Fraud by Silence


Does a party to contract have a duty to disclose to the other party all the material fact he or she knows about the subject of the contract? The original common law position on this issue was caveat emptor (let the buyer beware). The seller could remain silent without fear of being found guilty of fraud. Only actual statements by the seller could serve as a basis for fraud. The duty therefore was placed on buyers to ask the right questions of the seller, forcing the seller to make statements about the subject of the sale.

Many courts today, however, recognize that caveat emptor often produced unfair results. Some buyers simply do not know enough to ask the right questions about the subject of the sale, so many courts are recognizing a limited duty to disclose material facts on the part of the seller. Generally this duty is limited to material facts that the buyer could not have discovered by reasonable inspection of the subject of the sale.

My Consultancy–Asif J. Mir – Management Consultant–transforms organizations where people have the freedom to be creative, a place that brings out the best in everybody–an open, fair place where people have a sense that what they do matters. For details please visit www.asifjmir.com, and my Lectures.

 

Material Breach


The promisor is guilty of material breach of contract if his or her performance fails to reach the degree of perfection the other party is justified in expecting under the circumstances. Such a promisor has no right of action under the contract and is liable to the other party for damages resulting from the breach. If the promisor’s defective performance conveyed some benefits to the party that cannot be returned, the promisor may, under a quasi contract theory, be able to recover the reasonable value of benefits conferred from the other party.

My Consultancy–Asif J. Mir – Management Consultant–transforms organizations where people have the freedom to be creative, a place that brings out the best in everybody–an open, fair place where people have a sense that what they do matters. For details please visit www.asifjmir.com, and my Lectures.

Memos and Reports


Memos and Reports are perhaps the most commonly used medium for communicating business information and probably the most abused. The benefits of using memos and reports are that they allow the manager to communicate a lot of detailed information at one time. They also provide documentation of what was communicated that can be helpful in the future. The same message can be communicated to a number of people within a relatively short period of time.

The problem with memos is that they often go unread for one or more of the following reasons:

  • They have no clear objective or purpose.
  • They are too long.
  • They are written in a way that is difficult for the reader to understand.
  • Irrelevant data is included.

Reports are also a problem in many companies. Stacks and stacks of reports are generated and circulated on a regular basis and much of the time no one reads them because:

  • The reports are sent to the wrong people.
  • The reports are prepared in such a way that it is difficult to extrapolate the information needed.
  • Too much information is communicated.
  • The reports have not changed over time to meet the changing need of the managers.

If you are generating memos and reports within your area, you’ll want to make sure that you are not guilty of any of these shortcomings. If your people are using memos and reports generated by other areas that are not meeting their information needs, you should work with your peers and/or higher-ups to make the necessary changes.

My Consultancy–Asif J. Mir – Management Consultant–transforms organizations where people have the freedom to be creative, a place that brings out the best in everybody–an open, fair place where people have a sense that what they do matters. For details please visit www.asifjmir.com, and my Lectures.

Problems of Conduct


In Japan’s early history, a serious disregard for manners could be punishable by death, and any samurai could kill any common person who failed to show him proper respect. The Japanese were required to behave in precisely prescribed ways—wearing permitted clothing, walking only a certain way, sleeping with their heads pointing in a certain direction and legs arranged a particular way. Eating, greeting, gesturing with hands, opening doors and many work tasks had to be done in assigned ways without deviation. Conduct became a measure of morality, and virtue in manners was visible for all to see. Even today, the code of conduct plays a significant role in the lives of the Japanese. Many societies, not Japan alone, have a prescribed form and manner for every familiar situation that might arise. Unforeseen situations can cause intense embarrassment or discomfort. Throughout East Asia, actions are judged by the manner in which they are performed. More important than the accomplishment of a task is the question of how someone went about trying to complete the task: Did he act sincerely? More important than winning the race is the grace of the runner. More important than expertise is the way one gets along with others. More important than profits is harmony. In contrast, Westerners and particularly Americans are more concerned with the principles of things, hard “measures” and objective facts. Although rules of ethics are extremely important, we are more goal oriented than method-conscious, we say “a good loser is a loser.”

One aspect of form is the concept of “face.” Much has been written about “face-saving” in Japan and China, but face-saving is important absolutely everywhere. The difference is only a matter of degree and nuance. Where an American might feel a little guilty or inadequate, an Asian, Arab or South American may feel deep shame and humiliation. What an American might see as a little honest and constructive criticism, the foreigner may take as a devastating blow to pride and dignity. A foreigner is likely to be sensitive to feelings of others in transactions that an American would consider strictly impersonal, such as returning a defective product or switching hairdressers. The traveler simply must be more conscious of saying things or behaving in ways that cannot be taken as disrespect, criticism or humiliation. In some countries it seems just about anything can be taken personally, even such indirect affronts as not taking your shoes off in a mosque or complaining about the heat.

Harmony with the environment can be as important as sensitivity to people in some cultures. In Japan a woman wears a soft pastel dress to a flower show so as not to take away from the beauty of the flowers. In countries where people believe in reincarnation they are careful about all forms of life. In India, for example, people are careful not to swallow gnats or step on ants—one might be a relative.

