Wednesday, December 31, 2008

Email Question: Civil Suit-misrepresentation

"Dear Sir,

Would appreciate your advice as follows


1. If I am summoned to court for a civil case and I arrive there without a lawyer. Can I request the judge for a postponement in order to get a lawyer


2. I am a company that have its own brand of products but manufactured by third parties. I have signed a distribution agreement with a local company for the sale of my products. Now the local company is suing me as the products didnt function well. He is pursuing a case of misrepresentation that led him to sign the agreement. My question is

- Can he do this

- What is the burden of proof required to pursue misrepresentation

- Will the court consider that the company was well informed about the products and even visited the factory where they were made, to be fully informed. Will the court consider that as they were fully informed it was a commercial risk to sign the agreement to sell this products. The fact that they were unable to make a business out of this, is it my fault

Thank you

Rgds

(name deleted)"



Hi all,

I received this email today, and I think it would best for me to answer it briefly since it is quite awhile since my last update of my blog. I am sorry for my 'lazy-blog-updating-attitude'.

Anyway bellow is my answers;

  1. As we discussed earlier (on the procedure receiving a summons), you may attend the court by yourself only if you are been sued on personal capacity, however since 'you' are a company, please be advise that under company act a company must be represented by an advocate and solicitor.
  2. However, for the first mention date, should your stand is not accepting the claims, you may attend the court yourself and inform the court that your company may want to change the suit and appoint a lawyer. By that reasons, you may ask for an adjournment.
  3. The court may at its own discretion postpone the case, and give all parties another mention date to enable you to get a lawyer and/or file your statement of defense.
  4. Now on the merit of the case, when you sign an agreement with another party, both parties must have fully aware of the terms and condition inside the agreement. In most case, agreements will have a declaration clause that both party are fully aware and acknowledge of the contract subject matter (in your case, your product). The distributor may allege that they entered the agreement on a misrepresentation done by you on your product, and they manage to establish that, the agreement is now voidable.
  5. To answer exactly your problem here may become nearly impossible as I do not have full information of the dispute, base on my presumption, if the main issue of dispute is on the defect of the product not according to your representation under the agreement, then you are in trouble.
  6. However, if the defect occurred after due performance of the agreement to the best of your knowledge and/or as per technically stipulated under the agreement then, you raise a good defense.
  7. Your term of 'commercial risk' due to none saleable product is none of court business! In my humble opinion it is not within 'legally compensable damage'. In simple words, the court only provide compensation as stipulated under the agreement plus other consideration on equity basis.

Good luck

1 comment:

  1. adakah beli brg tiruan tp kte xtaw rbg tu brg tiruan..leh x kte mntk ganti rugi?

    ReplyDelete