Stare Decisis Final

Business law

Common law and stare decisis

Common law is the law made by judges. It always adheres to all precedents of earlier cases as the bases or sources of law. Stare decisis simply means that the decision must stand. This is a principle that clearly distinguishes common law from civil law. The difference is that civil law as opposed to common law focuses more on opinions of scholars and codes of law in explanation. In business cases for example, where one business sues another for failure to settle debts, the decision that was reached by the given court is always taken as the basis for any other similar business cases, i.e. the decision must stand. Where a court answers a business question, that particular question in any other similar business case have to elicit the same response irrespective of whether it’s the same court or another one in lower in jurisdiction (Center4debtmanagement.com, 2010).

Bailment

Bailment may be defined as a temporary transfer of possession of one’s own property to someone else. A good example is when people rent their personal property for a given period of time (Jennings, 2005). If business (A) is renting a plant/machinery to another business (B), A will be termed as the bailor in this created bailment relationship. On the other hand, business B is the bailee. In such a business relationship, there are duties and responsibilities. B in our example who is the bailee bears a duty to return the bailment after the agreed period of time to possess the plant. In addition, the plant has to be in good condition.

The statute of frauds

The statute of frauds is commonly abbreviated as “SOF.” It’s the rule of law that requires certain contracts to be in written format and then signed by both parties who are bound by the contract. Thus accordingly, a contract must not be oral or verbal but should be written. The main reason why this statute was created was to help the society to shield itself from fraudulent practices. It’s a statute that has aided in litigation minimization. In such a written agreement people have a chance to review the contract conditions and terms. In business application, it’s mandatory in some states that any sales volume worth or exceeding $500 must have a signed writing. Also in suretyship (a surety is that person promising to clear debt of another) must be governed by statute of frauds and thus be signed writing (Thelaw staff, 2009).

Civil law versus criminal law

Civil law primarily focuses on dealing with disputes between organizations, individuals or even between the two mentioned. In civil law, compensation is awarded to the aggrieved party to settle the dispute at hand. On the other hand, criminal law is that body of common and statutory law primarily dealing with crime together with legal punishment of the specified criminal offenses (Diffen.com, 2010). Cases where civil law can be applied in business are for example property disputes or tenant/landlord disputes. These involve material or real estate. In such cases, a civil court will rule for compensation to be paid to the landlord if he was the party being sued. Criminal cases in business may come when a citizen is convicted because he/she has trafficked in controlled substances like drugs and alcohol. In that case, a guilty defendant is incarcerated or fined and this fine goes to the government as opposed to civil law where the fine goes to the individual (landlord in this example).

Federal and state courts

Federal courts are courts which are established by the U.S. constitution. They mainly decide constitutional disputes and all laws which are passed by the congress. State/local courts are courts established by a given state. State courts are given a broader jurisdiction and thus most cases that are forwarded by individual citizens involving broken contracts, robberies, family disputes and robberies are tried here. In federal courts, the only cases that can be heard are those listed in the constitution and provided by Congress. A business contract that has been broken by one party is heard in a state court. Federal courts are used by business people in a dispute where one company is using the patent or copyright of another. The federal courts rules against the fraudulent use of other business’ patents and copyrights.

Personal jurisdiction, subject matter jurisdiction and venue

For any court to hear a case, there are there things that must be satisfied. In the first place there must be a jurisdiction for all the parties involved in the case. This is called personal jurisdiction. Secondly, jurisdiction must be of what is involved in the case or simply what has prompted the case in the first place. This is called subject matter of jurisdiction abbreviated as SMJ. Lastly, each case must be heard in the appropriate federal district failure to which it will face dismissal. For example in business, In rem jurisdiction is applied where there is jurisdiction for claims due to a given piece of property. In this case, the subject matter of jurisdiction in the court is the property that has created disputes between the two parties. The venue (proper venue) here must be the appropriate district court in relation to their residence.

