Know Your Legal Rights, June 2001


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For almost years, the ACLU has worked to defend and preserve the individual rights and liberties guaranteed by the Constitution and laws of the United States. Facebook Twitter Reddit Email Print. Sometimes the word hijab refers specifically to a woman's headscarf; sometimes it is used more generally to refer to the practice of wearing modest clothing in accordance with religious beliefs.

Alyssa E. See, e. City of Philadelphia, No. On January 9, the ACLU filed a friend-of-the-court brief in an appeal concerning the right of a Muslim woman to cover her hair while working as a police officer. The district court ruled against the officer and, as of the time of printing, the case is on appeal to the Third Circuit. Following CAIR's intervention, the company apologized and agreed to allow the headscarf. The article mentions the case of Muslim high school student Jana Elhifny in Nevada, who wore her hijab to school and was harassed by peers at school with school officials' knowledge and participation.

She was called a terrorist, and her pleas for help to school officials met with inappropriate comments and no action. Elhifny against the Washoe County School District and various school employees who permitted this abusive treatment to continue. As of the time of printing, the case is in discovery. Barns v. Gifford, et al. See also CAIR Report, supra note 2, at 9 describing an incident in which a female Muslim college senior at Baylor University in Texas was attacked from behind while walking through the university's campus.

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The assailant pushed, slapped, and kicked her while using racial and anti- Muslim slurs and pulled off her headscarf. The woman was treated at the hospital for contusions and a dislocated shoulder. Muskogee School District, No. In a sixth-grade girl in Muskogee, Oklahoma was suspended from the Benjamin Franklin Science Academy for refusing to take off her headscarf, after being told it violated the school's dress code, which prohibits students from wearing hats, caps, bandanas, or jacket hoods inside school buildings.

The Department of Justice Civil Rights Division filed a complaint against the school district for violating the student's Fourteenth Amendment rights. The case settled pursuant to a consent decree. The cello instructor reportedly asked mocking questions and refused to let her play in a school concert. County of San Bernardino, et al. In October, , the County agreed to adopt a policy accommodating the right of Muslim women to wear headscarves in County jails. ACLU press release and settlement agreement available at www. See also Khatib v. However, the Court emphasized that this modification, which made it very costly for the defendant to continue incorporating components produced by the plaintiff, was neither exceptional nor unforeseeable in a contract whose duration was fixed at eight years.

The court observed that "it was up to the [defendant], a professional experienced in international market practice, to lay down guarantees of performance of obligations to the [plaintiff] or to stipulate arrangements for revising those obligations. As it failed to do so, it has to bear the risk associated with noncompliance". The Court of Appeal thus concluded that the claim for compensation for the damage was in principle well-founded. However, the Court considered it necessary to carry out an expert evaluation before ruling on the amount of compensation.

Article 77 CISG obliged the plaintiff to mitigate the loss.

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The Court noted that the damage alleged by the plaintiff -- the loss of profit and the cost of the raw materials which became unusable -- might not have been so great if the inventory had been resold and if the sum invested in the implementation of the agreement could have been amortized in a different way. Classification of issues using UNCITRAL classification code numbers: 30A [Seller's obligations]; 53A [Buyer's obligations]; 74A [General rule for measuring damages: loss suffered as consequence of breach]; 77A [Obligation to take reasonable measures to mitigate damages]; 79B [Impediments excusing party from liability for damages].

Descriptors: Sale, definition of ; Damages ; Mitigation of loss ; Exemptions or impediments ; Hardship. English : [] S. By letter of 6 December , [Buyer] notified [Seller] that starting from mid-January it would no longer use the covers manufactured by the [Seller], and that in the future this article would be ordered only as a spare part.

