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Commercial law or business law is the body of law which governs business and commerce. It is often considered to be a branch of civil law, and deals with issues of private law and public law. Commercial law regulates corporate contracts, hiring practices, and the manufacture and sale of consumer goods. Business or commercial law regulates the many transactions in any of the various operations of a trade or industry and creates a norm of fairness and cooperation within a commercial deal, which usually has a financial gain as the objective. Flourishing commerce provides the financial foundation that can support development of other aspects of culture. Business law is thus necessary and valuable in ensuring stable and prosperous commercial relationships in society.
Topics in business law
Contracts
Contract law governs the formation and elements of a contract including the agreement process or offer and acceptance, valuable consideration, and the defenses to a contract formation. There are rights and obligations of the non-parties, and the performance of the contract or the maturing and/or breach of contractual duties.
Corporate law
Corporate law considers the characteristics of a corporation and the sources of corporate power. There are formalities of incorporation and stock sales along with creating the corporate management with contracts, directors, officers and shareholders. Secondary stock sales involve restrictions on insider trading, and corporate distributions involving dividends, redemptions, and repurchases. Corporations may have mergers and acquisitions, and they may be dissolved and liquidated.
Characteristics of a corporation
As a legal entity which is separate and distinct from its owners and managers, a corporation can be identified with other entities, such as a sole proprietorship, cooperative, limited companies, partnership, creditor-debtor, employer-employee, principal-agent, and a trust, and all are under a similar regulational authority.
Real property law
Real property law involves estates in land and the classification and validity of all interests in the property. There are landlord and tenant issues on the types of tenancies, and the obligations owed both landlord and tenant. Easements, profits, covenants and servitudes are types of interests in the land and there is a determination as to how they were created with what reasonable use and whether all requirements have been met for the burden or benefit to run. There are conveyance issues within a contract of sale with deed, recording and covenants for title factors. Additionally, there are the issues of adverse possession and prescriptive easements to be considered.
Intellectual property
In law, intellectual property (IP) is an umbrella term for various legal entitlements which attach to certain names, written and recorded media, and inventions. The holders of these legal entitlements may exercise various exclusive rights in relation to the subject matter of the IP. The term "intellectual property" reflects the idea that this subject matter is the product of the mind or the intellect. The term implies that intellectual works are analogous to physical property and is consequently a matter of some controversy.
Tax law
Tax law is the codified system of laws that describes government levies on economic transactions, commonly called taxes.
Primary taxation issues in the United States would include taxes on: income, capital gains, retirement accounts, estates, gifts, corporations, LLCs, partnerships, or taxes on specific investment products or types.
Negotiable instrument
A negotiable instrument is a specialized type of contract for the payment of money which is unconditional and capable of transfer by negotiation. Note that a negotiable instrument is not a per se contract as contract formation requires an offer, acceptance and consideration, none of which are elements of a negotiable instrument (in the US). The rights of the payee (or holder in due course) are better than those provided by ordinary contracts.
Letter of credit
A letter of credit is a document issued mostly by a financial institution which usually provides an irrevocable payment undertaking (it can also be revocable, confirmed, unconfirmed, transferable or others e.g. back to back: revolving but is most commonly irrevocable/confirmed) to a beneficiary against complying documents as stated in the Letter of Credit. Letter of Credit is abbreviated as an LC or L/C, and often is referred to as a documentary credit, abbreviated as DC or D/C, documentary letter of credit, or simply as credit (as in the UCP 500 and UCP 600). Once the beneficiary or a presenting bank acting on its behalf, makes a presentation to the issuing bank or confirming bank, if any, within the expiry date of the LC, comprising documents complying with the terms and conditions of the LC, the applicable UCP and international standard banking practice, the issuing bank or confirming bank, if any, is obliged to honor irrespective of any instructions from the applicant to the contrary. In other words, the obligation to honor (usually payment) is shifted from the applicant to the issuing bank or confirming bank, if any. Non-banks can also issue letters of credit however parties must balance potential risks.
