Common Law and Stare Decisis: Common Law connotes laws and concomitant legal systems that have evolved through decisions of Courts and tribunals. Under this law, judges have the prerogative either to decide cases on the premise of previously decided cases or to make their own new judgments. When Court has to stand by what has already been decided, it is called ‘stare decisis’. In such cases, the Courts abide by what has already by laid down in preceding decisions. (Law Encyclopedia: Stare decisis, 2008).
Bailment: The aspect of Bailment arises when one person delivers physical goods or chattels to another on the expressed or implied condition that it would later be returned to its true owner. If X were to park his car in neighbor Y’s garage while going out of town for a few days, it would be classic case of bailment. X has the right of possession upon return, Y, the bailee voluntary accepts the offer of bailment, needs to take good care of the goods and have it returned to X upon completion of bailment. (Bailment, 2002).
Statutes: A law instituted and established by an Act of legislature in the United States of America which could be of two types – either Federal or State. When a bill is passed by the legislature and approved by the governor, it becomes a state statute. Similarly, when a bill is passed by Congress and signed by the president, it becomes a federal statute. (Results for Statute, 2008).
Civil Law versus Criminal Law: The fundamental difference is one of punishment. While under Civil Law the offender is neither jailed nor executed, under criminal law, a guilty defendant could be punished with a jail term, fined or penalized for his misdeeds. The maximum punishment that could be meted out to a guilty defendant in Civil law is having him reimburse the plaintiff for losses suffered through his misconduct. (Standler, 2002).
Federal and State Courts: Federal Courts consider federal issues, or State crimes that are referred to it. (Results for U.S. Supreme Court, 2008).
State Courts have the powers to handle specific legal issues like Probate Courts, Juvenile Courts, etc. (Comparing Federal and State Court System).
Federal Court judges are nominated by the President and approved by the Senate Committee. They hold office for life unless impeached for misbehavior. State Court judges, however, are selected through elections and hold office for fixed terms, for life or on any other ways
Personal Jurisdiction, Subject Matter Jurisdiction and Venue: The powers and jurisdiction of a Court in a particular location to require a specific individual to appear before it constitutes personal jurisdiction. Again, the powers of the Court to render a judgment concerning a particular subject matter is termed subject matter jurisdiction. While personal jurisdiction can be waived or acceded by defendant, this cannot be done in case of subject matter jurisdiction. The location where the case is heard is referred as venue. (Personal Jurisdiction, 2008).
Garnishment and Execution: Garnishment is a process by which a Third Party or garnishee is deemed perforce, to pay off the debts due by the defendant, to the plaintiff. It relates, typically to overdue taxes, dependents’ support, unpaid dues on mortgages, etc. An execution on the other hand arises when a creditor refuses to honor a pecuniary court verdict. The Sheriff, obtains an execution on the defendant’s property, disposes it for value and attaches the proceeds towards extinguishment of debts by remitting the proceeds (after expenses) towards the dues of stakeholders. In effect, an execution is a larger function of garnishment, but unlike garnishment, is just a one- time transaction. (Cohen, 1997).
Mediation, Arbitration and Accord and Satisfaction: Mediation is a form of alternate dispute resolution, ADR, which seeks to resolve disputes through the help of an internal moderator without seeking recourse from outside mediation. Arbitration is a procedure of solving commercial and technical disputes through the intervention of a neutral adjudicator. The resolution of arbitration is termed awards. A signing of accord by which disputant parties reach a negotiated settlement is called accord, and the action performed to reach an accord is called satisfaction. (Accord and Satisfaction, 2008).
Intentional Torts, Negligence, and Strict Liability in Tort: The liability of intentional tort arises when, for instance, an employee is electrocuted due to lack of application of knowledge by the employers, when such electrocutions has happened in past and employer is aware of it. Four aspects are essential to enforce negligence and they are, firstly, need for the duty to protect employees in their premises from harm; secondly, failing to exercise due care; thirdly, lack of care on the part of employers has resulted in negligence, and finally, the injury that actually takes place emanates from negligence. (Woodford, 2005).
