The Doctrine of Constructive Notice - Free Essay Example

Sample details Pages: 8 Words: 2346 Downloads: 1 Date added: 2017/06/26 Category Law Essay Level High school Did you like this example? ROUGH DRAFT FOR COMPANY LAW PROJECT ON THE DOCTRINE OF CONSTRUCTIVE NOTICE PRELLIMINARY STAGE CONTENTS HISTORICAL ANALYSIS SHORT INTRODUCTION AIM OF THE PROJECT PROPOSED RESEARCH QUESTION DOCTRINE OF CONSTRUCTIVE NOTICE AND ITS LIMITATIONS CONCLUSION Historical Analysis: A Preview Of The Doctrine Of Constructive Notice The doctrine of constructive notice owes ità ¢Ã¢â€š ¬Ã¢â€ž ¢s origins to the United Kingdom where it was evolved on the demands of the companies so as to protect their interest against the dealings with third parties, The historical background of the doctrine is divided into two parts which is before and after 1855, since the concept of limited liability was made applicable in this year,[1] that time unlimited liability concept of shareholders ended and thus there was an urgent need felt to safeguard the companies liability. à ¢Ã¢â€š ¬Ã…“In that they presumed to have knowledge of companyà ¢Ã¢â€š ¬Ã¢â€ž ¢s document filed with the registrar, which are open to public for inspection and with the right to have certified 9 copies of relevant extract from them. Section 610 of our Companies Act 1956[2] contains this provision, irrespective of the fact, whether the third parties have the knowledge or not.à ¢Ã¢â€š ¬Ã‚ [3] Constructive notice refers to a legal fiction so that in a case concerning a person that person is deemed or construed to have prior information about the case even if he does not, however later it was understood that is such a procedure is to be followed than the law would be a little harsh on the less observant ones.[4] The brutality of the Doctrine of Constructive notice is to some degree lessened by the Tenet of Indoor administration or Turquands Rule'[5]. Initially the common law doctrine of constructive notice was laid in the case of Ernest v. Nicholls[6]and it was further explained in the case of Mahony v. East Holyford Mining Co[7] case, Master Wensleydale in Ernest case took the view that the tenets of organization would apply without the convention of helpful risk. The destination was to hold the shareholders obligated. The perception of Lord Wensleydale is not clear. Then again, it gives the idea that he appears to have recognized that it was to dodge this come about that the lawmaking body wanted to oblige an organization to enroll articles along these lines to make accessible the world data in order to make accessible to the world data in respect to who were the persons commissioned to tie the shareholders. Thus after ità ¢Ã¢â€š ¬Ã¢â€ž ¢s initial years of explanation it became a valid point of argument for the third parties that the doctrine was still a bit harsh on them and the courts both in India and abroad grew reluctant about ità ¢Ã¢â€š ¬Ã¢â€ž ¢s application. There grew to be many instances in which it was not practical enough to ascertain whether the sanctions for the companyà ¢Ã¢â€š ¬Ã¢â€ž ¢s actions was there in the MOA and AOA or not and also the third parties were very fearful to ask the directors about it in the first place thus as a substitute the doctrine of Indoor management was culled out in the case of Royal Bank vs. Turquand[8] to mitigate the loss of the third parties. The courts in India also subsequentl y rejected the application of this doctrine in likewise in the case of Dehradun Mussoorie Electric Tramway Co. v. Jagamanandaradas[9]the Allahabad high court rejected ità ¢Ã¢â€š ¬Ã¢â€ž ¢s application holding the company liable as the directors had borrowed money which was in non-compliance with the MOA and also without resolution by members. Furthermore, in the case of Liquidator, Manasube Co. (P.) Ltd. v. Commissioner of Police[10] the court held that it was duty of the third party lenders to acquaint themselves with the details of MOA of a company but it doesnà ¢Ã¢â€š ¬Ã¢â€ž ¢t mean that they have to embark upon an investigation so as to know about the legality of the dealings and regularity of directors. SHORT INTRODUCTION AND PARADOX: TODAYà ¢Ã¢â€š ¬Ã¢â€ž ¢S RELEVANCE In todayà ¢Ã¢â€š ¬Ã¢â€ž ¢s recent times the doctrine of constructive notice can be best described as an unreal doctrine[11] or legal fiction it could never have been true given the kind of impracticality that it surfaced however through the years ità ¢Ã¢â€š ¬Ã¢â€ž ¢s application has brought a lot of disadvantage to the third parties and reaped undue benefits for the company and ità ¢Ã¢â€š ¬Ã¢â€ž ¢s directors. Innumerable parties enter into various contracts on a daily basis however this doctrine expects each and every one of such parties to know and have complete information about each and every official document and gazette of the company, even if we take that perspective in mind the validity of the transactions and dealings rarely depends upon these documents it depends upon the directors the real agents of the company. Ità ¢Ã¢â€š ¬Ã¢â€ž ¢s the goodwill of the directors that matters the most. This is the primary reason why British and Indian courts have separated their ways from this doctrine, Indian courts never paid much attention to it in the first place, also the à ¢Ã¢â€š ¬Ã…“European Communities Act by bringing section 9à ¢Ã¢â€š ¬Ã‚ [12] into perspective which wor ks on the concept of good faith. The aforementioned stay to be the main reasons why the doctrine of Indoor Management[13] has been originated to lessen the rigor of the former doctrine, which gives a certain amount of freedom and latitude to the third parties so as to assume something on their part which any common man of à ¢Ã¢â€š ¬Ã…“ordinary prudenceà ¢Ã¢â€š ¬Ã‚ [14] would be sensible enough so as to assume. THE FUNDAMENTAL PREMISE OF THE PROJECT The doctrine of constructive notice has shown its merits and demerits well a greater deal of the latter in the past, however our main aim regarding this project is not just to dwell about them but to delve deeper into the fundamental of ità ¢Ã¢â€š ¬Ã¢â€ž ¢s limitations. Furthering ità ¢Ã¢â€š ¬Ã¢â€ž ¢s course the project will seek to show how these limitations affected the application and development of this doctrine and how ità ¢Ã¢â€š ¬Ã¢â€ž ¢s application has totally subsided in the modern day, getting replaced by the do ctrine of indoor management. This brings us to the research question this project seeks to put up with and answer in the subsequent state. The Research Question à ¢Ã¢â€š ¬Ã¢â‚¬Å" What are the limitations that the Doctrine of Constructive Notice had since the very beginning of ità ¢Ã¢â€š ¬Ã¢â€ž ¢s establishment and application, how it affected the cases in which it was applied, how it transformed and how these limitations could be or were eliminated by the Doctrine of Indoor Management? THE FUNDAMENTAL LIMTATIONS OF THE DOCTRINE OF CONSTRUCTIVE NOTICE The fundamental difficulty that exists with this doctrine is that it presupposes a lot of things n the part of the third party which in real life are very impractical and impossible, it says that the third parties must have all the prior knowledge required to enter in a particular transaction so as to mean that even if any wrongful act be done on the companyà ¢Ã¢â€š ¬Ã¢â€ž ¢s behalf the third party could not claim compens ation, like buyer beware/ caveat emptor[15] , it mitigates the duty of the company to act in good faith[16] to a very large extent. This doctrine in another of ità ¢Ã¢â€š ¬Ã¢â€ž ¢s following limitation extends a sense of gross negligence to the fact that of the third party being at mistake, à ¢Ã¢â€š ¬Ã…“despite the fact that no clear run characterizing what might constitute terrible carelessness could by its extremely nature be set out, the Courts of Equity held that if a buyer of property overlooks to make legitimate and typical analyses into his sellers title, such oversight, without sensible description, might measure to horrible carelessness and the buyer must, accordingly, be altered with productive notice of realities which he might have known whether he had made such requests. This recommendation was likewise in a few cases rested on the first hypothesis of fake dismissing by saying that such exclusion from the buyer, if not demonstrated, may be proof of an outline con flicting with genuine managing to escape information of the accurate state of the title. Anyhow whatever be the legitimate hypothesis on which the recommendation may be underpinned, the rule underlying the suggestion was that a buyer of property, as a standard judicious man, is normal, for the insurance of his own investment, to make fitting and ordinary analyses into his merchants title before he buys the property and in the event that he discards to do along these lines, without any sensible description, a deduction can true blue be drawn that either he has willfully