My Consultancy–Asif J. Mir – Management Consultant–transforms organizations where people have the freedom to be creative, a place that brings out the best in everybody–an open, fair place where people have a sense that what they do matters. For details please visit www.asifjmir.com, Lectures, Line of Sight.

Compelling Business Principles


The development of the business principles is a first stage for developing and raising the standards of practice in countering bribery. The fair business principles provide a practical tool to which companies can look for a comprehensive reference to good practice to counter bribery. Business principles are becoming an essential tool in the future for businesses and the companies of today should encourage using them as a starting point for developing their own anti-bribery systems or as a benchmark.

I had heard and even observed how corrupt practices are carried out in businesses that add the extras to win export orders. For toting up luster to the evenings of the visiting business partners particularly from Gulf States, they fix up their visits to discotheques and nightspots. They also maintain luxury flats outfitted with floozy beauties for making the stay of the business guests a unique affair.

Unfortunately, such unethical practices have sneaked into the system via some (not all) businesses in different countries. That’s what I personally experienced when once as member of a foreign business team visiting an Asian country and staying at a luxury hotel, a businessman tried unethical tricks to win business contracts. He called from the lobby and told about the undeserved and undesired gift he brought for me.

Years ago in a domestic flight to the capital in a country in Asia a passenger seated next to me told that he was visiting the capital about a government tender. He was confident that he would win the contract. When I asked about the source of his confidence he pointed to two girls seated in the rear and said, “Those butterflies (exquisite women) will make it happen.”

Most of companies contribute to election campaigns of this candidate or that. Interestingly sometimes some companies sponsor candidates of two opposing political parties. The idea is to get unjustifiable favors after the horse wins.

There can be endless list of such companies, which are ready to do anything to get business favors.

It is no mystery that a lapse in business ethics or even the appearance of one can significantly harm the reputation and business of a company. Once a company is suspected, accused, or found guilty of corporate wrongdoing, it often becomes subject to the scrutiny of governmental agencies, the corporate community and the general public.

Private sector organizations must now take account of increasingly stringent domestic and international regulatory frameworks. There is growing corporate awareness of the risks posed by bribery, particularly in the light of scandals, and the public is expecting greater accountability and probity from the corporate sector.

Emphasis needs to be laid on business principles for enterprises to prohibit bribery in any form whether direct or indirect. They should also commit to implementation of programs for countering bribery. These principles are based on a commitment to fundamental values of integrity, transparency and accountability. Firms should aim to create and maintain a trust-based and inclusive internal culture in which bribery is not tolerated.

Thus an enterprise’s anti-bribery efforts including values, policies, processes, training and guidance will become tools of future corporate governance and risk management strategies for countering bribery and unethical practices.

As part of civil society, at macro level, Federation of the Chambers of Commerce and Industry should work out a framework reflecting size of the companies, business sectors, potential risks and locations of operations. This should, clearly and in reasonable detail, articulate values, policies and procedures for preventing bribery from occurring in all activities under their effective control.

Such programs should be consistent with all laws relevant to countering bribery in all the jurisdictions in which an enterprise operates, particularly laws that are directly relevant to specific business practices.

At micro level each enterprise should develop programs in consultation with its employees, trade unions or other employee representative bodies. It should ensure that it is informed of all matters material to the effective development of the program by communicating with relevant interested parties.

While developing its program for countering bribery, the companies should analyze which specific areas pose the greatest risks from bribery. The programs should address the most prevalent forms of bribery relevant to each firm but at a minimum should cover areas such as bribes, political contributions, facilitation payments, gifts, hospitality and expenses.

A company should prohibit the offer, gift, or acceptance of a bribe in any form, including kickbacks, on any portion of a contract payment, or the use of other routes or channels to provide improper benefits to customers, agents, contractors, suppliers or employees of any such party or government officials.

It should also prohibit an employee from arranging or accepting a bribe or kickback from customers, agents, contractors, suppliers, or employees of any such party or from government officials, for the employee’s benefit or that of the employee’s family, friends, associates or acquaintances.

The enterprise, its employees or agents should not make direct or indirect contributions to political parties, organizations or individuals engaged in politics, as a way of obtaining advantage in business transactions.

Each company should publicly disclose all its political contributions, charitable contributions and sponsorships. It should ensure that charitable contributions and sponsorships are not being used as a subterfuge for bribery.

The enterprise should prohibit the offer or receipt of gifts, hospitality or expenses whenever such arrangements could affect the outcome of business transactions and are not reasonable and bona fide expenditures.

The board of directors, CEOs and senior management should demonstrate visible and active commitment to the implementation of the business principles.

The business organizations should assert elimination of bribery; demonstrate their commitment to countering bribery; and make a positive contribution to improving business standards of integrity, transparency and accountability wherever they operate. Business principles are going to evolve reflection of changes in anti-bribery practice as well as the lessons learned from their use and application by business.

My Consultancy–Asif J. Mir – Management Consultant–transforms organizations where people have the freedom to be creative, a place that brings out the best in everybody–an open, fair place where people have a sense that what they do matters. For details please contact www.asifjmir.com, Line of Sight