Delayed Performance


Delayed performance will always justify a claim of damage where it can be shown that loss was occasioned by the delay. Most courts hold, however, that delayed performance will not be a material breach justifying rescission unless performance by a certain date is a condition precedent in the contract. If the late performer has any reasonable excuse for delay, the courts may allow damages but will seldom agree to rescission.

In agreements for the sale of marketable merchandise, however, a contract calling for shipment or other performance within a designated time is generally held to be a condition precedent. The difference between merchandise contracts and other contracts is in the position of the injured parties. A delay of a week in obtaining possession of a new home would not likely be crucial to the average home buyer. But a merchant’s success depends on the prompt delivery of goods to customers. Often advertising and sales programs are scheduled around specific delivery dates. Consequently, a delay in the shipment of merchandise is usually held to be a material breach.

Delay cannot be tolerated indefinitely in any kind of contract, however. After the passage of a reasonable time without performance the courts will permit rescission in almost any kind of contract. What is a reasonable time will vary with the type of agreement and all the surrounding circumstances. If no date is specified in the agreement, the courts interpret this to mean that performance must be done within a reasonable time. When time is of great importance, the contract should always be drafted to read that “time is definitely of the essence in the performance of this contract.”

In a bilateral contract, the injured party cannot regard the other party as being in default until the injured party has offered to perform. In legal circles, this offer by the injured party is called a tender. Depending on the terms of the contract, the tender must be either an offer to pay or an offer to perform a service.

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.

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

Change and Transformation Losers


Losers adopt a combination of attitudes, approaches and priorities, from a limited vision and a short-term and internal orientation, through cutting corners, to attempts to protect corporate interests, and this locks them into a ‘spiral of descent’. The almost inevitable outcome of their actions and inaction is a struggle to remain viable as a supplier of low-margin commodity work.

Losers become reactive and defensive, get lost in complexity of labyrinthine proportions and the more activities they engage in to break free, the more they become entangled. They introduce changes for changes’ sake. They become neutralized by their lack of imagination and entangled in barbed wire created by their own words and actions. The trick they try to play is to retire or to move on at a high point.

Losers in the battle to become and remain competitive:

·        are ‘in their own space’ and relatively oblivious to the needs of others; they do not anticipate and remain unaware of significant external developments and pressing requirements to change;

  • lack self-confidence and self-worth and hold back, they are different, can be indicative and find it difficult to commit themselves;
  • do not have a compelling rationale and purpose; they are not unique, special or even distinctive;
  • are not noticed by people, they are grey and dull, and hence fail to stand out or have an impact;
  • copy and follow others; they do not innovate or differentiate  themselves from their competitors;
  • respond to events; they react to incoming approaches and invitations to tender;
  • do not prioritize and focus; they fail to address what is important as a result of being distracted by trivia;
  • hoard information and hold on to the reigns of power; they are reluctant to delegate and to trust and involve others;
  • remunerate people according to their seniority and status in the management hierarchy;
  • are driven by internal personal goals and corporate targets rather than by customer requirements;
  • play other people’s games rather than live on their own terms; they become pawns on other people’s chessboards;
  • adopt standard approaches and are rigid and inflexible;
  • follow fashions and have a penchant for fads;
  • search for panaceas and single solutions;
  • define their capabilities in terms of the tangible assets they own and the people they employ;
  • are consumers rather than producers of knowledge, understanding  and intellectual capital;
  • respond unimaginatively and mechanically to business opportunities;
  • rely on traditional ‘hard-self’ techniques and undertake win-lose negotiations;
  • make little effort to learn from either their experience or that of others;
  • hold back and stay aloof; they avoid personal commitments, partnering  arrangements and inter-organizational links;
  • are selfish in relationships and put the minimum of effort into maintaining them;
  • use their customers to achieve their own short-term objectives;
  • are cautious and half hearted in their approach to e-business;
  • mouth generalizations and they indulge in self-deception and spin;
  • live for the moment; they have short time horizons;
  • do little to keep competitors out of their key accounts;
  • leave the building of customer relationships to specialist sales staff;
  • ignore organizations that are supplied by competitors;
  • prize their freedom and independence, they prefer to operate alone;
  • attempt to protect their interests with small print and avoid the assumption and sharing of risks;
  • are secretive and defensive; they build internal and external barriers to create a hard shell;
  • offer other employees general training and development that is viewed as a cost;
  • fail to equip their people to win new business, create new offerings or build customer relationships;
  • are complacent and set in their ways; they are reluctant to think, question and learn;
  • confuse the roles of owner-shareholder, manager and director;
  • fail to distinguish between operational matters and strategic issues;
  • become typecast and locked into certain roles; they tend to end up as commodity suppliers.

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 http://www.asifjmir.com