance of the fact of minority, allot shares to a minor, and enter his name on the register of members, the company can repudiate the allotment and remove his name from the register, when the fact of applicant's minority comes to its knowledge. The minor can also repudiate the allotment at any time during his minority. In either case, the, company must repay to minor all money received from him in respect of the allotted shares, and whether or not the minor should restore to the company the benefits he might have derived from the shares would be for the court to decide in view of the facts and circumstances of each case.

Termination of  Membership :

A person may cease to be a member of a company, at any time, one of the following ways:

(1) When he transfers his shares and the transfer is duly registered in the books of the company.

(2) By forfeiture of shares for non-payment of calls, if articles so provide.

(3) By a valid surrender of shares. It is a short cut to forfeiture as it involves no legal formalities.

(4) When the company sells the shares, in exercise of its right or line over them, by giving a 14 days notice to a debtor shareholder.

(5) When a shareholder dies and his shares stand transmitted to his legal representative, upon registration of the share;, in the succes­sor's name.

(6) When he is declared insolvent and the Official Assignee dis­claims the shares under his right of 'disclaimer of onerous properly.

(7) By repudiating the contract of membership on the ground of misrepresentation in the prospectus or on the ground of irregular allotment.

(8) By conversion of share certificate into share warrant, unless the articles provide otherwise. In this case one ceases to be a 'member' in the strict sense of the term, that is, his name being removed from the Register of Members, although he continues to be a shareholder of the company

                                                                                                                                   Thank you.

Mirza Mohammad Rifat.:Difference between Retributive Theory and Expiation Theory.

Q. What is the difference between Retributive Theory and Expiation Theory?

This article describes the difference between Retributive Theory and Expiation Theory.

Retributive Theory

1. This theory works under the penal laws.
2. Violence and personal revenge are in higher quantity in retributive theory.
3. The punishment is imposed under this theory depending upon the nature of the offence. Generally, similarly injury or harm is caused to the accused, by which the victim suffered at the time of the criminal act.
4. Generally, serious and light natured offences are covered under this theory.
5. Retributive theory is an age-old principle and had been followed for centuries. Even now, in certain Islamic countries such types of punishments are followed.

Expiation Theory

1. This theory is akin to the law of torts.
2. Recognition of rights and grievance of the victim or victim’s family members is the primary and essential things in expiation theory.
3. The accused is not physically punished. He is economically punished, and such compensation is awarded to the victim or victim’s family members.
4. Generally, expiation theory is adopted in light natured offences.
5. Expiation theory is a new thinking of 19^th and 20^th centuries.

                                                                                                                           Thank you.

Mirza Mohammad Rifat.:Differences between Vested Ownership and Contingent Ownership?

Q.What are the difference between Vested Ownership and Contingent Ownership?

This article describes 09 differences between Vested Ownership and Contingent Ownership.

Vested Ownership

1. An estate is said to be vested in ownership when it gives a present right to the immediate possession and ownership of the property. While an estate which gives a present right to the further possession of property is said to be “vested interest”.
2. In a vested interest, the transferee’s is already perfect.
3. The transferee owns the right absolutely.
4. The vested interest is heritable.
5. A vested interest is not defeated by the death of the transferee before the obtains possession. The property passes to his heirs.
6. When an interest is vested, the transfer is complete and the transferee acquires all rights of a full owner.
7. It does not depend upon the fulfilment of any condition. It creates an immediate right through the enjoyment may be postponed to a future date.
8. The ownership is absolute.
9. The investiture fact from which a person derives the right is complete.

Contingent Ownership

1. Contingent is that which awaits or depends on the happening of an event.
2. In a contingent interest, the title is not yet perfect. But it may become perfect. If happen certain condition annexed to the deed.
3. The transferee owns it merely conditionally.
4. The contingent interest is not heritable.
5. A contingent interest is defeated by the death of the transferee before he obtains possession.
6. When an interest is contingent, the transfer is not complete.
7. It is solely depended upon the fulfilment of the condition so that if the condition is not fulfilled, the property would not be passed.
8. The ownership is merely conditional.
9. The investiture fact from which a person derives the right is incomplete.