Garnishment and execution

Garnishment is the legal process by which property or money owed to the debtor or held by the garnishee on behalf of the debtor is taken in order a judgment can be paid. The most garnished business properties are banks and wage accounts. It is a requirement that in business, for the creditor to be able to garnish debtor’s property, he must go to court to file an application. This is from Writ of Garnishment. It is a within a period of 10 days that the debtor in question has the chance to file Claim of Exemption. Execution is a legal process to enforce judgment through selling and seizing debtor’s property.

Mediation, Arbitration and Accord and satisfaction

Arbitration is the legal technique used in resolving disputes outside courts. The parties to the given dispute decide to refer their dispute to another person or persons called arbitrators. The arbitrators must be agreed upon. Accord and satisfaction are terms used in contract law to refer to purchase of debt release obligation (USlaw.com, 2010). This payment is always less than the owed amount. The amount is not cleared through performance by the original obligation. In business context, an accord will refer to the agreement used to discharge obligation while satisfaction refers to the legal “consideration” binding the two businesses to the agreement. Mediation is different to arbitration as the third party who is neutral assists to resolve the dispute between the parties but does not make the decision for them (Honeyman, 2003). Mediation is very important in business application where the disputes are deep-rooted and long running. An example is where a supplier has a history of delivering fake products.

Intentional torts, negligence, and strict liability in tort

An intentional tort is a deliberate omission or action that includes battery and assault, trespass, libel, privacy invasion and slander. It is a branch in civil liability. Negligence refers to a tort resulting from tortfeasor’s failure in taking sufficient care to fulfill the owed duty. On the other hand, strict liability in tort refers to a case where one party is considered liable for injury irrespective of taken precautions. For example, a business/manufacturer owes a duty of care to all the consumers. Thus all the products must be produced in the right manner so that no injury/damage is caused to them. Where a defective product is sold, law of tort refers perceives this as negligence as the manufacturer didn’t take sufficient care/duty to give quality products. Even if the manufacturer gives evidence that shows he was not negligent, the court may rule against him if the consumer suffers damage and this is use of strict liability in torts.

Requirements for an enforceable contract

An enforceable contract must have several basic elements for it to be legally abiding. Such a contract must have an offer and acceptance. Capacity is also a requirement and this simply means that parties must be of sound competence and legal age. An enforceable contract must have an agreement between the two parties (mutual assent). The last element is consideration or the relevant compensation for services or goods in question. Two partners in a business or two companies that enter into contract must be legally competitive. Individuals who enter into business contracts that are enforceable must have attained majority age. Between the two parties to a contract, there must be an offer and acceptance, i.e. there should be something to be sacrificed and the second party must accept it. Both of them must have a mutual understanding on the contacts that binds them (terms and conditions). Lastly, for the contract to be legally enforceable one must promise the other something in return when the contract duration matures (consideration).

The purpose of the uniform commercial code and its application to contract law UCC is the main law body governing all transactions that involve goods. Its main purpose is facilitating commerce through clarifying and simplifying law relating to commercial transactions. The code also creates uniform set of rules countrywide. It’s used in contract law where it governs sale of movable and tangible goods, property leases and other financial transactions like letters of credit and bank deposits.

Click-Wrap Agreements and the Electronic signatures in global and national commerce Act “Clickthrough” agreement/ clickwrap license is also another term for clickwrap agreement. It’s actually a very common form of agreement found in websites/internet. This is where two people seek to agree on a contract through electronic media. It’s applied in boxed software purchases. Electronic signatures in global and national commerce Act is a legislation meant to speed the e-commerce landscape. It’s normally called E-sign (Stolz, 2001). It’s meant to bridge gap between on-line technology and business transactions. It’s for removing legal impediments in order for us to be able to use electronic contracts and in the end facilitate e-commerce growth. Common forms of electronic signatures in use today include the use of password or PIN when one wants to access a Web site or an ATM, or purchasing merchandise on-line.

