Chinese political culture Essay

The book CHINESE POLITICAL CULTURE relates to political culture in significantly different ways from the approaches used in other books with similar content. This book touches on many aspects of Chinese political culture; as a result, reading the book gives one a better comprehension of China’s complexity. This collection of essays manages to achieve this aim without losing its unity. The first section of the book explores the modern transformation of Chinese traditional culture and its effect on contemporary political culture. It speaks to the complexity of the issue that the three essays do not agree on whether neo-Confucianism always provides the foundation on which contemporary Chinese political culture can rest. Kam Louie examines the role of Confucianism’s dichotomy between wen [man of letter] and wu [warrior] to emphasize continuities in the patriarchal nature of Chinese society. Roger Ames, from a different perspective, examines the continued relevance of Confucianism among intellectuals in his presentation of the creative use of Kant by noted scholars Mou Zongsan and Li Zehou in their effort to reassert the relevance of the Confucian heritage. Godwin Chu, however, shows that although there are striking continuities between the ways in which the concept of zhong [loyalty] was used in traditional China and during the Maoist period, the individual assertiveness he observes today marks a major break with the past. The second section of the book proceeds to socialization and observes official ideologies. The chapter on nationalism, by Edward Friedman, reminds us that despite the use of a sometimes strident nationalist rhetoric by its leaders, the existence of a Chinese â€Å"nation† protected by the Party-state remains a long way off, as evidenced by the inability of the government to establish institutions such as the welfare state. The chapter by Zhu Jianhua and Ke Huixin, which addresses the construction of Hong Kong in the minds of Chinese in Gungzhou and Shenzhen, suggests that despite greater exposure to a diversity of opinions, people living next door to Hong Kong still hold distorted views about that territory. Misra Kalpana’s chapter on the transition from neo-Maoism to neo-conservatism offers to explain this paradox. She argues that the state has successfully shed its orthodox Leninist ideology in favor of neo-conservative nationalism thanks to the recuperation of the neo-conservative discourses emerging in diverse milieus of society. Peter Moody addresses cynicism and indifference to politics in China in his chapter on anti-political tendencies. Moody also warns that the anti-political trends may end up tacitly endorsing the unjust, corrupt political system they claim to reject. The third section enriches these nuances with an additional layer of complexity, by looking into the different variants of Chinese political cultures found among different social strata and regions. Cheng Li looks at the emergence of pluralism among entrepreneurs; Alan Liu at provincial identities; Shih Chih-yu at elections in minority areas of the PRC and Taiwan; Tang Wenfang at religion in China and Taiwan; and ChuYun-han and Chang Yu-tzung at regime legitimacy in China, Taiwan, and Hong Kong, through the use of sophisticated survey techniques. This third part of the book may present less coherence, but the case studies succeed in illustrating the diversity of Chinese political culture. My only remark is about Liu’s assertion that Chinese on the mainland, as well as mainlanders living in Taiwan, are displaying lower levels of religiosity, and that higher degrees of modernization reduce religiosity. Not only does this conclusion contrast with most studies on religion in Taiwan, but the data contradicts this statement: Taiwan displays a higher degree of religiosity than China despite its greater degree of modernization. It is also necessary to note that the past two decades has been a period of remarkable growth in China, characterized by economic expansion and the opening of its society to the outside world. What has followed is a better life for many of its citizens. As a result, China supporters from outside its borders have become confident that economic and social progress will eventually lead to a more open political system and consequently more favourable investment conditions. Reference CHINESE POLITICAL CULTURE: 1989-2000. Edited by Shiping Hua, foreword by Andrew J. Nathan. Armonk (New York), London (England): M. E. Sharpe. 2001. xv, 370 pp.

Erythropoietin and Athletes

Erythropoietin and Athletes Steven D. Jackson Student, American Military University Abstract Erythropoietin (EPO) use as a performance enhancing agent in sport carries both significant and detrimental risks to go along with its suggested benefits. As such, it was banned by the International Olympic Committee in 1990. Shortly thereafter, successful and reliable testing methods have been developed to test athletes for its potential use.Despite widespread knowledge of its potential adverse effects and the testing for its attempted use, EPO use remains substantial amongst endurance athletes of nearly all ages and disciplines, both professional and amateur. This paper will provide a history of EPO as a performance enhancing substance, explain its associated risks and perceived and actual benefits, attempt to analyze why athletes feel compelled to use it, and examine the sanctions, regulations, and weighty repercussions associated with its use. Erythropoietin and AthletesIn sport, there ar e a virtually limitless number of ways in which one can influence or positively impact physical or mental performance. These methods can come in the form of mechanical aids, pharmacological aids, physiological aids, nutritional aids, and psychological aids. Regardless of its source, any means by which one seeks to improve performance by enhancing the physiological capacity of a particular system of the body, removing psychological constraints which adversely affect performance, or by accelerating recovery from training or competition is called an ergogenic aid (MacKenzie, 2001).These may include something as simple and innocuous as a healthy meal consumed the night prior to a competition, but seemingly, the ergogenic aids which athletes are turning to more increasingly are those that have been banned by organizations such as the World Anti-Doping Agency, the International Olympic Committee, and the like. Often, these substances have been banned because they not only represent perver se and unethical behavior, but also, as is the case for a substance like recombinant erythropoietin, because they can have serious adverse health effects for heir users. Over time, these substances have changed, but the desire to gain an unfair competitive advantage remains. Hematopoiesis is the process which involves the production of mature cells in the blood and in lymphoid organs. Mature erythrocytes, or red blood cells, have no nucleus, so they cannot reproduce in the traditional fashion as other cells can. Erythropoiesis, then, is the process by which erythrocytes are produced. Erythropoietin is a naturally occurring hormone found within the human body which controls this red blood cell production.It is released by the kidneys, and to a lesser extent the liver, and in very little quantities in the brain in response to a negative feedback. The physiological stimulus of erythropoietin production is hypoxia, or prolonged oxygen deficiency in body tissue, and in the majority of in stances is related to the number of circulating erythrocytes within the kidneys. At high altitudes, for example, where the pressure oxygen in the air is reduced, oxygen delivery to the body’s tissues initially decreases.This drop in oxygen triggers the release of erythropoietin, which travels via the blood to the red bone marrow and stimulates red blood cell production (Shier, Butler, & Lewis, 2011). This is important to note, as this negative feedback of loss in oxygen is essentially no different than the body observing a loss in blood, which also necessitates the release of erythropoietin. In cases of hemolysis or hemorrhage, erythrocyte production will also increase rapidly and substantially for the body to attempt to accommodate for the amount of blood lost.However, overproduction of erythrocytes does not occur, both in extreme hypoxic environments and even after the most severe loss of erythrocytes (Robinson, et al. , 2006). This balance is very important, because adequa te oxygen delivery to tissues depends on having a sufficient number of red blood cells to transport oxygen. Decreases in their number or function can hinder oxygen delivery and thus affect exercise performance. Red blood cells serve a primary function of facilitating this transport of oxygen, which is bound to the hemoglobin found in red blood cells.Hemoglobin contains iron, which binds oxygen. As such, the oxygen-carrying capacity of blood is determined by its hemoglobin content. Accordingly, when hemoglobin levels fall, exercise performance is subsequently impaired. Being familiar with this, athletes, trainers, and coaches often practice iron supplementation in an effort to prevent anemia and attempt to boost hemoglobin levels. However, this supplementation cannot boost the blood’s oxygen carrying capacity beyond that which is normal.Consequently, doctors, trainers, and athletes have come up with various alternative means to try to boost blood’s oxygen-carrying capac ity, and in turn boost performance (Mottram, 2011). In traditional medical settings, the need for a means to raise red blood cell counts in patients suffering from kidney failure in order to alleviate their extreme anemia, as they have so few red blood cells that they typically experience near-permanent exhaustion. The demand for a way to treat these kidney patients precipitated the development of synthesized erythropoietin.There was no question that they needed red blood cells, and the proposition of providing them via erythropoietin seemed logically safer than the more natural and traditional repeated transfusions and dialysis. The same logic applied to the much larger number of people whose kidneys were weak or damaged, but not yet failing. Raising their red blood cell count, and subsequently their hemoglobin levels, up to a normal amount like the more attractive option, and it was only a matter of time before it could be discovered (Burch, 2011).In 1985, the gene responsible for the synthesis of erythropoietin was successfully cloned for the first time. This synthesized erythropoietin is known as recombinant erythropoietin, and first became available in Europe in 1987 and was later patented by Amgen in 1989 (Mottram). With this development, it quickly became evident that recombinant erythropoietin would be used illegally as a performance enhancer in endurance sports. As such, the International Olympic Committee elected to ban this drug in 1990, even though all forms of blood doping had been officially banned since 1984 (Robinson, et al. ).In its earliest clinical trials, recombinant erythropoietin proved very successful, and it was quickly put to use with patients requiring their hemoglobin be raised to normal levels. The trials showed the drug’s benefits outweighed its risks, but not by much. In 2005, researchers and kidney specialists concluded their trials ahead of schedule when they were stunned by what they found. After years of raising red blo od cell counts in patients to normal healthy levels, which also raised their hematocrit—the proportion of red blood cells to total blood volume—doctors were not seeing decreased occurrences of troke, heart complications, and even death. These rates were actually increasing. Therein laid the problem with EPO use, especially in uncontrolled environments and when used by athletes (Burch). Before EPO’s adverse effects were widely known, and to a great extent even today, its proposed benefits led to its immediate abuse by endurance athletes. The first cases were reported in several newspapers within the four years after recombinant EPO appeared in Europe. These articles claimed a link between rumored EPO abuse and the deaths of 18 Belgian and Dutch cyclists.This unfortunate wave seemed to roll on for some time, seemingly striking hardest amongst in the sport of cycling, and often resulting in death. For some time, cyclists publicly denied using EPO, but at the 1998 T our de France, a masseuse for the Festina team was caught with EPO and several other banned drugs. The entire team and its staff were ejected from the Tour, and eventually seven of the nine Festina riders admitted to doping. Even the winner that year, Marco Pantani, was ejected the following year for signs of EPO use in an earlier drug test (Eichner, 2007).Though the bulk of EPO use reported in the media comes from cycling, other sports are not free from it. Chinese runners, swimmers, and rowers, Russia’s top female cross-country skiers, Finland’s tops skiers, and Germany’s top runners all have been caught for suspected EPO use of some kind or another. Russian and American runners and sprinters, including American sprinter Kelli White, have been stripped of medals and handed bans for their admitted EPO use after failing drug tests.Even Lance Armstrong—who has always denied any EPO use—has been suspected of illegal EPO use brought about by claims of his former teammates (Eichner). Perhaps the greatest contributing factor for the prevalence of continued illegal EPO use is in its difficulty of detection. While some athletes may think that they are using a drug for which there is no means of detection, which is not the case, others may simply know that EPO can be a very elusive drug to detect.Early detection strategies for EPO use as a drug were limited to blood testing only. Though blood tests could confirm inconsistent hematocrit levels and other blood markers compared to base samples in athletes who may have been using EPO supplementation up to, and sometimes over, a week prior, or those that had been using EPO when they originally provided a base sample and had discontinued its use, a direct method for detection in urine had yet to be established.Furthermore, early attempts at developing a urine test proved to be expensive, overly sensitive, and unreliable. Since blood doping had been common practice in some endurance sports for decades due to its clear performance advantages, it regrettably became even more attractive once recombinant EPO became available. Athletes have exploited these limitations of testing, particularly in sports that relied solely on urine specimen testing (Robinson, et al. . Successful urine testing had finally been developed and came into the picture in 2000. Serving as the only direct method of recombinant erythropoietin detection approved by the Court of Arbitration for sport, this method utilized electrophoretic techniques to separate the isoform profiles of recombinant and endogenous erythropoietin found in urine according to their isoelectric points (Diamanti-Kandarakis, et al. , 2005).Not only could this newly approved testing mathematically and scientifically identify EPO use—or discontinuation of its use—but it could also isolate the various forms of forms of EPO, including erythropoietin alpha, beta, omega, and delta, as well as newer generations of EPO anal ogues like darbepoetin and mimetic peptides. The disadvantage of such an effective urine testing method, however, was that it discouraged athletes from recombinant EPO use. Athletes now fearful of getting caught moved back to using—or rather misusing—blood doping and transfusions in an attempt to raise hematocrit and hemoglobin levels.For that reason, some international sports federations elected to limit their testing to either blood or urine. However, more recently the trend has been to attempt to keep their current testing procedures randomized (Robinson, et al. ). The risks of illegal EPO use remain high. Some athletes choose to supplement with EPO in smaller doses with the intent of limiting their potential exposure in drug tests, and, just as likely, with the expectation that this practice would be â€Å"safer. Regardless, the results of EPO use are largely unpredictable, and tests have revealed that hematocrit values in EPO users can greatly exceed what is cons idered the healthy or normal upper limit of 50 percent. Once the hormone has been put in the body, the athlete is at great risk for substantial increases in blood viscosity. This places the individual in danger of thrombosis, myocardial infarction, congestive heart failure, hypertension, stroke, and pulmonary embolism. However, with the ever-increasing pressures to excel in competition, and the draw of larger rizes, purses, sponsorships, and notoriety in sport today it is not beyond reason as to why teams, athletes, trainers, and coaches would feel compelled to explore an option which may offer athletes a clinically documented six to eight percent increase in their VO2max and 13 to 17 percent increased time to exhaustion (Kenney, Wilmore, & Costill, 2012). Athletes who use banned EPO also risk disqualification from a particular competition, with the risk apparently greater if the athlete’s result is good, as the top-placing finishers in competitions almost certainly are subje ct to testing more and more frequently.They can also be banned from their sport, typically for a minimum of a year, but potentially for life. In their quest for enhanced performance, athletes can easily get caught up in the hype surrounding these sorts of substances and the purported benefits they might bestow. Unfortunately, too many athletes are blinded by ambition and do not consider the consequences of their actions until their careers have become jeopardized or their health has been seriously affected.Considering recent reports of even amateur athletes being dealt bans and imposed fines after testing positive for EPO use in events that are considered recreational, the need is definitely present for the likes of the World Anti-Doping Agency and the International Olympic Committee to take more aggressive and decisive action in the battle against doping and illegal drug use. The misuse of medical and biotechnological advancements to enhance athletic performance is an issue that wi ll clearly not go away on its own.It is imperative for sports federations to be able to collect blood samples from their competitors and institute a continuity system which keeps track of appropriate individual values. The appropriate way to fight blood doping and EPO use is to markers for each individual athlete to have a record of each marker and measure of their blood. In this way it will not be necessary to take into account complicating factors during testing and analysis such as sex, ethnic origin, and the kind of sport in which the athlete is participating.With a system such as this, it would be possible to identify which athletes are manipulating their bodies based on their own set reference values and markers over time. This, combined random, unannounced testing is the only way currently possible to effectively mitigate doping. Even still, it is supremely difficult for sports organizations and control agencies in sport to stay ahead of the always sophisticated doping method s. Summary Erythropoietin and all of its forms were developed with the intent of rehabilitating and alleviating the extreme symptoms of kidney patients.Their appeal is strong to competitive athletes, especially with more and more on the line each year. Despite their undeniable ability to enhance performance, EPO can cause serious negative health effects. In an era where performance-enhancing drug abuse is rampant across nearly all disciplines of sports despite rigorous legislation and testing throughout the world, it is necessary to understand the harmful effects of all substances when considering their use.The undesirable effects of EPO use are virtually countless, but—and perhaps worse yet—the potential long-term effects of chronic use are not well known. References Burch, D. (2011). Blood sports. Natural History 119(6), 14-16. Diamanti-Kandarakis, E. , Konstantinopoulos, P. , Papiliou, J. , Kandarakis, S. , Andreopoulos, A. , Sykiotis, G. (2005). Erythropoietin abus e and erythropoietin gene doping. Sports Medicine, 35(10), 831-840. Eichner, E. (2007). Blood doping. Sports Medicine, 37(4/5), 389-391. Kenney, L. W. , Wilmore, J. H. , & Costill, D. L. (2012).Physiology of sport and exercise (5th ed. ). Champaign, IL: Human Kinetics Mackenzie, B (2001). Ergogenic aids. Retrieved from http://www. brianmac. co. uk/ergoaids. htm Mottram, D. R. (2011) Drugs in sport (5th ed. ). New York: Routledge. Robinson, N. N. , Giraud, S. S. , Saudan, C. C, Baume, N. N. , Avois, L. L, Mangin, P. P. , & Saugy, M. M. (2006). Erythropoietin and blood doping. British Journal of Sports Medicine, 40, i30- i34. Shier, D. , Butler, J. , & Lewis, R. (2012). Hole’s essentials of human anatomy & physiology (11th ed. ). New York, NY: McGraw-Hill

