Samenvatting Class notes - Foundation of Business Law

- Foundation of Business Law
- -
- 2020 - 2021
- Erasmus Universiteit Rotterdam (Erasmus Universiteit Rotterdam, Rotterdam)
- International Business Administration
298 Flashcards en notities
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Samenvatting - Class notes - Foundation of Business Law

  • 1580598000 Legal System Terminology

  • What are the 2 main law systems?
    1. Common law (based on case law/doctrine of binding precedent)
    2. Civil law (based on written laws)
  • What is the doctrine of binding precedent?
    Important part of the common law system that states that judges should uphold decisions made by judges in similar previous cases
  • What 3 elements are associated with the legal system?
    1. The administration of justice via the court structure
    2. The legal profession
    3. The operation of a common law system
  • What is the general court structure?
    1. Supreme court 
    2. Court of appeal
    3. District court
    4. Court of first instance
  • What is the difference between superior and inferior courts in the UK?
    Superior courts deal with higher value claims that are more complex, while inferior courts handle smaller cases
  • What are the Senior Courts in the UK?
    The court of Appeal, the High Court and the Crown Court
  • What are the 2 types of courts in the US?
    1. Federal - Power as far as granted by the constitution 
    2. State - More general competence and can hear both state and federal cases
  • What is forum shopping?
    When parties choose to go to court which they believe will favour their claim
  • What are the 3 types of Alternative Dispute Resolution?
    1. Conciliation (third party offers the parties a non-binding option)
    2. Mediation (third party helps parties reach an agreement)
    3. Arbitration (where a third party delivers a binding opinion)
  • What are the differences between a Dutch notary and an English solicitor?
    A notary does not prepare work for litigation, and is not allowed to act as an advocate in the lower courts
  • What is a solicitor in England?
    A general legal advisor
  • What is a court of first instance?
    Court in which the proceedings are initiated
  • What are the inferior courts in the UK?
    1. The County Court 
    2. The Magistrates' Courts
  • What remedies does the equity court provide rather than common law?
    Next to damages, they also provide injunctions and specific performance
  • What are injunctions?
    Court order that requires a person to do something or not do something
  • 1583017200 Lecture 1: Legal Systems

  • What is law?
    A command proceeding from the supreme authority of a state and is addressed to persons who are subjects of that authority.
  • Why is the law not a closed system?
    It reflects the time and norms and values of that time, and as these shift the law can shift accordingly
  • What are the 2 main legal frameworks?
    1. Public law
    2. Private law
  • What is public law?
    Law that concerns itself with the relationship of individuals to society. Often individuals vs. The state or among states themselves
  • What are the 3 domains of public law?
    1. Constitutional
    2. Administrative 
    3. Criminal
  • What are the 4 domains of private law?
    1. Contract
    2. Tort
    3. Family
    4. Property
  • What is criminal law?
    The law that concerns itself with ensuring that individuals behave in a way that society finds acceptable
  • What is private law?
    Law that concerns itself with the private rights and obligations of individuals. Deals with disputes between individuals.
  • Can private law also apply to companies?
    Yes, they are treated as legal personas in that case
  • What are the two main legal systems in the world?
    1. Common law
    2. Civil law
  • What is the common law systems?
    A case law system, where cases are a source of law. They form precedents that must be followed.
  • What is the civil law system?
    System where law has been compiled in formal written code which provides comprehensive and systematic regulations
  • How is the court system made up in the UK?
    1. Supreme court (binds all lower-level courts)
    2. Court of appeal (binding for all courts except supreme court)
    3. High court (binding for all courts except sc and coa, etc.)
    4. County court and Crown court (county = civil, crown = criminal)
    5. Magistrates court (low-level criminal cases)
  • What are the 2 levels of jurisdiction in the US?
    1. Federal (if case has to do with the constitution or against a company in a different state)
    2. State (own system per state)
  • How is the federal court system in the US made up?
    1. US supreme Court
    2. Court of Appeal
    3. Trial courts 
    - US District Courts 
    - US Bankruptcy Courts 
    - US Tax Courts 
    - US Court of Federal Claims
    - US Court of International Trade
  • What are the 3 types of Alternative Dispute Resolution?
    1. Mediation 
    2. Conciliation
    3. Arbitration
  • What is mediation?
    ADR in which an impartial person helps the parties involved reach an agreement that is satisfactory to all
  • What is conciliation?
    ADR in which an impartial person outlines all possible options to solve a dispute and gives his opinion which is not binding
  • What is arbitration?
    ADR in which an impartial person (specialist) makes a final decision which is binding for both parties
  • What are the advantages of ADR?
    1. Conducted privately
    2. Less expensive
    3. Less time-consuming
    4. Beneficial for the maintenance of long-term relationships in a business environment
  • What are the 2 types of legal professionals in the UK?
    1. Solicitors 
    2. Barristers
  • What are the tasks of a solicitor?
    A solicitor is a general lawyer (in some tasks comparable to a Dutch notary) that deals with:
    1. Conveyance (transferring property)
    2. Early stages of litigation
    3. Probation (accepting a will as last and true)
  • What are the tasks of a barrister?
    Works in court and is comparable to a Dutch advocate
  • What is the role of a judge in the common law system?
    Impartial referee as in an adversarial system, where lawyers gather evidence and examine witnesses
  • What is the role of a judge in the civil law system?
    Inquisitorial role, where the judge has to gather evidence and examine witnesses
  • What is voir dire/ jury vetting?
    Selecting jurors based on who they believe will be favourable for their claims
  • What are the 3 main sources of law in the common law system?
    1. Legislation (valid until overruled)
    2. Equity 
    3. Case law
  • What is the legislative body/legislature of the UK?
    The bicameral parliament consisting of:
    1. The house of Commons
    2. The house of Lords
  • What is are the steps in the legislatory process in the UK?
    1. Parliament (house of Commons and Lords) create a law
    2. It is approved by the Crown
    3. Law passes in form of an act, or if delegated, a statutory instrument
  • What is the doctrine of parliamentary sovereignty?
    In the UK only parliament can revoke or amend a law, the court only interprets
  • What is the legislative body in the US federal law system?
    Congress, which consists of:
    1. House of Representative
    2. The Senate 

