© 2004 west legal studies in business a division of thomson learning business law twomey jennings 1...
TRANSCRIPT
© 2004 West Legal Studies in BusinessA Division of Thomson Learning
BUSINESS LAW BUSINESS LAW Twomey • Jennings 1stEd.Twomey • Jennings 1stEd.
Twomey & JenningsTwomey & Jennings
BUSINESS LAWBUSINESS LAWTwomey & JenningsTwomey & Jennings
BUSINESS LAWBUSINESS LAW
Chapter 23
Legal Aspects of Supply Chain Management:
Title and Risk of Loss
Chapter 23
Legal Aspects of Supply Chain Management:
Title and Risk of Loss
2© 2004 West Legal Studies in BusinessA Division of Thomson Learning
BUSINESS LAW BUSINESS LAW Twomey • Jennings 1stEd.Twomey • Jennings 1stEd.
Types of Potential Types of Potential ProblemsProblems
Types of Potential Types of Potential ProblemsProblems
• Damage to Goods: What if neither Buyer nor Seller is responsible?– What liability does a Carrier have?
• Creditors’ Claims or Seizure of Goods.
• Insurable Interest.
• Damage to Goods: What if neither Buyer nor Seller is responsible?– What liability does a Carrier have?
• Creditors’ Claims or Seizure of Goods.
• Insurable Interest.
3© 2004 West Legal Studies in BusinessA Division of Thomson Learning
BUSINESS LAW BUSINESS LAW Twomey • Jennings 1stEd.Twomey • Jennings 1stEd.
Identification of GoodsIdentification of GoodsIdentification of GoodsIdentification of Goods
• Existing Goods: physically present and owned by Seller at the time of contract.– When Seller or Buyer selects goods, they are
“identified.”
• Future Goods: do not exist or not owned by seller at the time of contract.
• Fungible Goods: indistinguishable.• Identification Gives Buyer an Insurable Interest.
• Existing Goods: physically present and owned by Seller at the time of contract.– When Seller or Buyer selects goods, they are
“identified.”
• Future Goods: do not exist or not owned by seller at the time of contract.
• Fungible Goods: indistinguishable.• Identification Gives Buyer an Insurable Interest.
4© 2004 West Legal Studies in BusinessA Division of Thomson Learning
BUSINESS LAW BUSINESS LAW Twomey • Jennings 1stEd.Twomey • Jennings 1stEd.
Passage of TitlePassage of TitlePassage of TitlePassage of Title
• Document of Title: facilitates transfer of ownership without actually moving the goods.
• A warehouser stores the goods of others for compensation and has the rights and duties of a bailee in an ordinary mutual benefit bailment.
• Warehouse receipt given to the depositor (bailor) of the goods.
• Bill of Lading: carrier accepts goods for shipment.
• Document of Title: facilitates transfer of ownership without actually moving the goods.
• A warehouser stores the goods of others for compensation and has the rights and duties of a bailee in an ordinary mutual benefit bailment.
• Warehouse receipt given to the depositor (bailor) of the goods.
• Bill of Lading: carrier accepts goods for shipment.
5© 2004 West Legal Studies in BusinessA Division of Thomson Learning
BUSINESS LAW BUSINESS LAW Twomey • Jennings 1stEd.Twomey • Jennings 1stEd.
Nonnegotiable Negotiable
To whom goods are deliveredas stated on receipt
Deliver to Jane Doe Deliver to the beareror
Deliver to the order of JohnDoe
Purposes of receipt 1. Contract for storage2. Receipt for goods3. Document of title
1. Contract for storage2. Receipt for goods3. Document of title
Is receipt required for deliveryof goods?
Yes YesIf receipt says “Deliver to theorder of John Doe,” It must beindorsed by John Doe forholder of receipt to receivegoods.
Warehouse ReceiptsWarehouse ReceiptsWarehouse ReceiptsWarehouse Receipts
6© 2004 West Legal Studies in BusinessA Division of Thomson Learning
BUSINESS LAW BUSINESS LAW Twomey • Jennings 1stEd.Twomey • Jennings 1stEd.