Designing and implementing questionnaires and interviews Essay

Designing and implementing questionnaires and interviews - Essay Example The following questionnaire is for teachers, parents and students (both members of the study group and the control group) designed by just encircling the number to indicate the degree of agreement or disagreement to the statements provided: 17.) With the emergence of unethical materials and illegal and prohibited information in the internet (e.g. pornography and other clandestine ways of conducting business using the web) do you think this will affect the students’ learning process? Information and data collection are one of the exciting parts of research, though they can be tiring. But this is not to say that they are difficult. When you put a lot of effort in it, data collection can be challenging. You have to earn the cooperation of your respondents; you’ve to build a close rapport with them. In the initial part of the information gathering, some doubts and negative thoughts entered my mind as to how the whole thing can be quite successful, to say the least. Gathering all the data together, doing all the things that seemed to be countless tasks, and executing what I had in mind, seemed impossible to do all at the same time. Then, a lot of ideas also entered my mind which seemed not to point to a particular direction. Aside from the preparations for the interviews and questionnaires, I had to do a lot of research from previous studies, and opinions of experts, teachers, and parents, not only on the contents of the questionnaires but on the actual conduct of the interviews. After you have tried the techniques of brainstorming, branching, or making up journalistic questions and flowcharts, you may also find it useful to try discovery writing. This step can be helpful, especially once you have formulated a thesis statement. (69) This is putting ideas into writing without first arranging or editing them. Just put them down into writing, and then later you’ll discover what and how they’ll come out. Langosch says this is known as â€Å"free

The Medias Role in Terrorism Research Paper Example | Topics and Well Written Essays - 1000 words

The Medias Role in Terrorism - Research Paper Example      World renown terrorists such as Osama Bin Laden and Ayman Al-Zawahiri have been known to be particularly obsessed with the media (Transnational Terrorism, Security and the Rule of Law, 2008). According to Hoffman (2006), terrorists’ obsession with the media predicated on the belief that fear is only generated when the media publicizes the terrorist attacks. Without the media coverage, the terrorist attack can only spread limited fear (Hoffman, 2006). Terrorists typically attempt to generate public resentment of government oppression and fear from the government and the public that the terrorist group is powerful. The media is an important vehicle for delivering this type of fear (Walsh, 2010). Media coverage of a terrorist attack can overplay the damages which could lead to government action that represses human rights and potentially result in public disapproval of government responses. Similarly, media coverage of terrorist attacks, often with graphic images and pro longed coverage can overplay the damages and thus invoke fear of a powerful and dangerous terrorist faction. According to Bockstette (2008), the Jihadist terrorist groups maintain a strategic communication system which is propagated via the media. The communication goals are three-fold. The first of the communication goals is to spread information about Islam to Muslims with a view to establishing and propagating a fixed idea about what it means to be a Muslim. The second communication goal is also directed toward Muslims and those who might question acts of violence on religious grounds.

MARKETTING Essay Example | Topics and Well Written Essays - 250 words

MARKETTING - Essay Example The target market will focus on the demographic characteristics such as income of the potential customers as well as their location. The company aims at trading both locally and internationally in major cities in the world. The company aims at creating a position of quality and reliable product in the minds of the customers. By taking such positioning statements, the company will create a good identity and image in the minds of the customers. The company faces stiff competition in the market from other kitchen appliances providing companies and it is essential for the company to strategize on their positioning approaches. The company is going to reposition its products by adding more features to their toasters as compared to the current features. Moreover, the company is going to identify competing toasters in the market and try to adjust their products features to a level that the competing brands do not have. By repositioning the company products, the company will be able to set a unique identity in the customer’s minds. According to Trout and Rivkin (11) the business market is changing. Therefore companies need to come up with products that that reflect on how the minds of the customers opera te. By understanding the customers mind, the repositioning strategies will be easier to adapt and

HARD ROCK CAFE MODULE 1 CASE ASSIGNMENT OPM Essay

HARD ROCK CAFE MODULE 1 CASE ASSIGNMENT OPM - Essay Example 5. Layout Design: How their restaurants and stores should look on both the inside and outside; how the kitchen and behind-the-scenes should be laid out for maximum efficiency; how large the facility must be to accommodate their goals Besides just observation, there are a number of calculations that can be performed in order to measure the productivity of the kitchen staff and wait staff at Hard Rock. These include Wage Cost % (of sales), Total Labor Cost % (wages, insurance, retirement, superannuation, payroll taxes), Total Labor Hours (hours worked in each section measured against sales), Function Labour Charge-Out (need consistent mark-up on charge-out to service staff that caterers offer), Sick Days Taken (measure of morale and management skills), Labor Turnover (number of new staff in a time period—should be low), Average Length of Employment (success of keeping staff), and Average Hourly Pay (total payroll divided by all staff’s work hours). (Profitable Hospitality 2008) The purpose of this paper has been to identify how each of the 10 decisions of operations management is applied at Hard Rock Cafà © and note how the productivity of the kitchen staff and wait staff at Hard Rock would be determined. According to the resources accessed, the above describes how each of these tasks should be accomplished. â€Å"Key Performance Indicators for Restaurants, Cafes, Catering, Clubs & Hotels.† 2008. Profitable Hospitality. Online. http://209.85.165.104/search?q=cache:h35dnlZY4eIJ:www.profitablehospitality.com/public/88.cfm+%22measure+kitchen+productivity%22&hl=en&ct=clnk&cd=1&gl=usReferences â€Å"Key Performance Indicators for Restaurants, Cafes, Catering, Clubs & Hotels.† 2008. Profitable Hospitality. Online.

Night of the Living Dead Essay Example | Topics and Well Written Essays - 750 words

Night of the Living Dead - Essay Example So in what way are Vietnam War and Night of the Living Dead connected? First word that comes to mind in an attempt to answer this question is violence. Both this artistic and historical events are based on violence in its pure and essential form. Remembering ‘Nam we surely must say that children were murdered, civilian peaceful villages burned, young girls raped, prisoners of war tortured etc. Elliot Stein of The Village Voice said: "it was not set in Transylvania, but Pennsylvania – this was Middle America at war, and the zombie carnage seemed a grotesque echo of the conflict then raging in Vietnam". The Vietnam War shown in The Night of the Living Dead as a symbol or, better put, the Vietnam War and its perception by people are what moved George Romero towards creating such a movie. They are similar in details (for example search and destroy operations) and make viewer feel and see the impact of the war not in facts but in the whole structure of the film. To prove thei r connection a very popular underground comics Bulletproof Coffin by Shaky Kane and David Hine is inspired by The Night of The Living Dead and in this comics we can actually see war against zombies in Vietnam. So the connection is really there but of course the story and plot can be interesting without them. It is a horror and slasher film which makes action and violent gun shooting seem spectacular. But that is all and in the movie there is nothing else. But if you seek for symbols you should connect the movie with the time it was made and by that you achieve a seeing of a fiction that presents the feelings of those times. But the film which we discuss has a connection not only with Vietnam War. The main hero Ben played by Duane Jones is an Afro-American and up to that time the struggle for racial equality was near its culmination. Martin Luther King jr. was horribly assassinated the same year The Night of The Living Dead was released . It is a very interesting detail that both two main

Purification and charcaterization of extracellular cysteine protease Article

Purification and charcaterization of extracellular cysteine protease inhibitor, ECPI2, from chlorella - Article Example First, they cultured a strain of Chlorella sp. 4533, separated the filtrate by centrifuge, and concentrated it through evaporation. After assaying the protease activity, they eluted the inhibitor and obtained two active fractions, one of which was the primary research component, ECPI-2. The active fractions of this were pooled, dialyzed and concentrated, and then the protein concentration and carbohydrate content were determined and measured. 4. Discussion of Figures and Tables. Table 1 is the purification summary for ECPI-2, providing comparison of progressively purified elements in terms of protein concentration, total and specific activity, and percentage yield from crude of each step in the purification process. This was performed to purify the inhibitor and demonstrate the increasing level of activity. The first step used a DEAE-cellulose column of 3.5x60 cm and quadrupled the specific activity. Next, after the active elements were pooled, dialyzed and concentrated, they were applied to a Sephadex S-300 column (2x130 cm) which increased specific activity by a factor of almost 5X. Finally, after another evaporator concentration, the inhibitor was applied to a 1x150 cm column of Butyl Toyopearl 650 M, again doubling the specific activity; from crude to final, activity was increased by over 40X, giving the authors evidence of purity.