Strict liability, on the other hand, docrinates absolute, or total liability, even if the defendant may not be primarily responsible. As in the case of goods that need to be defective free lest the manufacturers are held guilty under tort laws.
Requirements for an Enforceable Contract: A valid contract needs the following ingredients: offer and valid acceptance, clarity in terms of contract, intentions of all parties to create a legal bonding, consideration, capacity of parties to enter into valid contract, specific performance and finally, legality of contractual aims and objectives. (Bennett, 2008).
The Purpose of the Uniform Commercial Code (UCC) and its Application to Contract Law: The need for UCC arouse due to the increasing complexities in the legal and contractual spheres of US business and the impeding diversities within state and federal laws. Thus, it became imperative that a integrated federal benchmark covenant be implemented that could address the myriad problems facing US business, ease state barriers and reinforce agreements between partners in commerce. In the context of contract law, it obviated the need for incorporating minute details and clauses in contracts and providing UCC guidelines as reference aid in the event of disagreements. In addition, the need to harmonize the sale of commercial goods and services in 49 states in the US has adopted centre staged. (Define Uniform Commercial Code, 2008).
Click-Wrap Agreements and the Electronic Signatures in Global and National Commerce Act: Click wrap agreements refer to contracts that are conduced over the internet that entails clicking “I Agree” window to finalize online contracts. This disengages the need for protracted negotiations and saves time on the part of both buyers and sellers. On the other hand, Electronic signatures in Global and National Commerce Act envisages use of ESIGN, However, under Section 101 (c) (1) (ii) of ESIGN 2000 businessmen wishing to contract through electronic media needs to get consumers’ consent in writing before entering electronic contracts with them. (The Electronic Signatures in Global and National Commerce Act, 2001).
Sole Proprietorship, Partnership, Corporation and Limited Liability Company: Sole proprietorships centralize responsibility, risks and profits, while partnerships share them. Corporations have access to public funds and have members who may be owners or stakeholders. However, LLC members have protection of dis attachment of personal properties and assets for meeting company debts and liabilities, restricted only to members’ stake holdings. (Zahorsky, 2008).
Fee Simple and Life Estate: While fee simples denotes absolute or unliened ownership over property , which endears to heirs after death of owner, life estate connotes the use or occupation of land during one’s wife decreed by deed or gift. While in the case of life estate, the benefit may be only for one’s lifetime and also, it may be necessary to render the property back to the giver, no such aspect is there in case of fee simple. Defect in title in case of fee simple sale or transfer could be legally remedied but no such remedy available in life estate. (Wright, 2003).
Warranty Deed and Quitclaim Deed: While a warranty deed provides a clear title free of lien or encumbrances, quitclaim deed does not provide title and is taken by the new owner on trust and good faith. “A quitclaim deed typically is executed when the property isn’t sold — when the owner dies and bequeaths it to someone, or when the owner gets married and wants to add the spouse’s name to the title.” (Lewis, 2008).
Adverse possession: This arises when a person, by virtue of holding possession of land for a long period of time, or more is deemed the de facto holder, even to the exclusion of its true owner. There are however, certain conditions to be fulfilled in terms of being able to dispossess the true owner, intention to hold the said property (animus possendi), limitation period within which the true owner could legally eject him from the land, and registration of claim with the relevant land authority. (Adverse possession, 2006).
Employment at Will versus Title VII of the Civil Rights Act of 1964: Employment at will is voluntary from both perspectives of employer and employee and could be terminated, subject to agreement, by each or any one without notice to the other. Whereas Title VII of the CRA 1964 seeks to grant protection to individuals against employment discrimination in terms of age, race, gender, color or religious beliefs, etc. (Race, Gender, and Affirmative Action, 2007).