Sole proprietorship, partnership, corporation and Limited Liability Company A sole proprietorship is a form of business owned and operated by one person referred to as a sole proprietor or sole trader. The sole trader has unlimited liability meaning that he will bear all the debts of the business alone. All losses and profits are for him alone. He is his own boss. Management is sometimes through assistance from family members. A partnership is a form of business organization formed by a minimum of 2 people called partners and a maximum of 20. There are two types of partnership; general and limited partnership (Myownbusiness.org, 2009). In a general partnership, all partners have unlimited liability meaning their personal belongings can be sold to clear partnership debts. In a limited partnership, partners have limited liability and thus personal property for the partners cannot be sold to cover any debts.

A corporation is a state owned business. Its shareholders have limited liability over its debts. A limited liability company is that form of business that has a minimum of 7 members and a maximum of 50. All the shareholders in a limited liability company have limited liability over the existing debts. All members can be managed by all or they can decide to have a centralized management from a section of the members.

Fee simple and life estate

Fee simple estate refers to absolute property ownership entitling the owner all the rights to that property. These rights are only restricted private or law restrictions like covenants and zone ordinances. Once the owner of the property dies, ownership of the estate passes to the heirs. Fee simple estate is also called estate of inheritance, fee ownership or fee simple absolute. Life estate refers to a freehold estate (Spaulding, 2008). In this estate, ownership is only limited to a given duration of a certain person’s lifetime. This may be the individual who is holding life estate. This person is called a life tenant. In this case, the owner of the estate retains most of the rights in estate ownership. He can lease it, possess it, profit from the estate. These rights however come to an end the moment life estate ends. Life tenant cannot pass ownership to heirs as opposed to the case of fee simple estate.

Warranty deed and quitclaim deed

Warranty Deed is a basic deed that spells out that the seller of the property in question owns that property and no liens/debts can be transferred over if the property is sold. It is a deed used to clear the air that property is legally owned and no hidden tie-ins that the buyer needs to be aware of. This is a deed that ensures that a buyer deals with the owner and thus no post-purchase surprises will emerge (Fsboamerica.org, 2009). On the other hand, a quitclaim deed is presented to the buyer by somebody else who legally hold responsibility over that property but does not legally own it. It normally happens where death occurs and property must now be transferred as inheritance. It can also be issued if spouses’ names appear on the deed and they are divorcing. In business, quitclaim deeds do not however give enough protection to the property purchaser unlike a warranty deed.

Adverse possession

Adverse possession is a principle in real estate law stating that a person who possesses land of another for a very long period of time has the capability to claim that land’s legal title. The person who is claiming possession of the land through adverse possession must prove it by showing that the possession was open, actual, hostile, exclusive, notorious, continuous and uninterrupted for the given statutory period. To say that the possession was actual means that one must show that he acted as the owner of the property for the period. The decision cannot lie on the one claiming adverse possession if there was any interruption in ownership for the stated period (Larson, 2004).

Employment at will versus Title VII of the civil Rights Acts of 1994

Employment at will means that one may be fired any time because of any reason. Once an employer decides to let his employee go, that spells the end of his job and there are limited legal rights to prevent that job termination. Title VII of the Civil Rights Act of 1964 was passed to illegalize employers from discriminating employees on the basis of sex, religion, color, national origin and race. This is a legislation that has been protecting both job applicants and employees in any company. Any business that has 15 or more workers must adhere to the rules. It means that since its inception, an employer cannot determine employee’s retirement benefits, pay, fringe benefits or disability leave on the basis of race, religion, sex or color.

The purpose of the securities Act of 1933 and the purpose of the securities and Exchange Act of 1934

The Securities Act of 1933 was passed due to the Stock Market crash in 1929. It’s a disclosure statute. Its main purpose is to allow any prospective purchaser to come up with a reasoned decision by relying on relevant information. This purpose is however not accomplished as any issuer may decide not to reveal weaknesses in his operations. Businesses disclose reliable information using this Act by registering their security offerings. Securities Exchange Act of 1934 touches several areas on securities law. This is an Act that requires issuers who have certain exemptions to register with Securities and Exchange Commission (SEC) just in case they have securities traded on the national exchange (Meyer, 1994). Securities Exchange Act applies both to those companies whose securities are listed on national securities exchange and other companies that have assets worth more than $5 million and shareholders exceeding 500.