    The president has the power to veto legislation
    The Court has the power of judicial review (invalidating legislation they believe inconsistent with the constitution)
  • What is the typical Trust Structure?
    1. Creator specifies terms of trust
    2. A protector may be assigned
    3. Managers, etc. That are responsible for day-to-day operations are appointed
    4. Trustees are appointed that hold the legal tile to trust assets
    5. Beneficiaries that receive the trust assets
  • Can a trust avoid legal entity tax?
    Yes, as it is not a separate legal person
  • What is the doctrine of a binding precedent/ stare decisis?
    A prior decision sets a precedent, but does not have to be followed if the case can be distinguished and one or more material facts are different
  • What is the ratio decidendi/holding?
    The grounds of decision and judgement that are based on the principles of law and the material facts. It is the binding part of the case
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Laatst toegevoegde flashcards

When is corporate criminal prosecution necessary?
In cases where the corporate system itself helps produce criminal behaviour and is deeply woven into the standards of the organisation
Why are punitive civil sanctions better than criminal punishment in punishing companies?
1. Monetary sanctions are appropriate, and can be tailored much better in civil sanctions than criminal punishment
2. Corporate claimants are relatively abundant, while criminal investigations cost a lot of time and resources
3. There are many specialised agencies for public enforcement, with a speciality in a certain area
What are the requirements for fraud by abuse of position?
The defendant:
1. Occupies a position in which he is expected to safeguard/not act against the financial interests of another person
2. Dishonestly abuses that position
3. By means of the abuse of that position to make a gain for himself/another or cause a loss for the other
What are the requirements for fraud by failing to disclose information?
The defendant:
1. Failed to disclose info to another person
2. When he was under legal duty to disclose said information
3. Dishonestly intending by that failure to gain or cause a loss
What are the requirements of fraud by false representation?
The defendant:
1. Made a false representation
2. Dishonestly
3. Knowing that the presentation was/might be untrue/misleading
4. With intent to make a gain for himself or cause a loss to another
What are the 5 non-fraudulent property offences?
1. Theft
2. Burglary
3. Blackmail
4. Criminal damage
5. Handling stolen goods
What are the mens rea and actus reus of criminal damage?
Mens rea: 
Intention or recklessness

Actus reus: 
Destroying/damaging property belonging to another
What are the mens rea and actus reus of blackmail?
Mens rea:
Intent to make the demand with menaces with a view to a financial gain or causing a financial loss

Actus reus:
A demand supported by menaces
What are the mens rea and actus reus of burglary?
Mens rea:
1. Intention/recklessness with respect to entry of premises 
2. Intention to commit the ulterior offence

Actus reus: 
1. Trespass
2. Entry into building or part of a building
What are the mens rea and actus rea of handling stolen goods?
Mens rea:
knowing/believing the goods are stolen and behaving dishonestly

Actus reus:
Receiving stolen goods or arranging to do so