In its reply of 21 December , the [Seller] acknowledged the position taken by the [Buyer]. Referring to large investments needed for carrying out the agreement signed in , the [Seller] sought reparation of damage suffered from the "rescission" of the contract, that is, a sum varying from 1,, to 3,, As the parties failed to resolve the dispute between themselves, on 19 June , the [Seller] commenced proceedings against the [Buyer] in the Commercial Chamber of the Tribunal de Grande Instance [Court of First Instance] of Colmar seeking compensation in French francs of the sum equivalent to 3,, Swiss francs as a reparation of damages, and 63, French francs under Article of the New Code of Civil Procedure.

The [Buyer] based its claim on Swiss law in addition to the Vienna Convention In addition, [Buyer] asked for an expert's report on the amount claimed by the [Seller] and submitted that the [Seller] must bear the costs in the amount of 50, French francs by virtue of Article of the new Code of Civil Procedure. By its judgment of 18 December , the Commercial Chamber of the Court of First Instance of Colmar declared the [Seller]'s claim admissible but rejected it.

The Court of First Instance ordered the [Seller] to pay to the [Buyer] the sum of 10, French francs in compensation for its procedural costs as well as the court costs. First, the Court of First Instance noted that the agreement of 26 April included a clause conferring jurisdiction compatible with Article 17 of the Convention of Lugano and this was not disputed by the parties. Further, the Court of First Instance stated that the agreement contained no provision on applicable law and thus, as a preliminary matter, it was necessary to determine the nature of this agreement, given that its international character followed from the nature of its parties and from the purpose of the contract.

In this regard, the Court of First Instance considered that the agreement of 26 April contained no provision on quantity of the goods and therefore the Vienna Convention - which applies only to definitive contracts of sale - is not applicable in this case. Pursuant to the rules of private international law referring to the lex fori , that is, to the provisions of Article 12, para. Accordingly, it rejected the application of the Hague Convention of 15 June and accepted the application of the Rome Convention, Article 4 of which refers to the country with which it is most closely connected, that is, the country where the party who is to effect the performance which is characteristic of the contract has his habitual residence at the time of conclusion of the contract.

The performance which is characteristic of the contract being supplied by the [Seller] of Switzerland and the contract being drafted in German, the Court of First Instance considered that it was appropriate to apply Swiss law.

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The [Seller] first points out that the competence of the Appellate Court is not contested. On the qualification of the contract in question, it reminds that the Vienna Convention constitutes substantive international law uniformly applicable to international sales. In the absence of the express definition, it follows from certain provisions of the Vienna Convention that it adheres to the classic definition of a contract of sale, that is, the meeting of two obligations: for the seller to deliver the goods and to transfer the property in them; and for the buyer to take delivery and to pay the price.

In the light of this text, the contract in question must be inevitably qualified as a contract of sale insofar as there is an agreement on the object of delivery, the volume of the sale and the unit price:. Hence, the Vienna Convention is applicable to the present dispute, bearing in mind that the Convention was ratified by Switzerland and France prior to the conclusion of the contract in question.

Finally, even if one were to analyze the agreement with reference to French law articles , , , , and of the French Civil Code , the agreement would be classified as a contract of sale. For the [Seller], the agreement of 26 April even goes beyond a simple contract of sale since it contains:. Agreements which, in the absence of knowledge of their exact volume eight years in advance, provide for two quotas - one of which is a definitive minimum and the other one is provisional - conform with the trade usages, namely on an international level. Hence, bearing in mind the duration of the contract and the undertakings of the [Seller] to ensure its annual productive capacity in accordance with the provisional quotas, it was essential that it guarantee the depreciation of its investment by ensuring a minimum of sales.

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The quantity of 20, units was contractually agreed in a very reasonable manner, since during the first five years the parties agreed on the volume of the deal of 24, air conditioner covers, and over the total period of the contract the supply of 42, units. Accordingly, it would be paradoxical and contrary to the will of the parties to analyze the agreement of 26 April as simply a declaration of intent on the part of the [Buyer], given that because of the estimated volume of sales, the [Seller] had an obligation to ensure its productive capacity at the level of at least 20, units, if not more.


