Q&A – 16 July 2012
Duped by CT scan supplier
A supplier of medical equipment supplied our hospital with a CT scan machine which is very costly. It was reconditioned and the supplier gave us many assurances that it would work very well. It took about two weeks to install and we complied with all the conditions in which it was supposed to be installed. When the foreign engineers handed it over to us, within two hours we notified the engineers and suppliers that the scans were not as clear as we were informed and assured of. We are not a big hospital and it took us years to save enough money to buy this machine only to be duped. Upon investigation we found out that the machine was actually not out of service having been replaced many years ago with newer technology. How can we get our refund as we have paid all amounts due? The supplier says that it is the contract we should read and not the e mails that we have exchanged prior to the contract. These e mails clearly mention that the machine is a latest machine save that it was used for a few months. Please guide us.
TE, Mwanza
This is not the first time we hear a local hospital has been duped into buying outdated overpriced medical machines. Whilst we sympathize with you, your questions are way too specific and we need to see the contract you entered into to be able to guide you. However we try to generally answer your questions.
First in a contract there are certain representations and warranties that are made. You need to check what warranty and representations the supplier gave you. There surely will be warranty as to the machine being in good condition. If there isn’t and you have bought the machine on as is where is basis you might find it hard to get your money bank.
Secondly you will have to check if the contract says something on the lines that the agreement is a complete agreement between the parties as to the matters and transactions referred to and contemplated therein and replaces all other agreements in this regard, if any.
This completeness clause will bar you, under the parole evidence rule, from relying on the e mails that you have mentioned.
However, there are a number of exceptions to the parole evidence rule. Extrinsic evidence can always be admitted for the following: to aid in the interpretation of existing terms; to show that in light of all the circumstances surrounding the making of the contract, the contract is actually ambiguous, thus necessitating the use of extrinsic evidence to determine its actual meaning; to disprove the validity of the contract; to show that an unambiguous term in the contract is in fact a mistaken transcription of a prior valid agreement; to correct mistakes; to show wrongful conduct such as misrepresentation, fraud, duress or unconscionability; to imply or incorporate a term of the contract.
We recommend that you speak to your attorneys for further guidance. Getting your money back is not going to be a straight forward affair.
It is also not unwise to report the matter to the Public Procurement Authority and Ministry of Health so that they are aware of the name of this supplier who might be the same one who has duped many other hospitals in Tanzania.
Trademark registered by third party
I have been using a certain company name for the past 30 years. Recently I found out that an individual has registered my name as a trademark. My lawyers say that the period in which we had to challenge this has expired. What should I do?
FC, Dar
We assume for the purposes of this question that your company is registered in the same name under the Companies Act as the name that the trademark is registered under the Trade and Services Marks Act.
Many businesspersons believe that once they register their company under the Companies Act there is no need to register that particular company name as a trademark. They are wrong. It is cheaper to register both than to fight a battle like the one you are about to.
For removal of the trademark, you will need to make an application to the Registrar of Trademarks to expunge from the register that particular mark. You will need to state facts upon which you base your case. The registered trademark owner has a right to reply to your application before hearing.
Reasons you may want to adduce include prior use, unfair competition and creation of confusion. It is advisable to engage the services of a trademark specialist to guide you through this process.
Employment contract says can’t work for anyone else
I am an accountant working in Dar for a company engaged in distribution and manufacturing. It is my 17th year with the company and I don’t see any growth potential anymore. My salary has remained the same for the past six years. Recently my medical benefits were also removed and I am overall not happy with the job. I hinted to my boss that I would like a raise and as usual he said, as they all do, that the business was very slow and that I should be patient. I am nearly 55 and don’t know how much patient I can be. A competitor company has now approached me to go work for them and has also issued me with an offer letter. When I gave my notice to the current employer, he showed me my contract that I had signed many years ago in which I am not to work for anyone else. The company lawyer also threatened me that they would sue me for breach of contract. How do I survive if I cannot work for anyone but my current employer. This is modern times slavery and I feel very foolish having agreed to sign such a contract. What do I do?
ER, Dar
Our answer is not very long. From the vague facts you have given us, we don’t see why you cannot work for anyone else. Who will feed your family if you stop working? Is there a clause in there that also says you will get paid even if you don’t work since you cannot work for anyone else? Your contract is likely in restraint of trade and not enforceable against you. It is also an unreasonable clause to have in a contract and likely to be stuck down by a court.