Log 4 Essay Example | Topics and Well Written Essays - 500 words

Log 4 - Essay Example Upon my arrival, I met the nurse in charge, and she assigned me to a case involving the preparation of a patient for the operation room. The nurse in charge requested the Registered Nurse (RN) in charge of the Operation Room (OR) schedule to oversee my undertakings. Jerriann, the RN, was in charge of the most recent OR case that was scheduled for 11.30 a.m. The first task entailed preparing a patient that was in the recovery room for the operation room. In order to begin working on the patient’s preparation we had to wait for the whole team to arrive. The anesthetist first talked to the patient before we could initiate the preparation. My role as a CNS in the preparation for OR entailed ensuring that the patient’s safety was upheld during the transfer process into the OR. The role of ensuring patient safety as a CNS is important in shaping the direction of managed care outcomes, therefore, I had to make sure that protocols of transfer to the OR and preparation were obse rved. As part of this task, I had to carry out double checks to ensure that the IV lines were appropriately positioned, the side rails were up and the indwelling catheters were secure and well knotted to avoid any dislodge. After completion of the checks and observation of transfer protocols, the patient was safely transferred to the operation room. Once safely positioned in the operation room the nursing team began preparing the patient to receive spinal anesthesia. The process was quite challenging because the nursing team took almost one hour to properly insert the needle. The challenge was due to the fact that there was some resistance encountered during the insertion process. However, the process was finally successful on a second attempt. Everything was set to go after the completion of the anesthetist’s process, and the operation team started operating on the patient. Perhaps the first anomaly that I noted about the process is the fact that the team had failed

Introduction to Networking Essay Example | Topics and Well Written Essays - 750 words

Introduction to Networking - Essay Example This layer is used for direct control of data with the hardware in place. Data transmitted in this layer is in form of bits. Data exchanged at this level is in form of the frames and it prepares the data to be further processed to the network layer. The physical addresses are assigned at this level, further tasks performed by data link layer include encryption and error correction. By this stage, the data is transmitted into packets and it ensures smooth packet transmission between the two ends. Unlike data link layer, logical addresses are assigned at this layer. It also sets rules for the routing path as to which one should be chosen and followed for the transmission of traffic. Transport Layer: This layer plays the role of intermediate layer between the upper layers and the lower layers. It is largely concerned with the delivery of data sent to the other end. Transport layer are further segregated into connection oriented and connectionless. Other features of this layer include segmentation, window size control and flow control in form of congestion prevention. Session Layer: The session layer is responsible for number of operations, which include the connection establishment, its termination, and its maintenance and recovery. The type of transmission performed under this layer includes full duplex transmission, half duplex transmission and simplex transmission. Presentation Layer: this layer is responsible for encryption of data, its translation along with the syntax and format of data sent from the sending node. IT further performs the task of data compression in case of IPSec. Application layer: This layer serves as an interface of communication between the users and the devices along with the management. Examples of this layer include web browser, telnet, email client and a file sharing protocol F.T.P (Forouzan, 2005). Layered network approach is adopted across the world by all major network service providers, there are

Abercrombie & Fitch (A&F) Essay Example for Free

Abercrombie Fitch (AF) Essay Products (Revised): Abercrombie Fitch Co. is a leading specialty clothing retailer. It always utilizes sex appeal to sell its products. AF often uses semi-nude models with rock hard abs on their new store opening ceremony and puts posters on the wall of store with hot semi-nude Caucasian. AF prefers to decorate their store with dark jungle feel. All of those strategies aim the same target, the sex attraction. A feature which can make a huge distinction from other brands is that AF doesn’t stock XL or XXL sizes for women clothing. It claimed that they want â€Å"cool kids†. The reason why they took this strategy is because the company wants to inspire consumers to strive for the Abercrombie Fitch â€Å"lifestyle.† Abercrombie Fitch sells a â€Å"lifestyle† of popularity that people aspire to have (Reichert, 2003). Their advertisements imply that AF is a fastidious and attractive brand and if you can have their clothing and then you can be the one of them. This characteristic makes the market polarized heavily. In the one hand, this declaration attracts some customers of its target groups indeed. Because people always want to be considered as â€Å"chic† and â€Å"fashionable†. So if there is a way can make them feel being cool, they will go for it. And they also want to beat others in anyways. AF gives the opportunities for those people exactly. The â€Å"not cool† people even can’t fit in the clothing of AF. Also as Jeffries said, those â€Å"cool kids† have their â€Å"cool† friends, and then AF can become a new fashion. On the other hand, this overt and cruel design results a consequence of losing profits of excluding customers. They can’t fit in those small sizes so they wont buy them certainly. The worse thing is that they may hate this brand. Now there are many video on YouTube of blaming AF’s strategy. The target markets of AF’s products are divided in detail. It aims the younger generation in the US generally. The target market falls between those ages because 14 years old is usually when a teenager begins dressing themselves and shopping for themselves, so naturally they want to dress  something cool and attractive. They target the groups in two ways. One of them is by the styles of products. Younger people like to wear in casual sports style like hoodies or joggers more than mature adults. They prefer chic style than OL. However it also leads the loss of other people who are excluded in these groups. Because most of the products are designed for youthful people, mature adults may think it’s too young to wear which is not good for expanding market. Unfortunately, mature people have stronger power in purchasing. So AF lose potential customers in unawareness. The second way is their store style. The decorations with semi-nude posters are offensive to older generatio ns and they even don’t want to walk in the stores. In conclusion, AF puts their products in an extreme position. AF only serves for the spectacular people who are targeted by clothing favor and size. The detailed target makes it easier to get the favor of specific customers. Price: The price of Abercrombie Fitch clothing from  £10 to  £150.Most of the tops are around  £30- £60 and the bottoms are  £50- £90. The coats and jackets are more expensive (more than  £90). Although it claims that they are providing quality and long lasting clothing, the price is a little bit higher considering their target consumers. Because the young adults usually can’t be independence of finance. However the young people often buy things on their instincts rather than rationality. So the high price may not be an obstacle of purchasing as long as they firmly believe the messages that AF is trying to imply (having AF clothing and being attractive and beautiful). Moreover the price represents not only their products but also their brand. AF puts itself at a high level of fashion. It makes the consumers strive for it instead of earning them. The high price can be a label of high level and it exactly caters to its attractive style which AF is always trying to sell. In addition, AF barely puts their clothing on sale. It’s largely because of their willingness to change everything in order to hang on to a non-price position and a revenue-driven profit formula. (WHY ABERCROMBIE FITCH (ALMOST) NEVER PUTS  ANYTHING ON SALE, BY MICHAEL E. RAYNOR AND MUMTAZ AHMED) After the economic depression more and more people focus on the price. Unfortunately competitors such as HM have relied heavily on discounts to gain market share while AF has struggled with its premium brand position and pricing. The slow adaptation of price promotions has positioned the company behind its competitors. (Strategic Analysis for: Abercrombie Fitch Co.) People turn to other brands because they can’t accept the high price of AF. For Abercrombie Fitch, how to balance the price and the high level position is one of their problem. Place Abercrombie Fitch has stores in 17 countries in the world including 323 stores. However there are 301 stores in the US and most of other countries only have one or two stores in their capital or booming city. In the USA, AF build their store along the coast more than in the middle because of the economics. Choosing the main cities to build stores can provide more customers because they pay more attention on dressing than small cities. People who live in big city can also have more purchasing power. They live in a higher level and care more about the brand. It’s exactly befit the propose of AF. In addition it’s a good way to show the brand’s attitude by building stores in big cities. It implies AF is at high level as the big city to the country. AF came from the US so it’s common to have a lot of stores in the US. In the mean time it also opens new market in Europe and Asia slowly. Because of the culture differences, every country has its own style of dressing so every single store in overseas has to be careful or it may get a financial loss. With the development of network, AF established the online shopping system. As other brands, AF can deliver the items to mostly address. It also has complete return/exchange policies. This channel expands the scale of customers. The limits of regions are most gone which depends on the shipping  situation of specific areas. People can sit in their room and buy commodities by internet. This way is more convenient than the traditional way and more suitable for the modern young people.

