THE LAW SOCIETY OF SCOTLAND EXAMINATIONS SCOTS COMMERCIAL LAW SAMPLE MOCK PAPER (Two Hours) Candidates should answer any THREE questions

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1 THE LAW SOCIETY OF SCOTLAND EXAMINATIONS SCOTS COMMERCIAL LAW SAMPLE MOCK PAPER (Two Hours) Candidates should answer any THREE questions

2 LAW SOCIETY OF SCOTLAND EXAMINATIONS SCOTS COMMERCIAL LAW SAMPLE MOCK PAPER (Two hours) Candidates should answer THREE questions. Please ensure you use appropriate authority for your answers. 1. Alf and Bertha are married in They have a 6 year old son, Colin. Alf and Bertha cohabit before getting married and buy a house together in Alf and Bertha are jointly and severally liable for the loan repayments on the standard security. In 2006 Bertha decides to take out a life assurance policy with Standard Death Life Assurance Company over the life of Alf for her own benefit. Bertha had nursed Alf through a cancer scare before they bought their house but Alf has fully recovered and Bertha doesn t mention this in the proposal form, although she does note that Alf has an annual medical check-up. In 2008 Alf takes out a life assurance policy with Standard Death Life Assurance Company over his own life. In completing the proposal form Alf warrants that he has no current illnesses, although he does refer to his earlier cancer treatment. In 2009 Bertha takes out a life assurance policy with Standard Death over the life of Colin for her benefit. In 2010 Bertha takes out a life assurance policy with Standard Death over the life of her elder sister Donna for her benefit. Donna is a recovering alcoholic who has not touched a drop of alcohol since a road accident in Three months after Bertha takes out the latter policy, Donna borrows 20,000 from Bertha.

3 In July 2012 Alf is driving Donna home after she had been babysitting Colin. Colin is in the car. There is a terrible accident as Alf loses control of the car as he has a severe haemorrhage as a result of an underlying condition it is later learned that he has had for some 30 years. Alf, Colin, and Donna are killed. Standard Death refuse to pay Bertha on any of the policies claiming that there was material non-disclosure and no insurable interest. Advise Bertha. 2. Edward is married to Fiona. Edward is employed by Dumfries and Galloway police. He is paid monthly. He has the following: (a) 42 Acacia Gardens, Ecclefechan (the family home which he co-owns with Fiona); (b) a small shop in Carlisle, Cumbria which he inherited from his late father and which he owns outright and rents to his uncle George; (c) savings accounts held at the Cumberland Building Society (Annan, Dumfries and Galloway, branch) and Royal Bank of Scotland plc (Lockerbie branch); (d) an overdrawn bank account held with the Bank of Scotland in Annan; (e) furniture in his and Fiona s house, including 2 television sets; a desktop computer and laptop computers for each of Edward and Fiona s three children; (f) a Ford Focus car which he is acquiring on hire purchase from Happy Financiers plc; (g) 5,000 cash kept under his mattress; and (h) shares he holds in Royal Bank of Scotland plc. Edward owes Ian, a local painter-decorator from Ecclefechan some 25,000. Advise Ian as to which diligences he can carry out against Edward s property to obtain payment. 3. The front of a bill of exchange looks like this 25,000 Aberdeen 4 th July 2013 Ninety days after sight of this bill of exchange pay us or order the sum of 25,000 (TWENTY FIVE THOUSAND POUNDS STERLING) only for value received To: Jackson Jordan For and on behalf of 42 Malcolm Road Kings Demons Ltd Peterhead Cammie Melion Director The reverse of the bill looks like this