                                                                                                             Thank you.

Mirza Mohammad Rifat.: International Trade Law Assignment on Bill of lading.

Mirza Mohammad Rifat.: International Trade Law Assignment on Bill of lading.

International Trade Law Assignment on Bill of lading.

Assignment-02.

A bill of lading is a receipt, evidence of contract of carriage a document of title depending on whether the holder of the bill of leading is the shipper, consignee, and endorsee-Explain.

Introduction.

A bill of lading is a type of document/receipt issued by the ship-owner or by the master, captain of the ship or other agent after the goods have been placed on board for being carried to a specific destination. The term derives from the noun “bill”, a schedule of costs for services supplied or to be supplied, and from the verb “to lade” which means to load a cargo onto a ship or other form of transport. Although bill of lading involves the use of at least two different modes of transport from road, rail, air, and sea.

A bill of lading is used when the goods shipped from only a part of the cargo of a general ship. It must be stamped and signed by ship-owner or his agent. [The An Jang (2003) 45 SLR 348].

 There are two basic types of bill of lading.

  1. The straight bill.

  2. The order bill.

A straight bill of lading is a non-negotiable document, made out to a specifically named consignee, from which the shipping company acknowledges receipt of the freight and agrees to move it to its destination.

An Order bill of lading is a document that is made out to the order of the foreign importer or its bank, or the order of the export firm, its bank, or another designated party.

The bill of lading must contain the following information.

• Name of the shipping company

• Flag of nationality

• Shipper's name

• Order and notify party

• Description of Goods

• Gross/net/tare weight,and

• Freight rate/Measurements and total freight of goods.

Rules governing Bills of Lading.

There are several major international legal regulatory frameworks governing Bills of Lading, including-

The Hague Rules, 1924 and The Hague-Visibly Rules and The Hamburg Rules, 1978.With respect to the regulatory frameworks, Bills of Lading facilitate international trade by specifying the regulatory framework governing the particular transaction. Indeed, for a particular regulatory framework to be enforceable over a Bill of Lading, it has to be incorporated by the Bill of Lading through the General Paramount Clause. The General Paramount Clause may also specify the period during which the goods will be covered by the specified rules.

Additionally, the Bill of Lading will normally state the particular goods within the consignment that are covered by a particular set of rules.

Hence, bills of lading play a very important part in international trade. Depending upon the rules, which are followed, there are different implications for different parties, which are involved. This assignment gives specific description of the nature and functions of the bill of lading.

A bill of lading is a contract of carriage of goods.

A bill of lading is not merely a contract of carriage of goods but also a receipt and a document of title as well. The bill of lading is a commercial document. Moreover, bills of lading are the classic contract of carriage of goods. While charter parties are the classic contract of hire of a ship and so the bill of lading is a contract in respect to the goods.

Contract of carriage' covered by a bill of lading or any similar document of title, so such document relates to the carriage of goods by sea, including any bill of lading. Such bill of lading or similar document of title regulates the relations between a carrier and a holder of the same.

The bill of lading has three characteristics:

(1) Receipt for the goods shipped.
(2) Evidence of the terms of the contract of affreightment.
(3) Document of title to the goods specified in the Bill of Lading.

Contract of carriage' applies only to contracts of carriage covered by a bill of lading or any similar document of title, in so far as such document relates to the carriage of goods by sea, including any bill of lading or any similar document as aforesaid issued under or pursuant to a charter party from the moment at which such bill of lading or similar document of title regulates the relations between a carrier and a holder of the same.

The Receipt Function.

The receipt function of the Bill of Lading is governed by Article III Rule 3 of the Hague Rules. Which indicate the identification of the shipped goods, the number of packages, pieces, quantity, or weight of the goods shipped, and the apparent order or condition of the goods at the time of loading.

