The comments made on page 1 with regard to the Introduction to Law and Ethics paper in ATD LEVEL I are also relevant here. Clear, concise and intelligible expression in the English language is an absolute necessity in answering questions
in this paper.
Some candidates did not perform well in the following questions:
Question No. 1
In which candidates were unable to state four circumstances under which a court might nullify or mitigate the hardship created by an exemption clause. Candidates also had difficulties in explaining the benefits of carrying out a legal audit in a corporation.
In addition, some candidates faced challenges in describing the rules of statutory interpretation. Candidates also seemed not to understand how the right to lien as a remedy of an unpaid seller might be lost.
The following were some of the expected responses:
Circumstances under which a court might nullify or mitigate the hardship created by an exemption clause:
● Where the exemption is barred by legislation.
● Where the exemption clause was never incorporated into the contract.
● Where the agreement was obtained by fraud or misrepresentation.
● Where the clause construed strictly does not cover the specific circumstances in question for example exclusion of warranties.
● Where there is a fundamental breach of the contract.
Benefits of carrying out a legal audit in a corporation:
- Enables creation of a plan with both preventive and corrective measures.
- Enables continuous improvement in diverse businesses processes.
- Enhances the identification of business risks to avoid potential frauds or errors.
- Enhanced internal communication.
Rules of statutory interpretation
- The Mischief Rule-The rule requires the court to look at what the law was before the statutory provision was enacted and what defects or mischief it intended to remedy.
- The Literal Rule-Requires the court to give a statute’s words their literal or ordinary meaning regardless of whether the result is sensible or not.
- The Golden Rule-This is an exception to the literal rule which is used where the literal rule produces a result where the legislature’s intention would be circumvented rather than applied if the literal rule is applied.
Ways in which the right to lien as a remedy of unpaid seller might be lost:
- When there is a waiver thereof.
- If the buyer or his agents obtain lawful possession of the goods.
- If the seller delivers the goods to a common carrier for transmission to the buyer without reserving the right of disposal.
- When payment of goods has been made.
Question No. 6
In which candidates were expected to identify two types of works that are eligible for copyright protection, highlight four advantages of tribunals, describe three forms of interest in land and describe four characteristics of tenancies. Most candidates faced challenges in answering this question.
The following were some of the expected responses:
Types of works that are eligible for copyright protection:
- Works of literature such as novels, poetry, short tales, journals, essays and other types of writing fall under the umbrella of these genre of works.
- Works of music, as well as any words that accompany them. Any works that are composed of musical notes are considered to be part of this category of works.
- Works of audio-visual art, including movies and other films.
Advantages of tribunals:
- The decisions are quick.
- They have discretionary powers hence they are flexible.
- The cost is relatively low.
- They employ experts.
- The procedure followed is straight forward.
- They are more accessible than the ordinary Courts.
- They are less hostile than the ordinary Courts.
Forms of interest in land:
- Estate in land-An estate in land may be freehold or leasehold.
- Servitudes- These are rights in alieno solo, a right conferring a power on another’s land for the benefit of the right holder or his estate.
- Easement- a right attached to a parcel of land, which allows the proprietor of the land either to use the land of another in a particular manner or to restrict its use to a particular extend.
Characteristics of tenancies:
- Exclusive possession-A tenancy confers upon the tenant the right to hold interest to the exclusion of others.
- Defined premises-The premises to which the tenancy or lease refers must be defined or ascertained.
- Certain period- A lease must commence at and exist for a certain period or for a period capable of being ascertained.
- Scope of grant or quantum rights- The bundle of rights conferred by a lease must be definite or capable of being defined. The lessee must know the rights exercisable under the lease.
