3. Case C-87/09 : Ingrid Putz v. Medianess Electronics GmbH 3.1. Legal basis - EU “Recital 10 in the preamble to the Directive states that ‘in the case of non-conformity of the goods with the contract, consumers should be entitled to have the goods restored to conformity with the contract free of charge, choosing either repair or replacement, or, failing this, to have the price reduced or the contract rescinded’. Recital 11 in the preamble to the Directive reads as follows: ‘Whereas the consumer in the first place may require the seller to repair the goods or to replace them unless those remedies are impossible or disproportionate; whereas whether a remedy is disproportionate should be determined objectively; whereas a remedy would be disproportionate
The Supreme Court Decision On several occasions, the Supreme Court has stated its view that ERISA jurisprudence is derived from the common law of trusts. The Supreme Court faulted the Ninth Circuit for failing to adequately consider principles of trust law when it rejected the Employees’ claim for breach of fiduciary duty with respect to the mutual funds added in 1999. Not only is there a duty of “prudence” to select appropriate investment choices at the outset, but the Court held that there is a “continuing duty” to monitor those investment selections to “remove imprudent ones.” The Supreme Court held that the “continuing duty” is separate from the initial duty to choose investments carefully; violation of the “continuing duty” counts as a breach of the fiduciary duty under ERISA. As long as the breach of the “continuing duty” occurred within six years of the filing of the lawsuit, ERISA’s statute of repose does not bar the
The Court stated that for the aforementioned reasons declaratory judgement actions like the one at issue in this case were also an exception to the Schaffer rule. The lower court emphasized that its holding applied only in “circumstance when an infringement counterclaim by a patentee is foreclosed by the continued existence of a license. The Court found that the “limited circumstance” described by the Federal Circuit is often present when a patent licensee faces an ordinary but disputed claim of infringement. This “limited circumstance” is “virtually identical” to MedImmune, where the Court found that a declaratory action was permissible. In any case the Court found that limiting the scope was not by itself justification for the legality of the
But the compensation the organization asked is disproportional, because the organization strives after maximum profit. This goes against the fundamental purpose of the Convention to complete the internal market. The Court doesn’t follow the result of the Coditel-case. The restriction of the freedom to provide and receive services can in this case not be justified by an appeal to the protection of intellectual property. The conclusion of the Court is as expected.
However, if businesses believe they have been a victim of deceptive advertising they can bring an action under s.43(a) of the Lanham Act. The Federal Trade Commission has developed a framework for regulating deceptive commercial speech, in which one must prove the advertisement was a “material representation, omission or practice” that was “likely to mislead a customer”, and that “no one acting reasonably under the circumstances” would believe the claims. Deceptive commercial speech in the UK is regulated by the Unfair Commercial Practices Directive (UCPD) as well as national advertising codes. The UCPD seeks the protect the economic interests of consumers from deceptive commercial practices but does not seek to protect businesses. The UK also regulates political campaign spending for the 365 days up to the vote and four months after the vote but does this only for relevant elections and does not regulate outside these campaign periods.
2. The exclusion/limitation clauses in the contract with POTL are likely to be valid under English law. (a) As the contract was signed by POTL and Banana UK Ltd (Banana’s UK subsidiary), and both companies are English companies, the contract is under the Unfair Contract Terms Act 1977 (“UCTA”). According to UCTA, whether the exclusion/limitation clauses in the contract are valid will be influenced by the following factors: the strength of the bargaining positions; the inducement the customer received to sign the contract; whether the customer knew or ought reasonably to had known of the existence and the extent of the term; where the term excludes or restricts any relevant liability if some condition was not complied with, whether it was reasonable
The federal court, at first, ruled that the DEA was not liable for the suit, but Sosa was liable. On the appeal, the 9th Circuit Court of Appeal overturned the district court and sentenced that the DEA should not permit the arrest in another country that way and also upheld the judgment on Sosa. Flaherty, Moore, Ku, Stephens, and Steinhardt (2007) had an in-depth analysis of the Sosa case. The authors argued, as the court ruled that an unauthorized arrest and a single day custody did not violate any norm of customary law analysis and regulation, the case was, therefore, unsatisfying with “no decision”. The court emphasized that the arrest was taken place outside of the United States and therefore was exempted from the
How has the Court of Appeal’s decision in Williams v Roffey Brothers and Nicholls (Contractors) Ltd  1 QB 1, made the doctrine of economic duress vitally important in preventing extortion or improper threats in English Contract Law? The general rule in English contract law is freedom of contract, namely that any agreements entered into by parties of full age and capacity, if intended to be legally binding and if supported by consideration, will be treated as legally enforceable by the courts. The English law has, however, recognized two doctrines which provide a means for a claimant to avoid a concluded contract, namely the doctrine of duress and the doctrine of undue influence. There are three types of duress at common law- duress which takes the form of some form of coercion or threat to the person, property, or to a person’s financial interests (economic duress). The doctrine of economic duress is now seen as the primary mechanism to prevent promises obtained by extortion from being enforceable.
Specific performance is an extraordinary equitable remedy that compels a party to execute a contract accordingly to the precise terms agreed upon or to execute it substantially so that, under the circumstances, justice, will be done between the parties. Specific performance grants the Plaintiff what he actually bargained in the contract rather than damages (pecuniary compensation for loss or injury incurred through the unlawful conduct of another) for not receiving it. This Specific Performance is an equitable rather than legal remedy. By compelling the parties to perform exactly what they had agreed to perform. Specific Performance can be granted only by the court in the exercise of its equity powers, subsequent to a determination of whether a valid contract can be enforced exist and an evaluation of the relief sought.
2) if the contract was put in an understandable language, the assessment of fairness will not include :- (a) the main subject of the contract or, (b) the sufficiency of the price or to the adequacy of the price or compensation. Effect of unfair term 1) if the contract includes unfair terms by the customer from the dealer the contract wil not be binding. (2) The contract can be continued to work if it can do without the unfair