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Business law questions and answers

Stuck on another business law case study!!?!??!?!?
Yep it’s me again! Please help me out on this one! John, a 17 year old student who looks much older ,orders $1500.00 worth of food for an end-of-VCE party. The food is duly delivered and consumed and John refuses to pay. What are the legal rights of the food supplier? I.

What is the main diference between concealment and nondisclosure in business law?
Knowledge of an event , communication, property, or intelligence that is concealed, with intent to conceal, from scrutiny or investigation, by any lawfull body or court. Nondisclosure is the knowingly withholding of information, intelligence , property, with the knowledge that the information, intelligence, property, is required.

Question about business law, i got ripped off by a lawyer?
my fiance’ and i run a computer tech. business, he went on a call, did the work, and the client (a lawyer) is ripping us off, she claimed that a loose wire caused her to have to call a different tech after we preformed the job, and has.

Wrongful termination and withholding of funds. Do I have a case?
The details are too long to post here, but if anyone reading has any knowledge of business law (preferably a lawyer), please email me and I will give you full details. Short summary: I was fired for not being willing to work on myday off (I am an.

A question about a case study for business law.What does the law state reguarding this particular matter?
Case study 1 Helen, age 17, wanted to buy a motorcycle. She did not have the money to pay cash but persuaded the dealer to sell a cycle to her on credit. The dealer did so partly because Helen said that she.

Is there a business law that prohibits intentional racism?
Macy’s denigration of whites just fuels the fire. http://www.foxnews.com/story/0,2933,2905.business law Consider the business that started this. Macy’s the ridiculous store that came to Chicago bought a profitable store – Marshall Fields – a pillar of the city, decides to sell only New York products because ‘everyone likes New.

Legal liability?
My business law professor used to say, ‘Neither officer, director, nor major shareholder shall I be.’ I recall officers, board of directors and major shareholders can be held personally liable for their actions in a corporation. Any truth to that? Well, if your Law Professor said it, there’s a good chance it’s true. – No, that’s not.

I have a question about business law class?

There exists – in the field of contract law – both contract and non-contract theories of recovery. Depending upon the particular fact situation, a party might file a lawsuit for breach of an express contract in fact or an implied contract in fact. These are both contract theories! A party might.

Please read and see if you can help me along.this is for a business law class.?
Using the Internet, locate and print out a company’s order form for one of its products. (1) Identify the web site where you located the order form. (2) Does the order form include a representation regarding the age or capacity of the person.

I need a good topic for a paper (6 Pages) about any aspect of business law. Any good ideas??
Any interesting ideas are appriciated. I will give the 10 points to the person who gives me a topic that I can use. Any websites with information will be helpful too. Thanks What about the whole issue with music piracy,.

BUSINESS LAW anyone any good with business law??
Ruth carelessly parks her car on a steep hill, leaving the car in neutral and failing to engage the parking brake. The car rolls down the hill and knocks down an electric line. The sparks from the broken line ignite a grass fire. The fire spreads until it reaches a barn.

Business law topic.help?
I need a good topic for my business law essay. I can’t think of anything. I was going to do Walmarts discrimination against women in the workplace, but one, its not a very interesting topic and all the information I’ve found is the same. Any ideas for me? how about walmarts suit with the pharmacists, it.

How can one breach acontract?
This question is from business law as one my course unit and it was acourse work given to me tofind answers. My email address is masswils@yahoo.com. Fail to fulfill the terms as contrated for. – By refusing or failing to carry out your obligations under that contract eg by failing to deliver goods (if.

I have a question about contract law.?
if i remember my business law class correctly if there is a contract between two parties and there are say 10 things in the contract that one party needs to abide by and they don’t abide by even 1 item in the contract. is this contract void? i thought a contract had.

Employment Contract High Wycombe Builds a Legal Relationship

Previously, the basic law seemed to esteem the requirement for a worker to be faithful and devoted and there was no obligation with respect to the manager to guarantee that the labourer had entry to monetary welfare and professional stability. In any case, it creates the impression that the basic law likewise imported the thought of an inferred commitment of shared trust and certainty in the middle of managers and representatives by means of an Employment contract High Wycombe and that this example is clear in the statute of courts. It is contended by numerous legitimate researchers that the example of work law as it is managed by the regular law tends to support employers in that guilds are controlled with a suspicion of doubt and that the law has a tendency to embrace the estimations of preservationist political members, for example, columnists, government officials and senior civil servants.

An Employment contract Oxford accord could contain various things. Most importantly, it should unmistakably show who the contracting parties are and an announcement that both sides went into the agreement with capability and full assent. Assent and capability are fundamental components of an agreement and without it nothing in the understanding will be legitimate. The accord is void from the starting point. The accord should likewise contain the date when it was consummated and sign. This will be the premise of the initiation of the understanding and the advantages, obligations and liabilities that accompany it. This understanding must have terms or stipulations. In the event that the occupation is just a 5-year contract, such ought to be explicitly included in the agreement. What happens following 5 years, whether the business naturally closes or in the event that it is subject for reestablishment ought to likewise be in the accord.

In the advanced super adaptable economy where persons can and do change professions rapidly and routinely, there are couple of work environments with standard hours of work and there are expanding quantities of individuals occupied. In past times the idea of work law was that a man would do work for an executive in a solitary area, in a solitary occupation for a solitary employer. Presently specialists tend to work with a range of superintendents without a moment’s delay, frequently on low maintenance or easygoing premise. Likewise, there are currently countless who view themselves as independently employed. These patterns are clarified by the apparent yearning of labourers to claim adaptability in their working game plans. It likewise implies that more prominent effectiveness can be picked up from the force of innovation to permit teleworking. On the other hand, in spite of these progressions, there has not been a disavowal of the requirement for there to be a composed Employment contract High Wycombe between an executive and representative. For More Information Visit Here : www.oxford-employment-law.co.uk

The Adam Walsh Act: Sex Offender’s and Immigration Law

Recently, under the Adam Walsh Child Protection Act, United States immigration law has taken a hard-line against US citizens and Lawful Permanent Residents (“LPRs”) convicted of various specified offenses against minors. Under the Adam Walsh Act a person convicted of certain offenses against a minor are prohibited from petitioning to bring any non-citizen family member or spouse to the US. Such individuals are not only prohibited from petitioning for a minor child but they are also prohibited from petitioning for any adult beneficiary, such as a spouse, fiancé, parent, unmarried son or daughter over 21, an orphan, a married son or daughter, a brother or sister, and/or any derivative beneficiary. The following is a non-exhaustive list of offenses against a minor that could trigger a visa petition to be denied based upon the Adam Walsh Act: kidnapping or false imprisonment (unless committed by a parent), sexual solicitation, solicitation to engage in acts of prostitution, offenses involving child pornography, certain instances of statutory rape, or anything else that is determined to be an offense involving sexual conduct against a minor.

Thus, a 50 year old man who engaged in an improper relationship with a minor 25 years ago can now be stopped from entering a completely lawful and healthy relationship with a 55 year old foreign woman. At the same time under the Adam Walsh Act a 19 year old individual who was convicted under statutory rape laws in his state for engaging in consensual intercourse with his 17 year old girlfriend of 5 years can be barred from bringing a foreign spouse to the US in the future. These bars are in place despite the US citizen having served their time, not committed any other criminal acts and/or having provided evidence of rehabilitation

Effectively the Adam Walsh Act prohibits US citizens and LPR’s convicted of various crimes against a minor from filing for any family member without first obtaining a waiver from the Department of Homeland Security (“DHS”). Moreover, Adam Walsh Waivers are extremely difficult to obtain. The decision to waive such a conviction is left to DHS, who has “sole unreviewable discretion” to grant or deny an Adam Walsh Act Waiver. “Sole unreviewable discretion” means DHS has ultimate power in these decisions, there is not an appeal process, and there is not a complaint or review process. Such a decision is left completely up to the person reviewing the request and they can deny any application for any reason. In fact they do not even need to provide a reason.

In order to qualify for an Adam Walsh Act waiver the petitioner must show they pose no risk to the beneficiary. Any applicant applying for such a waiver should plan on submitting some or all of the following:

  1. Their own sworn affidavit,
  2. A sworn affidavit of the potential beneficiary,
  3. Sworn affidavits of close friends and/or prominent members of the community,
  4. The police and court records describing the crime/s,
  5. Newspaper articles describing the crime/s,
  6. A full psychological evaluation,
  7. Evidence of rehabilitation, and
  8. Any other evidence which shows pose no risk to the beneficiary.

As one may guess, decisions that are left to the “sole, unreviewable discretion” of the immigration officer are often not given a fair analysis. First the officer reviewing such an application’s decision will not be questioned and they will not be reprimanded in any way. Second, there is a great deal of misinformation and prejudice surrounding people convicted of these types of crimes. DHS officers have no problem accepting the non-refundable filing fees from a petitioner and turning around and denying their application. Moreover, once an application is denied it makes it all that more difficult to submit it again and get it approved.

Because of the difficulty in getting such waivers approved it is highly recommended a person applying for an Adam Walsh Act Waiver retain competent and experienced counsel to assemble a formal request. Although there are no official DHS statistics on the matter, reliable sources within the government estimate that only 45% of these applications are approved. Thus, if you require an Adam Walsh Act Waiver, it is highly recommended you retaincompetent counsel immediately.

Hire the Best Immigration Lawyer in Canada

There are a number of reasons for which a person may require an immigration lawyer. The immigration lawyer is an expert who deals with the legal matters and assists one in the immigration process and other associated matters. In the immigration process, especially if it is for the first time one may require for an expert legal advice for that the immigration lawyers prove apt for the matter.

The immigration laws and rules differ from one country to the other country. In the immigration one has to fill up a number of papers and documents therefore it is essential for one to have all things done accordingly. For this one need to hire for an immigration lawyer that can help and assist one in the whole process. The immigration lawyer is essential when it comes to the immigration Canada lawyer of getting the visa of the country. The immigration lawyer helps the client and gives guidance allied to the citizenship of a country work visa, student visa, tourist visa, employment visa and other aspects related to the immigration process. In addition, they facilitate their clients to meet the basic and vital obligations in filling forms, documentation, verification, and queries included in the immigration progression. There are numerous of immigration Canada Lawyer who ensure for best of service. But before hiring a lawyer one need to do, find out certain important facts. The immigration lawyer one hires must provide with assistance whenever needed by one and must be aware of all facts and loopholes of the system. Also hire a lawyer who makes sure that the application one submits is complete and hence enhance the chance of application acceptance by authority. There is a lot of immigration takes place across countries daily and also there are a number of immigration lawyers who ensures for best and proficient service but to select for right one is difficult.

Some of the facts one need to consider before hiring an immigration lawyer is discussed here. One needs to ascertain about the experience of the lawyer as experienced lawyers will be able to solve the matter efficiently, his knowledge over the area, time taken by him in the entire immigration process, must also ask about the charged for the service immigration lawyers in Vancouver. they provide it need to be cost effective. One can find essential information about the immigration lawyers on the web also from which they can compare and select the best one. In addition, one can also seek valuable advice and feedback from a dependable source before hiring one.

An immigration lawyer in Vancouver provides with the best of service in the immigration process and make certain in clients satisfaction with positive results in their favor. The immigration is the most concerned issues and all the processes in immigration, whether documentation or verification need to be tackled carefully. Therefore, one needs to carefully ascertain all the essential facts before so that one can have the best of service without any obstacle in the entire process.

Essential factors for selecting the UK Immigration consultants

You might have encountered questions as to how and what needs to be done in a scenario when your Visa application is on brink of near rejection. Most of applicants become paralysed simply on the idea that their Visa application has been summarily rejected, let alone the very thought of selecting the UK based Immigration consultant. And those applicants who even reach to the levels wherein they start thinking of hiring a professional Immigration law firm, their decision is arrested due to several vague thoughts. Often, such individuals get themselves strangled into train of circumlocution. On the flip side, such applicants should look seriously and give a thought on hiring services of professional Immigration consultant.  But, even here there is a stop point. How should the applicant be assured of his or her choice? Here are few parameters that must be kept in your mind while hiring the services of Immigration consultant:

•         Licenced and certified from OISC
•         The practise should be focussed on Immigration and Asylum Law
•         The Immigration consultant should have good understanding on your Immigration case, in particular
•         The Immigration lawyer should talk to you not like a professional, but like a friend
•         He should emphasise on providing personalised guidance, besides other factors
•         The professional lawyer should not hesitate in divulging a precisely clear and honest estimate of total fee
•         The consultant should be affordable and comes within your budget
•         The conduct of consultant should not be unethical, deceitful or for that matter farfetched

Role of the Immigration consultant

Immigration consultant has a different role to play than what is usually played by any other consultant, say for example the educational consultant or the business consultant or the financial consultant. As it is clearly suggestive, Immigration consultant will always concentrate on providing on legalised help to prospective applicants who are just planning for Immigration, but require guidance to move ahead successfully through the entire Immigration process.

The role of immigration consultant, speaking in general, follows closely with that of legal adviser or counsellor to foreign citizens and immigrants who need to interact with Immigration authorities.  The consultants play major role in providing professional advice and get quick, enterprising guidance on valuable points like Visa Applications, Green cards, Citizenship and Naturalization, Deportation issues, and working out methodologies to create employment for non-citizens.

In plain terms, the Immigration consultant is engrossed in offering advice to prospective group of applicants, who have interest or have already made the application before Visa office.The consultants are Immigration lawyers, who at times, make appearances in front of Immigration judge or jury, in a scenario where the applicant is facing Immigration hearing. In several cases, the Immigration lawyers also present the testimony between Immigration and criminal laws.

Reasons for hiring professional Immigration consultant

Many applicants need services of professional Immigration consultants for various needs. Here are few important needs that you should concentrate upon:

•         Assistance for submitting Visa application before the designate authority, in this case, it is the Visa office
•         Help in making the applicant understand importance and sensitivity of Immigration law
•         Work on the complex frontiers where the Immigration and Criminal law come closely together
•         If the Immigration applicant has initiated the Visa application process, but is confused as to how he or she should proceed further on it, the Immigration consult would help
•         If the applicant wants to set up his or her extended business in foreign country
Do not delay your decision on hiring the services of Immigration consultant. Keep the above points in your mind when making the selection of Immigration consultant, and you will feel sheer confidence when applying for a particular Visa.

Cyprus Property Law

Cyprus Real Estate Laws Differ For Overseas Property Owners

Overseas property buyers purchasing Cypriot property may be unaware of the legal position regarding their assets if the die in Cyprus.

Lawyers specialising in expat Legal & Tax advice has clarified the position that may surprise many expats with homes in Cyprus.

Cypriot law differs with UK and other European laws when it comes to dealing with a persons Will. The fact is that if you die without a Will your estate passes automatically to your children – not your spouse. Also, it could be expensive because of unavoidable taxes and fees.

The very wealthy are able to make trusts and foundations to hold overseas assets and control ownerships when people die, these same rules are available to everyone and using them can avoid expensive and lengthy probate costs.

Cyprus lawyers can charge, by law, a fixed amount for Probate work, typically in excess of 12% of the estate value. That is a whopping 12,000 euros for every 100,000 euros of worldwide property and investment assets, a very expensive exercise which could be avoided by planning ahead.

If you die without a Will with Cyprus assets, the courts will appoint a solicitor who will charge the full Probate cost. Another concern arises if you do not have a Will and the children inherit, the children could simply sign affidavits to “give up” their rights to inherit in favour of the spouse, this only adds additional expense and delay to death intestate. But, the children could refuse to hand over the assets to the spouse and there is nothing can be done to force them.

Solutions

There is no UK or Cyprus Inheritance Tax on first death between UK domiciled married couples. They can transfer twice the Nil Rate Band on second death £624,000 without Inheritance Tax but Cyprus real estate property and land, motor vehicles and business still need probate. Using family members can avoid “fixed” solicitor’s costs.

Sometimes separate Wills for separate jurisdictions can settle assets in different countries, reducing Inheritance Tax and delays in Probate – currently two years plus in Cyprus.

TRUST

One can also look at a “Trust” which is in effect a “living Will” where you give your personal assets to a new legal entity called a Trust. Subject to tax rules you can continue to have an element of direct and control these assets and have a Trust Will to provide for the distribution of assets on death.

Residential vs. commercial real estate investment

There are many factors to consider when you want to invest in properties. Should you consider a residential or commercial property? There are pros and cons to each. You will have to consider all of the information available out there and then weigh your options.

Law

Residential Property

The law in Ontario for residential properties is very strict for investors. Landlords are not very well protected and the waiting period before getting a non-paying tenant out is long. Some cases can take over 9 months to resolve, and even if you are proactive the process will take 3 to 4 months at best. With a certified Front Yard agent, you can avoid many issues.

Commercial Property

Commercial property law can be very complex. The good news is that the leases are subject to contract law, unlike residential leases. This means that everything stipulated in the lease and agreed to by both the tenants and the landlord is enforceable. Dealing with non-payment of rent is much easier when it comes to commercial properties. Leases are often renegotiated and not automatically renewed which is often the case in residential situations.

Financing

Residential Property

When finding a home in Toronto to use as a rental property you will need to consider financing. 20% down is required for a down payment. You can only consider 50% of the rental income of your properties when calculating your income. This is the case for multiple properties as well.

Commercial Property

Commercial properties have higher down payment requirements. Down payments generally need to be between 30 and 35%. Mortgage rates are also often higher. You will need to have a lot of money set aside to become a commercial investor.

Understanding

Residential Property

People are generally more familiar with residential properties and the type of work they entail. The systems within the house are also more easily understood by people. People generally have a sense of plumbing, and electrical set-ups in homes for instance.

Commercial Property

Depending on the type of property you buy there may be a lot of elements that you are not familiar with at all. You may be looking at purchasing a building that was used as a restaurant and not be familiar with all of the equipment that is inside. You will have to be willing to look past this when deciding if you should purchase or not. You will also want to be prepared to hire people who are knowledgeable about the type of property you plan to invest in.

 Vacancy Risk

Residential Property

There are a considerable number of potential applicants when it comes to residential properties. People are always in need of housing so you won’t have to look too hard to find tenants. If you get a property that is in decent condition and are able to rent it for a decent price then you shouldn’t have any problems with vacancy.

Commercial Property

Commercial properties can be more difficult to rent. You will open yourself up to more possibilities if the arrangement of the space is flexible. If you can use it for several different business types then you are better off. You will be more easily able to find tenants that are suitable. You will want to carefully advertise your space to get the attention of suitable tenants. You should make sure the place is clean and tidy and in top condition before you present it to potential tenants.

Source of International law

The sources of international law can be divided into following categories:

  1. International conventions.
  2. International customs.
  3. General principles of law recognized by the civilized states.
  4. Decisions of judicial or arbitral tribunals and judicial works.
  5. Decisions or determinations of international organizations.

Article 38 of International Court of Justice (ICJ) recognized the following sources for IL:

  1. 1. International conventions.
  2. 2. International customs.
  3. 3. General principles of law recognized by the civilized states.
  4. 4. Decisions of judicial or arbitral tribunals and judicial works.

International conventions- Art 38 of ICJ consider it as the first source of IL. A/c to Hudson Conventions is used in a general and inclusive sense. It would seem to apply to any –treaty, agreement, and protocol. A convention may be general either because the numbers of parties or character of it or it may be particular which deals with specific parties.

Whenever an international tribunal decides any disputes between any states, it first seeks whether there is any treaty between the parties if there is a treaty between the parties the tribunals is bound to follow the rules laid down by the respective treaty. As schwarzenberger rightly describe the treaty – treaty are agreement between subjects of international law creating a binding obligations in international law.

Reference can be made by Art 26 of Vienna Convention on the law of treaty which applies the rule of Pacta Sunta Servanda – means treaty is the binding force upon the party and it must be performed by them in a good faith.

Protocol is the supplement of treaty, it use as a modification of treaty.

Vienna Convention on the law of Treaties –

It is of two kinds

  1. Law making treaties.- this type of treaties perform the same functions in the international field as legislation does in the State files. it can again be divided into two types-
    1. I.            Treaties enunciating rules of International law- example UN charter.
    2. II.            International treaties which lay down general principle.- example Geneva Conventions on the law of sea, and Vienna Convention on the Law of Treaties.
    3. Treaty contract. In this treaty two or more State are entered into contract sort of thing. And these treaties are binding on the parties.
  1. International Customs.- it is the oldest and the original source, of international as well as of law in general. Customary rule are the rules which have been developed in a long process of historical development.  The customs arose from the natural principles of justice and public utility. The sanction of the custom means the people of the nations accepted it. And it deserved the sanction of law also. As Salmond rightly said- customs is to society and law is to sate. Art 38(b) of ICJ recognizes custom as evidence of general practice accepted by law.

In order to understand the meaning of custom we have to understand the meaning of usages. Usage is in fact is the early stage of custom. In other words those habits which are often repeated by the States. –Satrk- where a custom begins where usages ends.. usage is an international habit of action that has yet not received full legal attestation. It is not necessary that usages always become the custom.

Ingredients of Customs-

  1. 1. Long duration.
  2. 2. Uniformity.
  3. 3. Generality of practice.
  4. 4. Acceptance of law.
  1. 4. General principle of law recognized by civilized state. Means those rules which we find repeated in much the same from in the developed systems of law, either because they have a common origin as in Roman law or because they express a necessary response to certain basic needs of human associations.

International court has recognized the general principle of law such as- good faith, responsibility, prescription, res judicata etc.

  1. 5. Decisions of Judicial or Arbitral Tribunals and Justice Works-

ICJ decisions- it is the main international judicial tribunal, but it is to be noted that its decisions are not binding nature. Art 59 of ICJ says that-  no binding force except between the parties and in respect of that particular case.

Jurist Work- although juristic works cannot be treated as an independent source of international law yet the view of the jurist may help in the development of law.

  1. International organizations- such as WTO,WHO etc.
  1. Other source of International Law-
    1. I.            International comity – the mutual relation of states are based on the principle of comity, when a state behaves in a particular way with other states, the later have also to behave in the same way.
    2. II.            State paper- when one state send letters to each other for mutual interests. These letters are sometimes published. A study of these letters sometimes revelas that certain principles are repeatedly followed by states in their mutual intercourse.

Understand the Importance of Business Law

When a business is started, it needs to be registered with the law. Until or unless the company is not registered legally, it is not an authorized business to carry out the transactions. It can be accused as an illegal body as well. The owner may be punished for breaking the law as well.

Colorado business law states that, even if a company wants to merge with any other trade, a written contract is required to be made between them. Both the parties have to sign the agreement to show their consent for the same. The law covers a wide range of knowledge in which all the rules and regulations have been stated in detailed form. A variety of disciplines are explained in the law for various kinds of business fields.

All the aspects of trade are covered under the law. Starting from the registration of the business to hiring of employees and selling across various locations around the world is expressed in the regulation. A business may require a lawyer to help with the terms and conditions of the agreement with any other party. When the bidding for a tender or a project has to be carried out, all the rules of the law are followed and the lawyers are required to come up with various kinds of proposals to be presented to the other party. A company without a binding agreement may suffer huge losses sometimes.

Companies have to consider the business code of conduct whether they are dealing in domestic area or internationally. Failing to comply with the same is considered as a serious offence. For not obeying the rules and regulations, may sometimes lead to shutting down of the company.
If the business is carried out as an aspect of partnership, all the partners have to be registered within the Colorado business law. It offers to keep the interest of all the parties and make sure that their rights are not affected. Both the parties must have to agree and register their consent in the court. Those who do not fulfill the legal requirements may be taken to court for breaching the law.

Sometimes, the partnerships are landed in court just because of the disputes that arises because of violation of rules and regulations. The other reason could be more benefits available to the other party. The law states that all the conditions regarding the profit and loss sharing, investments need to be decided prior, and then a agreement has to be signed.

Before starting any business, the owner has to know about the codes, law and terms of reference. The law is applicable on every form and size of business. Whether it is a corporation, a sole proprietorship company, or any other form, they have to amend all the rules of Colorado business law. It also requires that every firm has to trade within the boundaries of the regulations.

Some companies may have to pay the penalties as well for not obeying the court’s order and those who do not abide by the law can be punished as well.

