adyasmita lab
TRANSCRIPT
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ASIAN SCHOOL OF BUSINESS MANAGEMENT
(TERM-III) Mid Term AssignmentOn
Legal Aspects of BusinessTOPIC - device term and contract for enhancement of
image of ASBM for a contract to be signed betweenstudents and management
SUBMITTED BY-
Group 7 (Sec-B)
PGDM/12-14/62 SUBMITTED TO-
Name: Adyasmita Mohapatra Dr. Prof. HARADHAN DAS
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AcknowledgementWe would like to express our sincere
thanks to all of them, who were
instrumental behind the completion
of this assignment. First of all, we
would like to give our sincere
thanks to PROF. HARADHAN
DAS for his whole hearted support.
Our Work will be meaningless, until
we render our great gratitude to
our parents towards their moral
courage.
Date:
Place:
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CONTENT
INTRODUCTIONDear Candidate
The ASBM-Student Contract (the/this Contract) is an important legal agreement between the
ASBM and you being the Candidate named in the Contract pursuing the post graduate diploma
in management (the Programme) as specified in the ASBM Website. This Contract is adapted
from the Standard ASBM-Student Contract.
The ASBM is required to explain to you the contents of each page of the Contract.
Recognition: Asian School of Business Management (ASBM) is approved and recognized by All
India Council for Technical Education (AICTE), Ministry of HRD, Govt. of India as an autonomous
institution.
When high school graduates arrive on a university campus for their first semester
ofpostsecondary education, perhaps the furthest thing from their mind is how the law
defines their relationship to this new institution. Few students are aware thatwhen they register at the beginning of a semester, they are entering into a contractthat has legal ramifications. Indeed, the relationship between a university and astudent has been identified as a contract in ASBM and courts alike.
1
.
A university engages in many complex relationships in pursuit of its diverseobjectives.
Many large universities serve as centres for research and scholarship; their
relationships with
faculty members, researchers, as well as public and private sponsoring entities areworth noting.
But their relationship to students - in their function as an educational institution -
illuminatescrucial aspects of their institutional personality. As this paper will try to articulate,
applying the
lexicon of contract law to the legal relationship governing the university and itsstudents can
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The Asymmetries Within the University-Student Contract
Although the rules of contract law were developedwith a theoretically symmetrical relationship in mind, thenotion of a contract encompasses many more nuancedrelationships with varying degrees of symmetry, both insideand outside the commercial context.
a) Asymmetrical negotiations. Canadian courtshave recognized both explicitly and implicitly that theuniversity-student relationship is essentially a contract ofadhesion because only the university has the power to setthe terms of the contract, and the students are in aposition to take it or leave it22. According to the Civil Codeof Qubec, a contract of adhesion is one in which theessential stipulations were imposed or drawn up by one ofthe parties and were not negotiable23.
b) Asymmetrical information. The private law ofcontracts is based on one majorassumption of neoclassical economics that people makedecisions with access to and knowledgeof all relevant information. In many if not most contractualrelationships, however, parties enterinto agreements without complete information tofacilitate rational decision-making.
c) Asymmetrical bargaining power. In the case of acontract of adhesion, there is often animbalance of bargaining power because the adheringparty has no say in the terms of theagreement.26 Whereas a university can refuse to give accessto courses or refuse to grant a degreeif a given student has not paid the tuition, a studenthas little to no bargaining power bywithholding tuition payments and has much more to losein case the contractual relationshipdisintegrates.
27Such contractual problems usually arise
after the student has already investedmuch time, effort, and money with the expectation ofattaining a degree upon completion of thecourse of study.
d) Asymmetrical reliance. One of the principalfunctions of the private law of contracts is to allow partiesto plan for the future through private agreements and to
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protect their reliance on promises exchanged. In practice,for any given contract, parties may rely on promises tovarying degrees, which can lead to problems when oneparty reneges on the promise to the detriment of the otherparty that was relying heavily on that promise.
