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Business Law Concepts and Practices

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Business Law Concepts and Practices

Introduction

Diversity in business operations and legality of business activities makes business law vital in the society. The society needs laws and regulations that govern business operations. Business law incorporates both public law and private law; it is considered as a civil law. Its mandate is to regulate hiring practices, production and sale of commodities to consumers, and corporate contracts. Most countries across the globe have adopted various civil codes that contain detailed information of their business law. For instance, in the United States, business law provides the Congress with power to regulate business operations across the states (Walston-Dunham, 2011). There have been strategies to form a unified body of business law; however, little success has been realized with only Uniform Commercial Code being implemented in the US. Although unified body of business law has not been fully realized, various business concepts are common in most states including attorney client privilege, legal work status of employees and enforcement of labor laws, civil and criminal law, and contract law.

Attorney Client Privilege

Under certain considerations, some of the information that attorney possess cannot be revealed to the public or a third party without the consent of the client because of attorney client privilege clause. Dating back to the governance of Elizabeth I, attorney-client privilege provided that an attorney was not allowed to testify against his/her client as it will violate the loyalty that is owed to the attorney’s client. During that period, lawyers were subjected to privilege clause. However, currently the privilege is subjected to the client, but the lawyer may assert it on behalf of the client. The client is only entitled to waive the privilege (Epstein, 2001).

Generally, for the attorney-client privilege to be acknowledged; the parties involved must demonstrate cordial relationship and that communication between the client and attorney should manifest in confidence in order for the client to obtain legal advice. The nature of communication is not crucial in determining legality of the action, as it may either be communicated through nonverbal (for instance nodding the head), writing or oral communication (Epstein, 2001). The privilege also acknowledges information that the attorney provides to its client.

Though attorney-client relationship is crucial in determining the legality of the privilege, communication must also be related to the intended core objective of seeking the attorney’s legal advice. Therefore, communications provided by the client should not only be on the interest of the client, but should follow the rules and regulations provided by the privilege clause. In addition, where the communication involves a third party, either through the presence of the third party or the third party may be used to relay information to the client, then the attorney-client privilege will be invalid.

Some unusual issues have arisen regarding the connection between patent agents and attorney-client privilege. Courts have ruled that the patent agents should engage in communication with its client, though they are not lawyers, but their actions will be legally binding and apply in attorney-client privilege. The legal society have always purported that patent agents are not legitimate lawyers and only the lawyers are allowed to communicate to the client and demonstrate attorney-client privilege. According to Epstein (2001), patent agents’ function is to convey information that is aimed at being disclosed to the public, therefore, attorney-client privilege should have not been applied to the patent agents.

However, not all the cases apply the attorney-client privilege. Some of the cases, for instance a case that involve patent lawyers, the court have scrutinized the case and ascertained whether the conduct of the patent lawyers warrants the application of attorney-client privilege. It is purported that patent lawyers, in corporate world, should be involved in activities that qualify for the application of attorney-client privilege. It is crucial to note that the waiver can materialize even though it is not in the mandate and intention of the client to waive the privilege.

Legal Work Status of Employees

Most of the people in the United States are employees. The law classifies them as employees when they are bound by employment contract. An employment contract should be in writing, as the contract is undertaken when the employee and employer are agreeing on the employment’s terms and conditions (Guerin and DelPo, 2011). Although the contract may be implied from the conduct of the employee and that of the employer, it is vital to consider written contract as the law recognizes written employment contracts. The contract demonstrates the activities that the employers are required to abide with including the value of the contract, working hours, and duties and obligations of the employees.

The law provides that all employers and federal contractors should verify the legality of work status of its employees. In 2009, federal government implemented E-verify system that necessitates the employees to be assured on their work status. E-verify system is an employment verification system that is internet-based and designed to necessitate legality of employment status across the United States’ employees.  Following a rampant retrenching and demotion of employees, the federal government found it prudent to regulate and oversee the employment contracts in order to prevent employees’ discrimination and violation of terms and conditions of employment (Meiners and Ringleb, 2008).

Enforcement of labor laws has faced severe challenges ranging from increasing number of organizations, workforce, and employers to negligence in abiding to employment laws. With an increase in employers across the economy, it is difficult to manage the activities of the workers across the world. The continued crisis in labor law enforcement in the economy, ‘soft’ regulations that is imminent in the current enforcement structure of labor laws aims at creating positive incentives that translate into unjustified lower labor standards. The federal government needs to enact stringent measures in order to harness legality and enforcement of this labor laws. Where the laws are not fully enforced, employees will be subjected to discrimination and lower employment standards.

Civil and Criminal Law

In the contemporary society, criminal law is a common phenomenon among the laymen as compared to civil law. This is attributed to the constant reports from the media houses on criminal trials (Walston-Dunham, 2011). Most people confuse the principles associated with criminal law and that of the civil law, and, in most cases, they tend to apply criminal law principles on civil cases. However, civil law principles are distinct from criminal law principles in various ways.

First, in civil law, the lawsuit is filed by a private party—either as an individual person or corporation. This is because most of the civil law cases are private and it defames an individual or corporate character. On the other hand, the lawsuit in criminal law is filed by the government. This is because the criminal law cases are against the peaceful coexistence of the general public. The government, in criminal law, is the prosecutor, while in civil law; the private party is the plaintiff.