Negotiability of Negotiability of Documents of TitleDocuments of Title
Negotiability of Negotiability of Documents of TitleDocuments of Title
• In some cases, a warehouse receipt can be bought, sold, or used as security to obtain a loan. – A nonnegotiable warehouse receipt states that
the goods received will be delivered to a specified person.
– A negotiable warehouse receipt states that the goods will be delivered “to the bearer” or “to the order of” a named person.
• In some cases, a warehouse receipt can be bought, sold, or used as security to obtain a loan. – A nonnegotiable warehouse receipt states that
the goods received will be delivered to a specified person.
– A negotiable warehouse receipt states that the goods will be delivered “to the bearer” or “to the order of” a named person.
7© 2004 West Legal Studies in BusinessA Division of Thomson Learning
BUSINESS LAW BUSINESS LAW Twomey • Jennings 1stEd.Twomey • Jennings 1stEd.Passage of Passage of
Title Title Under Article Under Article 22
Passage of Passage of Title Title Under Article Under Article 22
At time ofcontract
When Shipped,
Marked; orOtherwise Designed
Existing
Future
Fungible
Goods Identified?
Yes
FOB Destination FOB Shipment
Title passesupon tender
Title Passes upon Delivery of Goods
to Carrier
No
Document of Title?
Yes No
Title Passes at Time of Contracting
Title Passes upon Delivery of Title
Document
Yes
Title Cannot PassDelivery?
No
8© 2004 West Legal Studies in BusinessA Division of Thomson Learning
BUSINESS LAW BUSINESS LAW Twomey • Jennings 1stEd.Twomey • Jennings 1stEd.
Negotiation of Negotiation of DocumentsDocuments
Negotiation of Negotiation of DocumentsDocuments
WAREHOUSER(Issuer)(Bailee)
WAREHOUSERECEIPT
BUYER
PURCHASER OF WAREHOUSE
RECEIPT
WAREHOUSERECEIPT
Indorsement anddelivery
value/good faithdue negotiation
right to goods
or right tonegotiate further
GOODSSELLER
(Depositor) (Bailee)
9© 2004 West Legal Studies in BusinessA Division of Thomson Learning
BUSINESS LAW BUSINESS LAW Twomey • Jennings 1stEd.Twomey • Jennings 1stEd.
Limitation of LiabilityLimitation of LiabilityLimitation of LiabilityLimitation of Liability
• A warehouser may limit its liability for loss or damage to goods due to its own negligence to an agreed valuation of the property stated in the receipt.
• The depositor must be given the right to store the goods without the limitation at a higher storage rate.
• A warehouser may limit its liability for loss or damage to goods due to its own negligence to an agreed valuation of the property stated in the receipt.
• The depositor must be given the right to store the goods without the limitation at a higher storage rate.
10© 2004 West Legal Studies in BusinessA Division of Thomson Learning
BUSINESS LAW BUSINESS LAW Twomey • Jennings 1stEd.Twomey • Jennings 1stEd.
Passage of Title in Passage of Title in BailmentsBailments
Passage of Title in Passage of Title in BailmentsBailments
• Generally, a seller can only sell what he owns.– Stolen Property: finder of stolen property (or a
thief) cannot pass good title to a third party, even if the buyer purchased in good faith.
– Estoppel.
• Generally, a seller can only sell what he owns.– Stolen Property: finder of stolen property (or a
thief) cannot pass good title to a third party, even if the buyer purchased in good faith.
– Estoppel.
Alamo Rent-A-Car v Mendenhall (1997) Does the Buyer Have Good Title?Alamo Rent-A-Car v Mendenhall (1997) Does the Buyer Have Good Title?
11© 2004 West Legal Studies in BusinessA Division of Thomson Learning
BUSINESS LAW BUSINESS LAW Twomey • Jennings 1stEd.Twomey • Jennings 1stEd.
Delivery and Shipment Delivery and Shipment TermsTerms
Delivery and Shipment Delivery and Shipment TermsTerms
• Unless otherwise agreed, the Seller is only required to make shipment to the Buyer, i.e., place the goods in a carrier’s possession.