The Global Rubber Tire Industry

The Global Rubber Tire Industry Strategic Leadership is defined as the ability to shape the organisations decisions and deliver high value over time, not only personally but also by inspiring and managing others in the organisation. (Lynch, 2009). The focus of strategic leadership is sustainable competitive advantage, or the enduring success of the organization. (Hughes Beatty, 2005) Key components of Strategic Leadership: How to lead so that others will follow. How to shape culture. How to structure and influence decision making. (Lynch, 2009) In view of the above definitions and key characterisitcs, strategic leadership in the Global Rubber Tire Industry in general and Continental AG in particular is seen as the ability of a corporate leader to build long term value for the stakeholders of an organisation. In the context of Continental AG, Dr. Hubert von Grunberg displays Strategic Leadership by first acknowledging the fact that all was not well at Continental. Aginst the backdrop of rising sales, profits were falling, to the point of a loos in 1991. The drive to increase sales and maintain a position in the Global Market using aggressive pricing was detrimental to the immediate and long term well being of Continental. This was swiftly followed by a Clear 10 point recovery plan announced in December 1991, the direction was clearly set for the turn around through encouragement of Entreprenuership and strategic alliances, and a goal of ensuring profitabilty in 1992. The next step in the turn around was the identification of the individual business units and making each unit responsible for profitability. In this process, no preson or process was considered immune to review, and the subsequent restructuring of the Organisation from a Task oriented sturcture in 1991 through to a Market oriented structure in 2001 further depicts strategic leadership. Entrepreneurship is a way of thinking, reasoning and acting that focuses on the identification and exploitation of opportunities from a broad general perspective typically driven by the leadership of individuals or small groups. (Lynch, 2009) Corporate Entrepreneurship is often called Intrapreneurship and is defined as Entrepreneurs can be found starting organizations, running organizations and working in organizations as employees. In the latter case they are typically called intrapreneurs, i.e. internal entrepreneurs. (Thompson Martin, 2005) The key consideration is the identification and utilisation of opportunities for profit. Given the case study, Entrepreneurship is embedded at the core of the recovery plan of Continental AG. The case study goes on to state that the Tire as a product had largely expended innovative capacity. Inspite of this the dedicated focus on technological leadership is an important Entrepreneurial component. The first instance is the key belief of Dr. von Grunberg that Complete sytems will be the dominant supplier to the Automobile Industry in the short and medium term. The establishment of Automotive systems as division to develop these integrated sytems pre-empted the possible relegation of Continental as a secondary supplier had it remained a pure Tire manufacturer. The identification of Rubber lifting belts as an alternative product also shows high entreprenuerial capacity, as Continental was already a Global leader in the Tire industry whose primary input is Rubber. This opportunity and subsequent alliance with Otis, a global leader in the elevator industry resulted in substantila supply contracts. Given the illustrations above, it is evident that all Entrepreneurs are Strategic Leaders, but the same cannot be said for the reversal, ie. All Startegic Leaders are not necessarily Entrepreneurs. 1.2 Critical evaluation of Continentals Agenda for Strategic Change at the beginning of the 1990s. Strategic change concerns changes which take place over time to the strategies and objectives of the organization. Change can be gradual or evolutionary or more dramatic, even revolutionary. (Thompson Martin, 2005) Lynch argues that it is important to distinguish Strategic Change form Organisational Change (Lynch, 2009). Organisational change inevitably happens in the course of the daily operations of an organisation whereas Strategic Change is a planned and excuted set of events and actions which move an organisation in the direction of achieving its clearly defined objectives. This involves substantive changes beyond normal routines and the induction of new patterns of action, belief and attitudes. (Schein, 1990) Tichy identifies four main causes of Strategic change, namely Environment; Business Relationships; Technology; People. (Tichy, 1983). The situation facing Continental AG in 1991 was a compound combination of all the four causes. The leading cause was the Environment as Tire market was saturated; Car Manufacturers were pushing down prices; Technology was plateaued and as a result a New Leader was appointed. The cause of the crisis can be narrowed to complacency, and irresponsiveness to Market demands. Hannagan explains that Strategic change can be incremental where the organisations underlying values and beliefs are not radically altered or transformational where a major paradigm shift occurs in the cultural assumptions. Whether it is incremental or transformational, strategic change is concerned with changes which are necessary to maintain the link between the organisation and its environment so that it remains competitive and able to meet the needs of its customers. (Hannagan, 2002). Given the scale of the down turn at Continental AG, a hybrid combination of small incremental changes and quantum leap transformational strategic changes were adopted to mark a path to recovery. The agenda for Strategic change undertaken by Continental AG can be broken down in to the sections outlined below. Change in Leadership Appointment of Dr. von Grunberg. The implementation of a turnaround strategy necessitated a change at the helm of the organisation. This resulted in the appointment of a new chairman of the Executive Board. The first step towards achieving profitability was identifying loss making units down to the smallest possible element. In this case the segregation of a number of divisions into smaller units. This is witnessed in the separation of the replacement tire business which was profitable from that of the loss making original equipment business. A further step in the turnaround strategy was the conversion of Common service functions into profit centres. Human Resource and Information Technology, which were shared services across the organisation, were eventually separated into separate commercial entities. This was a clear departure from the thinking where support functions are cost centres. Despite the conceived stagnation and exhaustion in the innovative potential of the Tire as a product, the heavy emphasis on Technological excellence, Innovation and Integration formed an additional key factor in the change strategy. The harmonisation of Research and Development in a central location and the allocation of a percentage of all revenues to RD is a manifestation of this. Entrepreneurship The conviction that Continental AG has the capacity and capability to identify opportunities in the market and take advantage of these to enhance profitability was evident in the strategic move towards moving beyond the traditional core product of Tires and into a complete systems supplier to the Automobile industry. 2.1 How Continental AG fostered Strategic Innovation to achieve growth in productivity from 1991 to 1999 in view of Porters Value Chain A systematic way of examining all the activities a firm performs and how they interact is necessary for analyzing the sources of competitive advantage. In this chapter, I introduce the value chain as the basic tool for doing so. (Porter, 1985) Every firm is a collection of activities that are performed to design, produce, market, deliver, and support its product. Value Chain as defined by Porter (1985) comprises of 5 Primary activities, namely Inbound Logistics, Operations, Outbound Logistics, Marketing Sales and Service. In addition a Porters Value chain has 4 Support Activities i.e. Firm Infrastructure, HRM, Technology Development and Procurement. (Porter, 1985) Continental AG achieved growth in productivity by fostering strategic innovation in a number of its value chain activities. These are briefly enumerated below. The reorganisation of Continental AGs Infrastructure by means of Decentralisation of its Bureaucracy and restructuring the organisation from a task oriented structure into a market oriented one. The creation of Business Unit Value chains for Passenger Tires and Commercial Tires, consequently merging Manufacturing and Marketing of each and giving each unit Individual profit responsibility. The conversion of Support activities of Information Technology and Human Resource into individual Business Unit Value Chains and subsequently independent business entities. Revisiting and improving procurement of important inputs, steel cord being a key example. The resulting savings in costs greatly enhanced profitability. This required expansion of the procurement process to ensure quality, and thus displays the advantage of creating a linkage between the value chain of Continental and its supplier. Remarketing and positioning of competing acquired brands into complementary positions based on quality and application. This is seen by placing Continental as a premium brand and Barum as budget, similarly marketing Uniroyal as the rain tire and Semperit as the winter tire. Development of Technology, and when necessary acquiring another Company (Teves) to focus on Automotive Systems competency as opposed to manufacture of Tires only. This enabled Continental AG to create competitive advantage through differentiation. The development of a Modular Manufacturing Plant where the base model of tires is mass manufactured, but allowing for some customisation and diversity is evidence of Innovative operations. 2.2 Comparison of Corporate Governance and Corporate Social Responsibility practices of Continental AG with those of Goodyear Tire and Rubber Company Corporate Governance is defined as the responsibility of a firms board of directors. The directors have a fiduciary duty to the shareholders, who are the corporations owners. (Sompayrac, 2006) Corporate social responsibility (CSR) can be defined as the economic, legal, ethical, and discretionary expectations that society has of organizations at a given point in time. (Carroll Buchholtz, 2003) In line with the above definitions, Corporate Governance focuses on the efficient and prudent execution of Organisations responsibility to its shareholders as its legal owners, whereas Corporate Social Responsibility concentrates on the Organisations responsibility to all its stakeholders, of whom the owners are a section. The stakeholders will include shareholders, employees, customers, suppliers, government, society at large and the Environment. As elaborated in the Corporate Governance Section of Continentals annual report for 2009 (Continental Corporation, 2010), the Supervisory Board and Executive Board are equally responsible for the governance of the company. The Supervisory Board comprises of twenty members, half of whom represent shareholders and half elected as Employee representatives. The Supervisory Board advises and supervises the Executive Board, oversees the strategic implementation of policies, approves decisions of material importance and appoints the Executive Board through and with the consent of the Annual General Meeting of Shareholders. The Chairman of the Executive Board serves as the Chief Executive Officer of the Company The Goodyear Tire and Rubber Company Corporate governance guidelines provide for a Board of Directors comprising of nine to twelve members elected at the Annual General Meeting of Shareholders of the Company. The Chairman of the Board at Goodyear may, but need not be, the Chief Executive Officer of the Company. (The Goodyear Tire and Rubber Company) Prominent similarities in the Governance models of Continental and Goodyear are the functions of Audit, Compensation and Remuneration, Appointment and Governance are vested in the Supervisory and Executive Board at Continental and in the Board of Directors at Goodyear. Both Companies have prudent guidelines regulating the conduct of the members who serve on these boards. The key differences observed between Corporate Governance at Continental and Goodyear are twofold. First, the bicameral structure at Continental, where the Supervisory Board acts in an Advisory Capacity to the Executive Board. A single governance structure exists at Continental. Whereas a two level governance structure provides additional guidance, supervision and prudence, it also adds an additional layer of bureaucracy and associated bottlenecks and costs to the organisation. The second difference observed between the Governance structures is the presence of elected representation of the Employees in the Supervisory Board, in a number equal to those of the Shareholders representatives. This presence ensures the involvement of Employees representation in material decisions of the Company, and consequently offers better protection of the Human Resource employed at Continental AG. The Corporate Social Responsibility activities of Continental AG are summarised in the Companys Annual Report for the Financial Year 2009 (Continental Corporation, 2010)accessed on the companys website. The principal focus of the Corporate Responsibility Report is activities revolving around non-shareholding stakeholders. The Key areas of focus are Employees, Environment and Acting Responsibly. Complementing the Annual Report, whose primary target is shareholders, is the BASICS of Continental AG. These driving principles have evolved very little from their formulation as described in the case study to date as available on Continentals corporate website. The BASICS cover the relationships of Continental with Customers, Suppliers, Employees, Partners and Shareholders. This vision defining document has a more holistic approach towards CSR by encompassing the expectations of all stakeholders. Goodyear Tire and Rubber Company, in contrast to Continental, does not report its Corporate Social Responsibility activities in its Annual Report to Shareholders, but publishes a separate Report for CSR (The Goodyear Tire Rubber Company, 2009), as available on the companys website. This Report outlines four stakeholders namely, Consumers, Associates, Environment and Communities. Both companies give a high level of importance to Employee training and development through various initiatives, and the creation of a safe working environment with almost zero injuries. Equal emphasis is directed to customer focus in the Continental BASICS (Continental Corporation, 2010)and the Goodyear CSR report (The Goodyear Tire Rubber Company, 2009). With regards to Environmental protection, both Continental and Goodyear have comprehensive policies for sustainable and responsible behaviour. Continental reports on its Carbon Management activities in its annual report giving detailed information of its efforts to contain its Environmental impact. Goodyear reports its Environmental Impact in the CSR Report and highlights its Energy and Water Efficiency in its Manufacturing processes. In addition Goodyear emphasises the Environmental friendliness of its products by focusing on fuel efficient tires and its prototype tire manufactured from renewable biomass. It is also observed that Goodyear has a more focused Community Engagement Policy in the areas that it operates. This includes visible support of charities through its aerial blimp, support for education, disaster relief and road safety campaigns. Whereas at Continental this facet is not very prominent and is limited to its Formula Student and Ambassador training and education programs. Effectiveness of Functional, Organisational and Corporate structures in unleashing Managers Entrepreneurial Energy. The Functional structure in place at Continental AG in 1991 is explained in the case study and displayed in the illustration below. Functional Structure of Continental AG in 1991 Distelzweig, 2006 argues that the functional structure as was in place in 1991 has distinct advantages and disadvantages. The advantages noted in this structure are efficiency and skill development, and the disadvantages being the creation of a narrow departmental focus at the cost larger organisational goals, and the challenge of coordinating geographically dispersed locations under the same function. This structure took a considerable toll on management time and resources in overseeing day to day operational activities as elaborated by Bartlett and Ghoshal (1995). Given the scenario at Continental, this structure was largely focused on tasks and control, with individual units having minimum autonomy. Such a situation of top-down control resulted in discouraging the development and cultivation of Entrepreneurship in Continental. Organisational structure of tire operations in 1992 The metamorphosis of Continental AG from functional departmentalisation as described above to an Organisational model (also referred to as Divisional or Multidivisional model) was initiated by Dr von Grunberg as he took the lead role as chairman of the Executive Board. The earliest transformation noted in the case study is the realignment of the Production and Marketing sections of Tyres, into Passenger and Commercial Tires. This reassignment along the lines of Product Division allowed mangers to take responsibility for their respective Product and consequently Market segment. This structure evidences visible improvements over the functional structure as elaborated by Distelzweig (2006) in offering the divisional managers autonomy for their unit but may create some duplication of efforts if key functional tasks defined above. Bartlett Ghoshal, 1995 discuss that this structure freed up time and resources of senior managers to engage in strategic activities, but argue that this structure was unable to generate and nurture new business opportunities internally. As each division in the organisation became individually responsible for its revenue stream and profitability, new ventures were seen as unjustifiable capital and human resource costs, thus discouraged. Thus, necessitating growth through expansion and acquisition. This structure is seen to encourage a limited level of Entrepreneurship among unit managers, but given the cost justification argued above still limits the extent to which this energy can be unleashed. Corporate structure of Continental AG in2001 At the turn of the century as Dr von Grunberg was handing over the reins of Continental AG the structure at the Company had evolved to the corporate model described in the case study and pictured below. This model was meant to maximise the utilisation of Entrepreneurial talent and energy in the company and drive it through continued profitability, which had been achieved through an impressive turn around in the last decade. Bartlett and Ghoshal (1995) recommend that for a company to sustain its growth in the current times, an emergent management approach is required. This approach is comprised of a three coordinated core processes, namely Entrepreneurial, Integration and Renewal Processes. The Corporate structure at Continental AG is in alignment with this model. The Entrepreneurial Process is visible in the revised structure by giving each business unit sufficient autonomy and creative space to identify and exploit opportunities. The creation of a Strategic Technology unit is a key factor in the integration Process and enables diverse business units to collaborate towards making Continental a trendsetter in the automotive Industry. The Renewal Process comprising of rationalisation and revitalisation aspects, where mind sets and ingrained cultures are challenged are evidences in the departure for a hypercaution towards a willingness to take risks in business. In conclusion, Schuler (1986) states that successful Corporate Entrepreneurship involves two importan factors, organisational structure and human resources. Human resources foster and facilitate innovation and entrepreneurship and to sustain this requires flexible organisational structures and policies. This has been continuously improved and optimally enabled in the evolution of the structure through functional, organisational and finally the corporate structure at Continental AG. 3.2 Evaluating the effectiveness of Dr. Stephan Kessels leadership skills. Thompson and Martin (2005) explain that the qualities and skills of an effective leader are broadly classified in three categories, Drive, Judgement and Influence. Drive combines motivation, ambition and ability. Judgement includes decision making, opportunity spotting, problem framing and analytical skills. Influence encompasses the effect on peoples behaviours, networks and contacts. In addition to the above categories, De Vries (1996) discusses that leaders require architectural and charismatic skills to enable them be effective in their organisations. Dr. Kessel was appointed to head the then loss making Original Equipment unit of passenger tires in 1995, and responsible for the return to profitability of this unit. He was later to run the Commercial tire unit form 1997 and was appointed to the Executive Board. He was appointed Chairman of the Executive Board in June 1999 and relinquished his position in September 2001. (Continental Corporation, 2001) The meteoric career, but short stint at the helm of the organisation as viewed through the lens of the above considerations may be evaluated as a mixed bag of success and disappointments. Assessing the Drive of Dr. Kessel, it is found that his ambition and ability are reasonably successful with his leading the Original Equipment passenger tire division to profitability and his subsequent success at the Commercial tire division, coupled with his tenure on the Executive Board. Murphy (2001) also opines that his acquisition plans may be termed as too ambitious, thus being a damper on his leadership. In evaluating his Judgment skills, Dr. Kessels decision making and opportunity skills are an accomplishment in the earlier tenure of his leadership. His commitment to continue on the path of Innovation set by his predecessor Dr. von Grunberg and cultivating Entrepreneurship in the management of Continental AG are visible landmarks. However, his subsequent decision (not covered in the case study) to sell off the Conti Tech division, which was unsuccessful and contributed his departure from Continental may be viewed as a let-down. (Murphy, 2001) Dr. Kessels departure as announced on the Continental Website on 11th September 2009 was explained as: Meeting today, the Supervisory Board of Continental AG, Hanover, appointed Manfred Wennemer (53) Chairman of the Executive Board. Wennemer replaces Dr. Stephan Kessel (47), who immediately relinquishes his seat on the Executive Board over differences concerning the strategic orientation of the corporation. Kessel is departing from the company on very amicable terms. (Continental Corporation, 2001) The specific mention of differences in strategic orientation, while partly reflecting on the Judgement criteria, can be viewed as failure to Influence the Supervisory and Boards to align themselves with his strategic direction. This was an irreconcilable difference and leaves the Influence portion of Dr. Kessels leadership largely wanting. A Tire Industry publication (Tyre Industry Publications Ltd, 2001)also elaborates the growing differences of opinion between Dr. Kessel and his predecessor, Dr. von Grunberg, who at that point in time was Chairman of the Supervisory Board (which is mandated to appoint and replace Executive Board Members). This may also be measured as a shortfall in the Influencing ability of Dr. Kessel. In conclusion, using De Vries (1196) criterion it may be summarised that Dr. Kessel was considerably successful in his Architectural role in designing and running profitable units and the Organisation as a whole, his Charismatic role and ability fell short of what was required at Continental AG in 2001.