Sarbanes-Oxley Act

Sarbanes-Oxley Act is always shortened as SOX. It was established in 2002 and its enactment was due to the famous WorldCom and Enron financial scandals. It’s a legislation meant to protect the general public and the shareholders from enterprises’ fraudulent practices and accounting errors. This legislation affects both the IT and financial departments of corporations (Plette & Fletcher, 2008). It’s an Act stating that all business records, electronic messages and electronic records have to be saved for a period “not less than 5 years.” However, most IT departments in most organizations are unable to create and maintain an archive for records in cost-effective mode to satisfy Sarbanes-Oxley Act.

Common law legal system versus the civil law legal system

Common law legal systems put more emphasis on decisions made by courts which are taken to be “law” just like statutes. Civil law legal system is where judicial precedent has less weight as scholars make more contribution to it. It is traditionally prevailing in most corners of the world. The differences between the two come in the way they approach statutes and codes. Common law legal system takes casers as the main law source while statutes are taken as incursions and they end up being narrowly interpreted. Civil law legal systems base judgment on codes and statutes provisions and this is where case solution is derived.

Foreign Corrupt Practices Act

Foreign Corrupt Practices Act (FCPA) is an Act containing provisions prohibiting foreign government officials from being bribed by U.S. citizens. It also prescribes the specific record-keeping and accounting methods to be used on this land. All businesses operating in U.S. are supposed to use only those methods that have been prescribed by the FCPA irrespective of whether the proprietor is a foreigner. This has made grease payments to be a thing of the past in U.S. corporate world. Any business that wants to operate in this environment is discouraged to use grease payment to be favored in its operations (Gatti et al, 1997).

References

• Center4debtmanagement.com. (2010). Guide to Understanding Common Law. Retrieved on 8th February, 2010, from http://center4debtmanagement.com/LegalArticles/Common-Law.shtml
• Diffen.com. (2010). Civil Law vs. Criminal Law. Retrieved on 8th February, 2010, from http://www.diffen.com/difference/Civil_Law_vs_Criminal_Law
• fsboamerica.org. (2009). Warranty Deed vs. Quit Claim Deed. Retrieved on 8th February, 2010, from http://www.fsboamerica.org/Warranty-Deed-vs-Quit-Claim-Deed.cfm
• Gatti, M. M, et al. (1997). Foreign Corrupt Practices Act. Retrieved on 8th February, 2010, from http://library.findlaw.com/1997/Jan/1/126234.html
• Honeyman, C. (2003). Mediation. Retrieved on 8th February, 2010, from http://www.beyondintractability.org/essay/mediation/
• Jennings, M. M. (2005). Business: its legal, ethical, and global environment.Connecticut: Cengage Learning.
• Larson, A. (2004). Adverse Possession. Retrieved on 8th February, 2010, from http://www.expertlaw.com/library/real_estate/adverse_possession.html
• Meyer, C. H. (1994). The Securities Exchange Act of 1934 analyzed and explained. New York: Wm. S. Hein Publishing.
• Myownbusiness.org. (2009). Business Organization. Retrieved on 8th February, 2010, from http://www.myownbusiness.org/s4/
• Plette, T. N. & Fletcher, W. H. (2008). The Sarbanes-Oxley Act: implementation, significance, and impact. New York: Nova Publishers.
• Spaulding, W. C. (2008). Estates in Land. Retrieved on 8th February, 2010, from http://thismatter.com/money/real-estate/estates-in-land.htm
• Stolz, J. S. (2001). Electronic Signatures in Global and National Commerce Act. Retrieved on 8th February, 2010, from http://www.connellfoley.com/articles/oneclick.html
• Thelaw staff. (2009). The Statute of Frauds. Retrieved on 8th February, 2010, from http://www.thelaw.com/guide/statute-of-frauds/
• Uslaw.com (2010). Accord and Satisfaction. Retrieved on 8th February, 2010, from http://www.uslaw.com/us_law_dictionary/a/Accord+and+Satisfaction
• Uslaw.com (2010). Arbitration. Retrieved on 8th February, 2010, from http://www.uslaw.com/us_law_dictionary/a/Arbitration