AUSTIN’S THEORY OF LAW

1. Introduction:
The theory of legal realism, like positivism, looks on law as the expression of the will of the state but sees it as made through the medium of Courts. Law no doubt is the command of the sovereign, but the sovereign to the realist is not the Parliament but the Court.

2. IMPERATIVE OR AUSTIN’S THEORY OF LAW:
Austin says that law is a command which obliges a person or persons to a course of conduct. It is laid down by a political sovereign, and enforceable by a sanction.

3. FEATURES OF IMPERATIVE THEORY:
According to Austin, positive law has three main features:

I.          Command
II.         Sovereign
III.        Sanction

I. COMMAND:
The first features of law is that it is a type of command.

> According to Austin:
Commands are expressions of desire given by superiors to inferiors.

(i) Laws are general commands:
There are commands which are laws and which are not, Austin distinguishes law from other commands by their generality. Laws are general commands, unlike commands given on parade grounds and obeyed there then by the troops.

II. SOVEREIGN:
According to Austin, a sovereign is any person or body  of persons,  whom  the bulk of a political society habitually obeys  and who does not himself habitually obeys, some other persons or persons.

>Characteristics of Sovereign:

(i) Source of Laws:
Sovereign is the source of law. Every law is set, by a sovereign persons or body of persons.

(ii) Source of Power:
Prof. Laski says that there are three implications of the definition of sovereignty given by Austin. The state is a legal order in which there is a determinate authority acting as the ultimate source of power.

(iii) Indivisible Power:
The power of sovereign is indivisible. It cannot be divided. Accordingly to Austin, there can only be one sovereign in the state. The totality of sovereign is vested in one person or a body of persons.

(iv) Habitual obedient by People:
The chief characteristic of sovereign lies in the power to exact habitual obedience from the bulk of the member of the society.

III. SANCTION:
The term sanction is derived from Roman Law. According to Salmond “Sanction is the instrument of coercion by which any system of imperative law is enforced. Physical force is the sanction applied by the state in the administration of justice.

4. CRITICISM:
Austin’s theory of law has been criticized on many grounds.

(i) Laws Before State:
According to Historical School, law is prior to and independent of political authority and enforcement. A state enforces it because it is already law. It is not correct that it becomes law because the state enforces it.

(ii) Gunman Law:
Some have criticized the positivist theory of law as a theory of gunman, as it makes no real distinction between a law and the command of a bank-robber who points his gun at the bank clerk and orders him to give him money.

Reply:
This criticism over looks Austin’s second requirement of law which requires that only that command is law which is given by political superior or sovereign.

(iii) Generality of Law:
According to Austin, law is a general rule of conduct, but that is not practicable in every sphere of law. A law in the sense of the Act of the legislature . may be particular in the fullest sense of the word. A Divorce Act is law even if it does not apply to all persons.

(iv) Promulgation:

According to Austin, law is a command and that has to be communicated to the people by whom it is meant to be obeyed or followed but this is not essential for the validity of a rule of law.
(v) Law as Command:

According to Austin, law is a command of the sovereign   but   the   greater  part   of a   legal   system consists of laws which neither command nor forbid things to be done e.g., right to vote.

(vi) Existence of Personal Commander:
The term command suggests the existence of a personal commander. In modern legal systems, it is impossible to identify any commander in the personal sense.

(vii) Refusal of Precedents as Laws:
The bulk of the English law has been created by the decisions of the Court. To describe the judges as delegates by the positivists is misleading.

(viii) Sanction:
The concept of sanction is also misleading as in modern democratic country, the sanction behind law is not the force of the state but the willingness of the people to obey the same.
(ix) Sanction is not essential elements:
Sanction is not an essential element of law, as in civil law no such sanction is to be found.
(x) Disregard of ethical elements:
According to salmond, Austin’s theory of law is one-sided and inadequatic. It disregards the moral or ethical elements in law.
(xi) Not applicable to International Law:
Austin’s definition of law cannot be applied to International law that is to say that International Law is not an imperative law. The International law is not the command of any sovereign, yet it is considered to be law by all concerned. (xii) Not Applicable to constitutional law:
Austin’s definition of law does not apply to constitutional law which cannot to called commands of any sovereign. Constitutional law of a country defines the powers of various organs of the state.
5. IS MORAL LAW IMPERATIVE:
Moral law has also been called the divine law, the law of reason, the universal or common law or eternal law. It is called the command of God imposed upon men. Natural law appeals to the reason of men. It does not possess physical compulsion. It embodies the principles of morality. Natural or moral law exists only in an ideal state and differs from positive law of state. In Austin view of law morality altogether ignores therefore moral law is not an imperative law.
6. CONCLUSION:
To conclude, I can say, that Inspite of criticism of Austin’s theory of law, it cannot be denied that Austin rendered a great service by giving a clear and simple definition of law. He makes a distinction between what law is and what it ought to be. It seeks to define law not be reference to its contents but according to the formed criteria which differentiate legal rules from other rules such as those of morals, etiquette etc.

when does an agreement become a contract?

A contract is an agreement which gives rise to obligations which are recognized by law. Thus, the course of dealings between the contracting parties would be governed by stipulations contained in the agreement which is enforceable if it is not repugnant to law of the land.

Anson- A contract is an agreement enforceable at law made between two or more persons by which rights are acquired by one or more to acts or forbearance on the part of the other or others.

Fredrick Polllock- Every agreement and promises enforceable by law is a contract.

Salmond- Contract is an agreement, creating and defining obligations between the parties.

Section 2(h) of Indian Contract Act 1872 defines-

An agreement enforceable by law is a contract.

Section 10 of Indian Contract Act 1872 defines-

An agreement is a contract when it made for some consideration, between parties who are competent, with their free consent and for a lawful object.

The analysis of above definitions- A contract is an agreement the object of which is to create an obligation i.e. a duty enforceable by law. For example – if there is an agreement between A and B that A will make a furniture for B, and B will pay a Rs 1,000/ to A, the agreement is a contract.

Section 10 defines a valid contract-

1.     All agreements are contract which are made by the-

2.     Free consent of parties.

3.     Competent to contract.

4.     A lawful consideration.

5.     With a lawful object.

Thus every contract is an agreement, but every agreement is not a contract.  An agreement becomes a contract when it fulfills the following conditions:

  1. 1. Consideration.
  2. 2. Competent parties to contract.
  3. 3. Free consent.
  4. 4. Lawful object.

There are some agreements which literally satisfy the requirements of a contract, such as proposal, acceptance, consideration etc. but which do not catch its sprit and they are not enforced because it does not sound to be reasonable to do so.

Constituent Element of Agreement:

  1. Several parties- There must be two or more parties to initiate a contract. Where one who has to discharge the obligation and the other entitled to enforce the obligations.

For example- A borrowed money from a joint account in which A & B are the owner. Here the obligation was not enforceable since A was both the creditor and debtor.

  1. Obligation– Obligation is the prime constituent, where one person agrees to do or obtains from doing a definite act or acts. It is the bond of legal necessity which binds together two or more parties.  It is also necessary the obligation must be definite acts, otherwise there may be uncertainty or indefiniteness about the obligations, and it may be possible that if one has to be under an obligation to do or abstain from doing acts for all the time, it would similar like slavery.
  2. Identity of Mind– Both parties must be agreed on the subject matter at the same time and at the same manner.
  3. Mutual Communication-Law does not go into the mind of the contracting parties but recognizes what is expressed in writing. Till such time there is complete understanding on the terms and there is communications in this respect, there can be no agreement in law.
  4. Legal Relationship-it is also most important there must be some legal relationship than the social relationship.

For exampleif A offers to B for go to movie or invite for lunch and B did not fulfill this the B would not amount to breach of any legal contract.

Study Law at Cambridge Summer School

Cambridge University has an extensive law school which has formed judges and lawyers all over the world and in England. Many of Great Brittan’s judges and top lawyers have their law degrees from Cambridge Law School.

Basically, you don’t have to be a British national to study law at Cambridge Summer School. Many US universities have partnerships with the Cambridge Law School for summer programs to study British common law and international law.

Why Cambridge? Cambridge has long been known to be one of the most prestigious universities in the UK. Located in the City of Cambridge in lower England, Cambridge has been on the parallel with Oxford University, the other major university in the British Isles.

Requirements for a summer of study at Cambridge can be quite rigorous. To get law education at Cambridge, many US university students will have to file paperwork to be in good standing with both the US and Canadian Barr Associations and acquire the textbooks and other learning materials before leaving for England.

GPA can also be a major requirement for a summer study program at Cambridge. Cambridge is one of the most prestigious schools in the world, so studying there for any period of time should be considered a privilege, and not a right. Thus you have to earn it. Typically, most students who want to spend a summer studying law at Cambridge should have a minimum of a 4.0 GPA to qualify.

Who will benefit from studying law at Cambridge? Well, basically, anyone interested in becoming a judge, lawyer, or studding international business law. What is International Business Law? Well, those of you who are serious about going into business and want to work and hold high positions in companies who do business internationally. Basically, many corporations who do business internationally have subsidiaries overseas and having a degree in international business law can help you negotiate deals or get subsidiaries set up for your company in other countries which can have serious trade and business relationships for your company.

Anyone studying US law can also benefit from studying at Cambridge because of the common nature between US law and British common law. When you have a good understanding of British common law and study early American history, you can have a well-balanced education on US law. This can also help you defend your case in the courtroom and enhance your career as a lawyer.

International Law And Municipal Law: The Interface

Introduction

It is the nature of man to live in communities.  He lives in this fashion in every part of the world today, and the evidence of history and pre-history shows how long he has been doing so.  But then it must be noted that where people live together conflict is bound to arise due to various conflicting interests among the people.  Also, bearing in mind that everybody tries to work hard, obtains basic needs and all other things which help to make life happy and comfortable which are incidentally in short supply, since the supply is always in short in proportion to the demand, competition for them sets in.  It is a race in which we all engage, and in every race or game there must be rules and regulations. Else, we are moving towards the ‘state of nature’ as enunciated by Hobbes.  Therefore, the existence of rules and regulations (law) becomes a sine qua non to the peaceful co-existence of people and nations all over the world.

This chapter therefore, attempts a critical examination of International and Municipal laws.  The chapter is divided into three parts.  Part one which is the introduction provides theoretical background for the work.  In it, clarifications of some concepts that are germane to the study are done.  It also looks briefly at purposes and characteristics of law.   Part two compares vividly international law and municipal law looking at the debate on the relationship between the two using the contending theories.  Part three, which is the concluding aspect, presents a complementary nature of international law and municipal law, thereby viewing both laws as real, irrespective of their peculiarities.

Understanding the Concepts

Since conceptual clarification is a form of intellectual ritual that gives clarity and validity to any discussion, it is therefore necessary to explain concepts that are germane to this study for the purpose of deeper understanding.

The Concept of Law

There have been various definitions of law by different scholars across the global intellectual communities.  These definitions exist, ranging from the philosophical to the practical, Plato called law social control; William Blackstone (1977) sees law as rule, specifying what was right and what was wrong.  For the purpose of this study, law is viewed as a body of rules that establish a certain level of social conduct, or duties that members of the society honour (Davidson, 1998:3).

Law simply means an arrangement that coordinates and confines people’s behaviours to conform to an agreed general ways of human conduct in a given society, with a threat of sanctions against defiant behaviours. Inferred from the above definitions is the need to obey the law. This is because disobedience may attract sanctions that may result in imprisonment, fine or death, depending on the nature of offence. Law may also be defined as a body of rules or regulations governing the conduct of human beings in their social regulations.

The Concept of Municipal Law

Municipal law is the internal law of the state, binding on the citizens of the state.  It is defined as the domestic law of a state regulating the conduct of individuals and legal entities within it (Aguda, 1999).  It is national or internal law of a state.  Shaw sees municipal law as law that governs the domestic aspects of government and deals with issues between individuals and the administrative apparatus (Shaw, 1997:105).

The Concept of International Law

It is an indisputable fact that international law is a victim of definitional pluralism; this is because many scholarly definitions have been given to it by various scholars of repute from different perspectives.  Some of these definitions will be explored for the purpose of this study.

Khan et al (1968) defines it as a ‘body of rules, laws, and norms, which serves to limit the sovereignty of state in the international society.  Oppenheim (1995) sees it as the ‘body of customary and treaty rules which are considered legally binding by states, in their intercourse with each other.’  Jessup (1968) presents it as the body of laws, which is applicable to states in their relations and to individuals in their relations to other states.  In the same vein,  Kolawole (1997, 278) defines international law or what he calls the ‘law of nations’ as the body of rules and principles of action which are binding upon civilised states in their relations with one another.  International law is the law at the international level made by the collective will of states and to lesser degree organisation and individuals (Shaw, 1997, 105).  In essence, international law is a body of generally accepted principles and rules regulating or controlling the conduct of states, individuals and international organisations for the purpose of peaceful coexistence in the international plane.

Dimensions of International Law

            The scope of international law can be categorised into six broad items, namely: one, the law of peace, which seeks the peaceful settlement of international disputes.  Two, the law of war, since conflict is an inevitable outcome of human and states relations, conducts of hostilities, must conform with laid-down regulations in terms of types of military wares and ammunition to be used, and stages of their utilisation, targets and non targets of attack, areas of combat, treatment of civilians, journalists and prisoners of war and refuges; and the duties of humanitarian agencies such as the Red-Cross otherwise called ‘doctor without borders’. Three, the law of neutrality, international law forbids aggression on neutral states in war.  It also spells out reciprocal responsibilities for neutral states.  Law forbids them to render any form of assistance whatever military or civil to any of the parties engaged in hostility.  Four, mercantile laws, which relate to regulations on international trade, foreign investment and multi-lateral trade agreements by states.

Five, is the law of the sea.  The sea is very vital to the world economy as it provides varied marine food and mineral resources. It serves as a means of international transportation, and it serves as strategic resource for national defence.  For these reasons, nations have fought wars over marine resources.  Consequently, activities of states in the sea need to be regulated in order to present inter-state disputes.  Six, convention on the use of outer spaces.  The law regulates the exploration and launching of objects into outer space (Ajayi, 2000).

Characteristics and Purposes of Law

The inherent nature of human beings is their unpredictability in terms of behavioural conduct. States, groups and international organisations, like individuals who constitute membership of these social formations, suffer from this innate problem.  Therefore, for law to really serve its purposes, a competent and constituted body that has recognised authority must make such law.  It must also be ultimately enforceable; any law that cannot be enforced is no law.  It must also be dynamic because society in which it operates is dynamic.  Law should also be consensual.  International law is one of consensus rather than one of force.  Even in the national society laws are only laws when one consents to it.  It might be out of fear of reprisal or coercion.

Law generally serves the following purposes in any society.  Law regulates conduct, maintains peace, and provides protection and means of achieving justice.

Specifically, law serves as a tool of order; as a tool order, it promotes order within the national and international society.  There is no denying the fact that a comprehensive set of rules, regulations, obligations, rights, legal doctrines and decisions of national and international tribunals on legal matters does help to promote international order.  Law regulates the behaviour of the citizenry.  Without law, society would have been disorganised and become ungovernable (Kolawole, 1997).

A scholar have identified the functions of international law, which include minimising frictions between and among states, stabilising the behaviour of states, facilitating cooperation between and among states, protecting individuals, settling disputes and serving as a tool of public relations and propaganda (Adeniran, 1983).

International law also serves as an instrument of national policy.  It contributes to a nation’s means of attaining its objectives in foreign policy.  It also serves as integrative force, in the world community, since no state can live in isolation, it atomised the entire states and people of the world into one whole as they are all subjects of the law without prejudice to race, colour or class (Ajayi, 2000).

Comparing International Law and Municipal Law

The relationship between international law and municipal law is full of theoretical problems.  The international legal literature on the subject records two main principal theories involved in the debate.  But it is to be noted that this part does not necessarily distinguish or differentiate international law from municipal law or give one primacy over the other, but rather, justifies the existence of both laws as laws in the real sense of it.  Although, some of the arguments put forward by different schools of thought to explain the relationship between the two laws will be explored for theoretical explanation and academic consumption.

The dualist or pluralist school of thought assumes that international law and municipal law are two separate legal systems, which exist independently of each other (Malanczuk, 1997, 63-71).  Dualism stresses that the rules of the systems of international and municipal laws exist separately and cannot purport to have effect on, or overrule the other.  This according to the school is because of the fundamentally different legal structure employed on one hand by the state, and on the other hand as between states (Malanczuk, 1997).

The dualist position is accepted by the posivists like Triepel and Anzillot.  Triepel maintains that international law must be incorporated into the municipal law, because the subject of state is the individual whereas the subject of international law is abstract entity known as the state.  Since subjects are not the same, there has to be a transformation from one to the other, i.e. international law has to be transformed into the state law before it can be applied to individuals.  This process is also called ‘Transformation theory’.  The claim of Triepel as regards state as only subject of international law can no longer be sacrosanct due to dynamism in law.  In the contemporary international law, individuals are seen as subject but with limited capacity.

The 1945 Nuremberg Trial made individuals subject of international law; there was also Angola Trial, etc.  Anzilloti (1967) talks of the conditioning of the two laws.  In his opinionated view, state laws are imperatival and hence it has to be obeyed, whereas international law is in the nature of promises; it is therefore necessary to transform a promise into command before it becomes applicable in the municipal law.  The position also is not sacrosanct, in the sense that law is not necessarily command, people obey the law when they consent to it and often times people obey because of the possible gains that can be acquired.

The second school of thought known as Monist, has a unitary perception of the law and understands both international law and municipal law as forming part of one and the same legal order.  The most radical version of the Monist approach was formulated by Kelsen, in his view, ‘the ultimate source of validity of all law’, is derived from a basic rule of international law.

Kelsen theory implies that all rules of international law were supreme over municipal law, that a municipal law inconsistent with international law was automatically null and void and that rules of international law were directly applicable in the domestic spheres of state.  Kelsen’s view was on formalistic logical grounds.  They opposed strict division of the two laws as demonstrated by the dualists and accept the unitary view of law as a whole.  Kelsen utilises the philosophy of Kant as its basis.

Law is regarded as constituting an order which lays down patterns of behaviour that ought to be followed, coupled with the provision for sanctions, which are employed once an illegal act or course of conduct has occurred or been embarked upon.  Since the same definition implies both within internal sphere and international sphere, a logical unity is forged. Since states own their legal relationship to the roles of international law, and since states cannot be equal before the law without a rule to that effect, it follows that international law is superior to or more basic than municipal law.

Kelsen emphasises the unity of the entire legal order upon the basis of the predominance of international law by declaring that it is the basic norm of the international legal order, which is the ultimate reason of validity of the national legal orders too (Kelsen, 1997).

Lauterpacht in his contribution uphold a strong ethical position with deep concern for human right.  He sees the primary function of law as concerned with the well-being of individuals and advocates the supremacy of international law as the best method of attaining this.

Interestingly, Article 27 of the Vienna Convention on the law of treaties states that: a party may not invoke the provisions of its internal laws as justification for its failure to carry out an international agreement.  However, expression on the supremacy on the international law over municipal law in international tribunals does not mean that the provisions of domestic legislation are either irrelevant or necessary.  On the contrary, the role of international legal rules is vital to the working of the international legal machine.

One of the ways that is possible to understand and discover a state’s legal position on a variety of topic important to international law is by examining the municipal laws.  A country will express its opinion on such vital international matter at the extent of its territorial sea or the justification it claims or the conditions for the acquisition of nationality through the medium of its domestic law making.  Thus, it is quite often that in the course of deciding a case before it, an international court will feel the necessity to make a study of relevant pieces of municipal legislation.  The rules of municipal law can be utilised as evidences of compliance or non-compliance with international obligations (Shaw, 1997).

Complementary Nature of International Law and Municipal Law

International law does not entirely ignore municipal law.  For example, municipal law may be used as evidence of international custom or of general principles of law, which are both sources of international law.  Moreover, international law leaves certain questions to be decided by the municipal law (Akhurst, 1977).

Harmonisation theory succinctly provides an answer to the true relationship of the two laws by asserting that:

The starting point in the legal order is that man lives not in one jurisdiction, but in both.  International law and municipal law are concordant bodies of doctrine, autonomous but harmonious in their aim of basic human good.  When faced with an actual problem, a municipal court applies the rules operative within its jurisdiction and may in fact, apply international law to the exclusion of municipal law, or vice-versa (Aguda, 1993: 32).

A treaty or other rule of international law imposes an obligation on states to enact a particular rule as part of their own municipal law.  Similarly, there is a general duty for states to bring domestic law into conformity with obligation under international law either through transformation, incorporation, adoption or reception, e.g. treaties ratified in accordance with the constitution automatically become part of the municipal law of the USA.  In Britain, the traditional rule is that customary international law automatically forms part of English law (Akhurst, 1977).

In a case before a municipal court, a rule of international law may be brought forward as a defence to a charge.  For example, a vessel may be prosecuted for being in what the domestic terms is regarded as territorial waters, but in international law, it would be treated as part of the high seas.

Okeke (1986:6) puts it in this manner:

…as states grow in their international outlook, and as they participate in either the creation of new rules of international law or in the re-definition of the already existing ones, it must be borne in mind that the world is now advancing on the principle of interdependence and mutual cooperation.  The age of holding tenaciously to the principle of absolute sovereignty is far gone.  Indeed, a state by taking laws to be in conformity with international law is a legitimate exercise of the sovereignty of such a state.

Okeke’s position stresses the dynamism in law and the society, when the law operates and the need for global intercourse of nation for global benefits; and such interaction must be regulated with law both at national and international levels so as to have peaceful and ordered world.

Okeke in his analysis cited a section each from the constitution of Germany and the United States of America to affirm the interconnectedness of international and municipal laws. The constitution of the Federal Republic of Germany provides:

 

            The general rules of public international law are an integral

             part of the federal law. They shall take precedence over the

            laws and shall directly create rights and duties for the inhabitants

             of the federal territory (Okeke, 1986).

In the same manner, the American constitution also provides:

            The constitution and the laws of the United States, which shall

             be made in pursuance thereof, and all treaties made, or which

             shall be the supreme law of the land, and the judges in every state

             shall be bound thereby, and everything in the constitution or laws

             of any state to the contrary notwithstanding.

In addition, the rule of the municipal law can be utilised as evidences of compliance or non-compliance with international obligations, e.g. the issue of respect of fundamental human rights.  Though, in some countries the law will sometimes fail to reflect the correct rule of international law, but this does not necessarily mean that states will be breaking international law.

Conclusion

From the submissions above, ranging from definitions of law, characteristics and purposes to relationship and complimentary nature of municipal law and international law, it is clear that both laws possess the qualities of law and all that takes to be called laws.  They serve the same purposes and perform functions of law because they are meant to regulate conduct, maintain peace, provide protection, achieve justice, etc.  They are both enforceable; they have different mechanisms of enforcement and agencies.  They are both dynamic in nature, they are made by competent and recognised authority, etc.  As a matter of fact, both laws have been able to work towards achieving well ordered societies, which is the ultimate goal of any law.  Therefore, international law and municipal laws are real laws.

References

Adeniran, T. 1983 Introduction to International Relations.  Ibadan, Macmillan Nigeria Ltd.

Aguda, A. (ed.) 1999 Introduction to International Law.  Ibadan, Spectrum Law Publishing.

Ajayi, K. 2000 International Administration and Economic Relations in a Changing World.  Ilorin, Maaba Publisher.

Akehurst, M. 1977 A Modern Approach to International Law.  London, George Allen Publishing Ltd.

Anzilloti, T. 1967  International Law and State.  England, Oxford Press.

Davidson, K. and M. Forsythe 1998  Business Law. USA, West Educational Publishing Limited.

Jessup, P. 1968  A Modern Law of Nations.  Handen Conn, Archan Books.

Kelsen, J. 1997  International Law.  Edinburgh, Rose Publishing Ltd.

Kolawole, D. 1997  Reading in Political Science.  Ibadan, Dekaal Publishing Ltd.

Malanczuk, P. 1997  Akehurst’s Modern Introduction to International Law.  Padstow Con Wall, TJ International Ltd.

Okeke, C. 1986  Theory and Practice of International Law in Nigeria.  Forth Dimension Ltd.

Oppenheim, O. 1995  International Law.  London, Longman.

Shaw, N. 1997  International Law.  UK, Cambridge University Press.