The students reliance on the universitys promisescan be particularly significant whenher objective for enrolling at a university is primarily theaccreditation at the completion of theprogram. Despite the invaluable academic and socialexperience of spending multiple semestersstudying at a university, attaining the degree at thecompletion of that program is undoubtedly acentral reason for enrolling at a university. Within theuniversity-student contract, one of thepromises put forth by the university is certainly to
educate the student through coursework.Another key promise put forth by the university, however, isto grant the student a degree if andwhen a student successfully completes the necessarycoursework. Up until that point, the studentcontinues enrolling semester after semester in reliance of thislatter promise, which, according toProfessor Waddams, is a unilateral contract, or apromise that is made in return for theperformance of an act.28
This unilateral model underscores the studentsrelatively precarious situation. Despitethe students heavy reliance on the universitys promiseof a postsecondary degree, theaccreditation is essentially revocable at any point until thestudents completion of the necessarycoursework. A comparable scenario is when ahomeowner offers to pay a painter a sum ofmoney if she paints his house. With the understanding thatshe will be paid once the paintjob iscompleted, the painter may begin the work but thehomeowner may revoke the offer after thepainter has already invested significant time andresources.
29 The students position can be
analogous to that of the painter. The postsecondary degreeis the students true objective forenrolling at the university in the same way that the promisedpayment is the painters objective inpainting the house. It is in pursuit of this accreditation thatthe student invests time, money, and
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effort over the course of numerous years into herpostsecondary education. When the institution,for one reason or another, refuses to grant the degree ordiploma that was initially offered,students feel aggrieved and take the university to court.30
There is an understandable sense ofloss on the part of a student who, after investing much timeand resources pursuing a degree, isdenied the end goal of such investmentalso consideredthe object and cause of the contract.31
This one-sided obligation can liken the university-student relationship to a socialcontract. The universitys interest in engaging with a student is atleast in part a public interest ineducating Canadians and developing the collective brainpowerwithin the national economy. Thepublic university has the aspiration to provide a service - aunilateral obligation - to educatestudents for the benefit of the collective good and to serve thecommunity. This moral dimensionof higher education de-emphasizes the universitys self-interests asan autonomous institution.35
The tuition fee differential between in-province students,out-of-province students andinternational students is one way in which this communitarianaspiration can materialize.Provincial residents often get preferential treatment inadmissions and tuition fees, thusstrengthening the social contract between the institution and itscommunity members. Unlikeuniversities in the United States, however, Canadian universities arenot state universities that actessentially as governmental bodies enshrined in the stateconstitution.36 Canadas majoruniversities, while incorporated by statute, are autonomous non-governmental entities.37 As such,the notion of a social contract governing the university-student
relationship has its limits. It ismore of an ideology than a reality in the Canadian higher educationsystems.
The civil law generally accepts this one-sided obligation morereadily than common law jurisdictions, where unilateralcontracts are often reformulated into a bilateral contract by courtsto give legal weight to the parties legitimate expectations in
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their relationship. Alternatively, unilateral contracts aredeemed not to be contracts at all, and the issues are handledwithin the parameters of tort law or unjust enrichment. There isgeneral discomfort with asymmetries in the university-studentrelationship because they push the boundaries of contract law. The
next section will explore the ways in which this body of law maypose limitations of the legal understanding of this relationship.
IV. Shortcomings of the Private Law of Contracts
It has been established in courts that the private lawof contracts is the primary legal framework that governsthe relationship between a university and a student, but asthe critical analysis above suggests, it may notsubstantively account for the unique dynamics of therelationship in question and it may not provide adequate
procedural access to remedies in situations where therelationship goes awry.
Substantive Limitations
The basic function of this legal framework is to protect partiesreasonable expectations.41 In the university-student relationship, however, theparties do not always exercise free and autonomous choice or shape theirrelationship as they see fit. And as many cases attest, the reasonable expectationsof the partiesmost notably the studentsare not always protected by the privatelaw of contracts.
. Conclusion
The notion that the relationship between a university and studentis governed by contractual principles has at times hit asensitive nerve among many higher education administratorsand policy makers. A contract between university and student canimply that the educational setting is akin to a market ofexchangeable commercial goods and services. There is awidespread belief that universities should be protected fromcapitalist forces of the private sphere. Many people strongly
believe that a school - even at the postsecondary level - is simplyabove the amoral forces of a market.Does postsecondary education serve the common good or is it a commodity for
sale?
Policymakers, administrators and scholars have tried to grapple with thispressing dilemma in
this period of significant development in higher education system.