refrained from making requests with the end goal of escaping notice of realities which he might have known had he made the analyses or he is liable of terrible carelessness. This guideline was clarified by Lord Selborne, in Agra Bank v. Barry[17], where with reference to the obligation of a buyer to explore title the educated Law Lord said: It has been said in contention that examination of title and analysis after deeds is the obligation of a buyer or a mortgagee; and, doubtlessly, there are powers, which do utilize that dialect. However this, assuming that it can legitimately be known as an obligation, is not an obligation owing to the conceivable holder of an inactive title or security. It is simply the course which a man managing genuine in the correct and ordinary way for his investment, should, without anyone else present or his specialist, to accompany, with a perspective to his title and his security. In the event that he doesnt accompany that course, the oversight of it may be a thing needing to be represented or illustrated. It may be proof assuming that it is not demonstrated, of an outline conflicting with true blue managing, to evade information of the correct state of the title. What is a sufficient illustration should dependably be an inquiry to be chosen with reference to the nature and circumstances of every specific case.à ¢Ã¢â€š ¬Ã‚ [18] Another limitation of this doct rine works on the restrictions it imposes on the companiesà ¢Ã¢â€š ¬Ã¢â€ž ¢ directors, it is a fiction that could have biased effects for outcasts who work with the organization. INSTANCE Case in point, if an organizations articles of acquaintanceship confined the forces of the overseeing executive and his power to enter into contracts in the interest of the organization, an outcast may finish up a business bargain with the overseeing chief, just to find that the organization revokes the agreement, and that he is then unable to propel the organization to complete its piece of the deal in light of the fact that the overseeing executive had surpassed his power, and the organization is not lawfully bound to the arrangement. The effect of the teaching of useful perceive in this circumstance might be that the outcast couldnt contend that he was unconscious of the cutoff points of the overseeing chiefs power he might be dealt with, in law, as knowing of those points of confinemen t on the support that he had productive notice of the restrictions on the grounds that they were recorded in the organizations open archives.[19] CONCLUSION It was, additionally, a fiction that could have biased effects for outcasts who work with the organization, at the time the doctrine of constructive notice was formed. The Memorandum of Association of a Company must be stopped with the Registrar of Companies. Since this is accessible for open review, individuals working with the Company are allowed to investigate the record to check whether there is any restriction of forces or constraints put on the way of the business. This made an issue untouchables are esteemed to know any confinement put on the Directors of the Company. Hence if later, it was found that there was some unpredictability inside the Company in appreciation of any choices, untouchables having managing the Company are esteemed to be mindful of it. This got known as the regulation of productive notice. [2 0] However this made issue for outcasts who had no information if some interior system had not been agreed to. Now we have come to a juncture where the doctrine of constructive notice is not used at all by the courts and if it is used it is used in places and cases it was not originally meant for, the aforementioned limitations have forced the jurors and interpreters to come out with the Indoor Management Rule which has taken the former doctrineà ¢Ã¢â€š ¬Ã¢â€ž ¢s place gradually, in todayà ¢Ã¢â€š ¬Ã¢â€ž ¢s world. 