Trademark Registration in Mexico – Frequent Asked Questions about Intellectual Property Rights

In this Article You will find answers to questions about:

1- Trademarks
2- License Agreements
3- Patents
4- Copyrights

QUESTIONS ABOUT REGISTERING A TRADEMARK IN MEXICO

1- If my trademark is already registered in my country do I still have to register it in Mexico if I want to protect my rights there?

Yes. Currently Mexico is not a member of the Madrid Protocol for trademarks.

2- Aproximately how long does it take to register a trademark in Mexico?

12 months

3- What type of trademarks can be registered?

You can register a word or group of words, slogans, symbols, logos & graphic designs, trade names, service marks, three dimensional goods that are distinctive of a trademark such as a perfume bottle or container, and combinations of all of them.

4- Why should I hire a Mexican Intellectual Property Lawyer to register my trademark in Mexico?

Protecting Your Trademarks and other intellectual property rights is not just about seeking registration.

You need to be prepared with the best legal tools to fight against piracy & infringement at any moment.

You could be entitled to every dime that the infringers have illegally pocketed, but without a Team of Lawyers specialized in Mexican Intellectual Property Law that have a deeper level of knowledge, You are in a weak position.

5- Why should I use Your services?

Unlike other online mexican trademark registration services we are an Intellectual Property Law Firm. We provide MORE than simply a registration service. We actually fight for your rights against pirates, infringers and Mexican counterfeit importers. We can help You protect any kind of intellectual property in Mexico.

We Go Further than the rest and offer you a full range of specialized legal services that include:

a- Legal Representation in Civil Lawsuits aimed at recovering financial loss caused by infringement & breach of license agreements.

b- Legally appeal to Government actions & resolutions that affect Your interests

c- Evaluate or formulate Your license agreements & technology transfer agreements. With Us You have access to a wide variety of specialized legal services in one place.

6- For how long is the trademark registration granted?

For a renewable period of 10 years.

7- How can I protect my trademark against importers of counterfeit goods?

Once your trademark has been granted registration by the Mexican Trademark Authority we can arrange official protection from the Mexican Customs Border Authority, in order to stop and prosecute infringers right at the Mexican border.

8- Why would I want to Register My Trademark with the Mexican Customs Border Authority also?

Three clear advantages of this service is that it gives You the option of CONTROLING unlicensed distributors entering the Mexican border; It also helps you STOP fake goods & counterfeit trademarks of your products entering the Mexican Market; and it will help prosecute infringers right at the border.

QUESTIONS ABOUT LICENSE AGREEMENTS & TECHNOLOGY TRANSFER AGREEMENTS

1- Why is it important to register my current or future license agreements?

To prosecute unlicensed distributors of your trademark, infringers of your trademarks and licensed partners that breach the agreement.

2- What kind of intellectual property agreements can i Register with the Mexican Authorities?

Trademark license agreements, copyright license agreements, patent license agreements, import-distribution license agreements and technology transfer agreements.

3- Do I First need to register my trademark in Mexico in order to create valid license agreements in Mexico?

Once we submit your registration You can start creating license agreements.

4- Can You help me if my business partners in Mexico breach the license agreements?

Yes. We can apply a variety of effective legal strategies.

5- Can You help me build a strong license agreement?

Yes. We can also evaluate your current license agreements
Learn more at http://www.comoregistrarunamarca.com/english.html

QUESTIONS ABOUT PATENTS AND INVENTIONS

1- If I have a USPTO Patent do I also have to seek protection in Mexico?

If You filled Your utility patent application with the USPTO under the Patent Cooperation Treaty option, there is no need to apply for a patent in Mexico.

In case you did not filled for the PCT option, you will then have to apply for a Patent in Mexico if you want to protect & license your invention in this country.

2- What can I do if I start having legal problems with my Patents in Mexico?

If You discover that someone is infringing your Patents, Industrial Secrets, Utility Models or breaching Your License & Technology Transfer Agreements in Mexico we can legally prosecute and help You recover your financial loss.

3- I have the rights to a New Vegetable Variety or Plant Patent in my Country. Do I need to protect it in Mexico?

If You have previously obtained the rights to a vegetable variety in the United States or another country, You will also need to obtain the Vegetable Varieties Obtainer Title from the Mexican Government in order to protect your vegetable variety invention against infringement.

We can help You obtain Your Vegetable Variety Title in Mexico and evaluate or create a strong Technology Transfer Agreement.

QUESTIONS ABOUT COPYRIGHTS

1- What is considered a Copyright in Mexico?

Copyrights are defined under Mexican Law as “Authorship Rights” and can protect original works of authorship, computer software, movies, videos, music, songs, novels, artwork, poetry and original databases among other forms of authorship.

2- How can I protect my Copyrights in Mexico?

Most copyrights that are registered in the United States are also protected in Mexico. However, Copyright License Agreements that transfer exclusive or non exclusive rights must obtain registration in Mexico.

We can help you register your copyright license agreements and prosecute infringement.

For a complimentary initial consultation or if You have any questions You can contact us Today at http://www.comoregistrarunamarca.com/english.html

Salaries of an International Business Lawyers

According to the field of the international business law, a lawyer, for example the law of the International Affairs and law, the law of the environment or term, this means that the salary information provided by the law firm to handle a specialization that you choose. Right of international affairs located in different areas, which may affect the salary, those lawyers.

NATIONWIDE INTERNATIONAL BUSINESS LAWYERS AVERAGE SALARIES

The nationwide average salary for International Business Lawyers in the United States is $ 129440 per year, which is approximately $ 62.23 hours if a lawyer who works 2,080 hours per year. BLS, however, provides data showing that lawyers can earn less than $ 26.02 hours group 54130 dollars per year for full-time work. However, you can earn Top lawyers earn more than $ 80.00 per hour, which is more than $ 166440 per year.

TOP PAYING INTERNATIONAL BUSINESS LAWYERS SALARY INDUSTRIES

International business lawyer can be found in various sectors, including manufacturing, world-class shopping and electronic entertainment industry. According to BLS, pay lawyers more in some areas, such as the others, including the production of oil and coal. This industry can give annual salary of $ 208,410 per year. The tobacco industry is the second-highest paid industry lawyers, pay closer to $ 193,020 per year.

Top Paying States for International Business Lawyers salary

It also affects the physical location of the international business lawyer’s annual salary. While some Member States the highest salary per year that lawyers from BLS at $ 162830 per year, more than $ 155740 in California has the numbers to lead Colombia District Attorneys on the basis of the information. Delaware followed with $ 151750.

Vested Property Act and Hindu minority in Bangladesh

Jahangir Alam Akash: I have a favorite colleague Chapal Saha. The age he is much larger than me. We worked together for the first 24 hours News TV channel of Bangladesh. Today (23 September, 2011), he wrote a status on the social media Face Book. According to his writeup as it is, “we have a house. But we are not owned by it. What wonder! Act only for Hindus. Our property is vested. Who broke this black law? ”

In 1965, this black and discriminated law named as “enemy property act” was made. It is a black, discriminated, and extreme inhuman act. This law has deprived to a particular faith of religious people. After the independence of Bangladesh the name of this law had been changed from enemy property act to vested property act. Only for this law, the Hindu family lost their land and houses. But the law still has not been canceled.

We think that there is no mentality or the power or ability to cancel it in Bangladesh. Everyone has their own political interest. Different faith or politics are there, but the interest is same manner. At least from all the gross political parties (of course there are some minor exceptions, left party) influential opportunists grabbed land and houses of the Hindu people. There is an organization in Bangladesh which has branch in Europe and USA. Sometimes the sound of this organization serves to cancel the law. But the sound is biased. So, it is not useful after all. Leadership of that organization is full with political interest and divided by many groups. This picture can be seen in home and abroad.

So, how the justice or equality would come in front of the deprived and oppressed people or how justice will come forward? We do not know it. Maybe you can ask me, I am not an optimist! But I want to tell the truth which I like to say always. I worked and working and would be work to discover or publish the truth. I learned a theme from a Norwegian friend of mine that “Truth is never dangerous.” And it is also my ideology to say the truth.

If Sheikh Hasina and her Grand Alliance government wants to see the equal right for all people then they would cancelled this black law within their first two years. But the government’s two and a half years have already been passed, they didn’t. Now they are too busy to fill their term, and to come in power again. What is the welfare of the people I know it is not any issue of them?
The government of Khaleda-Nizami was tortured openly Begum Motia Chowdhury, Mohammad Nasim, Rashed Khan Menon and many other top leaders on the street. Now time has changed. But the picture is coming back on the eyes of the people as it was before. Government of Hasina has torturing to Joinal Abedin Faruque. Hasina and her intelligence – consultants perhaps do not want to see this picture as any wrong! On the other hand is still in the trial of war criminals. Maybe this is issue is to be hanging for coming election agenda. In fact, they are living of a foolish heaven! They forgot to care of Teeth in time. They are now roaring power.

However, it is the rights time to cancel the vested property act. After the cancelation of this law, the land and houses would be returned back to the original owner of the property and housing would be wise for Hasina government. The people believes that Khaleda never do this job. She and her party is the main shelter of War criminals (Jammat-Shibir). But why Hasina didn’t abolish this law? Is she doesn’t believe in secularism and non-discriminated state-law? Or she is blind on her flatters.

The minority and indigenous people are our friends or important to get votes from them when only the election comes. Just after election everything would be forgot by the politicians. Is possible to establish peace in any society by keeping unfair-discriminatory behavior? Our hope is that Hasina’s government would be taken an effective and truth initiatives to cancel the vested property law for promote the equality, justice and peace in Bangladesh.

Confidentiality Agreements – What Every Business Lawyer Should Know

Use of Confidentiality Agreements (also commonly referred to as Non-Disclosure Agreements, Proprietary Information Agreements, or similarly titled documents) are primarily based in trade secret law which recognizes that a business has an ownership interest in and right to protect information it creates, from which it or others could derive some “economic value.” Trade secrets have often been grouped together with patents, copyrights, and trademarks under the broad umbrella of intellectual property law and generally thought to be the exclusive domain of intellectual property lawyers. However, since the exchange and protection of confidential information is so central to every company’s business activities, the application of trade secret law often intersects with other practice areas such as corporate, transactional, compliance, employment, and litigation.

Competitive Intelligence or Trade Secret?

At one end of the spectrum of business information is competitive intelligence which can be generally defined as “gathering, analyzing, and distributing Intelligence about customers, competitors and their products, and just about any aspect of the business environment needed to support executives and managers in making strategic decisions for their business organization.” See http://en.wikipedia.org/wiki/Competitive_intelligence. At the other end of the spectrum of business information are trade secrets, which can be broadly defined as exclusive knowledge or information, generated by the labors of a business, having economic value in that it is unknown to others and gives the owner an advantage in its business activities. Depending on the business or industry the form of what is considered trade secret information can be somewhat variable, ranging from business, financial and marketing plans to technical data, future product plans, or information on strategic partnerships and customer lists. While obtaining and using competitive intelligence is an ethical and legal business practice, the line between information described as competitive intelligence and trade secret information is becoming increasingly blurred. To better educate business stakeholders on the difference between what is considered competitive intelligence as opposed to trade secret information, a review of the legal definition of “trade secret” is warranted. In the U.S., trade secret law is a creature of state law and, thus, varies somewhat by state. The majority of states have adopted some version of The Uniform Trade Secrets Act (UTSA), while others utilize the application of common law rules to define trade secret rights and remedies. The UTSA is a model law drafted by the National Conference of Commissioners on Uniform State Laws to more uniformly define the rights and remedies of common law trade secrets. Presently, forty-six states (plus the District of Columbia) have adopted some version of the UTSA. See Uniform Trade Secrets Act, 14 U.L.A. §§ 1-12 at 437 (1980) (amended 1985) (West master ed. 1990) (“Uniform Law”). California, which adopted the UTSA without significant change, (see DVD Copy Control Assoc., Inc.  v. Bunner (2003) 31 Cal.4th 864, 874.) uses the following definition: “Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (i) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (ii) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”California Civil Code §3426.1(d). A violation of California’s version of the UTSA may entitle the injured party to injunctive relief, recovery of damages for the actual loss caused by misappropriation, recovery for unjust enrichment caused by misappropriation that is not taken into account in computing damages for actual loss. If neither damages nor unjust enrichment caused by misappropriation are provable, the court may order payment of a reasonable royalty for no longer than the period of time the use could have been prohibited and if willful and malicious misappropriation exists, the court may award exemplary damages.

It should be noted that while federal law generally does not preempt or apply to state law claims involving trade secrets, there is federal law governing trade secret theft in the form of the Economic Espionage Act of 1996, 18 U.S.C. §§1831-1839. The Economic Espionage Act (EEA) makes the theft or misappropriation of a trade secret a federal “crime” (including conspiracy to misappropriate trade secrets and the subsequent acquisition of such misappropriated trade secrets) with the knowledge or intent that the theft will benefit a foreign power or where misappropriated trade secrets are used in a product that is produced for or placed in interstate (including international) commerce and is done so with the knowledge or intent that the misappropriation will injure the owner of the trade secret. Penalties for violation of the EEA are fines of up to US $500,000 per offense and imprisonment of up to 15 years for individuals, and fines of up to US $10 million for organizations.

Although it is clear that state law governs trade secret protection except in the narrow areas of theft, misappropriation, or unauthorized use and possession of trade secrets related to products placed in interstate or foreign commerce or economic espionage for the benefit of a foreign company, agent, or government—it is important to recognize the EEA adopts a definition of “trade secret” consistent with the generally accepted legal definitions used in the UTSA and state laws based on the UTSA. Specifically, the EEA defines a trade secret as: “all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if—A) the owner thereof has taken reasonable measures to keep such information secret; and B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, the public.” 18 U.S.C. §1839(3)

Harmonizing Use of Confidentiality Agreements and Trade Secret Protection

To the casual observer the disclosure of any trade secret information to another party would seem to destroy the trade secret status of such information. However, the law has long recognized the needs of businesses and individuals to exchange or disclose confidential information in furtherance of their business objectives, while protecting the rights of those businesses or individuals from having third parties economically benefit from use information they were not intended to receive or possess. Thus, providing confidential information to another party on a restricted basis and prohibiting further disclosure to any unauthorized third party are considered “reasonable measures” in maintaining the secrecy of such information. There are various methods companies can use to protect their trade secret information, such as: keeping the information in locked drawers, cabinets, or rooms; marking documents as confidential or secret; encrypting documents; or protecting computer files and directories with passwords, however, use of confidentiality agreements with business partners as well as employees is the primary method in which a business can demonstrate its reasonable measures to maintain the secrecy of its trade secret information. Several courts have held that use of confidentiality agreements constitutes reasonable steps to ensure secrecy of the information for trade secret protection. See American Credit Indemnity Co. v. Sacks, 213 Cal.App.3rd 622 (1989), Rockwell Graphic Sys., Inc. v. DEV Industries, Inc., 925 F.2d 174 (7th Cir. 1991), On-Line Communication Servs., Inc., 923 F.Supp. 1231 (N.D.Cal. 1995).

Confidentiality Agreements as Contracts

While the use of Confidentiality Agreements is based on the “reasonable efforts to maintain its secrecy” language in both the state and federal statutory definitions pertaining to trade secrets, it is important to understand that use of Confidentiality Agreements is equally based in contract law. Parties are generally free via contract to define the terms regarding the purpose of the agreement, the description of the confidential information being disclosed, the period of protection for such confidential information, or even negotiate the state law that will govern interpretation of the agreement. California Civil Code §3426 clearly recognizes that a party may have a cause of action in breach of contract for violation of the terms of a Confidentiality Agreement: “(b) This title does not affect (1) contractual remedies, whether or not based upon misappropriation of a trade secret, (2) other civil remedies that are not based upon misappropriation of a trade secret.” California Civil Code §3426.7(b). Further, while §3426 limits remedy to “damages for the actual loss caused by misappropriation . . . [or], If neither damages nor unjust enrichment caused by misappropriation are provable, the court may order payment of a reasonable royalty for no longer than the period of time the use could have been prohibited,” however, liability for breach of contract damages is not so limited.

A California case which best illustrates the importance of contract provisions in a Confidentiality Agreement is Celeritas Technologies, Ltd. v. Rockwell International Corporation. In the early 1990s representatives of Celeritas met with members of Rockwell to demonstrate Celeritas’ proprietary de-emphasis technology applicable to modem semiconductor chips—Rockwell was a leading modem chip manufacturer at the time. The parties entered into a non-disclosure agreement (NDA), which covered the subject matter of the meeting. In 1994, a Rockwell competitor began to sell a modem product that incorporated de-emphasis technology and Rockwell subsequently informed Celeritas that it would not license the use of Celeritas’ proprietary technology. Rockwell soon thereafter began efforts to develop de-emphasis technology for its modem products, shipping its first prototype de-emphasis technology chip sets in January 1995. In September 1995, Celeritas sued Rockwell, alleging breach of contract, misappropriation of trade secrets, and patent infringement. At trial, Celeritas prevailed under all three theories, however, on appeal the patent infringement claim was dismissed and the misappropriation claim was rendered a duplicative recovery based on a Celeritas recovery stipulation at trial. Essentially, Celeritas’ recovery was based on breach of the NDA provision where Rockwell covenanted not to use “any [Celeritas] Proprietary Information (or any derivative thereof) except for the purpose of evaluating [a] prospective business arrangement [with] Celeritas . . .” Celeritas Technologies, Ltd. v. Rockwell International Corporation, 150 F.3d 1354 (Fed.Cir. 1998). Final compensatory damages, based what it would have cost Rockwell to license the technology from Celeritas, together with exemplary damages awarded Celeritas under its breach of contract claim totaled approximately $65 million.

Confidentiality Agreements: Provisions to Include and Pitfalls to Avoid

While irrespective of any written agreement, a duty of confidentiality may exist at common law; it is highly recommended that the parties involved memorialize their obligations concerning the use and protection of confidential information disclosed in an agreement between them in order to maximize protection and prevent misuse of their respective trade secret information. Many of the definitional provisions or provisions excepting certain information from trade secret status are the result of common law decisions, while others are based in the UTSA or EEA. Many other provisions that may be included in a confidentiality agreement, as noted above, are based in contract law and subject to negotiation between the parties. Below is a discussion of the more important issues to be considered when drafting and negotiating confidentiality agreements.

Definition of Confidential Information

A preferred practice in virtually every confidentiality agreement is for the parties to define what information is “confidential” as well as whether one or both parties are disclosing confidential information. Further, it is important to include a “marking” requirement which provides that “Information shall be considered confidential if provided to the receiving party in written or electronic form and marked as “confidential,” “proprietary,” or similar conspicuous legend, if provided orally or visually, is identified as confidential at the time of delivery and promptly confirmed as confidential in writing to the receiving party, or which a reasonable person would not recognize from the surrounding facts or circumstances to be confidential or secret.” However, any description which attempts to protect all intellectual property rights of the disclosing party should be avoided since any registered patented, copyrighted, or trademarked material are publically available for all to see and, thus, are not protectable as trade secrets.

Exceptions to Confidential Treatment

Confidentiality agreements typically exclude certain information from the definition of confidential information. A somewhat universal exception to a claim of trade secret protection is the “public domain” exception. As noted above, if the confidential information is or becomes available to the general public, except as the result of an unauthorized disclosure, then the information is no longer considered “secret.” The seminal case on the issue, Kewanee Oil Co. v. Bicron Corp. held, “the disclosure of a trade secret, even if accidental or inadvertent, destroys the ‘secrecy’ and removes protection.” Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 476 (1974). Further, information already known to the receiving party prior to receipt and absent any confidentiality commitment on the part of the receiving party is another exception to trade secret status. Another common exception to trade secret status concerns information that a party, through its own labors, has developed “independently” of any relationship with the disclosing party. The legislative history of the EEA indicates such independent or “parallel” development is a clear exception to the trade secret protection under the EEA. Seewww.usdoj.gov/criminal/cybercrime/EEAleghist.htm (Managers’ Statement for H.R. 3723). The last general exception to trade secret status is the “court order” exception. This is not a true exception to trade secret status but rather exception to the receiving party’s obligation of non-disclosure to any third party. This exception provides that a the recipient of trade secret information cannot be held to be in violation of its confidentiality obligations if the receiving party is compelled by a subpoena, court order, or other request pursuant to legal process, to produce any of the disclosing party’s trade secret information. Both California trade secret law the EEA contain language which supports this exception by requiring that courts take such actions as necessary to preserve the confidentiality of the trade secret provided pursuant to court order. See 18 U.S.C. §1835 and California Civil Code §3426.5.

Term

One of the more important provisions to consider when negotiating a confidentiality agreement is its term. In other words, how long do the confidentiality and other obligations of an agreement last? Most businesspeople and many lawyers think of “term” as being a single fixed time period. But for most confidentiality agreements, there actually are two time periods to consider—the time period during which confidential information will be disclosed and the time period during which the confidentiality of the information is to be maintained. These periods may or may not be the same, and they need not be specified by exact dates (years, months, weeks, etc.). For example, the parties may provide that the term of the agreement shall continue for so long as the parties are discussing a possible business relationship, but the obligation of confidentiality survives until an exception to the obligation arises. Other agreements may quantify the time periods and, for example, provide that the disclosure period is for one year and the obligation to maintain the confidentiality of the information is for a three-year period thereafter. Time limits on protecting confidential information vary based on the sensitivity of the information being disclosed, with anywhere from three to five years being somewhat the norm. However, courts have been reluctant to enforce such provisions where the useful life of the trade secret has expired, i.e. “[t]he plaintiff must prove that . . . the trade secrets are not “stale” See Computer Economics, Inc. v. Gartner Group, Inc., 50 F.Supp.2d 980, 984-92 (S.D.Cal. 1999). Lastly, the agreement should provide for termination by either party at any time, subject to reasonable notice as negotiated by the parties. This allows either party to terminate its participation under the agreement if it decides working with the other party is no longer in its business interests.

Obligation of Confidentiality

Every confidentiality agreement should detail how the confidential information will be handled by the recipient. The receiving party’s failure to treat the confidential information in compliance with these requirements will result in a breach. At a minimum, the receiving party should be required to use the same amount of care in preserving the secrecy of the confidential information as used in preserving the secrecy of the receiving party’s own Confidential Information, but in no event less than “reasonable care.” Other typical requirements include restricting disclosure to only those employees who have a real “need to know” the information to evaluate the relationship; non-use of the confidential information for other than the specified purpose agreed to by the parties, and; no disclosure of the confidential information to persons or entities other than the employees or agents of the recipient without the prior written consent of the disclosing party. If employees, contractors, or agents of the recipient are provided access to the confidential information, the disclosing party should expressly provide in the agreement that the recipient must cause those persons to be bound by the same obligations of confidentiality as provided for in the agreement, while the receiving party will remain responsible for the acts of those persons in regard to the confidential information received.

Ownership and Warranties Regarding the Confidential Information

The disclosing party should also consider requiring the recipient to acknowledge that the confidential information is the property of the disclosing party and that the disclosure of the information does not convey any right, title, or license in the information or rights to any patent, copyright, trademark, or any other intellectual property right of either party under the Agreement. This is necessary to prevent ambiguity as to what rights, if any, the recipient has in the confidential information and any information related thereto (i.e., no implied license). Further, it is always wise to insert a warranty or representation regarding the disclosing party’s ownership of the confidential information or at a minimum that the disclosing party warrants that it has the right to disclose the confidential information provided under the agreement.

 Return and/or Destruction of the Confidential Information

If the term of the agreement has expired or if the agreement is terminated pursuant to a termination provision, there is generally no purpose for the receiving party to continue to possess the disclosing party’s confidential information. The preceding given, it is a recommended practice to insert a provision in the agreement that requires the receiving party, upon the disclosing party’s written request, will promptly return all confidential information received from the disclosing party, together with all copies, recordings, summaries, or other reproductions thereof and all notes and/or other works prepared or based thereon, or certify in writing that all such confidential information and copies have been destroyed.