4 Pay Lorimer Lorries Ltd For and on behalf of Kings Demons Ltd M. Magister Director Pay Kroll (Power) plc Flavia Castellan Director of Lorimer s Lorries Ltd Peri Brown for Kroll (Power) plc The bill has been crossed on the front as follows Accepted 12th July, 2013, Jackson Jordan On the date of payment Magnus Merriman arrives to demand payment of the bill. the drawee has various issues with Magnus demanding payment. First, the bill was accepted under a contract of sale of some technological equipment entered with the drawer. The equipment is defective and the drawee is refusing to make payment under the contract. Second, he refuses to accept that Magnus could have come by the bill honestly as he has never heard of him. (a) Can the drawee refuse to pay? Your answer should consider both defences mentioned by the drawee and consider whether there are other grounds under which payment could be denied. (b) If the drawee refuses to make payment, who is Magnus entitled to claim payment from under the bill of exchange, and how will he ensure that he maintains this right or these rights to payment? 4. Norman owes money to Olive Bank plc. Norman has an overdraft which has a limit of 10,000. Olive Bank plc asks if Norman can provide security. In June 2011 Norman asks his civil partner, Peter, if he can provide a cautionary obligation. Norman explains to Peter that he has some contracts which will be fulfilled in the near future and the overdraft should be paid off in full by the end of the year. Peter is happy to rely on Norman s assurances. Peter contacts Olive Bank plc (without Norman s knowledge) and indicates that he is happy to sign a cautionary obligation but wants to know if the bank views Norman as a good credit risk and whether his overdraft is temporary. Peter is told that Norman is creditworthy although Olive Bank does not reveal that Norman was sued for repayment of an unpaid personal loan 4 years before. When the

5 manager of Olive Bank speaks to Peter, only Norman s creditworthiness is discussed. Satisfied that Norman is creditworthy Peter signs the cautionary obligation, which is limited to 5,000, and the document is returned to Olive Bank. At this point Norman owes the bank 9,000. Within six months the bank agrees to Norman s request to increase his overdraft to 20,000 as Norman has bought goods being shipped from South Africa which when sold will fully pay off his debts. Peter is not consulted about the increase. The boat shipping the goods from South Africa sinks. Norman had no insurance and has no finance. He tells Olive Bank that he cannot pay the overdraft (which is now standing at 20,000). Olive Bank therefore contacts Peter and demands payment of the full sum of 20,000 owed by Norman. Advise Peter. 5. Scots law has been traditionally hostile to the constitution of non-possessory rights in security.... [Recently] Scots law has strived to enable debtors and creditors to constitute non-possessory forms of real rights in security over moveable assets as a means of recognising commercial reality David Cabrelli, Commercial Law (2009) pp 60-1 Critically discuss. 6. Critically examine the implied terms which regulate the sale of goods by businesses in Scotland. 7. Ted Todd is sequestrated on 14th August In investigating his estate the trustee in sequestration has discovered the following: (a) (b) On 20th April 2013 Ted is made apparently insolvent. Ted sold a 4 bedroom detached house in Aberdeen to his cousin, Fred Todd, on 12th July The price was 250 and the disposition registered on 19th July Fred then sold the house to a friend, Violet Viola on 6th May Violet registered the disposition in her favour within a week.

6 (c) Ted gave a 2 bedroom bungalow in Banff to his father in His father moved in in June but the conveyancing was not completed until August 2008 when the conveyance was registered. Ted s father died in July 2011 and the property was inherited by his father s second wife (Ted s stepmother), Zoe. She registered title in her favour on 13th August (d) (e) Ted borrowed 25,000 from Weeble Bank plc in September Ted also has as an overdraft in his current account which in early 2013 stood at the sum of 20,000 with the same bank. His debts were eventually secured by a standard security over Ted s house in Kirkcudbright granted on 12th January 2013, registered on 15th February Ted owed unpaid tax to HMRC. They arrested his bank account with the Royal Bank of Scotland on 22nd March (f) Ted is employed and has received a monthly net income of 2,500 which he will continue to receive. This is paid in to his current account with Weeble Bank plc. However, Ted s outgoings amount to some 2,600 a month. Advise Ted s trustee in sequestration how best to proceed in relation to each of these matters. - End of paper -

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