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It is simple fact that many provincial governments have reduced public
funding and lifted regulations regarding higher education, particularly withrespect to tuition
fees. Consequently, universities have undergone varying degrees of
privatization by increasing
non-governmental sources of revenue such as tuition fees,
endowments, and private
investments.95
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Undertakings by the College
UNDERGRADUATES
Teaching. The College will make such teaching provision for undergraduate students and
undergraduate visiting students as it reasonably decides is necessary for their courses of study,
taking account of any relevant departmental norms. Teaching may include tutorials, classes and
seminars, and may be carried out by tutors or other fellows or lecturers of the College, or by
any other persons considered by the College to be suitably qualified. Teaching provision for
specialist options is subject to availability and may not be provided in all cases. Given the
variation in courses of study, it is not possible to specify a minimum amount of teaching for
undergraduates in all subjects.
Library and IT facilities. The College will provide library and IT facilities in connection with
your studies and on the conditions and at the times set out in the College Handbook or
equivalent document, which may vary from time to time. Facilities may be withdrawn in the
event of adverse circumstances beyond the control of the College.
Graduates
The College will provide such support for graduate students as it reasonably decides to be
necessary in connection with their pursuit of a course of studies at Oxford. This will include the
allocation of a College Advisor, where possible in the same or in a related subject area.
Undergraduates and Graduates
Residential accommodation. The College will maintain a stock of residential
accommodation that may be provided to you in connection with your studies and on the terms
and conditions and in accordance with the procedures set out in the Student Handbook or
equivalent document, and/or accommodation contract or licence agreement, which may vary
from year to year. The College will normally provide accommodation for undergraduates for
three years, and for graduates for one year, and will observe any undertakings given in its
Prospectus. 10. Meals. The College will provide meals on the terms and conditions set out in the
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Student Handbook, which may vary from time to time. Reasonable notice will be given where
possible of any occasions on which meals will not be available.
Your Undertakings
You undertake to abide by the regulations of the College as set out in the Student Handbook,
or equivalent document, including regulations concerning study, payment of fees and charges
and residence. Failure to abide by these regulations may lead to the imposition of disciplinary
measures, which may include suspension or expulsion. Procedures for disciplinary measures are
explained in detail in the Student Handbook or equivalent document or website.
Study: You undertake to pursue satisfactorily such studies as are required of you by any tutor,
fellow or lecturer, or other qualified person, assigned by the College (or University as the case
may be) to teach you. For this purpose, studies include the reading of materials, carrying out
prescribed activities such as practicals, the timely completion of written work, punctual
attendance in tutorials and classes and lectures, and the sitting of University and internal
College examinations.
Fees and charges: You undertake to pay the fees and charges due to the University and to
the College which, after consultation with students (in so far as concerns College charges), may
vary from year to year and to provide any guarantee or security for the payment of such fees as
the College may require. The College will collect University fees and transmit them to the
University.
Residence: You undertake to comply with the University residence requirements.
Personal Data: By signing and returning one copy of the attached declaration, you agree to
the collection, processing and use of individual personal data by the College for purposes
connected with your studies, for the protection of health and safety whilst on College premises,
and for maintenance of alumni relations and for any other lawful purposes. You also agree to
the sharing by the College of such data for the same purposes with the University. Jurisdiction
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This contract shall be governed and construed in accordance with English Law. By signing and
exchanging this document both you and the College submit to the exclusive jurisdiction of the
English courts for the resolution of any disputes which may arise out of or in connection with
the contract.
STUDENT-COLLEGE CONTRACT
I hereby declare that I have read and understood the terms and conditions of
taking up my offer of a place at Lincoln College, as outlined in the Student-College
contract to which this declaration is attached.
SIGNED for and on behalf of ASBM COLLEGE SIGNED by the STUDENT
Name: __________________ Name: ______________________
Position:____________________ Signature: _____________________
Signature: Date: _____________________
STUDENT-COLLEGE CONTRACT
I hereby declare that I have read and understood the terms and conditions of
taking up my offer of a place at Lincoln College, as outlined in the Student-College
contract to which this declaration is attached.
SIGNED for and on behalf of ASBM COLLEGE SIGNED by the STUDENT
Name: ____________________ Name: ______________________
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Position: ___________________ Signature: _____________________
Signature: Date: _____________________
Please sign both copies of the declaration, retain one copy for
yourself and return one signed and dated copy to the College
Office.