Major Questions in Law - Essay Example

LAW INSITUTION 22 .FACTORS A BUSINESS MUST CONSIDER WHEN FILLING A LAW SUIT Before making a claim or defending a law suitbusinesses must consider the following factors. i) The person to be sued ii) Check on the other alternative approach to begin a lawsuit iii) The place to sue iv) The cost of making a claim v) The time to sue vi) The evidence or information to support the claim 23.Methods of alternate dispute resolution The methods of ADR include : Mediation: in mediation a neutral person is appointed to settle the dispute, the mediator assist the parties in resolving the conflict. The mediators listen to both sides of the parties involved in the dispute. The only limitation is that it is not appropriate when parties involved cannot communicate or cooperate  Arbitration Arbitration In arbitration, a neutral person hears both sides of the dispute according to both parties and makes decision about the outcome of the dispute. Neutral evaluation The evaluator gives every party to the dispute an opportunity to express himself/herself about the possible cause of the dispute. Because he is an expert he gives the strengths and weaknesses of each of the parties involved in a dispute. Negotiation The parties through their agents(lawyers) discuss the steps or process to solve the dispute. 24. pretrial discovery This refers to the process of preparation of two conflicting parties before trial.in the pretrial discover, they arrange and exhaust all the evidence and witnesses before the actual trial begins Purpose It enables the plantiff to prepare evidence before trial The court can analyse the dispute and whether it can be settled without the trial It saves time to both the defendant, plaintiff and judges Benefits. Provides an alternative way of solving the problem before the trial Saves time to the parties involved in a dispute It assist both the defendant and plaintiffs in preparation. 25.Four examples of intentional torts Tort refers to a civil wrong other than breach of contract which gives action for unliquidated damages. Battery- This is an intentional application of force on someone. For example hitting someone, shooting stabbing among others Fraud This is an intentional mistake done by an individual to gain unfair advantage over others Defamation Defamation involves telling lies about somebody in abid to soil his reputation Tress pass Trespass involves passing into other people’s territory illegally without his or her permission or consent.. It involves trespass of property and chattels Elements of a tort: Proving that the defendant had a duty to of care to the plantiff or owes plantiff safety Breach of duty of the defendant Injury or damage suffered by the plaintiff The damage was as a result of defendants negligence. Defences available i) Contributory negligence-the plantiff would be relied upon if he proves The plaintiff exposed himself to risk knowingly ii) Act of God- the damage was beyond the plaintiff’s control iii) Volenti non fit injuria-the plantiff was aware of the risk involved but continued iv) Necessity-it was necessary to protect the society. Damages recoverable The damages that are recoverable Medical expenses Future earnings Property damages Mental distress 26. negligence In Blyth v Birmingham water co. Works, defined negligence as the omission to do something which a reasonable and prudent man would not have done. Elements of negligence a)legal duty of care b)breach of duty c) damages defences to negligence a)contributory negligence- the defendant must prove that the plaintiff exposed him to danger b)voluntary assumption of risk (volentinonfit injuria) c) statutory authority recoverable in negligence i) Product liability ii) Economic loss iii) Mental distress iv) Medical expenses. 27. five US constitution provisions applied in business Article 1 s.8 regulates congress regulates trade with foreign nations All the nations trading must be involved in legal business The trade must be accepted and applied throughout the country 28 ,Comparison of three business organizations Partnership, limited liabilities company and public corporation Partnership-their liabilities are unlimited Company-have limited liabilities Public corporations have limited liabilities. Partnership- death of a member affects the business hence no continuity Company- not affected by death can hence guarantees continuity Management Companies are managed by directors while partnership by partners The transfer ofshares is in companies while no such in partnership 30.Powers of administrative agencies i) The administration agencies act as an intermediary between traders and government. ii) They ensure that there is compliance to the law. Whenever they get hold of the law breakers take action against the person involved in the malpractice. 31. relationship between management authority and fiduciary obligation. Under partnership, all partners have equal rights to contribution hence they owe duty of care to the organization. In limited liability companies members report to the board and they are liable for negligence performed against the company. Therefore, the relationship is that management authority leads to exercise of fiduciary obligation 32. The law of tort advanced in America through the following stages i)legal science, conceptualism in 1870 members agree to settle cases involving private law into categories. The legal scientist decided to categorize the tort according to the liability, to help in regulating the law of tort, negligence and strict liability. Because of the limitation of the legal science approach with reference to negligence which was viewed to be ambiguous. The realism adopted a key concept in 1940’s which was viewed to be more objective and practical. However the consensus rejected this and came up with a new concept in law of tort. The threat continued until 1960’s where tort theorist came up clearly to identify the unifying factor under law of tort. 33. product liability law The law takes into account the person (seller or manufacturer to be held accountable) when dangerous or defective products reach the consumers in the market. The plantiff has to prove that: i) Manufacturer or seller had not given a public notice of the defective product in the market ii) He bought the product and suffer damages as a result of using the product Who can sue Consumer agencies Consumers Government Defences Volenti non fit injuria Contributory negligence Damages recoverable Medical expenses catered for Compensation 33. Read More