1 Don’t waste time! Our writers will create an original "The Doctrine of Constructive Notice" essay for you Create order [1] Doctrine of Ultra Vires under Companies Act 1956, By Hari Ram Yadav, Dept. Of Law, MDU, Rohtak, https://shodhganga.inflibnet.ac.in/bitstream/10603/9793/17/17_summary.pdf [2] Central Government Act, Section 610 in The Companies Act, 1956 [3] Ibid see 1. [4] Constructive notice, legal information institute, Cornell University Law School, https://www.law.cornell.edu/wex/constructive_notice [5] Royal British Bank v Turquand(1856) 6 EB 327 [6] Ernest v Nicholls(1857) 6 HL Cas 401. [7] Mahony v.East Holyford Mining Co., [1875] LR 7 HL 869. [8] Royal British Bank v Turquand(1856) 6 EB 327 [9] Dehra Dun Mussoorie Electric Tramway v. Jagmandardas, AIR 1932 A;ll 141 [10] Official Liquidator of Manasube Co. Pvt. Ltd. v. Commissioner of police,[1968] 38 Com Cases 884 (Mad). [11] Doctrine of Constructive Notice, By Sameer Sharma, 06 September 2010, Lawyerà ¢Ã¢â€š ¬Ã¢â€ž ¢s Club India, https://www.lawyersclubindia.com/articles/Doctrine-of-Constructive-Notice -3133.asp#.Uxyq99YRKsZ [12] Doctrine of Ultra Vires under Companies Act 1956, By Hari Ram Yadav, Dept. Of Law, MDU, Rohtak, https://shodhganga.inflibnet.ac.in/bitstream/10603/9793/17/17_summary.pdf [13] Company Law Doctrines and Authority to Contract Andrew R. Thompson The University of Toronto Law Journal, Vol. 11, No. 2 (1956) , pp. 248-289 Published by:University of Toronto Press, Article DOI: 10.2307/824437,Article Stable URL: https://www.jstor.org/stable/824437 [14] Standard of Care and the à ¢Ã¢â€š ¬Ã…“Reasonable Personà ¢Ã¢â€š ¬Ã‚ , Find Law, https://injury.findlaw.com/accident-injury-law/standards-of-care-and-the-reasonable-person.html. [15] Caveat Emptor Legal Definition, Latin: Buyer Beware, Duhaime Legal Dictionary, https://www.duhaime.org/LegalDictionary/C/CaveatEmptor.aspx. [16] Duty Of Good Faith, Legal Information Institute, Http://Www.Law.Cornell.Edu/Wex/Duty_Of_Good_Faith [17] Agra Bank v. Barry (1874) L.r. 7 H.l. 135 [18] Doctrine of Constructive Notice, By Sameer Sharma, 06 September 2010, Lawyerà ¢Ã¢â€š ¬Ã¢â€ž ¢s Club India, https://www.lawyersclubindia.com/articles/Doctrine-of-Constructive-Notice-3133.asp#.Uxyq99YRKsZ [19] The Companies Act of 2008 has not completely abolished constructive notice, NEWSLTTER, ROODT Inc. Attorneys, https://www.roodtinc.com/newsletter55.asp [20] THE INDOOR MANAGEMENT RULE, Wednesday, October 15, 2008, https://vijayhighcourt1.blogspot.in/2008/10/indoor-management-rule.html

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Learning and Communicating Online Reflective Essay for Online Informat

Question: Write about theLearning and Communicating Online Reflective Essay for Online Information. Answer: Introduction In the present tech savvy twenty -first century, the huge impact of online information sources cannot be denied in the process of learning. As a professor of psychology at Cambridge University, I owe to the e-information sources completely. Previously, we professors were supposed to rely upon the books of the university library in order to collect sufficient knowledge on our respective subjects to teach our students (Bakia et al., 2012). Therefore, in this way, we were confined to the limited boundary of knowledge to some extent. Insofar my professional development as a professor is concerned; the useful range of e-information helps me to update my knowledge on psychology. Psychology seems to be a layered and rapid evolving subject where discovery about a new fact happens almost every day (Gikas Grant, 2013). Therefore, as a teacher I largely rely upon the e-journals and articles related to psychology which helps me to diversify my point of view so that I can think more critically. These e-sources of information help me understand the human psychological matter, especially the teenagers more minutely because I can directly apply my learning at the time of teaching my teenage students at the university. As a professor of psychology and due to my friendly approach, I am often asked to guide my students at their mental traumatic situation. Sometimes they open up and sometimes, they hesitate to do so. In such cases, I use my communication skills about which I have come across in a number of online articles and journals (Glance, Forsey Riley, 2013). Undoubtedly, the usefulness of book based authentic learning cannot be replaced; but it also cannot be denied that the book based learning as well as teaching procedure does not offer the latest and updated information and practices (Ni, 2013). Presently, I find myself more self-sufficient to understand the current mental situation of my students with my observation power. After being aware about the effectiveness of non-verbal communication process, adapted by the modern psychologists, I have also developed my communication skills with which I can teach and related with my students in a better way. As a part of my teaching profession, I am also responsible