The receipt function of a Bill of Lading therefore is evidenced by the document itself since information as to the nature and quantity of goods, and the port and time of receipt of goods is stated in designated fields.

In Grant v Norway case emphasized that the signature on the Bill of Lading by the ship’s master, affirming that he has received the goods is what makes the Bill of Lading an official receipt.

Evidence of Contract of Carriage Function.

It is evidence about a valid contract of carriage of goods by sea. A bill of lading is itself a piece of paper which create relation between the carrier and shipper, whereas carrier issued it to the shipper through this paper it make the ground of acknowledge about the particular goods which have been received as cargo. A charter party normally lays down the terms and conditions of carriage, including specifying the vessel that shall ferry the goods, the ports of loading and unloading, and mode of payment, a description of the goods to be ferried. The charter party is a separate contract from the sale contact between the buyer and the seller of goods. This proof is provided by the Bill of Lading.

A bill of lading can be considered as a trade purposes. In short the bill of lading is evidence of the contract of carriage of goods. So, it is not a contract but it is only evidence of the contract. Essentially, the transfer of a Bill of Lading imposes rights and liabilities on the subsequent holder vis-a-vis the carrier.

Bill of lading is a  document of title.

The bill of lading is a typical document of title. The bill of lading is invested with particular attributes of great practical importance commercially. This enables it to become one of the key instruments in international trade. A document of title to goods is a written document which proves that the person indicated therein as the owner of goods has title to them, and which when transferred from the indicated owner of the goods to another party, transfers title to those goods to that other party, even though the goods may not be in the physical possession of the original owner.

A Bill of Lading is considered by merchant custom as a document of title to goods specified therein. The passage of title to goods specified in a Bill of Lading is customarily done by endorsement. Endorsement enables title to the specified goods to pass even though the goods are in transit. As such, the endorsee is entitled to claim the goods once the ship carrying them docks at the port of discharge.

Endorsement of bill of lading.

The consignee as mentioned in the Bill of Lading and the actual receiver of the goods may vary under the conditions in which the Bill of Lading has been or intended to be, negotiated. Thus the goods contained in the Bill of Lading may be consigned to:

(1) A named person or firm.
(2) A named person or firm or to an order or assign.
(3) To Bearer.

Rights under bills of lading to vest in consignee or endorsee.

Every consignee in a bill of lading, and every endorsee of a bill of lading to whom the property in the goods therein mentioned shall pass, and such consignment or endorsement shall have transferred  and vested him all rights of suit. 

Nothing shall prejudice or affect any right of stoppage in transit, or any liability of the consignee or endorsee. Bill of lading in hands of consignee is conclusive evidence of the shipment as against master, etc. Every bill of lading in the hands of a consignee or endorsee for valuable consideration, representing goods to have been shipped on board a vessel, shall be conclusive evidence of such shipment as against the master or other person signing the same.

Conclusion.

A Bill of Lading has various roles as noted in the discourse above. Its role as evidence of the existence of a contract of carriage ensures that subsequent endorsees of the Bill of Lading, vis-a-vis carriers are bound by provisions of the contract of carriage, and derive rights and liabilities there from, with respect to each other.

The receipt function of a Bill of Lading is important as it provides proof that the carrier received the goods as set out in the Bill of Lading, while its document of title function plays an important role especially with respect to commercial credits and financing.

Whenever anyone is dealing with a Bill of Lading, attention should be drawn to the Governing Rules applicable to it. These are found in the Paramount Clause of the Bill of Lading and often govern various issues including duties and liabilities of parties.

Bibliography.

Books

1. Yaroslavna Lasytsya: Rules of Bills of Lading in International Seaborne Trade (2005/2006).

2. The Law and Practice of International Trade. (11th edition).

3. The Hague Rules as amended by the Brussels Protocol, 1968

4. Journal Articles-http:// lawcare87.blogspot.com

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Mirza Mohammad Rifat.:Types of bill of lading & Charterer’s duties under a charter.

Types of bill of lading.

There are two types of bill of lading.