Auditing Reacquired Franchise Rights

Auditing Reacquired Franchise Rights Worksheet 1: Summary of Reacquired Franchise Rights Verifying Mathematical Accuracy of Reacquired Franchise Rights Balance It has been assumed that the beginning balance of reacquired franchise rights was audited last year. Therefore, changes (if any) to this account are audited in the current year so that an auditor can give an opinion on the balance of this asset. Reductions to this asset are likely to be due to a sale, other disposal, or impairment. However, based on the case facts, there is no indication of changes in the current year. The following were the procedures performed: Checking to see if the client reported any impairment Based on the case facts, Roman Holiday did not identify or report any impairment in the reacquired franchise rights in the current year. Ensuring that each Franchisee market recorded the correct amount for the BV of Reacquired Franchise Rights Roman Holiday did not sell or dispose any of its reacquired franchise rights (reductions)neither did they reacquire any new franchise rights (additions) during the current year. This is the reason that there was no change in the recorded amount for these assets. Verifying that the company correctly added the book values of the reacquired franchise rights to include all of the senior franchise markets (please refer to Appendix A) Upon reviewing the client-prepared schedule of reacquired franchise rights, the sum of the book values of these intangible assets, for each franchise market, totaled $127, 414, 000. However, there is a $2,000 ($127,414 127, 412)deviation between the actual total and the amount that the client reported on its balance sheet ($127, 412, 000). Since, a planned materiality of $5 million is being used this deviation is immaterial and islikely due to rounding errors. Based on the above procedures performed and the immaterial deviation between the actual total and the clients reported amount for the book value of the reacquired franchise rights, we feel that the proper amount has been recorded and as such no further procedures are necessary. Is the Indefinite life classification for the reacquired franchise rights correct? According to SFAS 142, it identifies how goodwill and other intangibles are accounted for after their acquisition or in this case their reacquisition. Essentially, it requires the classification of intangible assets as having either a definite or indefinite life. The main difference is that definite-life intangible assets are amortized in a pattern depending on how and when the economic benefits are expected to be received (e.g.: if expected evenly over each year then the straight line method of amortization should be used). In determining whether or not the indefinite-life classification for the reacquired franchise rights is correct we must review through the criteria in SFAS 142 and see how it relates to our client, Roman Holiday. According to SFAS 142, the estimate of the useful life of an intangible asset to an entity is based on an analysis of all pertinent factors, in particular the following[i]: The expected use of the asset by the reporting entity Case facts: Essentially, the purpose of reacquired franchise rights is to allow the franchisor (Roman Holiday) to utilize their own brand name in the specific senior franchisee market(s) that they reacquired the rights from. The expected useful life of another asset or a group of assets to which the useful life of the intangible asset may relate (such as mineral rights to depleting assets) Case facts: The group of assets that the reacquired franchise rights may relate to is the reacquisition of rights from existing and/or underdeveloped markets or restaurants. Under the contractual repurchase agreement, which has a useful life of 14 years, Roman Holiday is entitled to the use and benefit of these assets (e.g.: the right to continue operating existing restaurants and the right to collect royalties from sub-franchises developed by the Senior Associate) Any legal, regulatory, or contractual provisions that may limit the useful life Case Facts: same as part ii. (i.e.: The contractual agreement has a useful life of approximately 14 years which is the same length of the underlying Senior Associate agreement) Any legal, regulatory, or contractual provisions that enable renewal or extension of the assets legal or contractual life without substantial cost (provided there is evidence to support renewal or extension and renewal or extension can be accomplished without material modifications of the existing terms and conditions) Case facts: The Senior Associate Agreement has a useful life between 10-20 years (approximately 14 years). These agreements are renewable if mutually agreeable to both parties with no substantial costs or material modifications of the existing terms and conditions. The effects of obsolescence, demand, competition, and other economic factors (such as the stability of the industry, known technological advances, legislative action that results in an uncertain or changing regulatory environment, and expected changes in distribution channels) Case facts: According to analysts, the companys growth will slow (indicating that the pizza industry is in its maturity stage) in the next few years but will still exceed industry averages. However, most of Roman Holidays revenue growth, in recent years, is largely due to the reacquisition of franchise rights and existing restaurants as opposed to real growth in the franchise itself. Therefore, Roman Holiday faces stiff competition in this highly competitive industry. In addition, the company markets itself as a gourmet pizza restaurant and only targets consumers willing to pay for a premium product. There are may substitute pizza places that consumers can go to such as Pizza Hut and Dominos Pizza unless Roman Holiday can continue to distinguish itself from these other restaurants (e.g.: incentives and price discounts). The level of maintenance expenditures required to obtain the expected future cash flows from the asset (for example, a material level of required maintenance in relation to the carrying amount of the asset may suggest a very limited useful life) Case facts: There is no maintenance expenditures related to reacquired franchise rights except annual impairment losses, if any. Based on the above pertinent criteria related case facts, we feel that the indefinite-life classification is wrong. Instead, it should have a definite life of 14 years, which is consistent with the underlying Senior Associate agreement. Beyond 14 years the intangible asset and its related benefits will expire. Worksheet 2: Auditee client impairment analysis SFAS 142 vs. SFAS 144 Types of Auditing Procedures to Evaluate Managements Assertions Clients Methodology in Estimating the FV of Reacquired Franchise Rights Verifying the mathematical accuracy of the clients estimation the FMV of Reacquired Franchise Rights Worksheet 3: Analysis of key assumptions Key assumptions made by client in arriving at the FMV Estimate Comparison to external internal information Which provides the greatest level of assurance? Information sources Preparation of a document request to the client Evaluating of key assumptions Evaluation of appropriateness of key assumptions Worksheet 4: Auditor impairment analysis on book value of reacquired franchise rights for Arizona acquisitions Is Clients Impairment Assessment Appropriate? The role of specialists What would be included in a set of working papers?

Law of Contract Essay -- Papers

Law of Contract Michelle is at University, studying to be a veterinary surgeon. David, a close family friend is also a veterinary surgeon. Whilst away at University, Michelle received a letter from David, saying that he was due to retire in a few weeks' time and that he wondered whether she would be interested in buying his veterinary equipment for the bargain price of 500 pounds. His letter asked for a prompt reply as a junior partner in his veterinary practice was also interested in buying the equipment, albeit at a higher price. Upon receipt of David's letter, Michelle decided that she would like to buy, but she would need to borrow the money. In order to speed matters up, she then wrote to David expressing a firm interest, but asking if he would be prepared to accept payment by instalments. Her letter got lost in the post and was never received by David Not having heard from David, Michelle arranged a bank loan and then posted a second letter, enclosing a cheque for 500 pounds. This letter did arrive, but by this time, David had assumed that she was not interested in the equipment and had already sold it to his junior partner instead. With reference to the case situation above, discuss, using decided cases to support your arguments, the contractual implications and the remedies, if any, that Michelle might be able to pursue against, David. Answer In discussing the situation amidst Michelle and David, it is critical to establish whether an actual contract has come into existence between the two parties. It is therefore necessary to examine, in relation to the scenario, the presence of the three chief element... ...o of the scenario, David is referred to as 'a close family friend'. Agreements with relations of this manner are not normally imagined to be subject for litigation. In addition to the relationship of the parties, is the immense sense of ambiguity present throughout the scenario. The court may, on these grounds declare the agreement void with the presumption that there was no intention to create legal relations (Gould v Gould 1969). After keenly examining the scenario with the application of knowledge of the different elements of agreement, it may be concluded that a contract did not exist between David and Michelle because of the deficiency of those factors essential to the formulation of an agreement. The lack of contractual implications thereby greatly inhibits the possibility of a successful pursuit against David.

Community and the Individual in John Fords The Quiet Man Essay

Community and the Individual in John Ford's The Quiet Man John Ford's The Quiet Man is a romantic comedy that demonstrates Ford's world-view by way of symbolic visual devices as well as in the basic plot: the outsider being indoctrinated into a community through the gradual understanding of rituals and rites of passage, as well as the little nuances of everyday life. John Ford, a filmmaker with a strong Irish ancestry and pride in his roots, directed this film about the return of a retired boxer to the town of his birth, Innisfree; the plot is just the backbone of a film which is fleshed out by the ideas Ford expressed throughout all his films: the value and meaning of community, communicated with a unique dramatic rhythm. This dramatic rhythm follows a pattern of assertion -> resistance -> accommodation. Ford also uses many icons (specific visual imagery repeated throughout many of his films which have a consistent meaning and/or function for Ford) to express his ideas, such as the use of doorways, which represent a boundary between a safe area and a dangerous one, and the watching/waiting shot, which shows someone in the throes of hope or sorrow, and demonstrates homecomings or departures. Other icons found in the film, and the larger body of Ford's work, include the horizon shot, which shows the passage from one mode of life to another, and the parade/procession, which displays community harmony, usually used in a showing of community success. Also used is the reaction-shot, which serves to appraise the importance of a dramatic happening through the reactions of various characters, and lastly and very importantly, the shared imbibing of spirits, which is part of any sound celebration in Ford's world. The opening sce... ...mily makes life easier and more pleasurable. Ford uses his icons to show the passing from one situation or lifestyle into another (such as horizon shots: from the American life to the Irish, or from the single life into the married) or to show the community in harmony (processions/parades, and shared spirits). His unusual dramatic rhythm is felt on a larger level (Sean's assertion into the community, the resistance of Red Will and later Mary Kate, the accommodation of the donnybrook and the final dinner scene) as well as in each individual scene; this progression from assertion to resistance to accommodation, paired with the iconography, gives The Quiet Man a flavor and style all its own, and with the gorgeous Irish countryside as backdrop, the result is an essay on the ultimate ideal situation of community harmony and the individual sacrifice it takes to achieve it.

Old man :: essays research papers

Plot Overview The Old Man and the Sea is the story of an epic struggle between an old, seasoned fisherman and the greatest catch of his life. For eighty-four days, Santiago, an aged Cuban fisherman, has set out to sea and returned empty-handed. So conspicuously unlucky is he that the parents of his young devoted apprentice and friend, Manolin, have forced the boy to leave the old man in order to fish in a more prosperous boat. Nevertheless, the boy continues to care for the old man upon his return each night. He helps the old man tote his gear to his ramshackle hut, secures food for him, and discusses the latest developments in American baseball, especially the trials of the old man’s hero, Joe DiMaggio. Santiago is confident that his unproductive streak will soon come to an end, and he resolves to sail out farther than usual the following day. On the eighty-fifth day of his unlucky streak, Santiago does as promised, sailing his skiff far beyond the island’s shallow coastal waters and venturing into the Gulf Stream. He prepares his lines and drops them. At noon, a big fish, which he knows is a marlin, takes the bait that Santiago has placed one hundred fathoms deep in the waters. The old man expertly hooks the fish, but he cannot pull it in. Instead, the fish begins to pull the boat. Unable to tie the line fast to the boat for fear the fish would snap a taut line, the old man bears the strain of the line with his shoulders, back, and hands, ready to give slack should the marlin make a run. The fish pulls the boat all through the day, through the night, through another day, and through another night. It swims steadily northwest until at last it tires and swims east with the current. The entire time, Santiago endures constant pain from the fishing line. Whenever the fish lunges, leaps, or makes a dash for freedom, the cord cuts him badly. Although wounded and weary, the old man feels a deep empathy and admiration for the marlin, his brother in suffering, strength, and resolve. On the third day the fish tires, and Santiago, sleep-deprived, aching, and nearly delirious, manages to pull the marlin in close enough to kill it with a harpoon thrust. Dead beside the skiff, the marlin is the largest Santiago has ever seen.