Prohibition on Reverse Engineering

Absent a license agreement or other agreement prohibiting such, once products are sold and are in the public domain, they may be freely reverse engineered to reveal any inherent trade secrets. Courts in the U.S. have treated reverse engineering as an important factor in spurring inventors to disclose innovations which benefit the general public rather than maintaining such inventions as trade secrets. A patent allows qualifying inventors up to 20 years of exclusive rights to make, use, and sell the invention, but only in exchange for disclosure of significant details about their inventions to the public. However, should the inventor choose to protect the invention as a trade secret, his or her competitive advantage may be short-lived if the innovation can be reverse engineered. Further, purchase of a product in the open market generally confers personal property rights in the product, including the right to take the product apart, measure it, subject it to testing, and the like. In fact, California trade-secrecy law explicitly provides that reverse engineering is a lawful way to acquire a trade secret, “[r]everse engineering or independent derivation alone shall not be considered improper means.” Civ.Code, §3426.1, subd.(a). However, where non-publicly available prototypes, preproduction examples, beta, or pre-release code are being provided under a confidentiality agreement, a prohibition on reverse engineering of such prototypes or pre-production/pre-release products is not only warranted but highly recommended.

Right to Equitable Relief

In a situation where the trade secret is a key component of the business model and profitability of the company, it is quite possible that no amount of money damages would be adequate or preferable to enjoining the breaching party from continued misuse use of the owner’s confidential information. For this reason, California law provides for injunctive relief against “[a]ctual or threatened misappropriation” of a trade secret, (Civ.Code, §3426.2) and courts are allowed this remedy (provided by statute) in granting an injunction against actual or threatened use of misappropriated trade secrets. See Morlife, Inc. v. Perry, 56 Cal.App.4th (1997). However, depending on the sensitivity of the information, the business lawyer should be on guard against language which indicates the unauthorized use or disclosure “may” cause irreparable harm and that the injured party may be entitled to “seek” equitable relief—since the burden of proof still remains with the complaining party to show the harm caused cannot be satisfied by monetary damages and equitable relief is not a “right” under the agreement.

 Consequential Damages Disclaimers and Other Damages Limitations

Many companies attempt to limit their liability for any perceived or actual misuse of confidential information received by inserting a disclaimer of consequential or other indirect, special, or punitive damages. The business law practitioner who encounters such a provision should take note that while there is a specific provision for “exemplary damages” (similar to punitive damages) in California Civil Code §3426.3, the parties are free to negotiate a limitation on these damages via contract and such disclaimers or limitations are generally enforceable. However, it should be noted that consequential damages disclaimers tend to limit any real contractual damages remedy that could be pursued since the injured party is limited to recovery of only direct damages incurred which under a confidentiality agreement are difficult to prove. Some parties attempt to use a liquidated damages clause setting forth the damages the owner of such confidential information might be entitled to in the event of a breach of the agreement. As with consequential damages disclaimers noted above, liquidated damages clauses in confidentiality agreement are also enforceable, however, the inclusion of such a provision may eviscerate any clause providing for injunctive relief. Since granting an injunction is generally disfavored by courts where money damages would suffice to remedy the situation—inclusion of a liquidated damages provision would likely be viewed by a court as tantamount to saying money damages “would” suffice—and may result in injunctive relief being denied.

Exclusion for Commonly Used Skills, Know-How and Residual Memory Clauses

      The EEA clearly recognizes that trade secret information can be misused or misappropriated by both tangible and intangible means, i.e., memorization, “. . . all forms and types of financial, business, scientific, technical, economic, or engineering information, . . . whether tangible or intangible, and whether or how stored.” 18 U.S.C. §1839(3). The statute also prohibits transcribing such intangible, memorized information into a tangible form, such as “sketch[ing], draw[ing], . . . download[ing], upload[ing], . . . , transmit[ting], . . . communicat[ing], [and] convey[ing],” 18 U.S.C. §§1831(a)(2), 1832(a)(2). This is not to say, however, that any piece of business information that can be memorized is a trade secret. The EEA does not apply to individuals who seek to capitalize on their lawfully developed knowledge, skill, or abilities, nor does the EEA apply to individuals who merely have been exposed to trade-secret information. However, some states prevent the free movement of key employees who may “inevitably” disclose trade secret information of their former employers. The “Inevitable Disclosure Doctrine” is the law in states such as Illinois and Colorado and is a method of proving a misappropriation claim. It is based on the theory that certain key employees cannot resign and work for a competitor without inevitably using, in their new jobs, their former employer’s trade secrets, even if they do not intend to. The typical remedy has been to enjoin a party from conducting business in the same or similar role until such time as information he or she possesses becomes stale. The leading inevitable disclosure case isPepsiCo, Inc. v. Redmond, 54 F.3d 1262 (7th Cir. 1995). California courts on the other hand have rejected the inevitable disclosure doctrine as the law in California . See Bayer Corporation v. Roche Molecular Systems, Inc., 72 F.Supp.2d 1111, 1119 (N.D.Cal. 1999). While the foregoing exclusion of commonly used skills, know-how, or talent is more likely to be addressed in an employee form of confidentiality agreement, the same principle has been held applicable in confidentiality agreements with other business partners, such as sales representatives or agents. For example, one court has held that a terminated agent cannot be prohibited from using skills that he or she acquired, or casually remembered information that he or she acquired, while employed by the principal. Apollo Techs. Corp. v. Centrosphere Indus. Corp., 805 F.Supp. 1157, 1200 (D.N.J. 1992).

To avoid claims that their employees are tainted merely by being exposed to another party’s confidential information, many large companies attempt to insert what is referred to as a “residual memory clause.” Residual memory clauses generally provide that the receiving party has a right to use any confidential information retained in the unaided memories of their employees who had access to the information. The argument used for inclusion of a residuals clause by such companies is that its employees cannot “un-remember” what they have seen or been exposed to and, thus, absent a residuals clause, any similar development efforts might become contaminated by an exposed employee’s continued involvement. While the EEA expressly recognizes that trade secrets may be misappropriated by “memorization”; trade secret cases that do not involve the EEA are not persuasive authority on residual memory clauses or differentiating between intentional memorization and unintentional memorization. Companies that fear their confidential information may “memorized” by their business partners should insert language in the agreement which requires the return or destruction of the confidential information as well establishing limited access to named individuals of the receiving party who have an absolute need to access the confidential information solely for the purpose set forth in the agreement.

Non-Solicitation and Non-Compete Clauses

      It is not uncommon to see non-solicitation clauses as part of a confidentiality agreement where the recipient agrees not to solicit for employment employees of the disclosing party or in an employment context, the employee agrees not to solicit the business of his or her employer’s customers or solicit/recruit former co-workers for employment for some period of time after the employment relationship is terminated. California courts have enforced non-solicitation provisions barring business partners from soliciting or dealing directly with specifically named parties (see General Commercial Packaging, Inc. v. TPS Package Eng., Inc., 126 F.3d 1131 (9th Cir. 1997)) or barring ex-employees from soliciting customers where the customer identities specific information regarding the customers which are trade secrets.See Courtesy Temporary Service, Inc. v. Camacho, 222 Cal.App.3d 1278 (1990). While reasonably constructed non-solicitation clauses are enforceable, contractual bans on competition in confidentiality agreements, especially within an employer-employee arrangements are not generally enforceable in various jurisdictions as being an unreasonable restraint on trade. These restrictive covenants generally seek to prevent a business partner from working on a similar project with a competitor of the disclosing party or seek to prohibit an employee from taking the same or similar position with a competitor of the employer after the employment relationship has ended. In California, Cal.Bus.&Prof.Code §16600 provides that, in the absence of a statutory exception, “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” A party operating in California seeking to limit its business partners from engaging in lawful business by inclusion of a non-compete clause or an employer that insists on an employee’s agreement to such covenants as a condition of employment may very well face liability under unfair competition theories.

 Conclusion

      While many business people routinely use confidentiality agreements to accomplish their day-to-day business activities, many fail to understand the real need and importance of confidentiality agreements in not only protecting the competitive edge the company may have in its confidential information but in also helping the company avoid liability by documenting the obligations of each party relative to the information he or she may receive. To better educate clients on the importance of confidentiality agreements, the business lawyer should recommend the use of a company-approved confidentiality agreement which should be part of the business’ confidential information or information security policy, or absent a separate confidential information policy the importance of protecting confidential information should be stressed in the company’s code of conduct, employee handbook, or intellectual property policies. Bottom-line, businesses that fail to undertake measures necessary to adequately protect their confidential information as well as educating management and employees regarding their obligations concerning use and protection of information they may receive or obtain from others may very well see those practices reflected in their “bottom-line.”

Contract Law Summarised; Explanations, Definitions, Cases

 

LAW OF CONTRACT SUMMARY, WITH EXPLAINATIONS OF LAW OF CONTRACT DEFINITIONS, AND CASES

Of the various agreements made some are social or domestic; some others are contracts – legally enforceable.

Jones -v- Padavattan 1969 was about an agreement between a mother and daughter ~the mother had promised to support her daughter during her studies the daughter argued -the judge decided that it had not been intended to be legally binding, so it was a domestic agreement.

But in Simkins -v- Pays 1995, the mother and daughter had intended to be legally bound by jointly entering a competition to share the prize won, it was a contract.

In Jones -v- Vernon Pools Ltd. 1938, and also in Appleson -v- Littlewoods Pools 1939, there was an intention to be bound legally, but it was one-sided; the other had not so intended it to be, for the football pool company showed that the coupon contained the words ‘binding in honour only’, and it was not enforceable.

A Local Authority did not have to sell a house at the price applicable at time of application -which it was to consider; no offer existed to accept but an invitation to treat: Gibson -v- Manchester C. C. 1997.

A reward-poster (if a product did not protect against influenza) was Intention to be legally bound, as Offer, and Acceptance too had Consideration -the essentials of a contract: Carlill -v- Carbolic Smoke Ball Co. 1893.

A Contract is distinguished from other forms of agreement by determining whether it contains those three basic essentials -as matters of fact, oftener of law.

An agreement is a Contract if it contains the three basic elements of Intention to create Legal Relations, Offer & Acceptance, and Consideration; but what constitute these, how, and why, or not, are matters, mostly, of precedent; therefore, it is useful, on each of these, to look at some more of such precedent…

Intention to Create Legal Relations: It is, of course, most unusual when commercial agreements between businesses are made that a legal relationship was not by both parties intended to be created; it is, essentially, more so a different situation than an exclusion clause making it binding in honour only, when, while may have been intended as a matter of fact, that an agreement may not be made the subject of the jurisdiction of the courts -in terms at least of whether it is legally binding, is not capable in law of having been intended; yet a contract in Rose & Frank Co.-v- J P Crompton 1925 was not the agreement -it showed that a legal relationship was not intended to be created.

That the husband would pay his wife £30pm was not intended in Balfour -v – Balfour 1919 to be binding; that he was to repay the mortgage and transfer ownership of the property to her in Merritt -v- Merritt 1970, as she had asked him to be put in writing and he had, was intended as binding ~as meant a travel firm’s sign that failed holidays would be reimbursed for in Bowerman -v-ABTA Ltd. 1995

Offer and Acceptance: An ‘offer‘ is not an ‘invitation to treat’ ~an advert. in Partridge -v- Crittenden 1968 was an invitation to treat as the numbers of birds could not be infinite to make it capable of being ad-infinitum accepted -in Pharmaceutical Soc. -v- Boots 1953 drugs in self-service store could not be an offer to sell as a chemist at pay-point could refuse to. Nor is it ‘information’ ~’Will sell? State lowest price’ replied to stating it was information in Harvey -v- Facey 1893; the announcement of the auction cancelled did not in Harris -v- Nickerson 1783 entitle to travel expenses, as in Pane -v- Cane 1789, a bid constituted the offer.

Nor is an offer unwithdrawable if the offeree is informed -by anyone Dickinson -v- Dodds 1876, before acceptance Byrne -v- vanTienhoven 1880 ~and it can lapse eg shares Ramsgate Victoria Hotel -v- Montefoire 1866, or if goods become damaged or destroyed, or by a counter-offer (£950 ok?) Hyde -v- Wrench 1940, or if the offeror rejects it or dies.

A valid offer, therefore, as an expression of a proposition willingly to contract, can be, as by a reward poster in Carlill to any or many persons, if communicated -e.g. by biding by raise of hands, with clear terms, while it exits capably of being accepted.

Acceptance of such a valid offer constitutes contract.

Agreement to the offer is ‘acceptance‘ -if communicated.

Generally, the offeree’s silence is not tantamount to acceptance and ‘if I don’t hear from you I’ll deem it so’ in Felthouse -v- Bindley 1862 did not constitute it.

Any effective way will do, Entores -v- Miles Far East 1955, if fax or e-mail, during working hours or the following work day: Brinkbon -v- Stahag Stahi 1982. If acceptance is posted or telegraphed, it is effectively made, even if it is incorrectly addressed and delayed Adams -v- Lindsell 1818, or lost in the post Household Fire -v- Grant 1879 -unless handed to a postal staff not authorised to receive mail; such acceptance is, and the contract is made, at that time -even if before its receipt the offer is withdrawn Byrne -v- vonTienhoven 1876 ~and, Blackpool Aero Club -v- Blackpool C.C. 1990, the offeror must check his mail before closing the offer.

The offeror may prescribe a way of acceptance -then only that, or possibly one more advantageous to the offeror, will do; in Ediason -v- Henshaw 1819 postal acceptance was not as specified -giving it to the driver; if unspecified conduct may imply it -e.g. purchasing aware of the offer, Carlill.-v- Carbolic Smokeball Co. 1893.

Acceptance must be unqualified, ‘subject to contract’, or Neale -v- Merrett 1930 ‘the rest later’, is not so; unless it is capable itself of acceptance, Hyde -v- Wench 1840, requesting information is not a counter offer barring later acceptance, Stevenson -v- McLean 1880.

Consideration: A contract’s point is consideration: ‘executed’ -something done because of which another has to also; or ‘executors’-to be done because of which a contract will exist that another will have too ~it is the benefit or the detriment involved: Currie -v- Misa 1875.

What is contributed to the bargain must be of some value – not necessarily adequately matching the other’s: in Thomas -v- Thomas 1842 £1pa rent was so; and in Chappel & Co.-v- Nestle Ltd. 1960 chocolate wrappers were the stipulated consideration for a music record.

Consideration is owed in return for pre-agreement considerations: the King’s favour was got upon the other’s request, not for £100 overjoyed promised later in Lampleigh -v- Braithwaite 1615; the children’s promise to pay was after repairs were begun in Re. McArdle 1951; also not for a duty: in Glassbrook Bros. -v- Glamorgan C.C. 1925 it was more than the job of the police, in Hartley -v- Ponsonby 1857 more than the sailor’s, but in Stilk -v- Myrick 1809 it was the sailor’s job -his duty. Nor, in is it owed to thirds parties -in Tweedle -v- Akinson 1861 the bridegroom was not a party to the parents’ agreement to give the couple £500 ~unless since Contracts (Rights of Third Parties) Act 1999 named in or identifiable from a contract as beneficiary.

Relationship/conflict between national law and international law

The relationship between international and national law is one of the most fascinating, inconsistent, and complex issues that could come up in the context of the application of international law. It is constantly assumed that there is unavoidably some level of friction or contention between the spheres of international and national law. A number of critics argue that national law follows international law in the hierarchy of legal rules since international law legalizes the existence of a state. Conversely, others argue that international law does not have the maturity that enables it to take over and this is manifest in the existence of the state sovereignty and the need for the endorsement and integration of international treaties by the constitutional institutes in each state to stamp it as valid.

The legal standing of international laws within nations differs considerably. For instance, their level of significance with respect to the rules of national law is very different.  In some cases, national solutions are founded on the Constitution itself (e.g. France, Spain, the Netherlands, Portugal, Greece) while in others cases they have emerged from practice and particularly from the case-law of the higher courts (Italy, Belgium, Luxembourg, Switzerland).

International Law is the law that governs the affairs of sovereign independent States amongst themselves. National law is the law of a State or country and in that respect is opposed to International Law which comprises regulations which developed States regard as binding upon them in their mutual relations.National law regulates the conduct of individuals while International law regulates the behavior of States. National law is concerned with the domestic affairs of the State whereas International Law is concerned with the external affairs of the State (its foreign relations).

There is a variance of opinion on the question as to whether International Law and National Law on the different national laws can be said to form an accord being manifestations of a single notion of law or whether International Law comprises an independent system of law fundamentally different from the National Law. The former theory is referred to as monistic while the latter is referred to as dualistic.

Monist and Dualist Theories

Monistic Theory assumes that the national and international legal systems as fundamentally the same. Both national legal regulations and international regulations that a state has accepted, for instance by way of a treaty, determine whether an action is lawful or unlawful. In most monist countries, there is a difference between international law in the form of treaties, and other international law. International law does not have to be translated into national law. The act of endorsing the international law instantly integrates the law into national law. International law can be applied directly by a national judge, and can be cited directly by citizens, just as if it were national law. A judge can pronounce a national statute invalid if it is in contradiction with international regulations because, in some countries, the latter have priority. In other countries, like in Germany, treaties have a similar effect as legislation, and by the principle of lex posterior, only take precedence over national law enacted before their endorsement.In its most pure form, monism dictates that national law that is in contradiction with international law is null and void, even if it existed before international law, and even if it is the constitution. From a human rights viewpoint, for instance, this has some benefits. Suppose a state has accepted a human rights treaty but some of its national regulations limit the freedom of the press. A citizen of that state, who is being indicted by his country for breaching this national law, can cite the human rights treaty in a national courtroom and can request the judge to apply this treaty and to declare that the national law is null and void. The accused does not have to wait for national law that translates international law.

Dualistic theory emphasizes the difference between national and international law, and obliges the translation of the latter into the former. The absence of this translation implies that international law does not exist as law. International law also has to be national law, or it is not a law by any means. If a country accepts a treaty but does not adjust its national law so as to conform to the treaty or does not make up a national law overtly incorporating the treaty, then it contravenes international law. Nevertheless, it cannot be alleged that the treaty has become part of national law. The international law cannot be relied on by citizens and it cannot be applied by judges. National laws that are in contradiction with it remain operational. According to dualists, state judges never apply international law unless it has been translated into national law. If international law cannot be directly applied, like in dualist systems, then it has to be translated into national law, and national law that is in contradiction with international law must be translated away.It has to be amended or purged so as to conform to international law. From a human rights perspective, if a human rights treaty is accepted simply for political motives, and states have no intention of fully translating it into national law, then the enactment of the treaty is very tentative.

Hire Costa Rica business lawyer

No matter what is the scale of operation, every legal business needs a business lawyer. These lawyers are specialized in dealing with legal aspects of a business. In Costa Rica, Business lawyers work either independently or in a law firm. Whether you contact an independent attorney or a law firm, for your business related matters, this piece of information is going to assist you in hiring the right person.

A business lawyer can advice you in following matters:

•    Formation of company

•    Power of attorney

•    Trademarks and copyrights

•    Lease and rent contracts

•    Mortgages and loans

•    Workers’  benefits and legal rights

•    Import and export etc.

Hire today

Most small businesses are conservative towards hiring a business attorney and paying his fees until problems arise. But this is a big mistake. Having a business lawyer by your side can save you from getting into legal problems and save unnecessary expenses.

Big vs. small law firms

This is a difficult choice to make while hiring an attorney. Big law firms generally have the advantage of specialization but they usually charge more than small firms. To some extent, the choice depends on the type of your business. If your business is fast growing and would need funds in near future, it is better to go for big law firms with well known attorneys in investment banking and venture capital community of Costa Rica.

Choice of lawyer

This is the era of specialization. A lawyer, who understands domestic laws well, is not fit for business purposes. To support your business properly, you need somebody who specializes in

Contracts – In the course of your business, you have to make several contracts with your customers, suppliers etc. and also have to sign lot of them. A business law year should assist you in that.

Business structure – A good business lawyer should guide you in choosing the right form of your business like corporation or private limited etc.

Tax and license – Besides accountants, your business lawyer has a key role to play in tax related matters like getting tax ID, handling of legal procedures in case of non – or late submission of taxes etc.

Criteria of choice

Before hiring a business lawyer in Costa Rica, you must make sure that

•    He has sufficient experience.

•    He negotiates fees.

•    He can handle multiple business related legal matters.

•    He has worked previously in similar business or industry.

•    He is willing to explain legal matters to you and your employees.

Where to search?

A definite place to find a business attorney is the Costa Rica bar association. In Bar Association’s website, you will find portfolio’s of lawyers dealing specially business matters.

Besides, there are some law firms which are waiting to assist you. The law firms usually hire lawyers with different specializations like family law, business law, professional law, immigration law etc. Just go to their website and state your issue, they will respond and select a suitable business lawyer for you.

Visa Rejection due to False Information, Explains an Attorney from an Immigration Law Firm in New York, USA

The United States is a cultural amalgamation of people from all parts of the world. Whether at work or on a busy New York street, you are bound to bump in to people from different countries. The huge influx of immigrants requires tighter immigration laws. Due to the limitation of applications every year, it is common for many applicants to forge information on the applications. According to an immigration law firm New York attorney, it can be treated as a fraud and may result in the rejection of visa along with effects on future applications.

In the section below, an immigration law firm New York attorney talks more about denial of visa due to false information on immigration forms –

  • Any false information submitted by an individual in the immigration form is considered to be a fraud against the government. This can have serious repercussions as they can either be denied visa and even the impending applications can be affected by it. Even those who help an individual falsify information to gain entry in the United States can be prosecuted by the immigration authorities.
  • False information can imply incorrect personal data, previous rejections of visa and failure to provide information about any previous criminal activity. Rejection of applications on the basis of providing false personal information could be done due to a false or alias name, date of birth, financial information and information pertaining to marital status.
  • The immigration authorities also consider it a fraud to not disclose rejections of visa. There is a specific column in the application forms that asks the applicant if his/her application has ever been rejected. In case, if there has been a denial of the application in the past and it has not been documented, then it is considered as a fraud against the government.
  • In case, if an individual has a past criminal history where he/she has been charged with criminal offenses, then it needs to be revealed in the application. It is unknown to many applicants that the immigration authorities have access to the past data or the criminal history of an individual. Therefore, any attempt to hide information or provide false information on convictions will only result in creating bigger issues.
  • This brings us to an important question that is it possible for a person to ever get a visa in case of denied applications due to false information. In such cases, the applicant needs to convince the government that the mistake is pardoned by filling for a waiver of inadmissibility.

Thai Law Trouble Possible For Those Posting ‘False’ Messages In Social Media

The National Council for Peace and Order (NCPO) is mulling legal actions against netizens who post such false messages, according to its spokesman Colonel Winthai Suvaree.

 

At least one law firm in Thailand suggests it is, in the present situation, better not to post messages or other comments in online discussions and/or on social media outlets which might be seen as seeking to incite public confusion, panic or unrest. At the same time the advice from this Thai law firm includes a definite ‘no’ to the posting of any message or comment that blatantly or in no uncertain terms aims to incite confusion, panic or unrest.

 

There are many a Thai and international law firm in Thailand which can offer valuable and well-founded advice in such a situation, in addition to the usual range of Thai law, legal, accounting, immigration and auditing services available. Some specialize in assisting foreigners to obtain a Thai visa and/or Thailand work permit, others in tax consulting and filing of personal income tax and others in starting a business in Thailand.

 

Foreigners employed in Thailand are required to file a personal income tax return each year, the same as Thais are required to. The filing of income taxes is not the most popular exercise to start with and for expatriates working abroad in foreign countries, it is probably less so. And hence – while they are of course free to handle this process themselves – many opt to use a Thai law firm for this.

 

A similar warning came from the military junta just days after the 22 May 2014 coup, in which members of social networks were told they must stop using social media to incite unrest.

 

In the days leading up to the coup also, when Thailand was under Martial Law, announcements were made requesting cooperation from social media to spread news of all events straightforwardly and without bias, which might otherwise cause misunderstandings and enlarge the conflict.

 

At the time, a leading Thailand newspaper mentioned in a story on the announcements that, according to the Martial Law in effect, entrepreneurs or participants in social networks were prohibited from broadcasting to incite, or provoke violence, including resistance to the junta’s performance of duties and that commentators who violated the regulation would be suspended and prosecuted without further notice.

 

Along with the warning this August 2015 from the NCPO regarding ‘false’ messages in social media, its spokesman Colonel Winthai also asked the public to report immediately to police or military officers if they came across any suspicious objects or anything that may pose a public danger.