  1. The straight bill.

  2. The order bill.

A straight bill of lading is a non-negotiable document, made out to a specifically named consignee, from which the steamship company acknowledges receipt of the freight and agrees to move it to its destination.

An Order bill of lading is a document that is made out to the order of the foreign importer or its bank, or the order of the export firm, its bank, or another designated party.

The bill of lading must contain the following information:

1.      Name of the shipping company;

2.      Flag of nationality;

3.      Shipper's name;

4.      Order and notify party;

5.      Description of Goods;

6.      Gross net weight;

7.      Freight rate/Measurements and total freight.

A bill of lading can be used as a traded object.

1. To acknowledge receipt by the carrier of the exporter's goods.

2. To indicate the carrier's contractual obligation to transport the goods to their destination in exchange for payment.

3. To record transfer of title from the seller to the buyer when payment for the goods takes place. 

A bill of lading is a contract of carriage of goods.

A bill of lading is not merely a contract of carriage of goods but also a receipt and a document of title as well. The bill of lading is a commercial document. Moreover, bills of lading are the classic contract of carriage of goods. While charter parties are the classic contract of hire of a ship and so the bill of lading is a contract in respect to the goods.

Contract of carriage' covered by a bill of lading or any similar document of title, so such document relates to the carriage of goods by sea, including any bill of lading. Such bill of lading or similar document of title regulates the relations between a carrier and a holder of the same.

Charterer’s Duties.

The charterer’s duties under a charter are as follows.

                         1. To nominate safe port.

                         2. To load non –dangerous goods.

CHARTERER'S IMPLED DUTY TO NOMINATE SAFE PORT

Generally nomination is to be made by the chatterer or his agent, The chatterer should nominate the port of loading and discharging and this nomination is not limited by any consideration of the ship owner’s convenience or expense. The object of nominate a safe port is to protect the interest of the ship owner-

                       1. Ship will not be damaged and

                       2. Cargo interest will protect from danger of loss.

If an unsafe port is nominated, a ship owner is entitled to ask the chatterer to re-nominate another port. If the chatterer refuses, the ship owner may terminate the charter party or he may send the vessel to the nominated unsafe port but reserve his right to claim damages. The Evia (No.2) [1982] 2 Lloyd’s Rep 307.

CHARTERERS IMPLIED DUTY TO LOAD NON-DANGEROUS GOODS.

Under the common law the chatterer impliedly undertakes not to ship dangerous or hazardous goods without the knowledge of the ship-owner. This duty can also be expressly provided in the contract. Dangerous goods are those goods which by reason of their nature, quantity or mode of stowage are liable to endanger the lives of persons on ship or near the ship or to imperil any ship. However, where the ship owner is given notice of the dangerous goods which he accepts, if damage occurs afterwards, the ship owner shall be held liable.

                                                                                                                             Thank you.

lawcare.blogspot.comMirza Mohammad Rifat.:Types of bill of lading & Charterer’s duties under a charter.

Mirza Mohammad Rifat.:The mischief rule of statutory interpretation.

 

 

 

 

 

 

The mischief rule of statutory interpretation.

Introduction

The mischief rule of statutory interpretation is the oldest of the rules. The mischief rule is a rule of statutory interpretation that attempts to determine the legislator's intention. its main aim is to determine the "mischief and defect" of the statute. The mischief rule was established in Heydon's Case 1584.it was held that the mischief rule should only be applied where there is ambiguity in the statute. Under the mischief rule the court's role is to suppress the mischief and advance the remedy.

Meaning

The Mischief Rule is a certain rule that judges can apply in statutory interpretation in order to discover Parliament's intention. This was set out in Heydon's Case [1584]  It defined the mischief rule and declared for the true interpretation of a statute, four points to be taken into consideration.

·     What was common law before the Act was passed?

·     What was the mischief & dedect for which the existing law did not provide?

·     What remedy does the Act attempt to provide to cure the defect?

·     What is the true reason underlying the remedy?