• FOB Place of Shipment.• FOB Place of Destination.• FAS.• CF and CIF.• COD.
• Unless otherwise agreed, the Seller is only required to make shipment to the Buyer, i.e., place the goods in a carrier’s possession.
• FOB Place of Shipment.• FOB Place of Destination.• FAS.• CF and CIF.• COD.
12© 2004 West Legal Studies in BusinessA Division of Thomson Learning
BUSINESS LAW BUSINESS LAW Twomey • Jennings 1stEd.Twomey • Jennings 1stEd.
Passage of Title in Passage of Title in Shipment Contracts Shipment Contracts Passage of Title in Passage of Title in
Shipment Contracts Shipment Contracts • FOB Place of Shipment Contract.
– Title passes from S B when S places goods with carrier.
• FOB Place of Destination Contract.– Title passes from S B when goods are
tendered to the Buyer.
• FOB Place of Shipment Contract.– Title passes from S B when S places goods
with carrier.
• FOB Place of Destination Contract.– Title passes from S B when goods are
tendered to the Buyer.
Future Tech Int’l, Inc. v TaeII Media, Ltd. (1996) Who has the right to the Goods? Future Tech Int’l, Inc. v TaeII Media, Ltd. (1996) Who has the right to the Goods?
13© 2004 West Legal Studies in BusinessA Division of Thomson Learning
BUSINESS LAW BUSINESS LAW Twomey • Jennings 1stEd.Twomey • Jennings 1stEd.
Risk of LossRisk of LossRisk of LossRisk of Loss
• ROL determines who must pay if the goods are damaged or destroyed.
• Non-Shipment Contracts.– Merchant Seller: ROL passes from S B upon
B’s actual receipt of goods.– Non-Merchant Seller: ROL passes from S B
upon tender of goods.
• ROL determines who must pay if the goods are damaged or destroyed.
• Non-Shipment Contracts.– Merchant Seller: ROL passes from S B upon
B’s actual receipt of goods.– Non-Merchant Seller: ROL passes from S B
upon tender of goods.
14© 2004 West Legal Studies in BusinessA Division of Thomson Learning
BUSINESS LAW BUSINESS LAW Twomey • Jennings 1stEd.Twomey • Jennings 1stEd.
Risk of LossRisk of LossRisk of LossRisk of Loss
• Shipment to Buyer: ROL passes from S B when tendered to carrier for shipment.
• Contract for Delivery: ROL passes from S B when goods tendered at destination by carrier.
• Shipment to Buyer: ROL passes from S B when tendered to carrier for shipment.
• Contract for Delivery: ROL passes from S B when goods tendered at destination by carrier.
15© 2004 West Legal Studies in BusinessA Division of Thomson Learning
BUSINESS LAW BUSINESS LAW Twomey • Jennings 1stEd.Twomey • Jennings 1stEd.
Damage or Destruction Damage or Destruction of Goodsof Goods
Damage or Destruction Damage or Destruction of Goodsof Goods
• Identified Goods Before ROL passes.– If total loss, contract is cancelled by law.– If partial loss, B has option to accept or reject.
• Identified Goods After ROL passes.– Buyer’s loss (insurable interest).
• Un-Identified Goods.– No ROL to Buyer, Seller’s loss.
• Identified Goods Before ROL passes.– If total loss, contract is cancelled by law.– If partial loss, B has option to accept or reject.
• Identified Goods After ROL passes.– Buyer’s loss (insurable interest).
• Un-Identified Goods.– No ROL to Buyer, Seller’s loss.
16© 2004 West Legal Studies in BusinessA Division of Thomson Learning
BUSINESS LAW BUSINESS LAW Twomey • Jennings 1stEd.Twomey • Jennings 1stEd.
Common Carriers, Common Carriers, ROL and LiabilityROL and Liability
Common Carriers, Common Carriers, ROL and LiabilityROL and Liability
• Rights of Common Carriers.– Security lien interest on goods that it transports.– Right to compensation per agreement.
• Duties of Common Carriers.– Deliver the goods as agreed.