 

Speaking in a nationwide TV broadcast following the 17 August 2015 bombing at Bangkok’s Ratchaprasong intersection and a second bombing incident at Sathorn pier the following day, the spokesman said security agencies concurred the attacks were intended to affect Thailand’s economy and tourism business and the image of the country.

 

Toward the end of August, Thailand welcomed its 20 millionth visitor for the year 2015 so far. The Tourism Authority of Thailand is aiming for a 13 per cent rise in arrivals for 2015, to over 28 million, and the tourism ministry is projecting total earnings from tourism – international and domestic – in 2015 to reach THB 2.2 trillion.

Real Property Law: Fixtures

CYA Disclaimer: The following is intended for reference purposes only and not as legal advice.

What is a fixture, anyway? Odds are you own one. The formal definition is “a tangible object that was once personal property but has become so connected with real property that it has become a part of it.” There, does that clear things up? I didn’t think so. Let me try again: “fixtures” means stuff like a commode (once it’s been bolted to the floor of your bathroom, and not a moment before). A desk is not a fixture (no matter how heavy it is) simply because it is physically separate from your house.

So who cares? It matters in several circumstances. If your father wills his house to your sister and his personal property to you, it’s gonna matter whether or not that solid gold toilet is classified as a fixture or not, because fixtures are not considered personal property. So get out your bolt cutters. It can also matter if you buy a house, because purchase of a house does not automatically entitle you to the personal property inside of it, and you might like to have the TV set, the refrigerator, etc.

Here are the factors that courts use to determine what is or is not a fixture. Remember here that the court will balance these factors, so there’s not necessarily gonna be a certain answer in advance (otherwise there would be no excuse for your lawyer to bill all those hours honing his arguments!).

(1) How firmly and securely the item is attached to the real estate.

(2) How appropriately the item fits as a fixture (you can’t grab ownership of the refrigerator and the TV set by simply bolting them to the floor).

(3) How much it will harm the real estate to remove the item (will you have to rip out a wall to remove it?).

(4) What was the intent of the person who attached it to the property? If an owner bolts a toilet onto the bathroom floor, it might be more convincing evidence that he intended it to become a permanent part of the real estate than if a renter did so.

Impossibility of performance S.56.— Doctrine of Frustration Indian Contract Act

 

In contract law, impossibility is an excuse for the nonperformance of duties under a contract, based on a change in circumstances (or the discovery of preexisting circumstances), the nonoccurrence of which was an underlying assumption of the contract, that makes performance of the contract literally impossible. For such a defense to be raised, performance must not merely be difficult or unexpectedly costly for one party; there must be no way for it to actually be accomplished.

Under the doctrine of frustration a contract may be discharged if after its formation

events occur making its performance impossible or illegal, and in certain analogous

situations.

Section 56 defines two ways of impossibility of performance-

  • Initial impossibility.- agreement to do an act impossible in itself is void. For example to discover a treasure by magic, being impossible of performance is void
  • Subsequent impossibility- some time the performance of a contract is quite possible when it made, but subsequent circumstances make it impossible or unlawful.

For example – A made an agreement to B certain item, but after word Government make any law against that article.

Either the case the contract become void.

Doctrine of Frustration-

In Taylor v/s Caldwell- court held that –rule is only applicable when the contract is positive and absolute, and not subject to any condition either expresses or implied.

In the above case the contract had become physically impossible because of the disappearance of the subject matter. But the principle is not confined to physical impossibilities. It extends also to cases where the performance of the contract is physically possible, but the object the parties have in mind has failed to materialize.

Thus the doctrine of Frustration comes into play in two types of situation-

  1. 1. Performance is physically cut off.
  2. 2. Object of contract has failed.

In Satyabrata Ghose v/s Mugneeram Bangur & Co- SC held that Section 56 applied in both of the situations.

Specific Ground for Frustration

  1. 1. Destruct of Subject Matter- the doctrine of impossibility applies with full force” where the actual and specific subject matter of the contract has ceased to exist”.

Taylor v/s Caldwell is the best example of this class, where, a promise to let out a music hall was held to have frustrated on the destruction of the hall.

In Howell v/s Coupland- the defendant contracted to sell a specified quantity of potatoes to be grown on his farm, but failed to supply them as the crop was destroyed by a disease.

  1. 2. Change of Circumstances- where the circumstances arise which makes the performance of the contract impossible in the manner and at the time contemplated.

In Mehra  v/s Ram Chand om Prakash- Punjab high court held that . if that be the case, the change of circumstances not having been brought about by the fault of either party, the courts will not enforce the contract.

  1. 3. Non occurrence of Contemplated Event- sometimes the performance of a contract remains entirely possible, but owing to the non occurrence of an event contemplated by both parties as the reason for the contract, the value of the performance is destroyed. In krell v/s Henry is an apt illustrating. There , contract to hire a room to review a proposed coronation procession was held to have frustrated when the procession was postponed.
  2. 4. Death or incapacity of party- when a party to a contract excused from the performance due to death or incapacity of performance. It was held in Robinson v/s Davison- where a contract has been made for a pianist but due to illness she could not perform.
  3. 5. Government, Administrative or Legislative Intervention- A contract will be dissolve when legislative or administrative intervention has so directly operated upon the fulfillment of the contract for a specific work.

But where there such intervention is of a Temporary Nature, will not affect the performance of the contract.

In Satyabrata Ghose V/s Mugneeram Bangur & Co. SC, held the same.

  1. 6. Intervention of War- the intervention of war is also effect the performance of the contract.
  2. 7. Application of Lease- application of lease also consider the non performance of contract. But SC in Raja Dhruv Dev Chand v/s Raja Harmohinder Singh held that Section 56 of this Act is not applicable when the rights and obligations of the parties arise under a transfer of property under a lease.

Effects of Frustration-

it is well settled that if and when there is frustration the dissolution of the contract occurs automatically. It does not depend, as does rescission of a contract, on the ground of repudiation or breach, or on the choice or election of either party.

  1. Frustration should not be self induced- in order to attract the principle that a party is not entitled to rely on his own act in not fulfilling a condition subsequent and thereby bringing a contract to an end.
  2. Frustration operates Automatically- it must be operates automatically to discharge the contract irrespective of the individuals concerned, their temperaments and failing, their interest and circumstances.
  3. Adjustment of Rights- the rights of the parties are adjusted under Section 65 which laid down the principle of restoration of advantage obtain by other party under void agreement.

Illustration-

A pays B 1000 rupees in consideration of B’s promising to marry C, A’s daughter. C is dead at the time of the promise. The agreement is void, but B must repay A the 1000 rupees.

  1. Quantum Meruit Claim- claim under the well known English law doctrine of quantum meruit have been allowed by the courts under this section. The SC observed in state of Madras v/s Dunkerley & Co. that a claim for quantum meruit is a claim for damages for breach of contract. The value of the material used or supplied is a factor which furnishes a basis for assessing the amount of compensation. The claim is not for price of goods sold and delivered but for damages. That is also the position under Section 65. In another case –Alopi Prasad v/s UOI reasonable compensation was awarded on the implication of a contract. It will not displace an express stipulation on the point.

In a subsequent case SC explained that requirements  of the claim. The original contract must be so discharged by the opposite party that the plaintiff is entitled to treat himself as free from the obligation of further performance and he must have elected to do so. The remedy is not available to the party who breaks the contract even though he might have partly performed it.

The remedy is restitutory, it is a recompense for the value of the work done by the plaintiff in order to restore him to the position which he would have been in if the contract had never been entered into. In this respect it is different from a claim for damages which is a compensatory remedy. The court accordingly did not allow the claim of a contractor for extra payment on the ground that he had to procure the raw material from a remote location.

In state of Rajasthan V/s Associated Stone Industries- it is not as if Section 65 works in one direction only. If one party to the contract is asked to disgorge the advantage received by him under a void contract, the other party may ask him to restore the advantage received by him. The restoration of the advantage and the payment of compensation have necessarily to be mutual.

Become Void- Section 65 also covers the subsequent void contract, means when the contract made it was lawful subsequently become void or impossible. Any benefit which has been passed under the contract from one party to other must be restored. This is subject to the expenses which have already been incurred by the other party in the performance of the contract.

What You Should Know About Land Use Law

Summary: California land use lawyers describe the fine balance between protecting property rights endowed by the Constitution and retaining healthy environmental ecosystems.
Body: If you are living in the United States, you have the right to the protections of local land use laws and the protections of the United States Constitution. Land use laws are set up to protect both property owners and the environment. You may wonder why land use laws were set up in the first instance. In this piece, you will learn about this and more.
Land use laws in the United States were adopted to provide property owners with the protection of their investment in property, whether it be residential, commercial, or industrial by nature. An example of this can be seen in a recent case tried by Sacramento land use lawyers entitled Lockaway v. County of Alameda. Here, the plaintiff had purchased a large parcel of land to develop his own business –the American dream if you will. Conditional Use Permits were processed by the County providing the necessary governmental permission to build and start the business. Work began on the project. Months and years later, once several hundred thousand dollars had spent, the project came to a screeching halt. In a local green initiative, voters had passed an environmental measure which rezoned all land within the project making the entire parcel off limits for business use. Sacramento land use lawyers filed an injunction for the business owner which restored the right to continue the project and planned business on the parcel. In this instance, it is evident why Constitutional property rights are paramount for a free and civilized society. Had the business owner spent several hundred thousand dollars with nothing to show for it, he would have been robbed of the right to reasonably expect a return on his investment –a gross injustice. Were this injustice perpetrated on multiple business owners, we could likely expect our nation’s economy to spiral downward as no business owner would choose to make such risky investments. However, thanks to the Constitution and established case law, business owners continue to invest and grow the national economy as they are assured the government cannot take property without adequately compensating its owner.
Alternatively, land use and natural resource laws preclude development which might harm the environment ensuring resources are protected. Planners, contractors, and individuals are required to get the proper permits from regulatory agencies before any building project can be started. This, in part, mitigates harmful impacts to the environment creating a safe habitat for humans, flora, and fauna.
Wetlands are an example of habitats protected by land use and natural resource law. The laws are able to protect, maintain and conserve wetlands prohibiting the destruction or disturbance of wetlands throughout the country. Often when developing near a wetland, additional regulations apply to ensure the habitat remains undisturbed.

In both of these instances, judges are tasked with determining the delicate balance between preserving citizens’ Constitutional property rights and protecting nature. However, the team of Sacramento land use lawyers at Kassouni Law realizes frivolous charges have also accompanied natural resource and land use laws which are often used as a means to preclude owners from developing. They recognize property owners are entitled to compensation if an owner’s right to reasonable use of land is taken away by the government. In order to protect yourself in matters of this nature, you may consider a consultation with the California land use lawyers at Kassouni Law by calling 877-770-7379.
The land use lawyers at Kassouni Law personally tried the Lockaway case. They serve clients throughout the state to of California to ensure the Constitutional property rights of citizens are upheld, and when it comes to protecting the environment, that burden is not unfairly shouldered by one individual.

Importance of Hiring the Best and Most Professional Business Lawyers

People running a business whether small or large always require professional help in case of problems associated with a business on a day to day basis. Most matters relating to litigation are solved by the most professional lawyers on a regular basis. Litigations in matters associated with real estate property might arise from time to time in the corporate world and need professional assistance. In many instances matters relating to settling long pending cases relating to staff issues also require professional help. Many times hitches or hindrances might arise for a business and require it to go for a legal advice to reach out at the most amicable solutions. Business Lawyers in Miami through their most professional approach have assisted businessmen in arriving at the best solutions whenever the need arises. Solving most of the pending court cases well in time by bringing disputing business parties to a reconciliation table has increased demand for such lawyers. For big corporate houses a professional lawyer helps in solving problems between labor commissions and management. Any kind of guidance relating to project expansion or setting up new projects in new areas always requires guidance from Miami lawyers. Also in order to be well aware about various government notifications for businesses and their legal angle a lawyer needs to be hired.

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Florida Business Lawyers work round the clock for assisting some of the big corporate business houses in solving matters relating to business development and growth. Most of the times while running a business some litigation might arise on account of some business rival interference. All this is solved professionally by a business lawyer. These lawyers also assist upcoming businesses in studying business laws and their pros and cons. In cases where approvals from government are required by a business house theses business lawyers assist in bridging the gap. All matters relating to problems and issues arising in business on account of pending bill clearances for delivered goods and services require theregular business lawyer assistance. These lawyers can even fight long drawn litigations for securing interests of their client businesses. Wills and licensing matters of a business might in one way or the other require professional lawyer help. So in a way business lawyers have come up as a great help for any upcoming business through their important guidance and legal support.

Business lawyers have played an important and decisive role in solving long pending land and other property related legal disputes between many business houses. Thus the support and guidance of these business lawyers help a business run smoothly.

Contract Law – Its Importance in the World Today

Our society depends upon free exchange in the marketplace at every stage. The interactions in the market all the times depend upon voluntary agreements between individuals or other “legal persons”. Such voluntary agreements can never become binding without a legal contract.

The origin of the contract law can be traced from the development of common law and it is also alleged to be an offspring of tort law, as both contracts and torts give rise to obligations. The difference between them lies in the fact that the tort obligations are imposed by law; on the other hand contracts are a medium through which people willingly create commitment between themselves.

Contract law is based on a number of Latin legal principles, out of which consensus ad idem is the most important, which means a meeting of the minds between the parties i.e. an agreement among them. It is said to be a part of “private law” because it does not bind the state or persons that are not parties to the contract. Thus, contracts are voluntary and require an “exercise of the will of the parties”. But not all agreements are contracts e.g. Non-business agreements, religious agreement, or charitable agreements etc.

A contract an agreement between two or more persons, creating an obligation upon them to fulfill or not to fulfill some duties laid down specifically in the agreement. This agreement creates a legal relationship of rights and duties on the parties and if these obligations in the agreement are not fulfilled then stringent action could be taken by the courts on the party. There are three key elements for the conception of a contract. These are offer, acceptance, consideration and an intention to create legal relations. Contracts can be written, oral, or implied also. Generally the parties to a written contract comprehend that they have entered into a binding agreement, but they do not always grasp this point when making an oral or implied contract. It is always difficult to prove the terms of an oral or implied contract than those of a written one.

There are many important points that have to be kept in mind while forming a valid contract; after making the offer to the promisee, the contract will be formed when the promisee communicates his acceptance to the contract. The person making the offer is free to withdraw the same before the acceptance of the offer. Once the agreement is made, the following clauses should be present in the same.

1. There should be some consideration offered for the agreement.
2. The parties should be competent to contract.
3. The consent to the agreement should be free.
4. The object of the agreement should be lawful.

Consideration

This is one of the important aspects which is necessary for a party to enter into a contract. This is the return which a person gets for performing the obligations of the contract. This needs to be of some value but it is not necessary that it should be specified in the contract. An agreement made without consideration is void.
Persons competent to contract.
All persons are legally authorized to enter into a contract except for the following:
• Minors, who are above 18 years of age and when a guardian is appointed for them the age is increased to 21 years.
• Mentally incompetent persons.
• Person who is ineligible from entering into the contract by law.

Companies have a separate legal entity to enter into contracts through the acts of their agents, officers and workers.

Consent to the contract

Unless the consent of the contract is obtained through, coercion, undue influence, fraud, misrepresentation or mistake, it is presumed that the consent is free.

Relief given to the aggrieved party
Generally the party who has suffered due to the breach of contract of the other can claim money damages that will put the non-breaching party in the position it would be in, if the contract had been performed. In some cases the court may order the breaching party to perform its obligations.

The aim of the law of damages is to place the plaintiff in the same position that he would have been, had the breach not occurred. The parties to a contract may determine the damages beforehand which are called liquidated damages and can be recovered. In this case the sum of money should not exceed the amount already specified. But in the case when there are no predetermined damages then the person can claim the whole amount.

Essentials of a contract agreement

The contract should contain certain clauses without which the agreement will be incomplete.
• A detailed description of the duties and obligations of the parties should be stated to avoid ambiguity at a later stage.
• Representations concerning warranties should be present in the contract
• Confidentiality clauses should be present to ensure that the parties keep any information which comes into the possession, due to the contract, confidential.
• The force majeure clause which generally provides that no party will be liable for non-performance arising out of an event of force majeure i.e. war, aggression, epidemic should also be present.
• The term should also be specified in the agreement.
• The events on the occurrence of which the contract will be terminated should also be specified. This clause also describes the methods of giving notice, and whether the breaching party must be given a chance to cure the breach.
• The relief available to the other party on the breach by one party should also be stated. This would also include liquidated damages.
• An arbitration clause should also be inserted to settle the disputes through arbitration rather than court litigation.
• In international contracts, it is important to state the jurisdiction and the applicable law governing the contract.

Once these conditions are incorporated in a contract it will be easier for the parties to enforce them and claim their rights.

The Need for an Immigration Lawyer

The fact is that hiring an immigration attorney is a matter of preference. As an attorney myself, I can safely say that some immigration matters probably do not need the attention of an immigration attorney. If an individual needs to renew her green card, there’s a form for that that can easily be found on USCIS’s web site, and she can fill it out herself and pay the fee. It’s that simple. Don’t waste your money on an immigration attorney to do this for you.

Then there are the incredibly difficult matters that individuals usually have absolutely no idea how to handle, such as submitting complicated waiver applications, navigating all the different types of employment-based visa categories, or (heaven forbid) being placed in removal proceedings which necessitates at least several hearings in Immigration Court.

That being said, there are several very good reasons why people hire lawyers:

(1) Immigration Law BC is complex. In 2005, the Congressional Research Service reported: “The statutory scheme defining and delimiting the rights of aliens is exceedingly complex. Courts and commentators have stated that the and Nationality Act resembles ‘King Mino’s labyrinth in ancient Crete,’ and is ‘second only to the Internal Revenue Code in complexity.’

Finding someone who can navigate the complicated laws can mean the difference between being able to live and work in the U.S. and being forced to leave.

There are, however, some immigration attorneys who either cannot or at least have not yet figured it out. In a law review article written by Judge Richard Posner of the Seventh Circuit Court of Appeals and Northwestern University Law Professor Albert Yoon, it is noted that a panel of judges were asked which area of the law had the lowest quality lawyers. The judges “agreed that immigration law was the area in which the quality of representation was lowest.”

(2) Canada Immigration Lawyers can fend off future problems. Because of the complexity of law, it’s difficult for individuals attempting to handle an immigration case by themselves to get up to speed on the immigration laws. This is especially important if time is running against you, which it almost always is in immigration matters. Retired U.S. Supreme Court Justice John Paul Stevens has stated in the context of detained immigrants that “the need for legal representation for immigrants has grown so acute and the consequences so drastic that something must be done.” If attorneys are useless, then a U.S. Supreme Court Justice would never have made such a remark.

Best Immigration Lawyers of Canada does much more than simply fill out forms. We can spot immigration problems before they occur, and advise a client accordingly. When we believe the client does not have a good case, we tell them, and suggest ways in order to build a stronger case. When we are forced to fight the government, we prepare legal briefs in support of our arguments and make appearances in and consular officers with our clients. We offer strategies for successful outcomes at immigration interviews, and inform clients of potential pitfalls to avoid at these interviews. As you can see, all the evidence supports the case that immigration lawyers are invaluable.

Immigration to Lithuania

Immigration is a very complicated task and it needs time, money, hard work and attention of the aspirant. A great desire and diligence is required for preparing all the documents of immigration when you apply for visa. An applicant should be able to adapt to the country that he or she has decided to migrate.

Immigration to an overseas nation is not an easy thing to do. You need to have a fixed motive for immigrating to a country without any trouble. However, there are many complex things that you need to do for immigrating to a country like learning foreign language, adapting the culture of the country and many other things.

Immigration to Lithuania has increased in recent years mainly because it is member of European Union. This has made an increase in salaries of the skilled workers and it is estimated that it will soon come at par with the salaries of highly developed economies of the world.

Advantages of immigrating to Lithuania:

  • The nation is centrally located in Europe so it enjoys geographical advantage.
  • The standard of living in the country is very high, as it has developed economy.
  • The Baltic state has seaport that helps in import and export of goods that can improve the economy of the country.
  • The Lithuanian firms can apply for EU structural fund support in times of emergency.

The immigration law is same for all the members who would like to migrate to any member state and this includes Lithuania. All the nations of Union have similar immigration laws. Lithuania is an amazing place that is strategically located in Europe and it immigrating to this country has many advantages compared to the other countries.

There are many skilled workers in Lithuania who can speak in multiple languages like German, French, Russia and many others. So the investors can have a strong team here and use their skills for enhancement of his business. Also, you may find many developed European banks in the country that ensures banking operations with ease and efficiency.

The transportation facility of the country is developed. This enables you to move safely within and outside the country. Lithuania is known for natural beauty and this attracts many migrants to the country. You may see beaches, lakes, forests and all the places where you can breathe fresh air.

Lithuania Temporary Residence Visa permits the foreign citizens to reside in the country for a fixed time as stated in the document. The country is positioned as one of the developing nations and is considered a favourable nation to do business. You can see free market economy in the country and they practice fair trade.

Immigration to Lithuania permits all the foreign nationals to reside freely anywhere in the country during their specified tenure. It is compulsory for all the migrants to file and obtain entry permission before travelling to Lithuania. All the immigrants can enjoy all the privileges that have been entitled to the residents of the country.

Legal Associates –Expert in various fields of law

After analyzing your need, we offer you the best of solution with our research work providing you with emotional as well as moral support. Since our inception, Legal Associates is working for clients and their 100% satisfaction through our services.

We believe in providing qualitative services which are affordable and customized according to the nature of the requirement. Some of our services include are mentioned below:

Immigration: The law firm provides for assistance of various aspects of Immigration. Be it any reason, if someone wants to explore New Zealand for short term, long term or on permanent basis, we help them to get visas and the proceedings. While understanding the purpose of your visit, we help you with all the major immigration formalities. The first and the foremost important thing is Visa; there are various visas like: Work Visa, Resident Visa, Temporary Visa, Study Visa etc which can be easily obtained with our help.

Litigation: Providing for the efficient assistance to a wide range of clients, while understanding the nature of the problem weather it is property related, insolvency issues, commercial disputes etc. In all the cases where both the parties cannot reach to a conclusion, Legal Associates is always there! Our teams of lawyers have an extensive experience at all levels and has helped our clients to solve the problem since our firm is operative in the business.

Commercial And Property Law: The big transaction which involves a lot of money which is supposed to be studied and should be in context with government rules. We at Legal Associates assist you in the commercial and property sector before buying or selling a property. Our practical advice will help you to solve complex problems pertaining to it.

Estate and Will Planning: Nobody thinks about death. Life is an uncertain journey; a proper planning about the allotment of assets and liabilities (if any) is to be done in order to keep your loved ones safe and sound after your death. Legal Associates help you in planning your estate according to your wish and will execute after your death to your loved ones giving them the maximum of your wealth & accumulations and minimum to government.

Family and Relationship Law: With relations being uncertain, breaking up of a relation is very painful and there are numerous issues surrounding the same .We at Legal Associates understand your problem and will help you get rid of the problem in the court of law with “in favour” justice. Whatever might be the reason; our professionals are efficient to solve any of your personal problems and are always ready to solve most of the critical case.

Employment Clauses: While understanding the employment clauses and rules laid down in constitution, Legal Associates helps the employers and employees to solve their problems and doubts. We help to maintain a healthy and sound working environment. As in today’s ever changing corporate world, the needs and the requirements of employers and the employees tend to change and make everything run smoothly and to settle any of the differences we are here.

Taxation and Accounting:  Taxation has been the biggest pain for the businessmen of the country. With vast and varied complex tax structure and critical issues, our experts provide for a full and comprehensive range of tax advices to business, corporate houses and anybody in need! Our guidance has proved to be effective among our clients. So if you have any confusion about related to taxation then please come to us.

Studying Law at Cambridge Summer School

Studying law at Cambridge Summer School gives students insight into the subjects they want to learn more about, and University tutorials are developed in such a way that students will understand more about their chosen subjects. Summer school at Cambridge University is a once in a lifetime opportunity.

Studying the law at summer school Cambridge University in the UK at one of the most prestigious and oldest universities in the world, offers students morning tutorials in small classes and a taste of what a lawyer does. If you are considering applying to read Law at university, then this summer course is for you.