The application of this rule gives the judge more discretion than the literal and the golden rule as it allows him to effectively decide on Parliament's intent. It can be argued that this undermines Parliament's supremacy and is undemocratic as it takes law-making decisions away from the legislature.

Case examples of the mischief rule:

       (1) Smith v. Hughes (1960)

D was a prostitute who had tapped on a balcony from inside a building at men passing by to attract them. It was an offence for a prostitute to solicit men in a street or public place.In this case the judge applied the Mischief rule to come to the conclusion and they were found guilty as for there intention.

Application of the rule

This rule of  construction is of narrower application than the golden rule or the plain meaning rule, in that it can only be used to interpret a statute and, strictly speaking, only when the statute was passed to remedy a defect in the common law.

Legislative intent is determined by examining secondary sources, such as committee reports, treatises, law review articles and corresponding statutes.

This rule has often been used to resolve ambiguities in cases in which the literal rule cannot be applied. In Smith v Hughes the mischief approach gave a more sensible outcome than that of the literal approach. 

 

Modern use of the mischief rule

Modern courts continue to apply the rule in a more restricted manner, and generally with a greater regard for the integrity of the statutes which they are interpreting. Driedger puts it this way to this day, ‘’Heydon’s Case’’ is frequently cited. The courts still look for the “mischief” and “remedy”, but now use what they find as aids to discover the meaning of what the legislature has said rather than to change it.Driedger goes on to argue that this modern use of the mischief rule ought to be understood as one of the components of what he characterized as the "modern" method of statutory construction, rather than a stand-alone rule serving (as it formerly had), as an alternative to the methods of construction proposed by the plain meaning rule and the golden rule.

 

Advantages

1. The Law Commission sees it as a far more satisfactory way of interpreting acts as opposed to the Golden or Literal rules.
2. It usually avoids unjust or absurd results in sentencing
3. It abides to parliament sovereignty
4. Allows the law to develop and adapt to changing needs eg( Royal College of Nursing v DHSS).

Disadvantages

1. It is seen to be out of date as it has been in use since the 16th century, when common law was the primary source of law and parliamentary supremacy was not established.
2. It gives too much power to the unelected judiciary which is argued to be undemocratic.
3. In the 16th century, the judiciary would often draft acts on behalf of the king and were therefore well qualified in what mischief the act was meant to remedy. This is not often the case in modern legal systems.
4. The rule can make the law uncertain, susceptible to the slippery slope.

Interesting quote of Professor Cote on the difference of approach between  the literal and Mischief Rules. "The interpreter should it fill the gaps that may have a statute, that is to say, he must supply the omission to provide for certain situations, some cases that the subject of a text logic control for securing.

Problems with the mischief rule

1. Creates a crime after the event e.g. (Smith v Hughes, Elliot v Grey )

thus infringing the rule of law.

2. Gives judge a law making role infringing the separation of powers.

3. Judges can bring their own views, sense of morality and prejudices to a case eg(Smith v Hughes, DPP v Bull).

                                                                                                                  Thank you.

Mirza Mohammad Rifat.:Delegated legislation @ International law.

Delegation legislation.

Introduction:

Delegated legislation is power conferred by a supreme legislative authority to a subordinate authority to create laws. In Bangladesh  the supreme authority is Parliament and the subordinate authorities range from government, ministers ,to local Govt. and also non-governmental organisations. 

Delegated legislation can take several forms, depending upon which authority is being empowered to make new legislation.  Power is given to a government department by a Parent Act to create new laws. The Parent Act gives specific guidelines on how the new laws are to be created.

Delegation of powers – meaning:

Delegation of powers means those powers, which are given by the higher authorities to the lower authorities to make certain laws. The law legislate by the administration with the powers given by the legislature is called delegated legislation.

Why is Delegated Legislation Needed 

• Lack of Parliamentary time
• Allow detail to be added at a later date
• Makes use of local knowledge, i.e. bylaws  (Local laws for local people)
• Makes use of expert technical knowledge
• Easier to amend than an Act of Parliament
• More time can be taken to consider secondary legislation

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