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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.