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In these circumstances, the [Seller] had to invest approximately 1,, Swiss francs. In the event that the Vienna Convention does not contain the substantive law allowing for the resolution of the dispute, Swiss law - the law of the country where the seller has his habitual residence - would apply and would qualify the agreement in question as a contract of sale.


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Indeed, according to Article of the Swiss Code of Obligations a sale is "a contract by which the seller undertakes to deliver to the buyer the goods sold and to transfer property in them for the price that the buyer undertakes to pay. Article 2 of the Swiss Civil Code provides for exercising one's rights and for fulfillment of one's obligations in good faith.

However, the [Buyer] manifestly violated this obligation in terminating the agreement starting from 6 December , whereas it still had to take delivery of 11, air conditioner covers. Besides, the debtor cannot be absolved of its obligations by the mere fact that it is not responsible for the failure to perform.

How Does Goodwill Amortize?

The scope of application of material change of circumstances - admitted by the Vienna Convention and by Swiss law - is very limited and only covers in fact force majeure. However, none of the elements of this concept are present in this case, for the fact that the performance of the contract simply became more expensive does not constitute an external, unforeseeable and unavoidable circumstance. Moreover, under Swiss law it is for the one who does not perform its obligations to prove that this non-performance was not intentional.

By this, [Buyer] assumed the risk which it must now bear. The [Seller] cannot be obliged to suffer the damage caused by the breach by a third party of a contract to which the [Seller] was not party. It follows that the [Buyer] must be ordered to compensate for the loss suffered by the [Seller] in full, that is, according to the Swiss doctrine and practice, the aggrieved party must be put in the same position as it would have had if the contract had been performed. In the present case, the recovery of damages comprises:.

In support of its submissions, the [Buyer] asserts that the agreement of 26 April is not a contract of sale and that it does not concern the delivery of 24, covers per year. The agreement concluded to this end is deliberately unqualified, for the figure of 20, units represents only an order of size which is confirmed by three elements of the "certificate" of 26 April Thus there is a framework agreement defining the object, the quantity and certain elements for the future determination of the price approximate unit prices as well as other anticipatory substantive elements.

Both parties shared the risk of acting in accordance with the needs of the ultimate customer which is supported by the history of their relations. The [Buyer] immediately notified the [Seller] of this decision and of its obligation to reassess its own conditions of purchase. The [Buyer] supports its argument by referring to the fact that the price for one cover supplied by the [Seller] was up to Swiss francs, i.

The continuation of the relations with the [Seller] would have led [Buyer] to resell at a serious loss with economic and financial losses which would have been intolerable for the company. Besides, the collapse of the market was unforeseeable at the moment of conclusion of the agreement. As to the law governing the relations between the parties, the [Buyer] reiterated that the application of the Vienna Convention depends on the qualification of the contract according to criteria set out in the Convention and not by reference to the lex fori Swiss or French law.

However, the title "confirmation related to the collaboration between B The agreement, as it is clear from its title, is nothing more than an agreement of collaboration. Accordingly, the Vienna Convention is inapplicable. Even in the opposite case, the [Buyer] should be entitled to exemption from any obligation to pay compensation to the [Seller] on the basis of the notion of material change of circumstances which is enshrined in the provisions of Article 79 of the Vienna Convention Bearing in mind this exceptional situation, the [Buyer] should have been entitled to deviate from the obligations which would have had unacceptable consequences.

In many companies, a standard form of a fill-in-the-blanks type is available for engineers to use, especially for suddenly arranged meetings with outsiders.

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While it is advisable not to alter the standard wording too much without legal input, knowledge of the general principles should be a part of an engineer's education. Article :. Date of Publication: June DOI: Sponsored by: IET.

Know Your Legal Rights, June 2001 Know Your Legal Rights, June 2001
Know Your Legal Rights, June 2001 Know Your Legal Rights, June 2001
Know Your Legal Rights, June 2001 Know Your Legal Rights, June 2001
Know Your Legal Rights, June 2001 Know Your Legal Rights, June 2001
Know Your Legal Rights, June 2001 Know Your Legal Rights, June 2001
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