The Cambridge Summer School Law Courses offers fundamental questions that surround the role of law in society. You will learn to answer these questions and realize how the law influences everyday life. There will be a class on analyzing some historical and controversial cases. The guidance of your subject specialist tutor will give you practice on complex debates within the subject of law. You will learn the relationships between a country’s national laws and international laws. Law at Cambridge summer school will give students challenges to formulate, articulate, and defend your own opinions.

There is lots of debate and discussion at summer school law at Cambridge University. You become aware of both sides of a complex legal issue and challenge. There will be an introduction to mooting, or the formal debating of a point of law. After two weeks of intense study, you will have a real insight into the law and what studying law is all about.

The skills you will learn during your two weeks at Cambridge Law summer school will serve you at your chosen university. It will be a complement to your university studies and your future career. Weekly one-on-one tutorials are the most important feedback you will receive, and the advice from your tutor is priceless.

Most tutors are studying law at post-graduate levels and have been through intensive university studies. They are ready to guide you to a better understanding of what you will experience at a law university.

If you are ready to jump into complex legal issues and join a mock trial, apply to Cambridge’s law summer school course today. Classes are filling up quickly for the 2016 sessions. Fees are £3695. Fees include breakfast and evening meals, accommodations at Lincoln College’s annex, activities and all course materials.

 

For more information please visit us: cambridgeimmerse.com

Distinguish Between Law of Tort, Criminal Law and Contract Act

1. INTRODUCTION:

Tort is breach of some civil duty independent of contract for which compensation may be recoverable. If there is an injury for which no compensation is recoverable is not tort. The law of tort is based on common law. It is still growing. It is not the part of statue law.

2. MEANING:

The word tort is derived from Latin word “Tortum” which means to twist or ‘conduct’ which is twisted.

3. DEFINITION:

> Salmond:

According to Salmond Tort is a civil wrong for wh’ch the remedy is a common law action for Unliquidated damages, and which is not exclusively the breach of a trust or other merely equitable obligation.

> Oxford Dictionary:

Tort is a private or civil wrong.

> Philip James:

Tort is a private or civil wrong independent of contracts for which appropriate remedy is an action for unliqidated damages.

4. DISTINGUISH BETWEEN TORT AND CONTRACT:

I. AS TO RIGHTS:

> Law of tort protects right in rem available against the whole world.

> Law of contract protects rights in personam which means against a particular individual.

II. AS TO DAMAGES:

> In tort, damages are unliquidiated.

> In contract damages are liquidiated.

III. AS TO CONSENT:

> Tort is always inflicted against consent of the person.

> Contract is always founded on consent of a person.

IV. AS TO CODIFICATION:

> Law of tort is not codified.

> Law of contract is codified.

V. AS TO FIXATION OF RIGHT AND DUTIES:

> Rights and duties are fixed by law in law of tort. > Rights and duties are fixed by parties in contract.

VI. AS TO DEFENCE:

> In law of tort necessity is a defence. > In contract, necessity is no defence.

VII. AS TO DOCTRINE OF VICARIOUS LIABILITY:

> Principle or doctrine of vicarious liability applies.

> Principle or doctrine of vicarious liability does not apply.

VII. AS TO LIMITATION:

> Limitation of time is one year in tort. > Limitation of time is three years in contract.

IX. AS TO POSITION OF MINOR:

> In law of tort a minor person can sue and can be sued.

> In contract a minor person can not sue and can not be sued.

5. DISTINGUISH BETWEEN LAW OF TORT AND CRIMINAL LAW:

I. AS TO PARTIES:

> In tort parties are known as plaintiff and defendant.

> In criminal law, parties are known state and accused.

II. AS TO PUNISHMENT:

> Tortfeasor has to pay damages.

> Criminal are sent to prison.

III. AS TO PROCEDURE:

> In tort, proceedings are regulated by civil procedure code 1908.

> Proceeding are regulated by the criminal procedure code 1898.

IV. AS TO INTENTION:

> Intention is not relevant in tortiuous act.

> Intention is always relevant in criminal act.

V. AS TO DEFENCE:

> Necessity is a defence in tortiuous act.

> Necessity is not a defence in criminal act.

VI. AS TO COMPROMISE:

> In tort, compromise is permissible.

> Compromise is not permissible in criminal law.

VII. AS TO PROCEEDINGS:

> Proceedings are conducted by injured person in law of tort.

> Proceeding are conducted by the state in criminal law.

VIII. AS TO CODIFICATION:

> Law of tort is not codified.

> Codified in Pakistan penal code.

IX. AS TO POSITION OF MINOR:

> A person under seven year is tortuously liable in tort.

> A person under seven year is not criminally liable.

6. CONCLUSION:

To conclude I can say that law of tort is different from law of contract and criminal law.

Proving damages in contract law

Despite the fact that someone may have caused you damage as a result of their actions in relation to a contract, it may not be the case that you can claim damages from them if you’re unable to prove the losses that you have sustained as a result of their actions.  Where a plaintiff claims to have suffered loss or damage by reason of the defendants breach, the onus of proving the extent of loss or damage rests on the plaintiff it must be established: that the loss or damage was caused by the defendants breach and that the loss or damage was not too remote.

The distinction is drawn in this case between nominal damages and substantial damages. The former is awarded where, for one reason or another, the plaintiff proves no more than the defendants breach. For example, in Luna Park (NSW) Ltd v Tramways Advertising Pty Limited a breach of condition was proven by Luna Park, but because no evidence of loss or damage occasioned by the breach was produced only a nominal sum was awarded under the cross claim against Tramways.  The case illustrates the point that a nominal sum is awarded to indicate the infraction of illegal right.  On the other hand, are plenty who proves quantifiable loss or damage will not be restricted to a nominal sum and in this sense is entitled to recover substantial sum. However, until the loss of damages actually quantified the plaintiffs damages are large and the word a substantial does not signify that the large sum is always awarded.

Generally speaking, in actions for breach of contract, the court will identify the plaintiff’s loss or damage by reference to the position of the plaintiff following the defendants breach. Thus, the plaintiff must establish what has been lost, not what the defendant has saved or gained as a result the breach. For example, if a buyer of goods establishes a breach by non-delivery, but the market price of goods of the type which the seller agreed to deliver has fallen, the buyer is, primer facie, limited to the recovery of transaction costs because of I can go into the market and purchase equivalent goods for a lower price.

The Need for Intention to Create Legal Relations in Contract Law

Under UK law, an agreement supported by consideration is not enough to create a legally binding contract, the parties must also have an intention to create legal relations. Often, the intention to create legal relations is expressly stated by the contracting parties. In other situations, the law will readily imply the intention, because of the nature of the commercial dealings between the parties.

The presence of consideration is often indicative of the intention to create legal relations, though there are situations where the presumption of the intention can be rebutted, thus determining that there is no contract and no legal liability.

In many domestic agreements, for example those made between husbands and wives and parents and children, there is no intention to create legal relations and no intention that the agreement should be subject to litigation. Familial relationships do not preclude the formation of a binding contract, though to create contractual relations, there must be a clear intention on either party to be bound.

While there are conflicting legal authorities on whether specific facts involving familial relations result in binding and enforceable agreements, it seems settled that in domestic agreements there is a rebuttable presumption that the parties do not have intention to create legal relations.

In commercial agreements, there is a rebuttable presumption that parties intend to create legal relations and conclude a contract. In determining whether parties have created legal relations, courts will look at the intentions of the parties. If in the course of business transactions, the parties clearly and expressly make an agreement stating that it ought not be binding in law, then a court will uphold those wishes. However, if a court is of the view that there is any ambiguity of intention, or that such intention is unilateral, such contract will be voided. The burden of rebutting the presumption of legal relations in commercial agreements lies on the party seeking to deny the contract. In terms of commercial contracts involving large sums of money, case law has determined that it is a heavy burden.
It has been decided in the UK, that so called “Letters of Comfort”, which express a parties intention on business dealings can amount to an intention to create legal relations and so bind a party in contract, but that it will depend on the nature of the specific wording used.

Agreements between companies and trade unions have also raised the question of the intention to create legal relations. Collective agreements are generally not intended to be legally binding. It has been held that specific provisions of collective agreements can be incorporated into individual contracts of employment and thus legally binding.

The intention to create legal relations is an essential feature of contract law in the UK, and the existence of the intention will depend on the nature and form of the contract and the

Successful Immigration Law Office

There are many reasons why someone would be looking for an immigration office in Columbus, Ohio. If a person needs a work visa, marriage green cards, or citizenship they may search out an immigration office. Also, if they find themselves in trouble with the law, they will need an immigration office. Finally, the process alone of immigrating to the United States is stressful and finding an immigration office in Columbus will ease some of the stress. To find an immigration office in Columbus, though, there are many services one should look for.

To find the best immigration law office in Ohio an individual will want to find a group of lawyers that have a proven success record. Check for offices online that talk about the services that they offer. Ask friends to see if anyone you know has had success with a particular immigration law office. Try to find an immigration office that has many years of experience working with immigrants and their families; especially one who has a history of working with other cultures and maybe even speaks a language other than English. Don’t be afraid to ask about education in immigration law. Immigration law changes and you will need someone who knows this, is aware of the changes, and also watches for changes that may be coming soon.

While looking for an immigration law office you’ll want to find one that you can afford. Don’t pay too much money for an immigration law office that isn’t honest with you about the legal fees both now and in the future. Also, immigration issues are not an area where it’s okay to buy discount. The old cliché, “you get what you pay for” applies to immigration law offices. Consider the consequences of going with the cheaper guy or waiting until the last minute to find an immigration office. You’ll want a lawyer with you every step of the way from beginning until end. Contact an immigration office right away.

Finally, when you find the immigration office in Columbus you are happy with, remember to ask every question that is on your mind. You don’t know if you don’t ask. Your immigration law office members should be open and honest with you. They should be willing to answer all of your questions. They should also be ready to stay with you throughout the whole immigration process which could take a very long time.
It won’t be easy to find the right immigration office for you and your family. Take the time to find a compassionate group of professionals who care about immigration issues. Don’t wait too long, though, finding the right immigration office is a critical step to citizenship status. I’m sure that you’ll be happy with the results if you look around, ask questions and be ready to go through the lengthy immigration process.

Strengthen Your Case With Long Island Lawyer

Legal matters can occur without a prior information and have full ability to put either involved parties in the dilemma and inconvenience. Many of us don’t have such spare time to go beyond the stated priorities and preferences to resolve these legal matters. You therefore need to avail services of expert and dedicated Long Island lawyers who can extend your legal matters to the competent to allow expected and permanent resolutions of the legal issues. These legal professional assist clients in all their legal needs. They charge very reasonable and affordable cost of the consultation from the beneficiary party and above all guide them across the litigation and hearing process.

The professional functioning of Long Island lawyer is pretty wide and comprehensive and are executed with the utter responsiveness and serious approach. Their legal services segment is widely arranged and contain a number of service spectrum including Business Organizations, Real Estate, Personl Injury, Family Law, Bankruptcy, Business Law, Criminal Law and Migration Law. Long Island laweyers that deal in litigation and trial matters, practice their services to extend cases in other fields also including medical and professional malpractice, products liability and construction and labor law.

Beyond above quoted services, they also have upper hand in resolving legal hassles including casualty and personal injury, employment law and environmental as well as municipal liability laws. A core group of bankruptcy lawyers help customer in their bankruptcy filing process. If you are not aware about the prevailed bankruptcy laws and their relevance in the current market scenario, a Long island bankruptcy lawyer is the best help you may ever achieve. A good bankruptcy lawyer help customers to fix negotiations on behalf of the creditors involved in the process and creates a pathway to ensure financial estability and debt consolidation for the beneficiaries.

These lawyers are well versed with the cases of medical malpractices to resolve the disputes pertaining physicians, dentists, cardiologists and podiatrists. Those lawyers who deal in the medical malpractice services, carry extensive experience in the trade and expertise in catering numerous clients in some of the very critical trials. In the service domain of criminal law, they come handy with the mechanism of current criminal justice system with all its pros and cons. These expert Long island lawyers take the criminal proceedings of their clients further to manage and maintain their liberty and reputation. In case, you are rattled with some legal hassles on personal or professional front, request some credible services of prominent attorneys and lawyers to resolve the conflict.

Business Law Knowledge That Is Integral To The Running Of A Company

It is essential to know about business law before starting a business, as it will help you operate your business without the hindrances of ignorance. It is better to seek the expert guidance of an accountant and an attorney to learn about the latest business laws that will affect your business. Below is a list of the most important business laws.

Business structure laws: There are different laws for different business entities. Be certain you learn about the business laws that govern the kind of business entity that you choose to start. The major types of businesses are C, S and closed corporations, limited liability companies, and sole proprietorships.

Zoning Laws: It is essential to know about zoning laws, as certain zones are restricted in certain areas. It deals with the kind or type of business allowed in certain areas, how the land surrounding a business is used, signboards, advertisements, and parking.

Licensing Laws: In order to operate a business certain licenses are required and there are some important business laws you need to know. If a business operates without these licenses, it is illegal and the business may be dissolved or forced to close.

Trademark and Patent Laws: These are laws that deal with ownership; intellectual property rights, and inventions. They are necessary to protect the business.

Employment Laws: These are laws regarding the hiring and firing of employees, their rights, compensation, safety, work place discrimination, child labor laws, overtime pay structure, disability laws and unemployment laws.

Tax Laws: This section deals with filing of tax returns and depends on the kind of business entity and the state the business operates in, sales tax. These include franchise tax, income tax and other state and federal tax requirements of a business. These are very important business laws you need to know before starting a business.

Environmental Laws: The government enforces the environmental laws for the discharge of hazardous waste and the recycling laws pertaining to the business.

Health Department Permits: This is necessary if your business deals with food products. You must get health department permits to operate your business.

Fire Department Permits and Air and Water Pollution Control Permits: There are laws that certain kinds of business entities must get permits from these departments to operate.

Beware Of Laws The list above contains basic business laws you need to know before starting a company. It is necessary to take precautions that you are not violating any law by operating your business. You must obtain all the necessary permits and licenses from the appropriate authority.

Additional Help There are firms that offer their services and products to help make the process of starting and running a business very simple and easy. There is also software to make sure your company remains legitimate.

Thai Law Authorities Allow Koh Phangan Parties Again, With A Few Rules

After meeting with business operators from the island in late June, Koh Phangan district chief officer Krirk-krai Songthani said full moon parties will be permitted again but they must be free of drugs. They must also not be held on the beaches because of the environmental impact.

 

The district chief officer has agreed to allow only some business operators to hold the parties, but they must strictly abide by official rules and regulations.

 

The operators of full moon parties would first have to apply for permits to hold the events. If they met all criterion set down in the official rules and regulations then they would be allowed to hold parties on a case by case basis, Krirk-krai explained.

 

He cautioned business operators to make sure their parties were free of drugs. If there were drugs found to be in use, they would be banned from holding parties.

 

Staying clear of drugs and any such illegal activity is always a good rule of thumb for tourists visiting Thailand and indeed any country, noted the spokesman for one leading international law firm in Thailand. “Getting into difficulty with the Thai law isn’t what you want while on holiday”, he quipped.

 

There are many an international and Thai law firm which can provide legal advice and services to foreigners and Thais, ranging from Thai law in general to Thai labour law and the Thai visa service, obtaining a Thailand work permit, tax consulting and accountancy, and recommendations on starting a business in Thailand.

 

Krirk-krai three operators had been granted permission to stage full moon parties, which are the Half Moon Party, SRA Manohra Party and Cheeva Moon Party.

 

The owner of the Half Moon Party promised all business operators would give full cooperation in abiding by the conditions for the parties, and that operators not yet granted permits to hold parties would begin to improve their venues to meet the conditions.

 

Effective 5 April 2015, all parties on Koh Phangan with the exception of the Full Moon Party were banned following complaints from many of the island’s residents over the loud noise. There were some 25 parties being held a month at various coconut plantations around the island, including the Half Moon Party, Black Moon Party, Jungle Party and Experience Party.

 

Tourism has proved a big earner for Koh Phangan, bringing in some Bt7 billion in foreign exchange a year. Each month some 20,000 tourists visited the island, many of them young Westerners. That number increased to 30,000 during the high season and to between 60,000 and 80,000 during Christmas and New Year. The island’s famous parties were a big draw card.

 

The ban on parties enforced in April likely has likely affected that tourism and the revenue it brings Koh Phangan, including for the owners of local accommodation, dining and other related establishments.

 

Krirk-krai said he realized that the parties were the selling point of Koh Phangan and that the ban had started to affect business operators, which had prompted authorities to start talking with them on the situation.

 

Koh Phangan is situated 15 km to the north of Koh Samui, in the Gulf of Thailand off the coast of Surat Thani province on the Thai mainland. The ferry ride from Koh Samui to Koh Phangan takes around 40 minutes and there are regular departures in both directions from the early morning to early evening.

 

Ferry services also link Koh Phangan with Koh Tao 35 km to its north, and to the mainland which is about a three and a half hour trip.

Conveyance Law an Issue? Not anymore

The conveyance and transfer of property is a complex part of the law, which needs an experienced Conveyancer. P Smith Attorneys offers highly qualified conveyancers but not only them, they are in association with Oosthuizen Du Toit Berg & Boon Attorneys; these attorneys offer their skills along with that of P Smith Attorneys to transfer your property without hindrance. At P Smith Attorneys they allow you to focus on what is important to you, without the stress of any legal matters; all will be handled expertly.

Conveyance in law is the legal title of property from one individual to another. Conveyance contains two large milestones:

  • The exchange of contracts between both parties – This is whereby equitable title of property passes.
  • Completion – After both contracts have been agreed upon; this is whereby the legal title passes from one person to the other.

P Smith Attorneys ensures that this is done correctly and thoroughly with maximum effort, as conveyance law is particularly striven for. There are three steps that P Smith Attorneys follow by that occur in the process whereby conveyance of the property is done:

  • Before contract.
  • Before completion
  • After completion

P Smith Attorneys have set a certain conveyance system; this system usually ensures that the buyer secures the title of the property and or land. The system also ensures that the buyer also has all the rights that incorporate with the land itself. P Smith Attorneys assures that the buyer understands all restrictions before the purchase and conveyance has been complete, so no hidden and unwanted surprises appear. In most established jurisdictions, conveyance is assisted by a system of land registration. This system is set in place to assure purchasers of the land they are buying, and that their title is not restricted by means of factors that would encumber a mortgage or re-sale.

At P Smith Attorneys the qualified attorneys are there to ensure that your conveyance or transfer of property is done professionally with no errors, and that what you are receiving is what you are paying for. P Smith Attorneys have quality and experienced conveyancers, for which can give excellent service and incomparable results and are there to make sure you don’t worry about a thing, as they have got you fully covered and ensure you don’t lift a finger. For quality help and conveyancing skills to transfer property P Smith attorneys are the people who can provide you with everything needed to get the best results; Results which one cannot find anywhere else.

International Humanitarian Law

International Humanitarian Law

What is International Humanitarian law?

Fact sheet providing a summary description of the sources, content and field of application of international humanitarian law.

    • International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict.
    • International humanitarian law is part of international law, which is the body of rules governing relations between States. International law is contained in agreements between States – treaties or conventions – in customary rules, which consist of State practice considered by them as legally binding, and in general principles.
    • International humanitarian law applies to armed conflicts. It does not regulate whether a State may actually use force; this is governed by an important, but distinct, part of international law set out in the United Nations Charter.

Where did International Humanitarian Law originate?

International humanitarian law is rooted in the rules of ancient civilizations and religions – warfare has always been subject to certain principles and customs.

Universal codification of international humanitarian law began in the nineteenth century. Since then, States have agreed to a series of practical rules, based on the bitter experience of modern warfare. These rules strike a careful balance between humanitarian concerns and the military requirements of States. As the international community has grown, an increasing number of States have contributed to the development of those rules. International humanitarian law forms today a universal body of law.

Historical Convergence between International Humanitarian Law and the Laws of War

For most of the 20th century, international humanitarian law or the “Law of Geneva” was distinguished from the “Law of The Hague” or the Laws of War proper. The Law of The Hague “determines the rights and duties of belligerents in the conduct of operations and limits the choice of means in doing harm.” In particular, it concerns itself with the definition of combatants, establishes rules relating to the means and methods of warfare, and examines the issue of military objectives.

At the same time, the Law of Geneva, which focuses mainly on human beings as victims of war, is directly inspired by the principle of humanity. It relates to those who are not participating in the conflict as well as military personnel hors de combat. It provides the legal basis for protection and humanitarian assistance carried out by impartial humanitarian organizations such as the International Committee of the Red Cross. This focus can be found in the Geneva Conventions.

With the adoption of the 1977 Protocols to the Geneva Conventions, the two strains of law began to converge. Already before, articles focusing on humanity could be found in the Law of The Hague (i.e. the protection of certain prisoners of war and civilians in occupied territories) articles which were later incorporated into the Law of Geneva in 1929 and 1949). However the Protocols of 1977 relating to the protection of victims in both international and internal conflict not only incorporated aspects of both the Law of The Hague and the Law of Geneva, but also important human rights aspects.

Where is International Humanitarian Law to be found?

A major part of international humanitarian law is contained in the four Geneva Conventions of 1949.Nearly every State in the world has agreed to be bound by them. The Conventions have been developed and supplemented by two further

agreements: the Additional Protocols of 1977 relating to the protection of victims of armed conflicts. Other agreements prohibit the useof certain weapons and militarytactics and protect certaincategories of people and goods.

These agreements include:

Ø the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, plus its two protocols;

Ø the 1972 Biological Weapons Convention;

Ø the 1980 Conventional Weapons Convention and its five protocols;

Ø the 1993 Chemical Weapons Convention;

Ø the 1997 Ottawa Convention on anti-personnel mines;

Ø the 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. Many provisions international humanitarian law are now accepted as customary law – that is, a general rules by which all States are bound.

When does International Humanitarian Law apply?

International humanitarian law applies only to armed conflict; it does not cover internal tensions or disturbances such as isolated acts of violence. The law applies only once a conflict has begun, and then equally to all sides regardless of who started the fighting. International humanitarian law distinguishes between international and non-international armed conflict.

International armed conflicts are those in which at least two States are involved. They are subject to a wide range of rules, including those set out in the four Geneva Conventions and Additional Protocol I.

Non-international armed conflicts are those restricted to the territory ofa single State, involving eitherregular armed forces fighting groupsof armed dissidents, or armedgroups fighting each other. A morelimited range of rules apply to internal armed conflicts and are laiddown in Article 3 common to the fourGeneva Conventions as well as inAdditional Protocol II. It is important to differentiatebetween international humanitarianlaw and human rights law. While

some of their rules are similar, these two bodies of law have developed separately and are contained in different treaties. In particular, human rights law– unlike international humanitarian law –applies in peacetime, and many of its provisions may be suspended during an armed conflict.

What does International Humanitarian Law cover?

International humanitarian law covers two areas:

Ø the protection of those who are not, or no longer, taking part in fighting;

Ø restrictions on the means of warfare – in particular weapons– and the methods of warfare, such as military tactics.

Basic rules of International Humanitarian Law

    1. Persons hors de combat and those not taking part in hostilities shall be protected and treated humanely.
    1. It is forbidden to kill or injure an enemy who surrenders or who is hors de combat.
    1. The wounded and sick shall be cared for and protected by the party to the conflict which has them in its power. The emblem of the red cross or the red crescent must be respected as the sign of protection.
    1. Captured combatants and civilians must be protected against acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.
    1. No one shall be subjected to torture, corporal punishment or cruel or degrading treatment.
    1. Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare.
    1. Parties to a conflict shall at all times distinguish between the civilian population and combatants. Attacks shall be directed solely against military objectives.

What is “protection”?

