Law Flashcards

Question

Types of legal persons

Answer 1

Natural persons Artificial persons

Answer 2

Natiural personality Benefits: no need for negotiatoing matters and sharing profits, less complex and costy, direct control

Answer 3

Legal personality Benefits: sharing the work (skills, time etc) , increasing contributions

Answer 4

Not a seperate legal person group of individuals or entities that work together for a common purpose

Answer 5

Seperate legal person Types of partnerships: - General partnerships; no corporate veil - limited partnerships; 1 limited and 1 general partner, corporate veil for LP's General [artnerships is flexible and and subject to specific terms of the negotiated partnership agreement - ownerships of partnerships is divided into partnership intrests whos transferability is limited - partners do not need to be natural persons

Answer 6

- separate legal person - governance is through a board of directors - management is by the directors under supervision of the board of directors - ownership of the company is divided into the shares of stocks, which are generally transferable, and if significant conditions are met stocks can be traded on the stock exchange - shareholders benefit from limited liability - nobody needs to liable for obligations of the entity - only the entities own assets will be available to satisfy the judgement of creditors ( often minimum cpaitalistion required )

Answer 7

- separate legal person - provision of limited liability to the owners and members -creditors are proteced the initial minimum investment eg. italy 50,000, germany; 25,000 - inirtial minimum investment can be set to be in cash or non cash ( cahs is better for creditors, non cash is better for investors )

Answer 8

Limited liability Continuity of existence Transferability of shares Taxation issues (double vs. pass-through taxation, tax rates, and preferences) Flexibility in governance and management capital requirements upon formation capital market expectations activity specific requirements

Answer 9

close companies: - shares are not traded in a regulated market - benefits; more privacy, control over management, reduced liability extension risk, less regulatory oversight Public companies: - shares traded in a regulated market - benefits: greater access diverse fundraising options, and extended liability possibilities

Answer 10

The doctrine of legal families seeks to establish common groups, identifying similar legal practices, activities and subject matter and thereby classifying the entirety of global legal transactions and activities into "families" according to particular criteria

Answer 11

Traditional view: FREEDOM TO NEGOTIATE– no liability Grounds to impose precontractual liability: PRE- and CONTRACTUAL doctrines Forms of the contracts Role of the Judge

Answer 12

Traditional view: GOOD FAITH - liability Grounds to impose precontractual liability: GENERAL OBLIGATION + CONTRACTUAL REMEDIES Forms of the contracts Role of the Judge

Answer 13

A voluntary, deliberate, legally binding and enforceable agreement creating mutual oblitagions between two or more parties

Answer 14

international trade contract is a contract for a commercial transaction, or a contract made by a trader for the purpose of his business

Answer 15

As an alternative to private international law, international contracts may be subject to national or international substantive rules: i.e. they may be established either at national level, or at international level, by virtue of an international agreement (e.g. The Vienna Convention on International Sale of Goods – CISG)

Answer 16

1) scope of application - scope of application indicate both what is covered by the Convention and what is not covered. - what law is being applied: both contracting, one contracting and private law pushes towards that, choose to not use cisg under article 95 - sale, good - what not included 2) rules governing the formation of contracts - changes have to be written - contract doesnt have to be written 3) substantive rights and obligations of buyer and seller - obligations of buyer and seller 4) final clauses of the Convention concerning such matters as how and when it comes into force, the reservations and declarations that are permitted and the application of the Convention to international sales where both States concerned have the same or similar law on the subject

Answer 17

The articles on scope of application indicate both what is covered by the Convention and what is not covered. The Convention applies to contracts of sale of goods between parties whose places of business are in different States and either both of those States are Contracting States or the rules of private international law lead to the law of a Contracting State

Answer 18

«sale»: - auctions are excluded (art. 2(b)) - execution or otherwise by authority of law sales: judicial sales are excluded (art. 2(c)) - barter and countertrade are not sales (art. 53 CISG, which refers to the obligation of the buyer to “pay the price”) - so-called «Maquiladora Agreements» are not sales: the buyer provides a substantial part of the materials necessary for the assembly of the relevant goods, and the other party assembles them (art. 3(1) and 3(2)) - by general consensus, franchise agreements are excluded since, in their essence, they regulate the transfer of intellectual property rights 2. «goods»: - stocks, shares, investment securities, negotiable instruments and money are excluded (art. 2(d)) - ships, vessels, hovercrafts or aircrafts, electricity / energy are excluded (art. 2(e)); parts of an aircraft (e.g. engines) are covered by the Convention - electricity (art. 2(f)) - trademarks, patents, intellectual property rights are excluded - software: if the "service" portion of the deal prevails on the "good" portion, then it is excluded (e.g. contract to write a book (service) and sale of a lot of books (goods))

Answer 19

In particular, article 11 provides that no written agreement is necessary for the conclusion of the contract. However, if the contract is in writing and it contains a provision requiring any modification or termination by agreement to be in writing, article 29 provides that the contract may not be otherwise modified or terminated by agreement.

Answer 20

are to deliver the goods, hand over any documents relating to them and transfer the property in the goods, as required by the contract and this Convention. In general, the seller must deliver goods that are of the quantity, quality and description required by the contract and that are contained or packaged in the manner required by the contract. to deliver goods that are free from any right or claim of a third party, including rights based on industrial property or other intellectual property. He must give notice of any lack of conformity with the contract within a reasonable time after he has discovered it or ought to have discovered it,

Answer 21

The general obligations of the buyer are to pay the price for the goods and take delivery of them as required by the contract and the Convention.

Answer 22

reduce price if goods do not conform to contract claim dagamages and ask for compensation ( new patch )

Answer 23

For a breach of contract to be fundamental, it must result in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the result was neither foreseen by the party in breach nor foreseeable by a reasonable person of the same kind in the same circumstances two breaches; that justifies a declaration of avoidance of a contract by the aggrieved party; the other circumstance being that, in the case of non-delivery of the goods by the seller or non-payment of the price or failure to take delivery by the buyer, the party in breach fails to perform within a reasonable period of time fixed by the aggrieved party.

Answer 24

breach of contract: This is a substantial failure to perform, significantly affecting the contract's value. Fundamental (or actual) breach: A severe breach that allows the non-breaching party to terminate the contract and seek damages. Making contract invalid

Answer 25

In contract law, force majeure is a common clause in contracts which essentially frees both parties from liability or obligation when an extraordinary event when an extraordinary event or circumstance beyond the control of the parties,

Answer 26

he is exempted from the consequences of his failure to perform, including the payment of damages. third person whom he has engaged to perform the whole or a part of the contract.

Answer 27

The parties can decide (i) to set forth autonomously the rules governing their arbitration (ad hoc arbitration) or (i) to refer to an existing arbitral institution and submit the dispute to its rules (institutional arbitration Ad hoc arbitration  leaves a maximum of flexibility to the parties, who can tailor the arbitration to their specific needs Institutional arbitration  provides a comprehensive and proved set of arbitration rules tested over time, of crucial importance in addressing the specific issues liable to arise during the procedure

Answer 28

The losing party in an arbitration procedure is required to comply with the award. However, as arbitrators has no direct enforcement power, when said party fails to do so the only option for the winning party is to try to have compliance imposed by a court ruling, through litigation. In an international perspective, in order for this to occur, the award must be recognized by a court of the country in which the winning party needs the award to be enforce

Answer 29

Please remember that a dispute may be within the scope of the arbitration clause but nevertheless be non arbitrable because, under applicable law, the specific issue under dispute can not be decided by arbitrators but only by a State Tribunal Several situations: e.g. labour law issues, competition issues ecc. Another problem: interim measure – emergency measures