Introduction To Comercial Law Flashcards
How is commercial law defined
It is widely recognized not to be definable but it is agreed upon that it has something to do with commerce
Is commercial law based in transactions or institutions
Transactions
Does commercial law concern consumers or merchants
Merchants
What is the main focus of commercial law
Contracts and the usage of markets
Does commercial law focus on cases where transactions are many and uniform or few and unique
Many and uniform
Are non contractual obligatory laws such as those regarding tort, bankruptcy, equity and trust included in commercial law
No
Are laws regarding the structure and mechanics of institutions such as banks, partnerships, insurance companies, corporations and the like included in commercial law
No
Which is the most common of contracts
The contract of sale with its associated contracts off carriage, warehousing, insurance and finance
Is commercial code applicable to non commercial transactions
Not really
What is the UCC
The American unified commercial code which is a simple and workable single source of truth for commercial law in the us except Louisiana
What is the purpose of commercial law
To provide standards and conflict resolution with as little hassle and bureaucracy as possible
What needs do business have with the law
They require their agreements to be upheld, the require the verdicts to be predictable, they need the law to be flexible enough to keep up with the latest business practices and they need their disputes to be resolved quickly and cheaply
What is the difference between arbitration and litigation
Litigation is when the court decides on a verdict after processing all the evidence while arbitration is when the parties come to an agreement which can be quicker and more cost effective
What are the philosophical pillars of arbitration
Fairly resolve the issue with an impartial tribunal with utmost haste, the parties are free to decide how the dispute is resolved with only such safeguards that are in public interest which is the only time the quirt may intervene
What is adr in the context of the court
Alternative dispute resolutions
What is leave to apeal
The granting of permission from a court to allow a superior court to examine a case
Does the court assume equal bargaining power between the parties when they signed the contract
Yes
What was the lex mercatoria
The international law of merchants during the middle ages
How was the underlying principles of commercial law changed after ww2
The lazes fair freedom and sanctity of contracts philosophy was exchanged for a more social welfare approach where protecting consumers and the economically weaker were put in focus. This is when consumer law and commercial law split
How has laws harmonized internationally
Efforts have been made to harmonize the law code between countries and legislators take inspiration from each other. Further more required norms and legislature is often woven in to complete contracts by international businesses
What are the advantages to harmonizing law internationally
Completes more cases, less ability shopping for loop holes and tax havens, saves time and increases understanding in international business
What is the force working against harmonization
Nimbys, everyone wants everyone else to adopt their code and hates to engage with what is forign
What is meant by the freedom and sanctity of contracts
That it is assumed that contracts are signed willingly and therefor they shall be upheld by the court
How are the words in contracts commonly interpreted by courts
As a standard business person would so no slang or niche interpretation. Where business lingo lies here i expect it depends on the parties and the industry
What is more important semantics or business common sense in a contract
If semantics open an interpretation that goes against business common sense that interpretation is invalid
What is the goal when a court analyzes a contract
To discover what the parties meant with the contract and what the meaning of the agreement entailed with the background facts they have enabled
What is a custom or usage
A norm of trade in a particular area that can be woven in to a contract and be legally binding ad long as it is sensible and does not contradict the law
Are un conventions law
Not realy, they become laws when incorporated into the legislation of nations
What is international law
Rules recommended by international organizations
Why might un conventions make bad laws
Because they represent multicultural compromises which are often confusing and inefficient
What has historically been the courts opinion on equity in commercial law
It would be unwelcome as it would complicate things and thinking of others goes against the historically selfish creed of commerce
How does public law affect commercial law
Public entities may enter and transact in the commercial arena, public bodies regulate markets and they seek to enforce human rights
Which are the eight principles of commercial law
Party autonomy, predictability, flexibility, good faith, self help, security, protection of third parties and rights
What is the consequence of party autonomy in comercial law
That parties can make their own contracts and sign them freely doing so making their own laws. If contracts go against equity contracts win unless in gross violation of social interest
How van you use flexibility of the legal code in your favor
By sticking to a niche interpretation and hope you get away with it or by announcing the niche advantage to the business community and hoping it goes main stream
Is good faith a requirement in english law
Not really, only when arguing about definitions of the contract and when equity is involved
What is meant by self help in commercial law
That one may act upon the law and terminate contract and reposes assets without consulting a court as long as you don’t disturb the peace