International humanitarian law protects those who do not take part in the fighting, such as civilians and medical and religious military personnel. It also protects those who have ceased to take part, such as wounded, shipwrecked and sick combatants, and prisoners of war. These categories of person are entitled to respect for their lives and for their physical and mental integrity. They also enjoy legal guarantees. They must be protected and treated humanely in all circumstances, with no adverse distinction. More specifically: it is forbidden to kill or wound an enemy who surrenders or is unable to fight; the sick and wounded must be collected and cared for by the party in whose power they find themselves. Medical personnel, supplies, hospitals and ambulances must all be protected. There are also detailed rules governing the conditions of detention for prisoners of war and the way in which civilians are to be treated when under the authority of an enemy power. This includes the provision of food, shelter and medical care, and the right to exchange messages with their families. The law sets out a number of clearly recognizable symbols which can be used to identify protected people, places and objects. The main emblems are the Red Cross, the red crescent and the symbols identifying cultural property and civil defense facilities.

What restrictions are there on weapons and tactics?

International humanitarian law prohibits all means and methods of warfare which:

Ø fail to discriminate between those taking part in the fighting and those, such as civilians, who are not, the purpose being to protect the civilian population, individual civilians and civilian property;

Ø cause superfluous injury or unnecessary suffering;

Ø cause severe or long-term damage to the environment. Humanitarian law has therefore banned the use of many weapons, including exploding bullets, chemical and biological weapons, blinding laser weapons and anti-personnel mines.

Is International Humanitarian Law actually complied with?

Sadly, there are countless examples of violation of international humanitarian law. Increasingly, the victims of war are civilians. However, there are important cases where international humanitarian law has made a difference in protecting civilians, prisoners, the sick and the wounded, and in restricting the use of barbaric weapons. Given that this body of law applies during times of extreme violence, implementing the law will always be a matter of great difficulty. That said, striving for effective compliance remains as urgent as ever.

What should be done to implement the law?

Measures must be taken to ensure respect for international humanitarian law. States have an obligation to teach its rules to their armed forces and the general public. They must prevent violations or punish them if these nevertheless occur. In particular, they must enact laws to punish the most serious violations of the Geneva Conventions and Additional Protocols, which are regarded as war crimes. The States must also pass laws protecting the Red Cross and Red Crescent emblems. Measures have also been taken at an international level: tribunals have been created to punish acts committed in two recent conflicts (the former Yugoslavia and Rwanda). An international criminal court, with the responsibility of repressing inter alia war crimes, was created by the 1998 Rome Statute. Whether as individuals or through governments and various organizations, we can all make an important contribution to compliance with international humanitarian law.

Handling Property Deals In Marbella Using Professional Real Estate Solicitors

A playground for the rich, famous, and elite, Marbella is situated on Spain’s famous Costa del Sol and is the favorite retirement place for many Europeans because of the balmy weather, close proximity to the sea, shopping, etc. Buying or selling property in Marbella is not as easy as it sounds, as there have been many fraudulent cases with many prospective buyers being cheated of their money.

Experienced Professional

This is why it is essential to use an experienced real estate lawyer in Marbella if a non-resident is buying or selling any property. Some of the more well-established solicitors in Marbella are multilingual, which means they can help in translating fast-talking Spanish conversation as well as when explaining the documentation needed to conduct the deal. Many of the professional real estate solicitors handle many aspects this business which includes buying property, getting a building license, obtaining necessary planning permissions, land registry searches; selling, arranging for mortgages, handling any taxation issues, dealing with the contractors or developers, etc.

Multilingual Solicitors

The cardinal rule when buying, selling, developing, or renovating property in Marbella is to use the services of real estate solicitors in Marbella ; this applies to property business anywhere in Spain.  These experts will ensure that their client’s interests are protected before and after signing the contract. They will also arrange to procure the Fiscal Identification Number or NIE number in Marbella which is an essential document when buying or selling property in Spain. One of the biggest advantages of working with these professional solicitors is that most of them are fluent in English, and they are also fluent in other languages like German besides Spanish.

Excellent Services

A professional and experienced real estate lawyer in Marbella may specialise in many aspects of Spanish property law which could include arranging for funding, getting the property registered properly, arranging for a mortgage, and getting the appropriate paperwork to start construction, and may even short-list experienced builders to handle their client’s project. There are myriad rules and regulations when it comes to dealing with property in Spain, which could include the buying process, selling, renting, alterations, and/or refurbishment. They are also fully qualified to litigate in the event there is a conflict of interest when it comes to joint ownership, breach of contract by the developer or contractor, and checking out if the property for sale is indeed owned by the seller.

The primary aim of real estate solicitors in Marbella is to ensure that clients understand the legal aspects of property deals in their own language.

Iranian Lawyers in USA – Finding Professional Immigration Lawyers

The citizenship of the United States is not an easy thing to achieve and thus, it is necessary to abide the rules so that you are not thrown out of the country. The immigration lawyers can help the people in order to get a permanent United States resident. Becoming a permanent resident makes it possible for you to live and work in the US for the rest of your life. It is really important to update the visa or make yourself a permanent citizen so that you do not get into any trouble with the authorities with the help of a professional Persian Immigration Lawyer.

Various Immigration Statuses

The various points which can be used by the Persian Immigration Lawyers to ensure the citizenship rights can be summed up as follows:

•    The immigration lawyers can help the clients by the use of the Section 245-I, which allows some people who have entered the country of United States without any kind of legal documentation or who have overstayed their visit just by paying the fine.

•    If the clients are an “Immediate relative” of a US citizen – they can be included if they are not limited to parents, spouses, non married children under 21 years of age.

•    The immigration Iranian Lawyers in USA can also get the clients qualified under the section 245K if it is an employment based immigration.

•    Refugee or Asylum status – the clients can apply for a special permission for permanent residence after they have been granted refugee of asylum status.

•    The clients can also become a permanent US citizen by marriage. The clients can also obtain the green card by marrying any US citizen.

Role of Immigrant Attorney

The immigrant attorneys should be learned and qualified so that they can make the necessary decisions in the proper situations. The green cards are mostly sponsored by the families or obtained by getting into legal matrimonial with any resident of the country. The other methods of obtaining the citizenship can also be by the lottery, special immigrant status or through refugee or asylum status.

Finding a Good Lawyer

The immigration attorneys are well versed with all the immigration laws and they are the best bet when it comes to ensuring and fighting for the citizenship of the clients. Thus, it is advised to the people in these situations to hire a proper immigration attorney who can fight for their case and achieve results. If you are looking for Persian Lawyers, you will get plenty of them in the USA. All you need is conducting some internet based research.

Grounds of intervention in international law under the UN charter

A-     Intervene- to intervene in the affairs of another.

Oppenheim – intervention means dictatorial inference by a state in the affairs of another state for the purpose of maintaining or altering the actual conditions of thing.

Intervention means a country interferes the affairs of another  country by means of force or by any other means.

Examples-

  1. India intervene in the affairs of Pakistan in 1971, when refugees of the Bangladesh flew into west Bangal and the situation was unreasonable for India, the war took place and Bangladesh came as a independence country- this is the example of intervention by force.
  2. America intervene in India and Russia deals of Crio-genic Engines required for rocket technology, due to America diplomatic interventions Russia broke this agreement.

Prohibitions of Intervention

In principle IL prohibits interventions, this prohibitions is the corollary of every state rights to sovereignty, territorial integrity and political independence.

Art2(4) UN charterall member shall retain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the united nations.

Ar2(7) UN charternothing contained in the present charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.

Grounds of Intervention

As a general principle UN Charter prohibited the Intervention, but Art51 of UN Charter provide two grounds of Interventions-

  1. 1. Self Defense. Art 51, provides the protection of self defense against the armed attack of an country, but this is subject to the review of the security council, and this right is not available to a non member of UN.

Illustration-

X is the country surrounded with A on the west and B on east fronter of it. After some border incidnet there were some solders killed of each of the state. The X attacts A and B, and occupied major portion of A and B. X take a plea in the security council that X were under the clear threat of attact by A and B and and he started military operations in order to protect its interest.

But X is not justified under the Article of 51 of UN charter of self defence. Because Art 51 permits the rights of self defence only if – an arm attack had not taken place but the contention was that preparations were being made to launch the attacks.

The Caroline case (1841)- there were some Canadian rebellion groups fighting against Britain for independence of Canada. The US used to support them by supplying arms. The Caroline was the name of the American ship by which the America supplies the arms to the rebellion. The Britishers seized this ship which was then in the American port of Scholosser, and took it to Nigara falls within the territory of British Canada. America protested it was a clear illegal intervention. And the matter went to Arbitration and the Arbitrator also held that it was a clear intervention by British.

  1. 2. Collective Intervention- The security council passed a resolution to intervene in matter of Iraqi intervention in Kuwait by sadam hussain  and made the collective intervention in it.

Chapter VII of UN Charter provides other grounds of Interventions:

  1. 1. Humanitarian grounds.- UN is authorized by collective Interventions when Human rights are violated in any country.
  2. 2. Enforcement of treaties rights. Initially it was supposed to be good, but not UN not recognized this intervention to protect the treaties rights.
  3. 3. Intervention to prevent illegal interventions. Kuwait is the best example of this intervention.
  4. 4. Balance of power.
  5. 5. Protection of person and their property- initially it was recognized but, not UN not recognized it as a good means of interventions. And UN also criticized America intervention in Grenada in 1983.
  6. 6. To maintain law and order.
  7. Intervention in civil war– it is also not recognized a good ground to intervene

Conclusion- in view of the above discussion it may be concluded that a state my intervene in the affairs of another state only on the ground of self defense. The UN may intervene in the domestic affairs of members state on the ground of maintained or restoration of international peace and security. That is to say, it can take collective measures or can make collective interventions. The UN can also intervene in case of member’s countries civil war when there are violations of human rights.

Study Law at Cambridge Summer School

Cambridge University has an extensive law school which has formed judges and lawyers all over the world and in England. Many of Great Brittan’s judges and top lawyers have their law degrees from Cambridge Law School.

Basically, you don’t have to be a British national to study law at Cambridge Summer School. Many US universities have partnerships with the Cambridge Law School for summer programs to study British common law and international law.

Why Cambridge? Cambridge has long been known to be one of the most prestigious universities in the UK. Located in the City of Cambridge in lower England, Cambridge has been on the parallel with Oxford University, the other major university in the British Isles.

Requirements for a summer of study at Cambridge can be quite rigorous. To get law education at Cambridge, many US university students will have to file paperwork to be in good standing with both the US and Canadian Barr Associations and acquire the textbooks and other learning materials before leaving for England.

GPA can also be a major requirement for a summer study program at Cambridge. Cambridge is one of the most prestigious schools in the world, so studying there for any period of time should be considered a privilege, and not a right. Thus you have to earn it. Typically, most students who want to spend a summer studying law at Cambridge should have a minimum of a 4.0 GPA to qualify.

Who will benefit from studying law at Cambridge? Well, basically, anyone interested in becoming a judge, lawyer, or studding international business law. What is International Business Law? Well, those of you who are serious about going into business and want to work and hold high positions in companies who do business internationally. Basically, many corporations who do business internationally have subsidiaries overseas and having a degree in international business law can help you negotiate deals or get subsidiaries set up for your company in other countries which can have serious trade and business relationships for your company.

Anyone studying US law can also benefit from studying at Cambridge because of the common nature between US law and British common law. When you have a good understanding of British common law and study early American history, you can have a well-balanced education on US law. This can also help you defend your case in the courtroom and enhance your career as a lawyer.

International law questions and answers

According to international law, does Israel have a right to build a wall around an occupied people?
No, it is completely illegal. International Court of Justice ruled that the wall was illegal and ordered Israel to tear it down. The Tel Aviv newspaper Haaretz, quoting court documents, reported that by a 14-1 vote the judges found the barrier,.

According to international law, soldiers who are sent in war in other countries, they’re staying legal ?
There is a large body of international law and customary practices that govern armed conflict between nations. Under these laws, soldiers usually meet the legal requirements to be considered as ‘combatants’ and as such their actions and their actions are considered.

What type of career options are available for lawyers specializing in international law?
Also, what is the average salary. Is it an in demand field? Please include any other information you can give me about this type of law. I am about to attend law school next year. I am thinking about specializing in corporate law or international law..

Which human rights can never be derogated according to the international law?
I know the right to life is one of them, and then the right not to be tortured and held in slavery. Which are the others?.. ‘Right to life, Right to liberty, right to fair trial, freedom of speech. – I’m not familiar with the term ‘derogated’.

Would George Bush be executed if tried by The International Court?
Illegal invasion, deaths of 100,000s of thousands of innocent people, torture, etc.: all illegal under international law. Or does our power and wealth give us the right to ignore the law and the feelings of the rest of the world. No. The International Court doesn’t give the death.

Does Israeli destruction of Palestinian homes ‘violates international law??
By Donald Macintyre in Jerusalem 19 October 2004 http://news.independent.co.uk/world/midd.international law Israel has systematically violated international law by destroying the homes of 16,000 people in Gaza’s southernmost town regardless of military necessity, a leading New York-based human rights agency said yesterday. Human Rights Watch suggested Israel has used weapons-smuggling.

how can international law be used as a tool for conflict resolution?
The same way that Federal law is used as a tool for interstate conflict resolution. Remember that the original 13 colonies were 13 nations at first, and they agreed to give the federal government the authority to handle international disputes. Same with the EU. The member.

‘for the police in washington dc to search the embassy of foreign country would be considered’?
a legal only if the police had a warrant b.acceptable under international law c. a violation of diplomatic immunity I’ll guess C. – C and grounds for a declaration of war against the United States of America. What are you waiting for? -.

Has anyone caught onto anything suspicious lately?
Think about your rights. Think about the constitution. Think about dumb people. We have lost our 1st, 4th, 5th, and 6th amendment rights. The constitution has been replaced by the Civil Rights Act and international law. I don’t know what to think about dumb people. But 2 out 3’s not bad. -.

What is the cisg?
Contracts for the International Sales of Goods. – CISG stands for the United Nations Convention on the International Sale of Goods. It codifies private international law with respect to the international sale of goods. The United States and most of its important trading partners have ratified the Convention. It is a binding treaty in.

How has Bush violated international law? What laws did he violate?
Numerous UN Treaties (accepted and ratified by the US) which set forth standards for treatment of prisoners (see Abu Gharib) including the Geneva Convention (which the US has said we are no longer following in the ‘war on terror’). Also, civil rights violations — numerous treaties forbid.

I am an American but I want to move to the UK and pursue law. Do you think this is a bad idea?
It’s a good idea if you intend to practice international law or stay to practice in the UK. The legal system in the UK is very different from the one in the US. Do your.

Since Mexico abandoned all their oil rigs, if I can find someone crazy enough to go there, will I be able to?
claim them as abandoned property under international law. Was just thinking if that would work. Dean is 6mph short of being a cat 5. Not many will take you up on that suicide mission. – If the.

if a nation declared war, what’s the status of a captured foreign saboteur, in international law .?
Asking NOT because of Guantanamo, but for a case coming to my attention happening in WW2. along with that.. Geneva convention. since when is it valid and did we signed it ? The Geneva convention only protects soldiers in uniform and properly.

Is a blockade considered to be an act of war under international law? I.E. Cuban Missile Crisis.?
This is a good question. Generally, I would consider a blockade to be an act of war, but I think that what is considered an act of war can be different for different countries. For example, if the UN agreed to.

is a criminal justice a lawyer that goes to court and defends people?
is like what is the diference between pre law studies, criminal justice, law, advanced legal reaserch,coparative law and international law. Haha, no – criminal justice refers to the field of study that examines crime as a social phenomenon, and traditional focuses on the agents, procedures, and.

Is it true that the United Nations must sanction a war for it to be legal? Is Bush a war criminal then?
Bush going to war violates international law but it does not constutute war crimes such as genocide. According to the Un resolution 1441: ‘The Security Council may decide what measures not involving the use of armed.

Is it true that to become a citizen of Israel one has to be Jewish? Is that legal under international law?
It is obviously discriminatory. I don’t think the U.S. should support any country that requires the citizens to be a specific religion. This concept is so un-American that it would make the writers of the Bill of.

is there an international law stating that a child or teenager must be home by 5 o’clock?
me and my mom are argueing over this she says there is but i dont think so Not international, but if that’s what your mother says, then it is her law and you still have to follow it. That doesn’t make any.

Please tell me where I am wrong with this seemingly inescapable logic on the Iraq situation?

1. If there was no WMDs then there was no immediate threat to the US 2. If there was no immediate threat to the US, then there was no justification under both international law and our own president?? statements * 3. If there.

send all illegals home!agree or disagree??
Subject: TRY THIS CRAP IN MEXICO If you are ready for the adventure of a lifetime, TRY THIS:Enter Mexico illegally. Never mind immigration quotas, visas,international law, or any of that nonsense. Once there, demand that the local government provide free medical care for you and your entire family.Demand bilingual nurses and doctors.Demand free.

Should there be some sort of international law agianst world prostitution?
I’m so so sick of how drugs get taken care of but the one very immoral subject is left untaken care of- prostitution. In Asia alone, prostituition is everywhere from Taiwan, Japan to Thailand. It’s illegal in these countries, but heck who’s going to enforce the law? The.

Should Tony Blair be prosecuted for crimes against humanity?
What ‘crime against humanity’ has he committed? I’m not a big fan of Blair, but I adhere to the use of facts, evidence, proof, logic and reason in arguments. First, what actions has he done that can be construed as violations of international law? The charges need to be.

War crimes and international law – please do survey?
1.Age? 2.Male / Female 3.Where were you born? 4.Are you or your parents immigrants to Australia? From what country? 5.What is a war crime? 6.Who do you believe was responsible for the outbreak of World War Two? 7.The Axis nations were more heavily tried and convicted of war crimes at.

Was the intervention by the int community in the first gulf war legal?
Cos based on international law i was just wondering. I mean forgetting all the political issues associated with the war it is a bit confusing. I think that the Republicans would say that it was legal, because the United Nations’ Just War Theory requires that intervention.

Was the U.S. invasion of Iraq a violation of international law?
No, and for those who think it did, please cite which ‘International Laws’ were broken. Clearly there were numerous UN resolutions that authorized the use of force against Iraq for their violations of the resolutions. – As far as I can tell, no. – don’t think so.

can countries enforce laws from other countries?
i’m doing international law andd need to know whether a piece of valid prescriptive jurisdiction say prohibiting the causing of harm to a state’s nationals anywhere in the world could be enforced by a state which didn’t actually pass the legislation. so for instance if the United Kingdom made a law making.

what is the different between aggression and self defence in the international law?
are there similarities or differences between them? what role does security council play before taking actions against countries? aggression is when you provoke a fight, a verbal assault, a battery, etc self defence is when you try to protect yourself from such aggressions. self defence has.

what is the legal status of voluntary human shields under international law?the consequences of an attack on 1
in terms of the geneva conventions and other treaties. what are the consequences of an attack on such target? In practical terms, the legal status is nothing since, for the most part, international law is more concept than practice. Sovereign law.

what should be the role of foreign and international law in the U.S. Supreme Court decisions?
Particularly those that expand civil liberties? US Supreme court decisions should be based on interpretaion of US law and foreign and international law have no place. Decisions should be based on precedence and current law. By going outside of our laws, they are.

why America pressurized the world for international laws and violate himself ?
I’ll have to assume that you are asking why the United States is pushing Iran to give up its nuclear program while we maintain one ourselves. First, the nuclear program of the United States does not violate international law. Our program follows conventions agreed to by.

why do new nation accept international law?
Not necessarily so. From my perspective international law is often a framework created to endorse political power and control. To justify otherwise unjustifiable means. Where international conventions genuinely attempt to redress social ills their transposition into a new nation relies on the legitimacy of those laws to that nations people. This.

Why not just shoot them??
If, according to international law, mercenaries are not protected by the laws of war, and could be treated as criminals, whats all the fuss with the prisoners at Abu Grab? According to international law they have no rights. Would they not be considered mercenaries? http://www.ohchr.org/english/law/mercenaries.htm i agree kill em all. – ARE THEY NOT.

Can the states withdraw from de union according to international law?
States can theoretically vote to secede from the union, but in practice that would be very difficult to do, because few states have a viable economy on their own. They are too inter-dependent on federal programs and money. The US Supreme Court ruled that states do not.

Do citizens of an occupied nation have the right to attack the foreign invaders under international law ?
I think that if your country is attacked you do have the right to defend your homeland against foreign invaders. And once occupied you still have the right to fight for your country and try to restore it to its.

Does a surgeon diseased with hepatitis c have the right to practice operations?
i am a surgeon diseased with hepatitis c , according international law of surgeons , i have the right to practice operations or not ? No you’re not; you’re some kid trying to get us to do your homework. – This is the appropriate place for.

In international law, what status does a signed but unratified treaty have? Does it have any force in law?
What is the difference between an international treaty that has been signed and ratified (by a country’s national legislature)and one that has been merely signed but not ratified between two or more countries? If one country signs and ratifies but.

Real And Personal Property

Introduction

In legal term, property may be defined as something which an individual has expectations of drawing advantages from; the definition also covers that thing under consideration. Consequently, property is a combination of the issue of possession or ownership and the rights that ought to be protected by the country’s government. This definition is in contrast to what lay persons define property as; they restrict it to something tangible. Other law dictionaries continue to add that property is the exclusive right of certain individuals to possess, dispose and to use that thing alongside the subject matter of the right; this may either be an object, benefit or prerogative.

Property is usually divided into two aspects; the first being the personal property and the second is real property. Real property is usually restricted to matter revolving around land or what is sometimes called ‘in rem’. On the other hand, personal property revolves around chattels or what may sometimes be defined as ‘in personam’. In modern law, property can be examined under a series of models.; the first one amongst these is property as  a fact. The second is property as a right and the third is property as a responsibility.

Legal issues

In the legal system, real and personal property ownership is governed by property law rights when considering the common law system. In the civil law legal system, there is a distinction between movable and immovable property. Real property is largely encompassed by immovable property while personal property is associated with movable property. Consequently, the rights associated with these types of property are entailed in property law. (Liuzzo & Bonnice, 2005)

In legal terms, the process of declaring that certain property belongs to an individual is not adequate enough to constitute property. Instead, this matter is usually all embracing when certain persons need to have their rights to chattels or land respected and enforced by the law. It is essential for one to acquire property legitimately in accordance to the law so as to seek its protection. This is usually acquired by possession of a title to that property.

There are a series of differences that arise when one considers the issue of personal versus real property. The most outstanding difference among them is with regard to immobility. Usually, real property can be considered immobile while personal property is mobile. This means that the rule governing the latter’s transference are radically different from those governing the former. Real property is usually divided into two types of categories. The first one amongst this is the corporeal hereditaments which refer to land or tangible real property. The second category is known as incorporeal hereditaments which refer to real property that may not be tangible. Consequently, this is what is known as the easement of way. (Barnes et al, 2008)

Possession in property law is instituted in order to eliminate social disorder. This is because when a person is in possession of certain property, then they have the right to take action against persons who may be interfering with their possession. This interference is only tolerated when the person causing it demonstrates that they have a superior right over that property.

Property possession can be changed through the process of transfer; in other words, transfer refers to disposition of that property. Usually, this occurs through gifts or sales and must encompass willing consent from the person initiating the transference. In other circumstances, it is possible for a person to obtain interests in certain properties by acquiring trust that was created for the benefit of that person in the event that the previous owner is deceased.

In certain scenarios, transference may occur from person to person without consent. This occurs when the person under consideration has committed an act that violates the other’s rights. For instance, when a person goes bankrupt or when a person is deceased prior to distributing their property (inestate). In other circumstances, the court of law may decide to take that property from the individual and this therefore creates an avenue for forfeiting one’s property rights.

In certain scenarios, real or personal property may have more than one interest. Usually, this is a result of miscalculation on the part of the title dispenser or this could be an unscrupulous act by an individual who wants to obtain property dishonesty. This means that these conflicting interests give rise to claims that are usually inconsistent with one another. In such circumstances, the law requires that the court should be involved in the matter. Here, the court has the mandate to decide the interests that carry the most weight or it has the mandate to rank these interests. Consequently, depending on the sphere of enforceability, certain interests may be lower or higher in hierarchy. (Katch, 2007)

Leases are also an important part of common-law because they are a means of protecting the rights of the tenants and landlords in the process of considering real property. Usually, leases can last for a short term or long term period depending on the specifications laid out by the affected parties. Consequently, this creates an avenue in which both parties can declare their right violations.