Partnership Case Law

PARTNERSHIP CASELAW | | This section of the website provides access to all cases summarised in the Partnership Law Updates which have been issued since January 2000 to date. Therefore this Archive operates as a guide to some of the interesting partnership cases decided in common law jurisdictions in recent years. Special thanks are due to Professor Dick Webb (Emeritus Professor of Law in the University of Auckland) for alerting me to many developments contained in this section and to Dr Keith Fletcher of the University of Queensland. PARTNERSHIP LAW CASESJanurary 2000_______________________Partnership by Holding outPlaintiffs instructed first-named defendant as their solicitor – Plaintiffs’ funds dissipated by the first-named defendant – First-named defendant’s wife also worked as a solicitor in the practice – Plaintiffs instructed the defendant as a result of their friendship with his wife – Husband and wife conducted themselves as partners in everything they did socially – Whether wife was a partner in the practice – Whether wife was liable as a partner by holding outPalter v Zeller and Lieberman (1997) 30 OR (3d) 796.In this case, the Court of Justice of Ontario considered both the allegation of a partnership between the two defendants, and the allegation that the second-named defendant had held herself out to be a partner with the first-named defendant. The first-named defendant, Zeller, had set up in practice as a lawyer and after his marriage to the second-named defendant, Lieberman, she joined him in practice. This fact was advertised by an announcement which was published by Zeller to the effect that Lieberman had â€Å"joined me in the practice of law†.There was no indication given in the firm’s stationery or business cards that they were partners in this practice. The plaintiffs had been friendly with Lieberman before she met Zeller and arising out of this friendship they instructed Zeller on a number of occasions. After Lieberman joined the practice, the plaintiffs entrusted their savings to Zeller and signed blank documents in connection with the use of the funds.When Zeller dissipated this money, the plaintiffs sought to make Lieberman jointly liable with Zeller for the loss on the grounds that either she was Zeller’s partner or that she had allowed herself to be held out as his partner under the Ontario equivalent of s 14(1) of he Partnership Act 1890. The plaintiffs’ sought to support their claim that the husband and wife were partners as a matter of law by the fact that the plaintiffs had a social relationship with both defendants and it was clear from this relationship that the defendants were partners in everything they did, in the sense that they treated each other as equals.In the work context, the plaintiffs claimed that the defendants were equals since they looked totally equal at work, having equal-sized offices. Wilkins J rejected t his claim out of hand since he could found not even a scintilla of evidence to support a finding of a partnership between the defendants. He noted that, although the plaintiffs presumed that the defendants were partners, the mere fact that lawyers may be married and behave in an equal social and marital relationship has no impact upon the question of whether they are partners as a matter of law.He held that what is important to this issue is how they conduct their business affairs together, not how they conduct their personal affairs. The plaintiffs’ second claim was that even if Lieberman was not a partner as a matter of law, she allowed herself to be held out as a partner in the firm and therefore should be liable under the Ontario equivalent of s 14(1) of the Partnership Act 1890 since the plaintiffs had relied on this fact. Again the plaintiffs supported their claim of a holding out by the fact that the defendants treated each other as equals in everything they did.The pl aintiffs alleged that they had relied on this holding out of partnership by virtue of the fact that they would not have entrusted all of their savings to Zeller and signed blank documents for him, were it not for his relationship with Lieberman, since this relationship gave Zeller a credibility in their eyes. Again, Wilkins J rejected this claim, finding that the plaintiffs belief that the defendants were partners was ill-founded since the defendant’s social activities was not sufficient to constitute a holding out by Lieberman of herself as a partner.He concluded that since Lieberman was Zeller’s employee as a matter of law and was also not liable as a partner by holding out, the case should proceeded against Zeller alone. _________________________Sharing of Profits by PartnersPartnership agreement – presumption of equality of sharing of profits – s 24 of the Partnership Act 1890 – attempt to vary this ratio without the express consent of all the partners. Joyce v Morrissey [1998] TLR 707.In this case, the English Court of Appeal considered a dispute between the four members of the rock band, The Smiths, regarding the sharing of the band’s profits. Since their inception, the four band members had carried on business as a partnership. In the High Court, it had been held that Joyce, the drummer in the band, was entitled to a quarter share of the profits since under s 24 of the Partnership Act 1890, partners are entitled to an equal share of the profits of the partnership, in the absence of any contrary agreement.The lead singer (Morrissey) and the lead guitarist (Johnny Marr) appealed the High Court decision on the basis that they were the prime movers behind the band and alleged that it had been understood that they would be entitled to 40% of the profits each, with 10% going to the drummer and bass guitarist. They supported their claim by the fact that the group’s accountants, Ossie Kilkenny & Co, had sent acco unts to Joyce showing this split of 40/40/10/10, yet Joyce had made no objection at that time.In the Court of Appeal, Waller LJ (Gibson and Thorpe LJJ, concurring) upheld the High Court’s decision that s 24(1) of the Partnership Act 1890 applied to the facts of the case and consequently that the four band-members were entitled to an equal share of the profits. He held that any change in this profit-sharing ratio could not be achieved by simply sending partnership accounts to one partner and assuming that his silence constituted his acceptance of the new terms.This was particularly so where, as in this case, the partner might not be expected to understand the accounts without some explanation. Waller LJ observed that Morrissey undoubtedly felt that because of the more major contribution which he and Johnnie Marr were making to the band, he ought to be able to dictate the terms on which the partnership continued. With considerable understatement, Waller LJ noted that Morrissey might not have appreciated certain fundamentals of partnership law. ________PARTNERSHIP LAW UPDATEMarch 2000___________________Expulsion of a PartnerExpulsion of two partners from a solicitors’ firm – One resolution passed at a partners’ meeting to expel both partners – Partner to be expelled not entitled to be present at meeting under terms of partnership agreement – Whether partner to be expelled entitled to notice of meeting – Whether two meetings or two resolutions required where there was an expulsion of two partners – Interpretation of the terms of a partnership agreement – Hanlon v Brookes (1997) 15 Australian Company Law Cases 1626.In this case, the Victorian Court of Appeal (Ormiston, Callaway and Batt, JJ) considered the expulsion of two partners from a law firm. Under the terms of the written partnership agreement, a special resolution (ie 75% of the votes) was sufficient to expel a partner and the partnership agreem ent contained a clause which provided that the singular included the plural and vice-versa. The agreement also provided that a partner could vote to expel his co-partner at his absolute discretion and the partner to be expelled was not entitled to be present at the meeting at which the decision was to be taken.However the partnership agreement also provided that a partner was entitled to at least seven days’ notice of a general meeting at which a special resolution was to be passed. The partners in the firm wished to expel Hanlon and Ross since Hanlon’s department, the Property and Probate Department, was not well run and on two occasions he had pocketed executor’s commissions for work done. In Ross’ case, he was the partner in charge of the Litigation Department but his psychological condition prevented him from making court appearances.At a meeting of the partners of the law firm, a single resolution was passed by over 75% of the partners to expel both Hanlon and Ross as partners in the firm. Neither Hanlon nor Ross were present at this meeting, nor had they been given notice of the meeting. Hanlon challenged his expulsion on the grounds that he was not given notice of the meeting. Interestingly, the Court of Appeal did not regard the failure of the partners to accord natural justice to Hanlon as a basis for invalidating the expulsion. Rather the court restricted its decision to the terms of the partnership agreement.It held that the expulsion clause in the partnership agreement was to be strictly interpreted. However, even with such an interpretation, it held that it under the express terms of the agreement, Hanlon was not entitled to be present at the meeting and therefore it concluded that he was not entitled to notice of that meeting or to vote at that meeting. The court also decided that by virtue of the clause which provided for the â€Å"singular to include the plural†, it was possible for more than one partner to be expelled at the one meeting by the passing of a special resolution.This case appears to be the first case in partnership law which confirms that two partners may be expelled by the one resolution. __ _____ Existence of a partnershipPartnership between a number of groups of people in a hotel – One of the groups was a sister and two brothers – Dispute between the sister and brothers regarding the distribution between the three of the profits of the hotel partnership – Whether the relationship between the three regarding their share in the hotel partnership was also a partnership – s 1(1) of the Partnership Act 1890 – Hitchins v Hitchins and Another (1998) NSW Lexis 2382; 47 NSWLR 35.In this case the plaintiff and her two brothers entered into a hotel partnership with a number of other individuals. The hotel property and business was jointly owned by all the hotel partners and the joint share of the three siblings in the hotel partnership was 18%. Th is share of the profit of the hotel partnership was paid to the three Hitchins jointly. A dispute arose amongst the three of them regarding the treatment of these co-owned profits.The plaintiff alleged that the hotel profits should have been divided equally between the three but she alleged that the first defendant had failed to do so. As part of her claim, she alleged that the relationship between the siblings in these co-owned profits, itself constituted a separate partnership between the three of them. As a partnership, she claimed that under partnership law, the three would be required to share these profits equally and that in addition she was entitled to an account of the dealings of this alleged partnership .In the Supreme Court of New South Wales, Bryson J considered s 1(1) of the Partnership Act 1891 (the equivalent of the Partnership Act 1890) which provides that partnership is â€Å"the relation which exists between persons carrying on business in common with a view of p rofit† , s 2(1) of the Partnership Act 1891 (which provides that co-ownership of property does not of itself create a partnership in the property so held) and s 2(2) of the Partnership Act 1890 (which provides that the sharing of gross returns does not of itself create a partnership whether or not the persons have a common interest in the property from which the returns are derived). Relying of these statutory provisions, Bryson J held that the activity of the three, namely investing in a share in the hotel partnership and receiving drawings from it, did not constitute the carrying on of a ‘business in common’. Instead he categorised this activity as simply an investment, since there were no elements of engaging in trade or a flow of transactions which amount to the carrying on of a business.He held that while the three Hitchins were clearly partners in the hotel partnership, they were not partners in a separate partnership of which the business was the joint owne rship of a share in the hotel partnership. Although there was no partnership between the three siblings, Bryson J was able to find for the plaintiff on the grounds that the relationship between the three was a fiduciary. He supported this conclusion on the grounds, inter alia, that they were in a close family relationship and that they were common members of the hotel partnership. On this basis, he relied on the equitable principle that ‘equality is equity’ to hold that the hotel profits should be distributed evenly between the three siblings and he therefore ordered that an account of the distribution of the hotel partnership profits should be taken. _______ _______Liability of partnersLiability of a partner for the actions of his co-partner – Co-partners settle with plaintiff – Action for contribution against concurrent wrongdoers of errant partner – Defence to contribution that co-partners were not originally liable under s 10 of the Partnership Act 1890 – Whether partners liable under s 10 for breach of constructive trust by co-partner -Dubai Aluminium Company Ltd v Salaam and Others [1998] TLR 543. In this case the chief executive of the plaintiff company had conspired with Salaam and his solicitor, Amhurst, to steal $50 million from the plaintiff by using a series of sham contracts.Amhurst was sued on the basis that he had knowingly assisted the chief executive to breach his fiduciary duty. The issue before the court was whether Amhurst’s partners in the law firm were also liable to the plaintiff for their partner’s actions under s 10 of the Partnership Act 1890. Section 10 provides that â€Å"[w]here, by any wrongful act or omission of any partner acting in the ordinary course of business of the firm, or with the authority of his co-partners, loss or injury is caused to any person not being a partner in the firm, or any penalty is incurred, the firm is liable therefor to the same extent as the part ner so acting or omitting to act. During the course of the trial against Amhurst, the partners in his firm had settled with the plaintiff for a payment of $10m. The present action concerned a contribution which these partners sought to this settlement from Salaam and the chief executive of the plaintiff company. However their defence to the action for a contribution was that the partners were not in fact liable to the plaintiff under s 10 of the Partnership Act 1890. This defence was grounded on the claim that Amhurst’s liability was for dishonest assistance which was a liability in constructive trust, while s 10 was concerned with liability in tort or by reason of agency. However in the English High Court,Rix J held that s 10 was expressed in the widest terms, referring to ‘any wrongful omission’ causing ‘loss or injury’ or in the incurring of a penalty. Accordingly, he held that the section extended beyond torts to wrongs such as in this case, acce ssory liability in equity and he therefore allowed the action for contribution. PARTNERSHIP LAW UPDATENovember 2000___________________Post-dissolution ProfitsDeparture of one partner from a law firm – Continuing partners carrying on business without a final settlement with former partner – Post-dissolution profits – Entitlement of former partner to a share of post-dissolution profits attributable to his share of the partnership assets – s 42 of the Partnership Act 1890 – Fry v Oddy [1998] VSCA 26.In this case, the continuing partners in a nine person law firm claimed that their former partner, Oddy, was not entitled to any of the firm’s post-dissolution profits under s 46 of the Partnership Act 1958, the Australian equivalent of s 42 of the Partnership Act 1890. Section 42 provides that where a partner leaves a firm and there is no settlement between him and the continuing partners, the former partner has a right to that share of the profits of the firm which have been made since his departure and which are attributable to his share of the partnership assets. The rationale for the rule is that it provides an incentive for the continuing partners to buy-out the former partner’s share rather than to leave it in the firm.In this case, the continuing partners argued that the post-dissolution profits in the law firm were attributable solely to the skill and exertions of the continuing partners, rather than to the use of Oddy’s share of the partnership assets. The Victoria Court of Appeal (Brooking, Ormiston and Callaway JJ) rejected this argument and held that, after deducting a notional salary for each of the continuing partners’ for their exertions in generating these profits, Oddy was entitled to one ninth of the post-dissolution profits. The court’s reasoning highlights that in determining what share, if any, of the post-dissolution profits are attributable to the former partner’s shar e of the partnership assets, each