to supervise my students in their research projects. They often choose critical psychological topics like the mental growth of the children of separated parents etc where they are supposed analyze various layers of child psychology. With the help of these e-sources, I often provide them examples where the children have bad as well as good characteristic traits after the separation of their parents. With the help of such examples, I have become able to solve the doubts of my students more easily (Kirkwood Price, 2014). On the other hand, with the help of such technical advancement, I have become able to post my research journals at various online websites for psychology like PsychCentral, WebMD Mental Health etc more easily which can definitely help some other professors, students and research scholars to strengthen their document (Means et al., 2013). In this way, along with being a professor, I have evolved my role as a sha rer, consumer and producer of the online information sources related to psychology. At the time of conducting my online learning process, I often get confused about the credibility of a piece of information. As a professor of psychology, I do have a clear knowledge about the psychological factors along with their impact upon human psychology. However, there are some online blog and article aim to present their papers more in consumer digestive forms rather than with the intension to provide actual valid information which can create misconception among the readers, especially the research scholars and students (Noesgaard rngreen, 2015). If the young generation tends to learn the wrong information, say related to psychology, they can never build their career in this field because they can pass their examinations but would find difficulty at the time of implementing their misconceptions (Olson urt deMaagd et al., 2011). Therefore, the lack of credibility along with the unequal quality of the online information is often regarded as the negative aspects of online learni ng process. For example, in one of the class assignments, I found that one student has given information that boys can think more logically than the girls which has been proven completely wrong in the modern psychology (Omer et al., 2015). When I asked the students, he told me that he discovered this fact in one of the blogs of a famous psychologist. I preferably rely upon the official and authentic sites of psychology where I can get updated and authentic information about the latest regulations, practices and theories of psychology. The students can evaluate the credibility of this online information with the help of learning theories. With the help of Cognitive Constructivism learning theory, the learners can discover a certain fact from the online sources but in this process the learner needs to match the discovered fact with the existing cognitive structure. As a professor, I motivate my students to adapt this method of learning where they can taste the feeling of discovery without having any misconception (Pierce Fox, 2012). Moreover, in this way, the goals of the students to identify the proper information sources appropriately where they can find authentic information. On the other hand, by adapting Social Constructivism learning theory, the learners can also gather information from various online sources through group discussions (Xu Meyer, 2013). I often allow my students to take active participation in the group discussions where every student is supposed to share any new information related to psycho logy with its classmates. In this way, new information can be gathered by both the students along with me and it also helps the other students to contribute their shares in this discussion. As such discussions are supervised by me; the chances to acquire wrong information on psychological matters can be reduced completely. On the contrary, there is another theory called behaviorism learning theory where the learners are supposed to learn information from the public responses on the online information (Wiliam, 2013). 