The Purpose of the Securities Act of 1933 and the Purpose of the Securities and Exchange Act of 1934: The Securities Act 1933, which came as an aftermath to the Stock Market Crash 1929 and the Great Depression, seeking mandatory Registration with the SEC, a watchdog of Securities Market, for policing Public Offers in the sale of shocks and securities. It also envisages that potential investors need have prior knowledge about the investee company and its promoters, before taking an informed investment.decision. Whereas, the SEC Act 1943, created the Securities Exchange Commission to ban insider trading and other illegal activities ,channelize activities of stock exchanges on desired lines while making corporates disclose full and complete financial activities through their Reports. Securities Act 1933 seeks to regulate the original primary markets, while SEC 1934 seek to control secondary markets. (Securities Exchange Act of 1934, 1997-2008).
Sarbanes-Oxley Act: This is a Public Company Accountability Reform and Investor Protection package necessitated by the failures of corporate giants like Enron, World.com, and Arthur Anderson, which left thousand of investors and employees in a crisis. It is meant to transparize management practices and improves accounting and financial record keeping in tune with current sound accounting norms designed to enhance investor safety and proper utilization of corporate funds and set highest standards for protection of stakeholder investments. (Shaw).
Common Law Legal System versus the Civil Law Legal System: Common law refers to laws and legal writs that are derived from the orders passed by courts or tribunals, rather than through the exercise of legislative statures and executive actions. In the absence of statements of law, judges are at liberty to make decision based on their understandings and thus creating legal precedents that could constitute later legal thinking. In the former legal system, the derivatives of legislation are the basis on which judgments are made. Thus, in the case of common law, decisions constitute later laws, whereas existing laws are used to reach decisions in case of the latter.
Foreign Corrupt Practices Act: Instituted in 1977 and amended in 1988 by the US Congress, it seeks to ensure that individuals and companies including subsidiaries , branches and affiliates of American companies do not offer, or seek to offer monetary payments, or any other matter of value, to foreign government officials outside the US, for securing business. Although its scope is restricted to government officials only, local laws could be invoked to deal with cases involving gratitutious payments to non-government officials for services rendered or to be rendered. (Frequently Asked Questions about Exporting).
Reference
Law Encyclopedia: Stare decisis, (2008). Answers.com. Web.
Bailment: What is a bailment?, (2002). Everything. 2008. Web.
Results for Statute: Real Estate dictionary: Statute, (2008). Answers.com. Web.
Standler, Ronald B. (2002). Differences between civil and criminal law in the United States of America, 2008. Web.
Results for U.S. Supreme Court: US History Encyclopedia: Supreme Court, (2008). Answers.com. Web.
Comparing Federal and State Court System, US Courts. 2008. Web.
Personal Jurisdiction, (2008). Ask.com. Web.
Cohen, Arnold B. (1997). Transcript of Simulated Presentation Relating to the Garnishment of Bank Accounts and Wages, 2008. Web.
Accord and Satisfaction, (2008). The Free Dictionary. Web.
Woodford, Kelly Collins. (2005). Sudden –Onset harassment: Negligence or strict liability?, All Business. Web.
Bennett, Sherrie. (2008). Contract Basics, Web.
Define Uniform Commercial Code: Encyclopedia: Uniform Commercial Code, (2008). Web.
The Electronic Signatures in Global and National Commerce Act, (2001). Federal Trade Commission. Web.
Zahorsky, Darrell. (2008). Limited Liability Company 101, About.com: Small Business Information. Web.
Wright, Paul., Kirk hall, Peggy., & Cunningham, Russell. Estate Planning Considerations for Ohio Families: Section 3: Property Ownership, (2003). The Ohio State University Bulletin: Web.
Lewis, Holden.(2008). Understanding quitclaim, warranty deeds on property, Bankrate.com. Web.
Adverse possession, (2006). The K-Zone. 2008. Web.
Race, Gender and Affirmative Action: Race and Gender inequality in the United States, (2007). Web.
Securities Exchange Act of 1934, (1997-2008). Investorwords.com. Web.
Shaw, Jack. Should You Care about Sarbanes-Oxley? Web.
Frequently Asked Questions about Exporting: What is the FCPA and how does it affect your business, Wisconsin department of Commerce. Web.