Business Law Essay Research Paper Agency law
Business Law Essay, Research Paper
Agency law – is concerned with any “principal”-”agent” relationship; a relationship in which one person has legal authority to act for another. Such relationships arise from explicit appointment, or by implication. The relationships generally associated with agency law include guardian-ward, executor or administrator-decedent, and employer-employee. The law of agency is based on the Latin maxim “Qui facit per alium, facit per se,” which means “he who acts through another is deemed in law to do it himself.” Agency, in its legal sense, nearly always relates to commercial or contractual dealings.
Antitrust- To prevent trusts from creating restraints on trade or commerce and reducing competition, Congress passed the Sherman Antitrust Act in 1890. The Sherman Act was designed to maintain economic liberty, and to eliminate restraints on trade and competition. The Sherman Act is the main source of Antitrust law. The Sherman Act is a Federal statute and as such has a scope limited by Constitutional constraints on the Federal government. The commerce clause, however, allows for a very wide interpretation and application of this act. The Act applies to all transactions and business involved in interstate commerce. If the activities are local, the act applies to transactions affecting interstate commerce. The latter phrase has been interpretted to allow broad application of the Sherman Act.
limited liability- the maximum amount a person participating in a business can lose or be charged in case of claims against the company or its bankruptcy. A stockholder in a corporation can only lose his/her investment, and a limited partner can only lose his/her investment, but a general partner can be responsible for all the debts of the partnership. Parties to a contract can limit the amount each might owe the other, but cannot contract away the rights of a third party to make a claim.
collective bargaining agreement- is the ultimate goal of the collective bargaining process. Typically, it establishes wages, hours, promotions, benefits, and other employment terms as well as procedures for handling disputes arising under it. Because the collective bargaining agreement cannot address every workplace issue that might arise in the future, unwritten customs and past practices, external law, and informal agreements are as important to the collective bargaining agreement as the written instrument itself.
Collective bargaining consists of negotiations between an employer and a group of employees so as to determine the conditions of employment. The result of collective bargaining procedures is a collective agreement. Employees are often represented in bargaining by a union or other labor organization. Collective bargaining is governed by federal and state statutory laws, administrative agency regulations, and judicial decisions. In areas where federal and state law overlap, state laws are preempted
what makes a contract valid?
To determine if a valid contract exists, it is necessary to prove the following:.
Consideration was given. Consideration is an essential element of an enforceable contract; it is something of value given or promised by one party in exchange for an act or promise of another. The amount of consideration paid in money is typically not important in determining whether the contract is valid (e.g., one dollar could be sufficient as consideration).
Consideration does not have to be money. It can be a promise to refrain from doing something, or a promise to do something. It cannot be a gift because one of the parties is not required to do anything in return for receiving the gift.
The subject matter was legal. For example, if you wish to sue someone for failure to pay for illegal drugs, you could not resolve the matter in court, because the subject matter of the underlying transaction was illegal.
Contracts can be express, implied by conduct, or implied in law. An express contract is either an oral or a written agreement whose terms are manifested by clear and definite language. An implied contract is an agreement inferred from the conduct of the parties. This occurs where the parties may not have precisely agreed on all key terms but the contract was performed anyway. An implied-in-law contract (also called a quasi contract) is created by operation of law to avoid unjust enrichment of one party at the expense of another. In a quasi contract there has been no agreement or meeting of the minds; one party has conferred a benefit on another under such circumstances that fairness and equity require compensation. This occurs for example when a doctor renders assistance to an unconscious patient. The patient later on receives a bill for the doctor s services. Since competent medical care was provided by the doctor with the expectation of being paid, the patient will be required to pay for the reasonable value of the doctor s services.
Although many contracts can be oral and still enforceable, certain types of agreements must be in writing to be valid. For example, contracts: involving the sale of land in most states or a property interest (except for leases of less than one year) ,involving the sale of goods exceeding $500 in value, not able to be fulfilled within a year, concerning one s offer to pay for the debt of another , involving promises made in consideration of or affecting a marriage (e.g., prenuptial agreements or property distributions on divorce) must be evidenced in writing and signed by the party to be charged (i.e., to which the contract applies) to be valid.
When a contract is formed, all parties must live up to the promises set forth in the agreement. Breach of contract is the unjustified failure of a party to perform a duty or obligation specified in a contract. If the contract is impossible to perform because of force majeure, such as a flood or strike, this may be a defense. Other defenses typically raised to defeat the validity or enforceability of a contract are:
No consideration was given. Subject matter of the contract required it to be in writing. Contract was entered into through fraud. Important terms were intentionally misrepresented. Contract was entered into under duress or coercion. The parties were unclear about key points of the deal. Contract required someone to do or sell something illegal. Contract was entered into with someone who lacked requisite mental capacity or was underage. Contract was entered into with a person who lacked the legal authority to bind another (e.g., a low-level bank employee who did not have the legal power to verbally approve a million-dollar loan).
Surety contract – an agreement by one person or entity to pay the debt of another, his is also referred to as a personal guaranty and must be in writing to be enforceable
The Equal Pay Act amended the Fair Labor Standards Act in 1963. The Equal Pay Act prohibits paying wages based on sex by employers and unions. It does not prohibit other discriminatory practices bias in hiring. It provides that where workers perform equal work in jobs requiring “equal skill, effort, and responsibility and performed under similar working conditions,” they should be provided equal pay. The Fair Labor Standards Act applies to employees engaged in some aspect of interstate commerce or all of an employer’s workers if the enterprise is engaged as a whole in a significant amount of interstate commerce.
The Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating on the basis of age. The prohibited practices are nearly identical to those outlined in Title 7. An employee is protected from discrimination based on age if he or she is over 40. The ADEA contains explicit guidelines for benefit, pension and retirement plans.
The Equal Opportunity Employment Commission (EEOC) interprets and enforces the Equal Payment Act, Age Discrimination in Employment Act, Title VII, Americans With Disabilities Act, and sections of the Rehabilitation Act. The Commission was established by Title VII. Its enforcement provisions are contained in section 2000e-5 of Title 42, and its regulations and guidelines are contained in Title 29 of the Code of Federal Regulations, part 1614.
Under the federal Fair Housing Act and Title VII of the Civil Rights Act of 1968, among other laws, many forms of housing discrimination are illegal. Homeowners are prohibited from making adverse decisions to lease or sell real estate because of a person s age, religion, sex, color, or national origin. In some states, people cannot be denied a lease on the basis of sexual orientation. It is also against the law for real estate agents to steer prospective buyers away from certain areas.
Negligence is one party s legal failure to exercise a sufficient degree of care owed to another. If you are injured as a result of the careless or reckless conduct of another person or because someone failed to act with the degree of care that he or she had a duty to provide (e.g., a public bus driver who failed to operate a bus safely), liability (legal wrongdoing) against that party or his employer may exist.
Generally, a trust is a right in property (real or personal) which is held in a fiduciary relationship by one party for the benefit of another. The trustee is the one who holds title to the trust property, and the beneficiary is the person who receives the benefits of the trust.