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With the help of Blackboard Collaborate, the professors like me who want to guide more students through online teaching method can acquire all facilities to develop a proper e-classroom as it allows to include video and audio calls to communicate with the students more effectively. Moreover, the feature of the advanced availability of course material along with in stant feedbacks from the teachers helps the students to learn faster than the traditional classroom process. They can clarify their doubts by communicating with the teachers anytime and anywhere (Omer et al., 2015). The facilities like student trackers, assignment uploading and downloading etc enables then teachers to supervise the learning process of the students. Blackboard Collaborate works in every type of computer forms like Linux, Windows, Solaris etc along with in every internet connections like Cable modem, DSL, Ian etc. However, it also has certain disadvantages because it requires extreme technology proficiency from the teachers as well as students which seems to be challenging and time consuming. On the other hand, the internet speed along with the function of different types of computer systems creates obstacle to execute this learning process (Kirkwood Price, 2014). In addition, Blackboard Collaborate also requires high license and yearly maintenance costs which are also regarded as chief barriers insofar as the implementation of this system is concerned. However, it is the responsibility of the teachers like us to implement Blackboard Collaborate successfully by eliminating the drawbacks as much as possible. With the help of live instruction sessions, the teachers can easily monitor the learning process of their students by reducing the feelings of isolation of the students. On the other hand, the students can identify the advanced computing system with superfast internet speed among any of their classmates with whom they can execute this learning process (Xu Meyer, 2013). In this way, the teachers can also reach to a number of students at a time and can supervise their learning process. Like me, the other teachers can also employ the asynchronous content process by posting a recorded lecture on a particular topic. It will help the students whenever they log in themselves in Blackboard Collaborate (Kirkwood Price, 2014). Moreover, students who have temporary internet or computing system related issues can find the lecture after sor ting out their respective problems. In this way, the online learning process can be proved to be very useful source for the students as well as teachers. Reference List Bakia, M., Shear, L., Toyama, Y., Lasseter, A. (2012). Understanding the Implications of Online Learning for Educational Productivity.Office of Educational Technology, US Department of Education Gikas, J., Grant, M. M. (2013). Mobile computing devices in higher education: Student perspectives on learning with cellphones, smartphones social media.The Internet and Higher Education,19, 18-26 Glance, D. G., Forsey, M., Riley, M. (2013). The pedagogical foundations of massive open online courses.First Monday,18(5) Kirkwood, A., Price, L. (2014). Technology-enhanced learning and teaching in higher education: what is enhancedand how do we know? A critical literature review.Learning, media and technology,39(1), 6-36 Means, B., Toyama, Y., Murphy, R. O. B. E. R. T., Baki, M. (2013). The effectiveness of online and blended learning: A meta-analysis of the empirical literature.Teachers College Record,115(3), 1-47 Ni, A. Y. (2013). Comparing the effectiveness of classroom and online learning: Teaching research methods.Journal of Public Affairs Education, 199-215 Noesgaard, S. S., rngreen, R. (2015). The effectiveness of e-learning: an explorative and integrative review of the definitions, methodologies and factors that promote e-learning effectiveness.Electronic Journal of e-Learning,13(4), 278-290 Olson urt deMaagd, J., Tarkleson, E., Sinclair, J., Yook, S., Egidio, R. (2011). An Analysis of e-Learning Impacts Best Practices in Developing Countries Omer, M., Klomsri, T., Tedre, M., Popova, I., Klingberg-Allvin, M., Osman, F. (2015). E-learning opens the door to the global community. Novice users experiences of e-learning in a Somali University.Journal of Online Learning and Teaching,11(2) Pierce, R., Fox, J. (2012). Vodcasts and active-learning exercises in a flipped classroom model of a renal pharmacotherapy module.American journal of pharmaceutical education,76(10), 196 Wiliam, D. (2013). Assessment: The bridge between teaching and learning.Voices from the Middle,21(2), 15 Xu, D., Meyer, K. E. (2013). Linking theory and context:Strategy research in emerging economies after Wright et al.(2005).Journal of Management Studies,50(7), 1322-1346