Counterfeit Case Contractual Relations Between Research Paper
- Length: 9 pages
- Subject: Business - Miscellaneous
- Type: Research Paper
- Paper: #50032300
Excerpt from Research Paper :
Mr. Leiber will be eligible to claim $1,000.00 for each of those pieces as the difference between the contract price and the actual current price is approximately a difference of $1,000.00. If however, that price changes during the course of arbitration the difference in price should be changed in order to reflect that difference. Further according to article 50, should Satel have to ultimately pay for the 30 non-counterfeit pieces, because they are defective, Satel is able to lower the price per unit of the pieces in order to reflect their current value as opposed to the value they would have if they were functional.
Elcom is protected as a result of the method of delivery against damages which occurred in transit. According to article 66 and 67 section 1 the thirty components which were damaged as a result of the car accident ultimately must be paid for as Satel had assumed the risk for those pieces and are this liable for the full price of them despite the fact that they were defective upon receipt. These two articles do not however mitigate Satel's ability to seek remedies as a result of the other breaches of contract specifically the 30 counterfeit and defective components. Article 70 protects the buyer's right to seek remuneration even if there may have been additional ex post facto circumstances which compromised potentially correct components.
One complicating factor in the matter of acquiring remuneration is the seeming contradiction of articles 86 and article 82 section 1. These articles govern the circumstances under which the parties are able to suspend refund and final payment respectively. According to article 82, Elcom is entitled to withhold restitution until such time as the delivered goods are returned to them in the same condition that they were received. This is excepting any damage done to pieces as a result of testing. However, should Satel have damaged the components in any way prior to their return then Elcom would potentially have grounds to refuse refund of the money outlaid initially. According to article 86 section 1 though, Satel may if they so choose keep the goods until they have received restitution. This is an issue which will be addressed in the letter to Mr. Leiber from Elcom. It is suggested that a documentary credit be opened in which the $100,000.00 will be held until the goods have reached the Elcom facility. Once the goods have been confirmed, then the $100,000.00 would be released.
Ultimately Satel is entitled to damages equal to their losses including potential or projected profit. Article 74 clearly states that in the instance of a breach of contract, though the sum claimed cannot be beyond that amount which the individual could have foreseen being lost as a result of their breach, in the event of a breach the party which failed to complete their obligations is the party liable for the losses incurred by the other party. Further Satel according to article 84 section one is entitled to claim not only the $100,000.00 back but also interest on that amount for the entire period of time which Elcom has held that money.
Given the clear culpability of Elcom, and the potential additional criminal charges which H.S. Semiconductor Corporation could bring for trademark infringement as well as patent infringement it is likely that Elcom will ultimately not prevail in any court of law. To conclude, Elcom will likely have to pay Satel the $100,000.00 plus interest as well as the $260,000.00 minimum. Though it was initially stipulated in the contract that Elcom would only be liable in total for 20% of the initial purchase cost, should Satel void the contract then that obligation is no longer in effect and Satel will be able to bring the full extend of charges to bear on Mr. Lewis and Elcom.
Response Letter to Satel
It is unfortunate that our business transaction has come to such an unfortunate end. According to the legally binding terms of our contract, we are only liable for 20% ($48,000.00) of the purchase price, the liability clause in the agreed upon contract indicated that, that 20% would be the full liability of Elcom for the products delivered as per the terms of the contract. Given that you are still in possession of the product, we will pay $48,000.00 within five working days of receipt of this letter and subsequent finalization of the conditions. The $100,000 will be repaid following receipt of the products in the condition which they were received by you (Satel) on 1st March 2009. As a show of good faith, our bank will open a documentary credit account with a bank in Germany which will hold the $100,000.00 until such time as our goods have been received. Upon receipt and verification of the shipment the $100,000.00 will be released to your bank. The goods should be delivered (FOB) to Miami International Airport no later than two weeks from receipt of this correspondence.
Function of a Trademark
A trademark is the indicator or sign which identifies products and/or services originating from a unique source. Trademarks signify intellectual property; generally in the form of a logo, symbol, design, image or combination thereof. A trademark may also informally apply to some characteristic which makes an individual instantly and readily identifiable. The specific function of a trademark is that it protects the owner of rights to the identifier in the instances of counterfeiting. Specifically, the owner is able to bring legal actions against any individuals who have infringed on their trademark.
In the instance of International law regarding contractual agreements between parties from different countries, the choice of law indicates that they are able to determine which rule of law will primarily govern the proceedings. This is generally done in order to simplify the process of conducting international business transactions as well as ensuring that both parties are equitably protected by the laws governing the contract. Choice of law as it is called when two parties select the body of laws governing their transaction is recognized both internationally and within many individual countries as a valid decision to be made between two parties entering into a binging legal contract. In instances where there is resulting conflict as in the case above, it is not uncommon for each party to insist upon the inclusion of their native laws in the arbitration of the matter.
Principle of Territory
The principal of Territory in essence states that state sovereignty and law supersedes international law. Meaning that Mr. Leiber in Germany would be able to apply German law to the legal case, claiming damages in keeping with his territorial law. Because this decision would likely result from the conflict developing between Mr. Leiber and Mr. Lewis, this would be a matter taken for arbitration.
Principle of Priority
Principle of Priority indicates that the international laws governing a transaction will supersede those of individual states and entities. This is a complex issue in that there are existing principals of international law such as the principle of territory which seemingly contradict this statute. Ultimately it will be decided in arbitration whether there will be a more equitable and satisfactory result from following…