case depends on its own facts.In particular, in the context of modern professional partnerships, it is interesting to note Brooking J’s statement regarding the use of modern technology in those firms: â€Å"Now the pen has been replaced by the word processor, if not by voice recognition software. The new technology is used both for communication and for management of information and activities. With technological change, no large firm could now prosper without its computer on every desk, its giant photocopiers (themselves a source of revenue), its computer notebooks, its fax machines and answering machines, its mobile telephones and pagers, its dictation equipment, its video conferencing facilities. Its library will be to a considerable extent in electronic format. Its drafting will be done with the aid of artificial intelligence.Its requirements in terms of human resources will range from caterers to librarians. Outsourcing may be used. The firm will need a managing partner or general manager or office manager to carry the cares of the practice. It may be so large that some partners hardly know one another[†¦ ]All this makes the practice of at least the bigger legal firms resemble a manufacturing business, producing and selling at a profit a range of legal and at times related services. † On this basis, the Court of Appeal concluded that all the assets of the partnership contributed to its profits in the sense that they provided the apparatus which enabled the practice to be carried on.Accordingly, when the continuing partners had simply denied that any of the post-dissolution profits were attributable to the use of Oddy’s share of the assets and in particular since the continuing partners had not put forward any other basis for determining what share of the profits might be attributable to the use of Oddy’s share, the court concluded that Oddy was entitled to one ninth of these profits, after account had been taken of a notional salary of AUS$130,000 per partner for the continuing partners’ exertions in generating those profits. ________ _Liability of PartnersLiability of partners for wrong of co-partner – Sexual harassment of employee of partnership – s 10 of the Partnership Act 1890 – Proceedings Commissioner v Ali Hatem. [1999] 1 NZLR 305. In this case, one partner in a garage partnership, who was in charge of the firm’s staffing, was held to have been guilty of the sexual harassment of an employee of the firm. This cases examines the liability of the other partner in the firm for this sexual harassment.Section 13 of the Partnership Act 1908 (the New Zealand equivalent of s 10 of the Partnership Act 1890) provides that â€Å"[w]here, by any wrongful act or omission of any partner acting in the ordinary course of business of the firm, or with the authority of his co-partners, loss or injury is caused to any person not being a partne r in the firm, or any penalty is incurred, the firm is liable therefor to the same extent as the partner so acting or omitting to act. † The act of sexual harassment, which was a statutory tort under the Human Rights Commission Act 1977 in New Zealand, was not part of the ordinary course of business of a garage in a literal sense. However, it was held to be within the meaning of this term in the legal sense, since the partner was acting in the ordinary course of business when he performed this wrongful act. On this basis his co-partners were held liable for this tort.The words of Tipping J are instructive: â€Å"Although sexual harassment cannot be regarded as part of the ordinary course of the firm’s business, we are of the view that, when acting as he did, the perpetrator was acting in the ordinary course of the firm’s business. The first acts of sexual harassment occurred when he was interviewing one of the complainants for a job. There were numerous instance s of sexually loaded remarks[†¦ ]In this case, the perpetrator was doing something within the ordinary course of business of the firm, ie dealing with staff members in the work environment. In so doing, he committed the statutory tort of sexual harassment. He thereby did tortiously something which he was generally authorised to do. The firm is liable for his conduct. ______________________International PartnershipsBreach of duty of care owed by accountancy firm to plaintiff – Accountancy firm was member of national group of accountants throughout Australia – Whether other firms in that association were liable under partnership law to the plaintiff – Section 1(1) of the Partnership Act 1890 – Whether other members of the association were liable as partners by holding out – Section 14(1) of the Partnership Act 1890 – Duke Group Ltd (in liquidation) v Pilmer [1999] SASC 97. In this case, the plaintiff company was involved in a takeover of another company. As part of the takeover process, it commissioned the Australian accountancy firm of Nelson Wheeler (Perth), the first named defendants, to advise on the proposed price for the target company. It was established that this report was negligently prepared in overvaluing the share price of the target company.The plaintiff alleged that Nelson Wheeler Perth were part of a national partnership of which the fifth named defendants, a number of accountancy firms throughout Australia, were the other members. On this basis, the plaintiff alleged that the fifth named defendants were jointly liable with the first named defendants for the damage caused by the negligent valuation report. The relationship between Nelson Wheeler (Perth) and the other accountancy firms was that they were all members of Nelson Wheeler National. This was an association of accountancy firms throughout Australia, whereby all the member firms referred business to other member firms throughout Australia. In addition, Nelson Wheeler Perth and the other firms described themselves as a ‘national partnership’ and as a ‘national firm’ in their letterheads and advertising material.Nonetheless, the Supreme Court of South Australia (Doyle CJ, Duggan and Bleby JJ) held that the members of this national association did not in fact carry on business in common as required by s 1(1) of the Partnership Act 1891 (the equivalent of s 1(1) of the Partnership Act 1890). In particular, it was held that this association operated primarily as a means of referring business between firms in different parts of Australia. It did not thereby constitute the member firms partners with each other, since they all carried on practice in their locations and did not share fees or profits (except in a limited way in relation to work referred between them). The court also noted that the relationship of partnership cannot be created by persons simply stating that a partnership exists.The court noted that although there were substantial benefits to be gained by the association of the firms, crucially there was never any intention of deriving profits from any common business. Rather this association resembled a club, the intention being that the members would benefit by work referrals, sharing of client lists and the sharing of costs, but this was not an association where the members were carrying on business in common as required by the definition of partnership. The plaintiff also alleged that the fifth named defendants were liable on the basis of a holding out under s 14 of the Partnership Act 1891 (the equivalent of s 14 of the Partnership Act 1890).The Supreme Court of South Australia accepted that the members of Nelson Wheeler National allowed themselves to be generally represented as partners of each other. However, to establish partnership by estoppel, there must be a representation to the claimant that a particular person or persons is a partner. It is not sufficie nt for the plaintiff to simply rely on the fact that Nelson Wheeler indicated in its valuation report that it was a member of a national partnership. The court held that this was not a sufficient representation under s 14 since the persons purportedly held out, ie the fifth named defendants, were neither named or identified. On this basis, the court held that there was no liability on the fifth named defendants on the basis of holding out.PARTNERSHIP LAW UPDATEFebruary 2001___________Liability of firm for partner’s actsAuthority of a partner to bind his firm – Bare assurance by partner to third party that within the ordinary course of business – s 5 of the Partnership Act 1890 – Hirst v Etherington and Another [1999] TLR 546. In this case, Etherington, a partner in a law firm, was acting for the borrower of money from a bank. He gave an undertaking to the bank guaranteeing the loan. The bank’s solicitor requested and received confirmation from Ethe rington that this undertaking was given in the ordinary course of the business of the firm. When the loan was not paid by the client, the bank sued Etherington’s partner, as Etherington had been adjudicated bankrupt.Section 5 of the Partnership Act 1890 provides that â€Å"[e]very partner is an agent of the firm and his other partners for the purpose of the business of the partnership; and the acts of every partner who does any act for carrying on in the usual way business of the kind carried on by the firm of which he is a member bind the firm and his partners, unless the partner so acting has in fact no authority to act for the firm in the particular matter, and the person with whom he is dealing either knows that he has no authority, or does not believe him to be a partner. † The Court of Appeal held that it was not within the ordinary course of business of a solicitor, without more, to give a guarantee to a third party regarding a debt incurred by a client. The que stion under s 5 was whether a reasonably careful and competent lender would have concluded that there was an underlying transaction of a kind which was part of the usual business of a solicitor.It was not open to the lender to accept the bare assurance of the partner that the undertaking was within the ordinary course of business of the firm. Accordingly, Etherington’s partner was held not to be liable on the undertaking. ___________ _______Existence of a Partnership Parties agree to establish a partnership – Partnership business is then conducted through company – Action brought under s 205 of the Companies Act 1963 by plaintiff – Plaintiff also alleges that partnership exists as separate and anterior to shareholding in company – Partnership action brought by plaintiff against other two partners for injunction restraining dissipation of assets of partnership business and damages for breach of contract – Horgan v Murray and Milton High Court , unreported, 17 December 1999.This case concerned the long running dispute between three shareholders in Murray Consultants Limited. In addition to bringing an action against his two fellow shareholders under company law, the plaintiff brought a partnership action against them in which he sought an injunction restraining them from dissipating the assets of the business of the partnership and damages for breach of contract. His partnership action was based on the fact that when the parties initially decided to start a public relations business, it was agreed to establish a partnership. However, it was then agreed that the partnership business would be conducted through the medium of a company (Murray Consultants Limited).The relationship between the three broke down and in addition to seeking company law remedies, the plaintiff alleged that the three were in partnership together, a partnership which existed independently of and was anterior to the setting up of the company. The defe ndants denied that there was such a separate partnership and relied in part on s 1(2) of the Partnership Act 1890 which states that â€Å"the relation between members of any company or association which is registered as a company[†¦]is not a partnership within the meaning of this Act. † O’Sullivan J struck out the plaintiff’s statement of claim on the basis that the three parties agreed that their public relations business would be conducted through the medium of a company and this was entire of their relationship and there was no other relationship between the three which could constitute a partnership.He relied in part on the High Court judgment of Murphy J in Crindle Investments v Wymes [1998] 4 IR 567 at 576 that where it was held that â€Å"the undertaking was conceived and consciously promoted in the form of a company incorporated under the Companies Act, 1963, and it was the requirements of that legislation which governed the relationship between th e parties†. __________________Partnership PropertyPartnership property – Whether an asset could be partnership property if it is incapable of assignment – Section 20 of the Partnership Act 1890 – Don King Productions v Warren [1999] 2 All ER 218. In this case, the question arose as to whether the benefit of non-assignable choses in action could be transferred to a partnership.The action involved a partnership that was formed between the well-known boxing promoters Don King and Frank Warren for the promotion of boxing in Europe. Following a dispute between the parties the partnership was dissolved. However, their partnership agreement had provided that each was to assign to the partnership certain boxing promotion contracts to which they were separately a party. However, these contracts were promotion contracts that had been entered into by Don King and Frank Warren respectively with various boxers. Each of these contracts was for personal services and cont ained non-assignment provisions and therefore could not be assigned.In the English High Court ([1998] 2 All ER 608), Lightman J held that effect could be given to their agreement in equity as a declaration of trust of those contracts for the benefit of the partnership and in this way the contracts were held to be partnership property. Section 20 of the Partnership Act 1890 deals with partnership property and it provides that â€Å"[a]ll property and rights and rights and interests in property originally brought into the partnership stock or acquired, whether by purchase or otherwise, on account of the firm, or for the purposes and in the course of the partnership business, are called in this Act partnership property, and must be held and applied by the partners exclusively for the purposes of the partnership and in accordance with the partnership agreement. Frank Warren appealed on the grounds that the boxing promotion contracts were not property within the meaning of s 20 of the P artnership Act 1890 and even if they were, they could not be ‘brought into the partnership stock’ or â€Å"acquired[†¦]on account of the firm† so as to become partnership property within the terms of s 20. The Court of Appeal rejected this appeal and held that property which was not capable of assignment could still be partnership property for the purposes of s 20 of the Partnership Act 1890. In addition, Frank Warren had claimed that boxing promotion contracts concluded by him and Don King between the time of the dissolution and the winding up of the partnership were not partnership property. This argument was also rejected by the Court of Appeal, which held that such contracts were also to be held on trust for the partnership. __________Claim for court interest on sums owed to deceased partnerPartnership at will – Dissolution of partnership by the death of a partner – Claim for court interest on sums owing to the deceased partner’s est ate – Section 42 of the Partnership Act 1890 – Williams v Williams, English High Court, unrep, 16 July 1998. In this case a partnership at will existed between a father and his son. The partnership was automatically dissolved by the death of the father pursuant to the terms of s 33(1) of the Partnership Act 1890 (â€Å"Subject to any agreement between the partners, every partnership is dissolved as regards all the partners by the death or bankruptcy of any partner†. Under s 42 of the Partnership Act 1890, a deceased partner’s estate is entitled to that share of the firm’s post-dissolution profits which are attributable to the deceased’s share of the partnership assets or to interest at the rate of five per cent per annum on the amount of his share of the partnership assets since the dissolution. The father’s personal representative brought an action under s 42 of the Partnership Act 1890. However, he also sought court interest pursuan t to s 35A of the Supreme Court Act 1981. Maddocks J held that the claim for court interest could not properly be formulated since interest was already running at the rate of five per cent under s 42 of the Partnership Act 1890. He held that the sum which was found to be due to the estate should carry interest at the rate of five per cent per annum from the date of dissolution to the date of payment.PARTNERSHIP LAW UPDATEMay 2001: ________ ___ _______Liability of a Partnership for Partner’s ActionsLiability of a firm for the actions of a partner – Section 10 of the Partnership Act 1890 – Assault by a partner in law firm on another solicitor in precincts of courthouse and in the courtroom – Whether the first assault was within the ordinary course of business of the firm – Whether the second assault was within the ordinary course of business of the firm – Flynn v Robin Thompson & Partners and Wallen, The Times, 14 March 2000. This case involve d the application of the rules on the liability of a partner for the actions of his co-partner. Under s 10 of the Partnership Act 1890 a firm is liable for the acts or omissions of a partner that are committed in the ordinary course of business of the firm. The plaintiff, John Flynn, was a solicitor and he took an action against the law firm of Robin Thompson & Partners for damages as a result of an assault which he suffered.The facts were that Thomas Wallen was a solicitor and a partner in the firm of Robin Thompson & Partners and he was conducting litigation on behalf of a client of his firm. Representing the other litigant in the case was the plaintiff. The original case in which the two solicitors were involved became fairly heated, so much so that on the steps of the court there was a scuffle between them and there was an assault by Wallen on Flynn. Even more amazing was the fact that while Wallen was presenting his case to the court, it appears that Flynn tried to take papers from Wallen and it was alleged that Wallen assaulted Flynn in his attempt to prevent him taking his papers.Flynn took an action for damages against both Wallen and against his firm on the basis that the firm was liable for the actions of Wallen since they were committed during the ordinary course of business of the firm. The English Court of Appeal considered the two alleged assaults under s 10 of the Partnership Act 1890. As regards the assault in the precincts of the court, it was held that the assault by Wallen was so extraordinary and so far removed from the ordinary conduct of an advocate that it could not be within the ordinary course of business of the firm and therefore the firm was not liable under s 10 of the Partnership Act 1890 for this assault. As regards the minor scuffle in the court, the issue was less clear cut as to whether this was outside the ordinary course of business of the firm.However on procedural grounds (i. e. on the principle of ‘proportionalityâ⠂¬â„¢ under para 1. 