Secondly, the notion of punishment differentiates criminal from civil cases. In the case of criminal law, a defendant who is proved guilty beyond reasonable doubt is punished either through payment of fine, incarceration in prison or jail, or execution in the form of death penalty. Criminal activities are broadly divided into felonies—where the sentence is a jail term exceeding one year—and misdemeanors—where jail term is less than one year. On the other hand, in civil law, a defendant is never executed or incarcerated. The losing defendant will only have to meet the expenses that the plaintiff incurred through defamation of the plaintiff’s character. However, damages are not awarded o civil cases demonstrated under the law of contract but only under the law of torts where defamation has occurred. The court has to determine whether the conduct of the defendant had a malicious intention, there was gross negligence, and there was willful disregard of individuals’ rights (Stone, 2002).

Finally, burden of proof also differentiates the two laws. In Criminal litigation, the state takes the responsibility of proving beyond reasonable doubt that the defendant was guilty of the criminal offense. The defendant will always be innocent until the court proves otherwise. However, the defendant may claim that he/she is not of a sound mind. The state will have to prove the defendants insanity (Stone, 2002). Apart from insanity, other exceptions to burden of proof are duress and self defense. In the case of civil litigation, the plaintiff takes the responsibility of proving beyond responsible doubt that the defendant was guilty of his/her defamation acts. However, technical issues normally shift the burden of proof to the defendant. When the plaintiff, for instance, has made a case of prima facie nature, the burden of proof will shift to the defendant, as he/she will be required to rebut or refute the evidence provided by the plaintiff.

As such, it is the mandate of the society to equip themselves with knowledge on the differences emanating between civil and criminal litigation. Some protections and/or exceptions have been provided for criminal defendants. For instance, No ex post facto law, Amendment IV of the US constitution on unreasonable seizures and searches, and double jeopardy as provided in Amendment V. In addition, ignorance to the law is no excuse, and, therefore, the public should understand the difference principles underlying criminal and civil law.

Contracts between Parties

An agreement between parties maybe an obvious scenario in the contemporary society, its validity depends on the stated conditions. The agreement must meet the essential elements that are required for the contract to be valid (Chen-Wishart, 2012). It is difficult to ascertain whether the contract is in its preliminary discussion or it is a full agreement contract. In order to distinguish between these two scenarios, the law of contract has stipulated rules that define where the contract is legally binding or not.

For the contract to be valid there must be an offer. A person may show that he/she is willing to undertake or refrain from doing an activity with an aim of obtaining the other individual’s assent; the law provides that he/she has offered to contract with the other party. An offer can be made either in writing, implied or orally provided that the terms of offer are in tandem with the requirements of the contract; for instance, sale of land contract must be in writing (Chen-Wishart, 2012). However, in making an offer, the parties should differentiate between invitation to treat and an offer.

The offer will be deemed accepted when the individual, whom the offer is made, assents to it. Acceptance is second stage of realizing a valid contract between parties. The law of contract provides that when the offer is accepted, then it becomes a promise. For acceptance to be legal, it should be from an individual who received the offer.  In addition, acceptance may be either implied or express and should e unqualified or absolute. In the case of revocation of offer or acceptance, it should be communicated before the completion of acceptance process.

A legal relationship will only exist when there is consideration as it will show commitment between the two parties. It is the consideration that makes the contract valid, as the law does not recognize an agreement that does not have value. The parties that contract each other should exchange valuable commodity. For instance, where individuals contract to sale a guitar, the buyer will receive a valuable commodity in the form of guitar while the seller will receive money. However, the validity of consideration is subject to illusionary, that is, one party will receive commodities or value that the other party had earlier on possessed. Consequently, consideration may fail due to the value attached to the consideration received by the other party—one consideration may be worthless. These defense—that is failure of consideration and illusionary—will prevent an individual from contracting in order to mitigate the effects of bad considerations (Chen-Wishart, 2012).

A bad consideration may be felt when, for instance, an individual enters into a contract to transact or sell his/her guitar for $500, and later gets an offer to sell the commodity for $1200 from another buyer, the law provides tat the seller is not entitled to revocation of the contract with the basis that the guitar can be sold to a third party who has offered to pay $1200.

Conclusion

Understanding the various laws regarding contracts, criminal and civil law will ensure that individuals equipped with relevant information regarding the legality of operations in the society. The law society has tried to unify these laws especially in the commerce and business sector, in order to be applied across all the states. However, commonality in principles exist in most of the laws across the states including attorney client privilege, legal work status of employees and enforcement of labor laws, civil and criminal law, and contract law. Therefore, understanding these concepts will necessitate peaceful coexistence and undertaking business activities with ease, as it will not be against the statutory laws. As ignorance is no defense in law, understanding these concepts will be crucial in realizing effective business operations.

References

Chen-Wishart, M. (2012). Contract Law, New York: Oxford University Press.

Epstein, E. (2001). The Attorney-Client Privilege and the Work-Product Doctrine, Chicago: American Bar Association

Guerin, L. & DelPo, A. (2011). The essential guide to federal employment laws, California: Nolo.

Meiners, E. & Ringleb, A. (2008). The legal environment of business, London: Cengage Learning.

Stone, R. (2002). The Modern Law of Contract, London: Routledge.

Walston-Dunham, B. (2011). Introduction to Law, London: Cengage Learning.

 

 

 

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