Uniform Commercial Code
The Uniform Commercial Code (UCC or the Code) is one of a number of uniform acts that have been promulgated in conjunction with efforts to harmonize the law of sales and other commercial transactions in all 50 states within the United States of America. This objective is deemed important because of the prevalence today of commercial transactions that extend beyond one state (for example, where the goods are manufactured in state A, warehoused in state B, sold from state C and delivered in state D). The UCC deals primarily with transactions involving personal property (moveable property), not real property (immovable property).
The UCC is the longest and most elaborate of the uniform acts. It has been a long-term, joint project of the National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Law Institute (ALI). Judge Herbert F. Goodrich was the Chairman of the Editorial Board of the original 1952 edition, and the Code itself was drafted by some of the top legal scholars in the United States, including such luminaries as Karl N. Llewellyn, Soia Mentschikoff, and Grant Gilmore. The Code, as the product of private organizations, is not itself the law, but only recommendation of the laws that should be adopted in the states. Once enacted in a state by the state's legislature, it becomes true law and is codified into the state’s code of statutes. When the Code is adopted by a state, it may be adopted verbatim as written by ALI/NCCUSL, or may be adopted with specific changes deemed necessary by the state legislature. Unless such changes are minor, they can affect the purpose of the Code in promoting uniformity of law among the various states.
Various regulatory schemes control how commerce is conducted, privacy laws, safety laws (i.e. OSHA in the United States) food and drug laws are some examples.
Business law in the world
Many countries have adopted civil codes which contain comprehensive statements of their commercial law. A civil code is a systematic compilation of laws designed to comprehensively deal with the core areas of private law. A jurisdiction that has a civil code generally also has a code of civil procedure. In some jurisdictions with a civil code, a number of the core areas of private law that would otherwise typically be codified in a civil code may instead be codified in a commercial code.
The older civil codes such as the French, Egyptian, and Austrian ones are structured under the Institutional System of the Roman jurist Gaius and generally have three large parts:
- Law of Persons (personae)
- Law of Things (res)
- Issues common to both parts (actiones).
The newer codes such as the ones of Germany, Switzerland and Portugal are structured according to the Pandectist System:
- General part
- Law of Obligation
- Law of Real Rights
- Family Law
- Law of Inheritance
Social impact of business law
The law of business and commerce includes a complex system of companies that try to maximize their profits by offering products and services to the market (which consists both of individuals and other companies) at the lowest production-cost. There exists a system of world-wide or foreign commerce, which is a part of the free market exchange. Each country benefits from a world-wide economy and business law facilitates the way each country deals with the exchange of goods and services from the producer to the final consumer.
Business law case examples
United States court decisions
- Legal Services Corp v. Velazquez, 164 F.3rd 757, affirmed. (Whether the court of appeals erred in refusing to follow this Court's decision in Rust v. Sullivan, 500 U.S. 173 (1990) when it invalidated a limitation imposed by Congress on the services that may be provided by legal Services Corporation gratees and held that Congress must subsidize grantees involved in litigation that seeks to amend or otherwise challenges existing welfare laws.)
- Atherton v. Federal Deposit Insurance Corp., 519 U.S. 213, 1997. (State law sets the standard of conduct for officers and directors of federally insured savings institutions as long as the state standard is stricter than that of section 182(k). The federal statute nonetheless sets a gross negligence floor, which applies as a substitute for state standards.)
United Kingdom court decision
- Chloride Industrial Batteries Ltd. v. F. & W. Freight Ltd. , 1 WLR 823, 1989. (The British Islands means the United Kingdom, the Isle of Man and the Channel Islands).
German (Oberlandesgericht) court decision
- Gemeinde commune v. Bundesbahn, BGHZ 40, 28, VII ZR 263/61. (Claim of compensation to fight fires was justified in principle).
ReferencesISBN links support NWE through referral fees
- Emerson, Robert W. Business law. Hauppauge, NY: Barron's, 2004. ISBN 0-764-11984-2
- Mann, Richrd A., Roberts, Barry S., and Len Young Smith. Smith & Roberson's business law. Australia; Cinn. OH: West Legal Studies in Business, 2000.
- Steingold, Fred, and Ilona M. Bray. Legal guide for starting and running a small business. Berkeley, CA: Nola, 2001.
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