• Rights of Common Carriers.– Security lien interest on goods that it transports.– Right to compensation per agreement.
• Duties of Common Carriers.– Deliver the goods as agreed.
Bottoms & Tops Int’l Inc. v UPS (1994) Who is liable for failure to deliver the jewelry to Dwek?
Bottoms & Tops Int’l Inc. v UPS (1994) Who is liable for failure to deliver the jewelry to Dwek?
17© 2004 West Legal Studies in BusinessA Division of Thomson Learning
BUSINESS LAW BUSINESS LAW Twomey • Jennings 1stEd.Twomey • Jennings 1stEd.
Liability of Common Liability of Common CarrierCarrier
Liability of Common Liability of Common CarrierCarrier
• A common carrier is absolutely liable for loss or damage to the goods.
• Exceptions:– Loss was caused solely by an act of God, – Act of a public enemy, – Act of a public authority, – Act of the shipper, or – Inherent nature of the goods.
• A common carrier is absolutely liable for loss or damage to the goods.
• Exceptions:– Loss was caused solely by an act of God, – Act of a public enemy, – Act of a public authority, – Act of the shipper, or – Inherent nature of the goods.
18© 2004 West Legal Studies in BusinessA Division of Thomson Learning
BUSINESS LAW BUSINESS LAW Twomey • Jennings 1stEd.Twomey • Jennings 1stEd.
Liability of Common Liability of Common CarrierCarrier
Liability of Common Liability of Common CarrierCarrier
• Seller is Liable for Damages from Delay.
• Limitation of Carrier Liability.– Unless prohibited by law, carriers can
contractually limit their liability.– Example: Airbills limit liability to $100, unless
insurance is purchased.
• Seller is Liable for Damages from Delay.
• Limitation of Carrier Liability.– Unless prohibited by law, carriers can
contractually limit their liability.– Example: Airbills limit liability to $100, unless
insurance is purchased.
19© 2004 West Legal Studies in BusinessA Division of Thomson Learning
BUSINESS LAW BUSINESS LAW Twomey • Jennings 1stEd.Twomey • Jennings 1stEd.
Seller’s Breach and ROLSeller’s Breach and ROLSeller’s Breach and ROLSeller’s Breach and ROL
• If Seller ships non-conforming goods and Buyer reject, ROL stays with Seller.
• If Seller ships non-conforming goods and Buyer reject, ROL stays with Seller.
Graff v Bakker Brothers of Idaho, Inc. (1997) Peeling Back the Layers of the Great Onion Contract Breach: Who is Really Liable?
Graff v Bakker Brothers of Idaho, Inc. (1997) Peeling Back the Layers of the Great Onion Contract Breach: Who is Really Liable?
20© 2004 West Legal Studies in BusinessA Division of Thomson Learning
BUSINESS LAW BUSINESS LAW Twomey • Jennings 1stEd.Twomey • Jennings 1stEd.
Special SituationsSpecial SituationsSpecial SituationsSpecial Situations
• Returnable Goods Transactions.– Sale on Approval.– Sale or Return.
• Returnable Goods Transactions.– Sale on Approval.– Sale or Return.
Houghton Wood Products v Badger Wood Products. (1995) Can the Defendant return the goods to Seller after transforming the products?
Houghton Wood Products v Badger Wood Products. (1995) Can the Defendant return the goods to Seller after transforming the products?
21© 2004 West Legal Studies in BusinessA Division of Thomson Learning
BUSINESS LAW BUSINESS LAW Twomey • Jennings 1stEd.Twomey • Jennings 1stEd.
Consignment and Consignment and FactorsFactors
Consignment and Consignment and FactorsFactors
• A factor is a special type of bailee who has possession of someone else’s property for the purpose of selling it.
• This arrangement is commonly called selling on consignment, and the owner is called a consignor.
• The factor, or consignee, receives a commission on the sale.
• A factor is a special type of bailee who has possession of someone else’s property for the purpose of selling it.
• This arrangement is commonly called selling on consignment, and the owner is called a consignor.
• The factor, or consignee, receives a commission on the sale.