看看有你所在的山东省有上榜吗——ACCA中国考点分布城市

正确答案：B

正确答案：

This question requires candidates to consider the law relating to terms in contracts. It specifically requires the candidates to distinguish between terms and mere representations and then to establish the difference between express and implied terms in contracts.
(a) As the parties to a contract will be bound to perform. any promise they have contracted to undertake, it is important to distinguish between such statements that will be considered part of the contract, i.e. terms, and those other pre-contractual statements which are not considered to be part of the contract, i.e. mere representations. The reason for distinguishing between them is that there are different legal remedies available if either statement turns out to be incorrect.
A representation is a statement that induces a contract but does not become a term of the contract. In practice it is sometimes difficult to distinguish between the two, but in attempting to do so the courts will focus on when the statement was made in relation to the eventual contract, the importance of the statement in relation to the contract and whether or not the party making the statement had specialist knowledge on which the other party relied (Oscar Chess v Williams (1957) and Dick
Bentley v Arnold Smith Motors (1965)).
(b) Express terms are statements actually made by one of the parties with the intention that they become part of the contract and
thus binding and enforceable through court action if necessary. It is this intention that distinguishes the contractual term from
the mere representation, which, although it may induce the contractual agreement, does not become a term of the contract.
Failure to comply with the former gives rise to an action for breach of contract, whilst failure to comply with the latter only gives rise to an action for misrepresentation.

Such express statements may be made by word of mouth or in writing as long as they are sufficiently clear for them to be enforceable. Thus in Scammel v Ouston (1941) Ouston had ordered a van from the claimant on the understanding that the balance of the purchase price was to be paid ‘on hire purchase terms over two years’. When Scammel failed to deliver the van Ouston sued for breach of contract without success, the court holding that the supposed terms of the contract were too
uncertain to be enforceable. There was no doubt that Ouston wanted the van on hire purchase but his difficulty was that
Scammel operated a range of hire purchase terms and the precise conditions of his proposed hire purchase agreement were
never sufficiently determined.
Implied terms, however, are not actually stated or expressly included in the contract, but are introduced into the contract by implication. In other words the exact meaning and thus the terms of the contract are inferred from its context. Implied terms can be divided into three types.
Terms implied by statute
In this instance a particular piece of legislation states that certain terms have to be taken as constituting part of an agreement, even where the contractual agreement between the parties is itself silent as to that particular provision. For example, under s.5 of the Partnership Act 1890, every member of an ordinary partnership has the implied power to bind the partnership in a contract within its usual sphere of business. That particular implied power can be removed or reduced by the partnership agreement and any such removal or reduction of authority would be effective as long as the other party was aware of it. Some implied terms, however, are completely prescriptive and cannot be removed.
Terms implied by custom or usage
An agreement may be subject to terms that are customarily found in such contracts within a particular market, trade or locality. Once again this is the case even where it is not actually specified by the parties. For example, in Hutton v Warren (1836), it was held that customary usage permitted a farm tenant to claim an allowance for seed and labour on quitting his tenancy. It should be noted, however, that custom cannot override the express terms of an agreement (Les Affreteurs Reunnis SA v Walford (1919)).
Terms implied by the courts Generally, it is a matter for the parties concerned to decide the terms of a contract, but on occasion the court will presume that the parties intended to include a term which is not expressly stated. They will do so where it is necessary to give business efficacy to the contract.

Whether a term may be implied can be decided on the basis of the officious bystander test. Imagine two parties, A and B, negotiating a contract, when a third party, C, interrupts to suggest a particular provision. A and B reply that that particular term is understood. In just such a way, the court will decide that a term should be implied into a contract.
In The Moorcock (1889), the appellants, owners of a wharf, contracted with the respondents to permit them to discharge their ship at the wharf. It was apparent to both parties that when the tide was out the ship would rest on the riverbed. When the tide was out, the ship sustained damage by settling on a ridge. It was held that there was an implied warranty in the contract that the place of anchorage should be safe for the ship. As a consequence, the ship owner was entitled to damages for breach of that term.
Alternatively the courts will imply certain terms into unspecific contracts where the parties have not reduced the general agreement into specific details. Thus in contracts of employment the courts have asserted the existence of implied terms to impose duties on both employers and employees, although such implied terms can be overridden by express contractual provision to the contrary.