3. 5 of the UK Civil Procedure Rules (October 1999)), it was held that this second assault should not go to trial. In an interesting article on this case in the Journal of Criminal Law (2000) at p 368 the argument is made in relation to the minor scuffle that all Wallen was doing was representing his firm’s interest and surely his co-partners would expect him not to allow the other side take his papers without a fight. On this basis it is argued in the article that the court should have held that the assault in the court was within the firm’s ordinary course of business. _______ ___ ____Joint and Several Guarantee by PartnersPartners in property development – One partner also had substantial personal debts to Bank – Bank obtained guarantee from partners for the repayment of loans to the Bank – Wording of guarantee was such that partners were guaranteeing both their joint obligations to the bank and their several obligations â₠¬â€œ AIB Group v Martin and another [2000] 2 All ER (Comm) 686. The first defendant, Mr Martin, was a property developer and the second defendant, Gold, was a dentist. They bought a number of rental properties in partnership together as an investment. Funding for the properties was obtained from the plaintiff bank. Mr Martin was also involved in a number of other property deals and he had a significant level of personal borrowings from the bank in respect of these other ventures.The Bank re-structured their financing to the partnership and as part to the restructuring, the Bank entered into a mortgage with Mr Martin and Mr Gold. This deed was between the Bank of the one part and Mr Martin and Mr Gold of the other part. Mr Martin and Mr Gold were defined in the deed as the ‘Mortgagor’ and the deed also provided that where the term ‘Mortgagor’ referred to more than one person, it was to be construed as referring to all and/or any of those persons and that the obligation of those persons was to be construed as joint and several. The deed went on to provide that the Mortgagor would, inter alia, pay all other indebtedness of the Mortgagor to the Bank.It became apparent that Mr Gold had signed this deed without appreciating that he was assuming liability for the personal debts of Mr Martin, as well as the debt owing by the partnership to the Bank. In the Court of Appeal, the claim that this deed should not be interpreted so as to make Mr Gold liable for the personal obligations of Mr Martin to the Bank was rejected unanimously, Sedley LJ noting that â€Å"if I could be persuaded that there was any intellectually respectable way of relieving Mr Gold of the liability with which he has been burdened, I would at least have to hear†¦why we should not adopt it†¦.. With regret, I agree that this appeal has to fail. ________ ____Post –dissolution claims between Partners Lease held by partners in trust for partnership – Inde mnity from all the partners in favour of trustees – Partnership dissolved – Action by trustees against partner for rent under terms of indemnity – Whether this debt could be set-off against amounts which might be owed to partner once partnership account on dissolution had been taken. Hurst v Bryk and others [2000] 2 WLR 740. The plaintiff, Hurst, was a partner in a firm of solicitors. The firm carried on business from leasehold premises held by four partners as trustees for the partnership. The partnership deed provided that the trustees were entitled to an indemnity from the partnership in respect of their liability for rent under the lease. In 1990 the partnership was dissolved but the premises were not disposed of until 2000.In 1997 the trustees of the lease served a statutory demand on Hurst for his share of the rent under the indemnity. At this stage, although the partnership had long since been dissolved, the partnership accounts had not yet been finalised between the former partners. On this basis, Hurst sought to set aside the statutory demand under the United Kingdom’s Insolvency Rules 1986 (r 6. 5(4)(a)). He claimed that the statutory demand should be set aside since he had a counterclaim which would exceed the amount of the statutory demand. In the High Court, Ferris J dismissed Hurst’s claim on the grounds that it was unlikely that on the taking of the full partnership accounts it would be found that a balance was due to Hurst.Ferris J also held that the trustees' claim against Hurst was under the indemnity and not in their capacity as partners so that his claim against them as trustees lacked the necessary mutuality for a counterclaim or cross-demand. Hurst appealed. The appeal was dismissed by the Court of Appeal. It was held that until the final partnership account was drawn up it could not be said that there would or might be a balance in favour of the plaintiff which would be due from the trustees as partners . In addition, there was no prospect of the account being taken in the foreseeable future, if at all, and accordingly there was no triable issue resulting from the plaintiff's cross-demand which would justify setting aside the demand. In addition, the Court of Appeal considered the mutuality issue.It held that mutuality was lacking because the debt on which the statutory demand was based was one to which the trustees alone were entitled whereas the proposed cross-claim would be against all the partners jointly. _________December 2001________ ______Breach of Constructive Trust by PartnerLiability of a partner for the actions of his co-partner – Co-partners settle with plaintiff – Action for contribution against concurrent wrongdoers of errant partner – Defence to contribution that co-partners were not originally liable under s 10 of the Partnership Act 1890 – Whether partners liable under s 10 for breach of constructive trust by co-partner -Dubai Aluminium Company Ltd v Salaam and Others [2000] 3 WLR 910.In this case the chief executive of the plaintiff company had conspired with Salaam and his solicitor, Amhurst, to steal $50 million from the plaintiff by using a series of sham contracts. Amhurst was sued on the basis that he had knowingly assisted the chief executive to breach his fiduciary duty. The issue before the court was whether Amhurst’s partners in the law firm were also liable to the plaintiff for their partner’s actions under s 10 of the Partnership Act 1890. Section 10 provides that â€Å"[w]here, by any wrongful act or omission of any partner acting in the ordinary course of business of the firm, or with the authority of his co-partners, loss or injury is caused to any person not being a partner in the firm, or any penalty is incurred, the firm is liable therefor to the same extent as the partner so acting or mitting to act. † During the course of the trial against Amhurst, the partners in his firm had settled with the plaintiff for a payment of $10m. The present action concerned a contribution which these partners sought to this settlement from Salaam and the chief executive of the plaintiff company. However their defence to the action for a contribution was that the partners were not in fact liable to the plaintiff under s 10 of the Partnership Act 1890. This defence was grounded on the claim that Amhurst’s liability was for dishonest assistance which was a liability in constructive trust, while s 10 was concerned with liability in tort or by reason of agency.In the English High Court, Rix J held that s 10 was expressed in the widest terms, referring to ‘any wrongful omission’ causing ‘loss or injury’ or in the incurring of a penalty. Accordingly, he held that the section extended beyond torts to wrongs such as in this case, accessory liability in equity and he therefore allowed the action for contribution. This judgment was appealed to the C ourt of Appeal where it was reversed. The Court of Appeal agreed with Rix J that s 10 of the Partnership Act 1890 extended to all wrongs and not just torts. However, on the facts of the case, the court held that the actions of Amhurst were not ‘within the ordinary course of business’ of the firm and therefore the partners in the firm were not liable therefor.Mr Amhurst had taken a very active part in planning and instigating a dishonest scheme whereby the plaintiff company would be defrauded of large sums of money, including drafting sham agreements. The Court of Appeal held that there was no evidence to suggest that Amhurst’s partners authorised him to act as he did and as it was not part of the ordinary business of a firm to plan and draft sham agreements, these actions were not binding on the firm. Evans LJ argued that as vicarious liability under s 13 of the Partnership Act 1890 requires notice on the part of the partners in question, it would be anomalous if a partner was to be vicariously liable for the accessory liability of a partner who was a constructive trustee for giving knowing assistance to a breach of trust or fiduciary duty where there is no notice.The result would have been different according to Evans LJ if the firm’s clients had not been involved in the breach of fiduciary duty in question. Aldous LJ held that if Amhurst’s involvement had been restricted to drafting agreements, his actions would have been within the ordinary course of business of the firm. However, his role was to plan, draft and sign sham agreements which were known to be dishonest and this was not within the ordinary course of business of a firm. The participants in the scam were not his clients or clients of the firm. These wrongdoers could not have believed that Mr Amhurst was acting with the apparent authority of his partners, because they knew him to be acting dishonestly.On this basis the Court of Appeal held that the ‘innocentà ¢â‚¬â„¢ partners would not have been held liable to the plaintiff for Mr Amhurst’s actions and therefore they were not entitled to claim a contribution from the Salaam and the chief executive in respect of the sum which they had paid in settlement of the plaintiff’s claim against them for vicarious liability for the actions of Mr Amhurst. _____________ _____Breach of Trust by PartnerBreach of trust by a partner – Solicitors’ partnership – Liability of firm for breach – Whether partner acting in the ‘ordinary course of business’ – Wwhether firm liable – Section 10 of the Partnership Act 1890 – Walker and others v Stones and others [2000] 4 All ER 412. This case involved an action for breach of trust against Mr Stones, a trustee. Unlike the case of Dubai Aluminium Co Ltd v Salaam [2000] 3 WLR 910, this case did not involve a constructive trust, but rather a situation where a partner in a law firm agreed to bec ome a trustee of a family trust.When this partner allegedly breached this trust by benefiting the father who set up the trust, rather than the beneficiaries of the trust,, the issue arose as to whether his partners were vicariously liable for the alleged breach of trust. In the Court of Appeal, Sir Christopher Slade considered sections 10-13 of the Partnership Act 1890 as they apply to breaches of trust. On the one hand, s 10 of the Partnership Act 1890 provides that a firm is liable for the wrongs committed by a partner in the ordinary course of business of the firm, while on the other hand s 13 of the Partnership Act 1890 deals with breaches of trust by a partner. This latter section provides that where a partner is a trustee, liability does not attach to his co-partners if there is a breach of trust unless the co-partners have notice of the breach of trust.On this basis, Sir Christopher Slade concluded that s 13 deals with a situation where a partner agrees to be a trustee (a tru stee partner) while s 10 would apply to a situation where a partner, not already being a trustee, conducts himself as an accessory to a breach of trust so as to constitute himself a constructive trustee. Section 13 assumes that the individual trusteeship which a partner undertakes is not something undertaken in the ordinary course of business of the firm, since otherwise it would be inconsistent with s 11 (which provides for the firm to be liable where there is a misapplication of property received by a firm or a partner where the property is received within the ordinary course of business of the firm. He thus concluded that s 10 had no application to breaches of trust committed by a partner, who agrees to be a partner (a trustee partner) since the legislature assumed in drafting the Partnership Act 1890 that breaches of trust committed by a trustee partner fell outside the ordinary business of a partnership and therefore did not give rise to liability on the part of the firm, under s 10. He observed that sections 10-13 of the Partnership Act 1890 applied to all partnerships, and not just solicitors’ partnerships, and for this reason one should not be surprised that individual trusteeship by a partner was not within the ordinary course of business of a firm. On this basis, he held that the innocent partners in the law firm could not be vicariously liable for the alleged breach of trust by Mr Stones under s 10 nor under s 13, since the innocent partners were not aware of the alleged breach. __ ______Duty of Care between PartnersNegligence by partner in law firm causing loss to client – Also causes financial loss to his co-partners since they are liable to pay excess on insurance policy – Whether negligent partner owes duty of care to his co-partners – Ross Harper & Murphy v Banks Outer House, Court of Session, Scotland, unrep, 11 May 2000. The defendant had been a partner in the plaintiff firm. He had negligently advised a client of the firm in relation to a conveyancing transaction and the firm had been successfully sued by the client for the damages caused by this negligence. The firm’s insurance policy covered the firm’s liability in this regard, save for the excess of ? 20,000 which had to be paid by the partners in the firm. The partners in the plaintiff firm now wished to recover this excess from the defendant partner.They claimed that they were owed a duty by the defendant that he would exercise reasonable care in his duties as a partner so as not to expose the partnership to claims for professional negligence, which he had breached by not examining the title of the property in this case with sufficient care. In view of the limited authority on this area, this was an important judgment by Lord Hamilton. He concluded that a â€Å"partner may in certain circumstances be liable in damages to his firm (and secondarily to his co-partners) for loss sustained by reason of liability incurred to a third party and these circumstances are not restricted to those where the offending partner has been responsible for fraudulent or illegal activity; the duty extends, in my view, to a duty of care†¦. In the absence of clear and binding authority I favour a standard which requires the exercise of reasonable care in all the relevant circumstances.Those circumstances will include recognition that the relationship is one of partnership (which may import some mutual tolerance of error), the nature of the particular business conducted by that partnership (including any risks or hazards attendant on it) and any practices adopted by that partnership in the conduct of that business†¦. In respect of liabilities incurred by the firm to a third party, it is, however, important to notice that breach of a duty of reasonable care to the third party will not of itself import a breach by the â€Å"delinquent† partner of his obligation to the firm. † For this reason, the court held that the issue should be put out for a hearing by order on further procedure. | |