There are a series of rights that tenants are granted under common law and these include

  • The right to determine how to use real property
  • The right to exclude other persons from enjoying the property or land
  • Right to transfer all or part of a person’s rights upon mutual agreement
  • Right to determine consequences or nature of costs during transference
  • Etc

There are a series of legal issues that need to be covered when considering the issue of personal property. For instance, personal properties can be executed or relieved in case a property owner is a poor debtor. Chapter 528, Sections one through to ten govern the levying of personal property. Consequently, any person who contravenes these laws during the process may be deemed as acting illegally. In the event that a person is a poor debtor, his or her personal items may be taken by the creditor for auctioning. Usually, the auction must be advertised over a period of four days and the notices must be placed in a very public place. Upon expiration of the period of notice, the personal property may be sold at an auction. It should be noted that if the creditor fails to make the public notice, then he will not be acting legally while auctioning the property. Also, if the property is sold prior to the four day expiration, then the person is also acting illegally. (Katch, 2007)

In relation to the issue of bad debt, the debtor can redeem his or her goods/ personal property prior to their sale if the debtor is able to pay the officer’s charging fees.

It s also the right of the debtor to obtain any balance that may arise from the auction from the sale of his real property if his creditor has covered all the executions that had been levied on the debtor. In close relation to this is the issue of officer’ fraud; if the person performing the executions has acted in a dishonest or fraudulent manner, then the officer is supposed to pay five times the amount of money he defrauded. Additionally, officers intending on auction personal property need to make notices of adjournment of sales if they intend on doing that in the first place. This may usually be done within a period of ten days. Those who fail to do so may be found liable to the court of law.

The latter issues also apply to personal property that is covered under any of the following;

  • Security interest
  • Lien
  • Pledge
  • Mortgage

However, the issue of shares as a form of personal property is governed by different levies. For instance, when an execution is to be conducted for shares, then a thirty day notice needs to be made of the sale. A person residing in another country needs to be notified by placing the notice in a newspaper within that country of residence. Persons who choose to purchase the shares are entitled to share certificates which will grant them the rights associated with this form of personal property. In the event that the officer in charge of the sale of shares neglects to give a certificate or issue a false one, then he shall be considered liable to the creditor who has the right to obtain the entire sum associated with the debt. (Nolfi, 2008)

Aside from the issues of levies carried out on executions, there are a number of things that need to be considered when an individual is about to divorce. The issue of real or personal property during divorce can lead to a lot of conflict between the various parties under consideration.

With regard to personal property, there is a need for individuals to use the services of an appraiser. This person can go a long way in preventing many misunderstandings and disagreements in the court of law. It should be noted that property appraisers are quite different from home appraisers. Consequently, expert decisions are always favored over these non related ones. Additionally, the law requires that property appreciation or depreciation be considered after filing for divorce. In case property appreciates in value after filing for divorce, then both spouses are entitled to the benefits that come with it. This is usually the case when considering shares. However, in the event that the person who caused those appreciations was only one individual, then that person is entitled to benefit from the appreciation of that property. Usually, a series of personal properties may be considered during the process of divorce. Some of them include pensions, vehicles, trademarks among others. There area also a series of real property that need to be appraised and distributed during this process and they may include land, a home, businesses owned among other things.

It should be noted that divorce appraisal are not necessary when there is a prenuptial agreement because the latter document usually specifies some of the details that may arise in the event of a divorce. Appraisals are also excluded when the property under consideration was a gift, or a purchase that was made prior to the marriage.

Personal property may be divided equally among spouses when that property was acquired before the marriage but it increased in value after the marriage as a direct consequence of the efforts made by the two parties. Legally speaking, the only aspect that will be considered will be the added value that will be divided amongst the spouses. Otherwise, the original property will be given to the original owner individual alone. (Barnes et al, 2008)

The second category of personal properties that can be divided during divorce is property that had been acquired during the marriage jointly by both parties. Usually these encompass a series of objects that vary from china, motor homes, collectables, animals, furniture, pensions, automobiles and retirement plans. It should be noted that all this property need to be appraised by a qualified individual who may fall under any of the following professions

  • Auctioneers
  • Business brokers
  • Bankers
  • Financial advisers
  • CPA

However, all these appraisers need to have sat for USPAPA tests and they need  comply with the set laws on appraisals prior to giving evidence as qualified appraisers in the court of law.

Ethical issues

Aside from the legal issues, there are certain scenarios in which ethical aspects may come into play. This usually occurs when the persons under consideration are acting in accordance with the law but they are taking part in an act that has dishonest or unfair intent. Taking the case of a fictitious person named Timothy McNamara. McNamara was a hardworking and honest individual at work. However, he often used to engage in whistle blowing activities when he witnessed unethical behavior in the workplace. In response to this, one of his workers decided to use the color of law to institute revenge. He made some statements that caused the court to withdraw McNamara’s property and also this incident resulted in the loss of his job. Consequently, the issue can be regarded as unethical on the part of the employers who collaborated with the aggressor to oust John from his workplace. This is because they did not bother giving McNamara the time of day that he deserved in investigating his situation. Consequently, these employers may be regarded as unethical. (Nolfi, 2008)

There are certain acts that can be regarded as unethical during a divorce. For instance, if a person poses certain valuable items during their marriage and the person chooses to take those personal properties to another location where they can ensure their safety, then a series of ethical issues may crop up. For instance, it would be ethical to inform one’s spouse about these properties because if the issue of divorce arises, then it is likely that that person may try to use the issue of concealment from him or her as a fact that works against the accused.

When going about how to treat property cases, it essential for lawyers to inform their clients about the various types of laws that are applicable and how those could benefit or hamper the case under consideration. Hiding these truths form the client can be considered unethical by the presiding attorney. For instance, in divorce cases, it is necessary for lawyers to tell their clients about collaborative law. Through this option, it is possible for the affected parties to negotiate their way out of their disagreement.

In any cases involving real or personal property, it is essential for lawyers to disclose all the rights of the client before beginning the case. This is because failure to do so would create a situation in which the lawyer may stand to benefit from his client’s loss. Clients should be made to understand all the legal actions or alternatives that they can pursue with regard to personal or real property cases. For instance, some parties may decide to settle outside court. On the other hand, others may opt to meet in court. Consequently, lawyers need to lay out all the details concerning a certain case so as to empower their clients to pursue the right course of action. By doing this, they will eliminate any potential conflict of interest and will also go a long way in enhancing trust between the lawyer and his client and will also eliminate any potential damage of character. (Barnes et al, 2008)

Many legal representatives are usually so enthusiastic about dealing with a certain case that they fail to clarify to the client what the potential downsides of their actions could be. By giving a client only one course of action and not reviewing the disadvantages of that method, then lawyers will be creating a situation in which the rights of the clients are not fully outlined and this may be deemed unethical. For instance, if a client is interested in claiming a piece of land that was part of their family property, then it would be unethical on the part of the legal representative to hide some disadvantages of the court process. For instance, the legal representative could inform the client that there may be some facts that are relevant to the case and may not be discovered until after the case. Additionally, a situation may arise in which the affected persons are compelled to give certain types of evidence. In other circumstances, a client making claims to certain real property may issue restraining orders to his or her adversary. By doing this, the individual may be creating a scenario in which there may not be unilateral disposition of the property. Additionally, if there are joint decisions to be made by those parties, then the restraining order will prevent such occurrence. If a lawyer does not explain these disadvantages before hand, then they will be placing their clients in vulnerable positions that eventually destroy their overall credibility.

In any property case, there may be a need to hire certain experts to add validity to the case. It is essential for property lawyers to examine the background of their respective experts prior to submission of their case in court. This goes a long way in providing the client with the best representation possible. When attorneys merely settle for any professionals without doing a thorough background check, then they may not be placing their clients best interests at heart and this is something unethical. (Nolfi, 2008)

It should be noted that informing property right clients about all their rights may not necessarily prevent them from making wrong decisions, however, this usually assists in the process of protecting the attorney from accusation of overselling a certain legal process to the client. Consequently, the attorney seals any loop holes where unethical claims could arise.

In certain circumstances, person who wants to settle property cases may choose a series of avenues to settle their respective cases. Some of them may choose to hire two lawyers for the job of one. Usually, this may be okay if the client is merely trying to get a second opinion. However, if the client is trying to utilize one lawyer to benefit unfairly, then it is unethical on the part of the client. A good example of such a case is when a couple is about to divorce and there are disputes on how to divide their property. If one of the spouses chooses to hire the services of a collaborative lawyer to deal with the property issues, then this should be the only path chosen. However, if he or she decides to get another lawyer outside collaborative law to engage in a litigation process, then that client will be acting unethically. This is because the very nature of collaborative law requires that individuals using it must be committed to the process and must not try to obtain undue advantage over one another. It would also be unethical for any of the representing lawyers to continue with the case upon finding out that their client is trying to manipulate the system in such a manner.

In the event that a person is making claims about certain properties and they dispense confidential information to their legal representative, then it is the duty of the latter party to protect this confidential information. Otherwise, dispensing it to secondary parties may be regarded as unethical. This is because legal representatives have the duty to remain faithful to their respective clients even when circumstances seem to be against them.

In the same manner, some clients may choose not give information about certain issues surrounding the contested property. It would be unethical for a certain legal representative to accept matters as they are without informing the client about the losses of withholding information from them. The person contesting for any type of property needs to be aware of the fact that the court may order them to dispense certain pieces of information. If they had not been informed about it by their legal representatives in the first place, then chances are that they will be at a disadvantage and the lawyer may have acted in an unethical manner. (Nolfi, 2008)

Conclusion

The essay has examined the issue of personal and real property with an identification of the distinct differences. Additionally, the paper has looked at two major legal issues surrounding real and personal property; these are divorce and levies. Levies on debtors are governed by the constitution and usually address the officer’s obligations to the debtor. With regard to the issue of divorce, it is essential for disputing parties to do property appraisals.

Some of the ethical issues that may arise in real or personal property issues include things such as falling to inform clients about all their rights and communication issues.

Reference

Liuzzo, A. & Bonnice, J. (2005): Essentials of Business law; Mc GrawHill Publishers

Nolfi, E. (2008): Legal Terminology explained; Rout ledge, p 34-45

Barnes, J., Dworkin, T., Richards, E. (2008): Law for Business; Harvard University press

Katch., E. (2007): Clashing views on Legal Issues-Taking sides; Routeldge

How has immigration laws changed since 9/11?

The impact of the terrorist attacks on September 11, 2001 dramatically affected the economic, sociologic, and national defensive landscape of our country.  Almost nine years later, the effects are still prevalent, especially in the area of immigration.

The US war on terrorism was initiated due to 9/11 to discover and end terrorist plots, terrorist financing, and illegal immigrants.  Federal agencies were determined to dramatically improve the security and safety of our citizens.  The USA Patriot Act was quickly employed soon after 9/11 to rapidly enforce and tighten security efforts in the areas of technology, finance, immigration, and law enforcement.

The events of 9/11 had a severe effect on how immigrants were accepted in the US.  Incidences of racial profiling, discrimination, ethnic harassment, and hate crime cases rose considerably across the nation.

Immigration Laws since 9/11

A major change in US immigration law post September 11th was the authority given to the new constructed Department of Homeland Security and Office of Citizenship and Immigration Service.  Previously, the US Immigration and Naturalization Service (INS) was the federal agency which monitored immigration matters.

Another major change included requiring federal, state, and local law enforcement agencies to use strict criteria in locating and deporting illegal immigrants.

Recently, President Obama is attempting to overhaul US immigration regulations and seeks to grant legal status to approximately twelve million illegal immigrants.  If the plan succeeds, illegal immigrants who hope to become citizens would have to register, pass a criminal background check, understand and English, and pay any taxes or fines they have outstanding.

Doctrine of Indoor Management Under Indian Company Law

Doctrine of indoor management

Memorandum of Association and articles of association are two most important documents needed for the incorporation of a company. The memorandum of a company is the constitution of that company. It sets out the (a) object clause, (b) name clause, (c) registered office clause, (d) liability clause and (e) capital clause; whereas the articles of association enumerate the internal rules of the company under which it will be governed.

Undoubtedly, both memorandum of association and the articles of association are public documents in the sense that any person under section 610 of Indian company act, 1956 may inspect any document which will include the memorandum and articles of the company kept by the registrar of companies in accordance with the rules made under the destruction of records act, 1917 being documents filed and registered in pursuance of the act. As a consequence, the knowledge about the contents of the memorandum and articles of a company is not necessarily restricted to the members of the company alone. Once these documents are registered with the registrar of companies, these become public documents and are accessible by any members of the public by paying the requisite fees. Therefore, notice about the contents of memorandum and articles is said to be within the knowledge of both members and non-members of the company. Such notice is a deemed notice in case of a members and a constructive notice in case of non-members. Thus every person dealing with the company is deemed to have a constructive notice of the contents of the memorandum and articles of the company. An outsider dealing with the company is presumed to have read the contents of the registered documents of the company. The further presumption is that he has not only read and perused the documents but has also understood them fully in the proper sense. This is known as the rule of constructive notice. So, the doctrine or rule of constructive notice is a presumption operating in favour of the company against the outsider. It prevents the outsider from alleging that he did not know that the constitution of the company rendered a particular act or a particular delegation of authority ultra vires.

The ‘doctrine of constructive notice’ is more or less an unreal doctrine. It does not take notice of the realities of business life. People know a company through its officers and not through its documents. The courts in India do not seem to have taken it seriously though. For example, in Dehra Dun Mussorie Electric Tramway Co. v. Jagmandardas, the Allahabad high court allowed an overdraft incurred by the managing agent of a company when under the articles the directors had no power to delegate their borrowing power.

The doctrine of indoor management is an exception to the rule of constructive notice. It imposes an important limitation on the doctrine of constructive notice. According to this doctrine “persons dealing with the company are entitled to presume that internal requirements prescribed in memorandum and articles have been properly observed”. A transaction has two aspects, namely, substantive and procedural. An outsider dealing with the company can only find out the substantive aspect by reading the memorandum and articles. Even though he may find out the procedural aspect, he cannot find out whether the procedure has been followed or not. For example, a company may have borrowing powers by passing a resolution according to its memorandum and articles. An outsider can only found out the borrowing powers of the company. But he cannot find out whether the resolution has in fact been passed or not. The outsiders dealing with the company are presumed to have read and understood the memorandum and articles and to see that the proposed dealing is not inconsistent therewith, but they are not bound to do more; they need not inquire into the regularity of the internal proceedings as required by the memorandum and articles. They can presume that all is being done regularly.

The doctrine of indoor management is also known as the TURQUAND rule after Royal British Bank v. Turquand. In this case, the directors of a company had issued a bond to Turquand. They had the power under the articles to issue such bond provided they were authorized by a resolution passed by the shareholders at a general meeting of the company. But no such resolution was passed by the company. It was held that Turquand could recover the amount of the bond from the company on the ground that he was entitled to assume that the resolution was passed.

In one of the case the rule was stated thus: “If the directors have the power and authority to bind the company but certain preliminaries are required to be gone through on the part of the company before that power can be duly exercised, and then the person contracting with the directors is not bound to see that all these preliminaries have been observed. He is entitled to presume that the directors are acting lawfully in what they do.”

In another case where the plaintiff sued the defendant company on a loan of Rs.1,50,000, it was held that where the act done by a person, acting on behalf of the company, is within the scope of his apparent or ostensible authority, it binds the company no matter whether the plaintiff has read the document or not. In this case among other things the defendant company raised the plea that the transaction was not binding as no resolution sanctioning the loan was passed by the Board of directors. The court after referring to turquand’s case and other Indian cases, held that the passing of such a resolution is a mere matter of indoor or internal management and its absence under such circumstances, cannot be used to defeat the just claim of a bona fide creditor.

The rule is based on public convenience and justice and the following obvious reasons:

1.     the internal procedure is not a matter of public knowledge. An outsider is presumed to know the constitution of a company, but not what may or may not have taken place within the doors that are closed to him.

2.     the lot of creditors of a limited company is not a particularly happy one; it would be unhappier still if the company could escape liability by denying the authority of officials to act on its behalf.

Exceptions to the doctrine of indoor management:

The exceptions to the doctrine of indoor management are as under:

1.     Knowledge of irregularity: when a person dealing with a company has actual or constructive notice of the irregularity as regards internal management, he cannot claim benefit under the rule of indoor management. He may in some cases, be himself a part of the internal procedure. The rule is based on common sense and any other rule would encourage ignorance and condone dereliction of duty.

T.R Pratt (Bombay) Ltd. V. E.D. Sassoon & Co. Ltd., Company A lent money to Company B on a mortgage of its assets. The procedure laid down in the articles for such transactions was not complied with. The directors of the two companies were the same. Held, the lender had notice of the irregularity and hence the mortgage was not binding.

In Howard v. Patent Ivory Co, the directors had the authority under the articles to borrow only up to £1000 without the resolution of general meeting. For any amount beyond £1000, they needed the consent of general meeting. But the directors borrowed £3500 from themselves without the consent of general meeting or shareholders and accepted debentures. It was held that they had knowledge of internal irregularity and debentures were good only up to £1000.

2.     Negligence: where a person dealing with a company could discover the irregularity if he had made proper inquiries, he cannot claim the benefit of the rule of indoor management. The protection of the rule is also not available where the circumstances surrounding the contract are so suspicious as to invite inquiry, and the outsider dealing with the company does not make proper inquiry. If, for example, an officer of a company purports to act outside the scope of his apparent authority, suspicion should arise and the outsider should make proper inquiry before entering into a contract with the company.

Anand Bihari Lal v. Dinshaw & Co, the plaintiff, in this case, accepted a transfer of a company’s property from its accountant. Held, the transfer was void as such a transaction was apparently beyond the scope of the accountant’s authority. The plaintiff should have seen the power of attorney executed in favour of the accountant by the company.

3.     Forgery: the rule in turquand’s case does not apply where a person relies upon a document that turns out to be forged since nothing can validate forgery. A company can never be held bound for forgeries committed by its officers. The leading case on the point is :

Ruben v. Great Fingall Consolidated Co., the secretary of a company issued a share certificate under the company’s seal with his own signature and the signature of a director forged by him. Held, the share certificate was not binding on the company. The person who advanced money on the strength of this certificate was not entitled to be registered as holder of the shares.

4.     Acts outside the scope of apparent authority: if an officer of a company enters into a contract   with a third party and if the act of the officer is beyond the scope of his authority, the company is not bound. In such a case, the plaintiff cannot claim the protection of the rule of indoor management simply because under the articles the power to do the act could have been delegated to him. The plaintiff can sue the company only if the power to act has in fact been delegated to the officer with whom he entered into the contract.

Kreditbank Cassel v. Schenkers Ltd,a branch manager of a company drew and endorsed bills of exchange on behalf of the company in favour of a payee to whom he was personally indebted. He had no authority from the company to do so. Held, the company was not bound. But if an officer of a company acts fraudulently under his ostensible authority on behalf of the company, the company is liable for his fraudulent act.

Conclusion: Thus the doctrine of indoor management seeks to protect the interest of the shareholders who are in minority or who remains in dark about whether the working of the internal affairs of the company are being carried out in accordance with the memorandum and articles. It lays down that persons dealing with a company having satisfied themselves that the proposed transaction is not in its nature inconsistent with the memorandum and articles, are not bound to inquire the regularity of any internal proceeding.

Difference Between Privity of Contract, Novation and Assignment Under UK Law

Introduction

The doctrine of privity of contract is the relationship that exists between parties to a contract. Only those parties to the contract are bound by it and are able to enforce the contractual obligations under the contract. The concepts of novation and assignment, although not exceptions to this rule, are contrary to the principles outlined in it and have developed to overcome restrictions imposed by the doctrine.

Privity of Contract

The principle that a person can not enforce obligations under a contract to which he is not a party to was established in the case of Tweedle v Atkinson (1861) 1 B. & S. 393 where A promised B that he would pay a sum of money to B’s son, C upon his marriage to A’s daughter. It was held that C could not enforce the promise made by A to B to pay him, as he was not a party to the contract.

This was re-affirmed in the case of Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] A.C 240, 246 where Viscount Haldane LC stated that ” … in the Law of England certain principles are fundamental. One is that only a person who is a party to a contract can sue on it”. The leading modern authority is Beswick v Beswick [1968] A.C 58.

Despite the volume of case law which re-affirms this principle, the doctrine has been, and remains, the subject of judicial debate proving to be far from popular as demonstrated in Darlington Borough Council v Wiltshier Northern Ltd [1195] 1 WLR 68, 76, where Steyn LJ expressed his dissatisfaction of the rule and the many inconveniences it caused.

Novation

The concept of novation derives from Roman Law and is where all liabilities and obligations under a contract, whether it is the transfer of the benefit or burden of a contract, can be passed to a third party providing that all parties consent. Where this happens, the original contract between the debtor and creditor is annulled and is replaced by a new contract between the debtor and the third party. Consideration must be provided in respect of the new contract and is usually assumed to be the discharge of the original contract and the creditor’s contractual obligations. For example, where A owes B money and all parties agree that C will pay the money to B, not A, B’s consideration to C is agreeing to release A from his obligations and A’s consideration is providing the new debtor, C.

Assignment

Novation can be distinguished from assignment. A party to a contract (the assignor) is able to transfer the benefit of a performance he is to receive under that contract to another person (the assignee) who is able to enforce performance in his own right, without the consent of the other party (the debtor). For example, where there is a contract between A and B and B assigns the benefit of the contract to C, he can then enforce it against A.

With regards to the assignment of the burden of a contract, the general rule is that this can not be done unless the creditor consents, as Collins MR in Tolhurst v Associated Portland Cement Manufacturers (1900) Ltd [1902] 2 KB 660 at 668, stated: “It is, I think, quite clear that neither at law nor in equity could the burden of a contract be shifted off the shoulders of a contractor on to those of another without the consent of the contractee. A debtor cannot relieve himself of his liability to his creditor by assigning the burden of the obligation to somebody else; this can only be brought about by the consent of all three, and involves the release of the original debtor.”

Conclusion

As it stands, the doctrine of privity of contract is still an integral part of the principles which govern the law of contract. In recent years, the strictness of the principle has been alleviated by the Contracts (Rights of Third Parties) Act 1999. Contracts (Third Party Rights) Act 1999 has relaxed the operation of the doctrine so that a person or class of persons are able to enforce a contract without being a party to it where the contract confers a benefit on them; alternately, the contract may expressly provide for the benefit of third parties. The effect of this Act is usually excluded in professionally to avoid contract disputes with persons not party to the agreement.

The concept of novation and assignment may be catered for in the contract itself as a way of circumventing the limitations of privity of contract, although they are not considered exceptions to the rule per se.

Efficient Breach – When You Should Breach Your Contract, And Why The Law Is Designed To Encourage Certain Kinds Of Breach

 

Breaching a contract is bad, bad, bad…isn’t it? Well, not always, at least not in the eyes of the law. The purpose of contract law is not to spank naughty promise-breakers, but to increase economic efficiency.

Suppose, for example, that you own some real estate. Buyer 1 wants to live in your house and offers you what you consider to be a good price for it, and you enter into a contract with Buyer 1 to sell it to him. Then Buyer 2 calls you. He wants to buy your real estate to build a shopping center on it, and he is willing to pay you twice as much as Buyer 1. You contact a lawyer and he tells you that even if you pay full damages to Buyer 1, with what Buyer 2 is paying you you’ll still come out way ahead. You respond by breaching the contract with Buyer 1, paying him the amount he lost on account of your breach (known as “expectation damages”), and selling the house to Buyer 2. Should you contact a priest to confess your sin?

Not necessary. By paying Buyer 1 full expectation damages, you put him in as good a position as he would have been in had you performed your contract with him. Therefore he has no legitimate complaint. Furthermore, by selling your real estate to a developer whose development will increase the economic value of your real estate far more than Buyer 1 would have, you have done your part to increase economic efficiency. So pat yourself on the back, take a trip to Maui, whatever. You have just committed what is known as efficient breach, and Uncle Sam is happy with you because the property taxes on your former real estate will undoubtedly increase, and so will your income taxes.

The point is that when it comes to civil law (as opposed to criminal law), morality takes second place to economic efficiency. That is why someone who robs a house is guilty, but someone who breaches a contract to sell a house is merely liable (of course, you can be guilty and liable at the same time!).