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BUS.LAW
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1993-12-26
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Business law includes those branches of law, including
corporations, that affect the formation, operation, and
termination of a business firm (see CORPORATION). The legal
system regulates or determines (1) the way a firm is organized,
(2) the nature of its transactions with other firms, (3)
employer-employee relationships, (4) its responsibility to
consumers, and (5) the obligations it owes to society at large.
Specific subjects in the field of business law include, among
others, contracts, agency, sales law, bankruptcy, insurance,
negotiable instruments, and business organization.
Contracts
A commercial CONTRACT may be viewed as a tool by which business
people establish rules to govern a particular business or
personal relationship. Contract law determines which contracts
are enforceable in court and defines what must be done to
comply with contractually established obligations.
For a contract to be enforceable in most U.S. jurisdictions, it
must meet the following conditions. There must be: (1) a valid
offer, (2) a proper acceptance, (3) sufficiency of
consideration (both parties must incur a legal obligation), (4)
parties with legal capacity, (5) absence of fraud, force, or
legally significant mistake, (6) observance of proper legal
form, (7) consistency with general public policy, and (8)
consistency with special rules governing the type of agreement
involved.
Agency
The legal cornerstone of the entire area of business
transactions is agency law. An AGENT is a person empowered to
act so as to legally bind another, the principal. Agency
enables principals to handle a multitude of transactions at
once to greatly extend their geographic reach, and to make use
of professional expertise when incurring legal obligations.
An agent must be loyal to the principal, act with reasonable
care under community standards, follow reasonable instructions,
and make an appropriate accounting. Professional agents must
perform according to the standards of their profession. So long
as the agent acts with authority, the principal is bound to
perform the obligation to the third parties with whom the agent
has dealt. The third parties are similarly liable to the
principal.
Sales
The Uniform Commercial Code (UCC) sets forth the rules
governing sales of goods, commercial paper, and sellers'
security interests. Emphasizing honesty, the UCC holds
merchants to high standards of conduct.
A written sales contract will generally specify the performance
obligations of both buyer and seller. The seller's minimum
obligation is to put conforming goods at the buyer's
disposition and give the buyer notice thereof. If the contract
obliges the seller to deliver the goods to the buyer or to a
carrier, the seller must do so, obtaining the necessary
documents and delivering them to the buyer.
Warranties
A warranty is a guarantee by a seller that the goods will be of
a certain quality. If they are below that quality, the buyer
may sue for the difference in value.
The UCC sets forth the implied warranties that exist in certain
sales transactions unless they are specifically excluded. The
effect of these warranties is to neutralize the old doctrine of
caveat emptor ("let the buyer beware") by requiring that the
goods be either of average quality or that the buyer be
conspicuously warned that the goods may not be up to standard.
Secured Transactions
When a sales transaction involves an extension of credit, the
seller naturally wants to ensure that the buyer will pay as
promised by establishing a legal interest in property held by
the buyer that may be enforced if the buyer defaults. The most
logical property for the seller to hold a secured interest or
LIEN in is the merchandise sold. The UCC sets up a legal
procedure for handling defaults, establishing priorities among
various classes of creditors.
Bankruptcy
The law of BANKRUPTCY provides a method by which an honest but
insolvent debtor may be discharged, or freed, from claims held
by creditors. In the bankruptcy proceding, the bankrupt lists
all assets and debts. The creditors are paid on a pro rata
basis out of the debtor's available assets, and the debtor is
then released from any legal responsibility to pay the
remaining claims.
Negotiable Instruments
Certain kinds of business documents, or paper, can be exchanged
for money because they enable their holders to obtain legal
interests on the basis of the documents themselves. NEGOTIABLE
INSTRUMENTS are usually classified under the following three
groupings: (1) commercial paper, which includes formal
documents involving a promise (for example, a promissory note)
or order (for example, a check) to pay a sum of money; (2)
commodity paper, which represents an ownership interest in
property held by another such as a trucker or shipper (for
example, a bill of lading); and (3) investment paper, which
includes stocks and bonds.
Business Organization
The three principal ways of organizing a business are: as a
sole proprietorship, as a partnership, or as a corporation.
Other less well-known forms of business organization include
the limited partnership and the unincorporated association.
The rules of law spell out the consequences of operating under
each form of organization. The corporation is the most formal
arrangement, since it must be chartered by the state in which
it is located. The rules of operation of corporations are
spelled out in great detail in state statutes. The partnership
is more casual and may be formed by the independent action of
the partners. The rights and duties of the partners, however,
will be spelled out in some detail by state statutes. The sole
proprietorship involves an individual acting on his or her own
behalf in a business context and is the least specially
regulated and least complex form. The limited partnership
involves one or more investing partners and at least one
operating partner. States impose restrictions on the formation
of limited partnerships. Such restrictions are designed to
ensure that creditors are aware that an investing partner will
be liable only to the extent of that partner's investment.