正确答案：
(a) To: Susan Grant
From:
Strategic strengths and weaknesses in Marlow Fashion Group
In carrying out a strategic strengths and weaknesses analysis one becomes aware that what were formerly strengths often
become weaknesses as the competitive environment changes over time. Strengths and weaknesses analysis is focused on
the internal side of the business and is usually linked to an external appraisal of the external opportunities and threats facing
the company. Marlow Fashion Group is clearly at a crisis point in its company life and needs a strategic turnaround in order
to survive. The business model that has served them so well is no longer appropriate to the fashion world in which they are
now competing. Rodney and Betty Marlow have built a highly vertically integrated model, which gave them considerable
control over the growth and development of the company. In terms of the value chain the relationship they built up with
suppliers was mutually supportive and clearly facilitated the global expansion of the group. Control was even tighter over the
design, manufacturing and retailing of the company’s products. Marlow Fashions had successfully developed a niche market
for its products based around traditional English values. This enabled it to expand successfully and develop a worldwide
reputation for design excellence and quality.
Unfortunately, its competitive environment has changed considerably, becoming increasingly competitive and hostile. The
economics of clothing manufacturing has changed, with most clothing retailers choosing to outsource the manufacture of their
clothes. Women’s tastes in clothing have also changed and there is no longer the market for the clothes Marlow Fashion sells.
The tight control exercised by the founders has prevented recognition of these changes. Marlow Fashion has continued to
pursue outdated designs and expensive manufacturing processes that had served it well in the past. There has been some
recognition of the strategic nature of the problems as indicated by the succession of CEOs since 2000 given the task of
preventing the fall in sales and cutting costs. Unfortunately, the changes in its environment have led to some uncertainty as
to whether Marlow Fashion is a brand, a manufacturer, a retailer or an integrated fashion company.
Overall, Marlow Fashion, from being in a strategically sound position, now requires a swift strategic turnaround. Its products
and markets have changed; the relationships it has with key stakeholders are no longer strengths and its value chain andsystem no longer deliver distinctive value to its customers.
Yours,

正确答案：
(d) Stuart is not making use of his nil rate band, as all assets are transferred, exempt from inheritance tax (IHT), to Rebecca (as
spouse) on death. He should consider altering his will to transfer an amount equivalent to the nil rate band to his son, Sam.
If Stuart dies before altering his will, Rebecca can elect to make a Deed of Variation in favour of Sam instead. This will have
the same effect as the above.
Care should be taken in determining which assets are subject to this legacy. The Omega plc shares should not be transferred
to Sam as they currently attract 50% BPR. Instead, assets not subject to any reliefs (such as the insurance payout or cash
deposits) should be used instead. By doing this, IHT of ￡105,200 (￡263,000 x 40%) could be saved on the ultimate death
of Rebecca.
It is too late for Stuart to make use of potentially exempt transfers (PETs) as no relief is obtained until three years have passed,
and full relief only occurs seven years after making the gifts. The same would also apply to Rebecca if she were to die on 1
March 2008. However, as she is currently in good health, she may decide to make lifetime gifts, although she should also
not gift the Omega plc shares for the reasons stated above as any gift other than of the entire holding will result in the loss
of BPR on the remainder.
Both individuals should make use of their annual exemptions (￡3,000 per person per year). The annual exemptions not used
up in the previous year can be used in this current year. This would give a saving of ￡2,400 each (3,000 x 2 x 40%).
Exemptions for items such as small gifts (￡250 per donee per year) are also available.
Gifts out of normal income should also be considered. After making such gifts, the individual should be left with sufficient
income to maintain their usual standard of living. To obtain the exemption, it is usually necessary to demonstrate general
evidence of a prior commitment to make the gifts, or a settled pattern of expenditure.
While there are no details of income, both Stuart and Rebecca are wealthy in their own right, and are likely to earn reasonable
sums from their investments. They should therefore be able to satisfy the conditions on that basis.
If Rebecca were to make substantial lifetime gifts, the donees would be advised to consider taking out insurance policies on
Rebecca’s life to cover the potential tax liabilities that may arise on any PETs in the event of her early death.
Tutorial note: the answer has assumed that the shares could be bought for ￡2·10, their value for IHT.