The superseding decision in Kenyon v. Abel was determined through the use of common law. Common law is a body of unwritten laws adopted from England, used in courts to help determine the outcome of a litigation when no statute or precedent has previously been made. The main focus in this case was the law of gifts. “A valid gift consists of three elements: (1) a present intention to make an immediate gift; (2) actual of constructive delivery of the gift that divests the donor of dominion and control; (3) acceptance of the gift by the donee.” (Barnes, 620). According to the first element of gifts, a present intention to give the gift must be made, and it was not.
Commercial Law Coursework ‘If the underlying policy of Section 27 of the Hire Purchase Act 1964 is to extend a strong measure of protection to private purchasers acting in good faith, then the decision in Shogun Finance Ltd v Hudson  UKHL 62 can be seen as an example of this policy being defeated by questionable aspects of the common law.’ Discuss. Transfer of title and property to goods is considered to be in most cases a relatively straightforward commercial transaction between two parties. There are certain situations where a non-owner having bought goods from the seller disposes them to a third party, which acts in goods faith. The question, which emanates from such cases, is whether the bona fide purchaser has received a valid title to the goods. According to the Latin maxim “nemo dat quod non habet” set out in S21(1) of the Sale of goods Act 1979 the seller cannot pass to a buyer a better title to the goods than he himself possesses.
To successfully invoke this defense, the purchaser or occupier had to establish that it had no reason to know that the property was contaminated. Since the problem with brownfields is the existence or suspicion of contamination, the defense was largely unavailable to prospective developers or tenants of brownfield sites. To eliminate this obstacle to redevelopment of brownfields, the Brownfield Amendments created the BFPP defense for landowners or tenants who knowingly acquire or lease contaminated property after January 11, 2002. Only those parties that qualify for the BFPP defense are potentially subject to the windfall lien. To qualify for the BFPP, the owner or tenant must establish by a preponderance of the evidence that it has satisfied the following eight conditions: • All disposal of hazardous substances occurred before the purchaser acquired the facility.
EXCEPTIONS: overcome rule by finding a REAL promise - frame illusory promise as unilateral contract => enforceable ex. Gurfein (99): had window to cancel, but didn’t => enforceable ➢ COULD HAVE bound other party if exercise option - Implied promises ➢ UCC §2-306 (2): a contract to engage in exclusive dealing gives rise to an implied promise to use best efforts Ex. Wood v. Lucy (104): mkt designs for profits ➢ ct implied promise: to make reasonable efforts b/c w/o implied promise, the contract would be meaningless b/c structural agreement = incentive to use best effort is built in Ex. Grouse (110): promised at-will job, not allowed to start work ➢ implied promise in at-will jobs = “good faith opportunity to perform satisfactorily’ - Structural agreements Ex. Lacledes(106): supply propane for long period ➢ although not bound to purchase, practical binding exists ➢ pipes connected to Amoco supply source ➢ hostage theory of contracts: voluntarily
This agreement protects both partners from divulging any information to third parties and is usually set forth within a given time frame and executed as a two way agreement. The sixth and last agreement I used when a company is setting up stock options. This type of agreement is used as incentives especially for new companies in which they offer these options to key top management in order to provide them with ownership and interest in their company. There are two types of options one which is called incentives stock options (ISO) which qualifies for preferential tax provided the owner holds the stock for one year and one day after exercise and two years after it sets to be renewed, whichever is the latest. Under law the employee is not required to pay any taxes and will have to pay capital gains tax.
(a) In jurisdictions following the Ultramares doctrine, under what conditions can auditors be held liable under common law to third parties who are not primary beneficiaries? (b) How do jurisdictions that follow the legal precedent inherent in the Rusch Factors case differ from jurisdictions following Ultramares? (a) Under Ultramares dorctrine, ordinary negligence is insufficient for liability to third parties because the lack of privity of contract between the third party and the auditor unless the third party is a primary beneficiary, However, if the auditor had been grossly negligence and committed constructively fraud or fraud during his or her audit, he or she could be held liable to third parties who are not primary beneficiaries. In Phar-Mor case, Coopers & Lybrand’s Attorneys argued that Coopers & Lybrand’s had only been ordinary negligence and tried to convince the jury that Coopers & Lybrand’s could not discover the fraud because Phar-Mor’s management was involved in that massive fraud and worked together to hide evidence. In addition, the investors and creditors of Phar-Mor did not have a written agreement with the auditor, Coopers & Lybrand’s, defining Coopers & Lybrand’s duty.
An example is when the Miranda Doctrine is not observed upon arresting, the right of self-incrimination may be invoked so as for the evidences against the defense be inadmissible. In order for the Miranda Doctrine to be validly executed, such must be stated in the presence of the counsel for the defense. Such doctrine may be waived, but must be made with utmost knowledge of its consequences (Israel et al, 1993). Although both Fifth and Sixth Amendments embody significant rights for the citizens, it still has differences, one of which is that pertaining to the inquiries pertaining to the case is not allowed in the Fifth Amendment. The Sixth amendment protects the accused upon the case against him.
Wrongful convictions are the result of the court system admitting insufficient evidence into court. The court system has many ways to help reduce or eliminate the causes of wrongful convictions. The court system can help reduce or eliminate these causes of wrongful convictions by first identifying why wrongful convictions occur. Wrongful convictions occur primarily due to eye-witness misidentification, false confessions, improper forensic science, government misconduct, informants, and bad attorneys (University, 2009). Ways to reduce or eliminate the cause of wrongful convictions by eye-witness misidentification by put into operation the following procedures that have been shown to reduce the amount of wrongful convictions through the use of eye-witness identification.
ALL’S FAIR IN LOVE AND LAW: AN ANALYSIS OF THE COMMON INTENTION CONSTRUCTIVE TRUST ANDREW DYSON * The article analyses the application of the common intention constructive trust to disputes involving the family home, as the law stands after Stack v. Dowden and the numerous recent cases interpreting that decision. It is suggested that instances of actual unfairness are rarer than often thought, because of the judiciary’s willingness to manipulate the formal rules of the trust in order to avoid injustice. Criticism should instead be focused on the hidden costs of allowing fairness to trump formality: a hole in the integrity of the law, and the spiralling costs of litigation which flow from the complexity of the doctrine. It is concluded that a statutory scheme is the only way forward for the law of cohabitation. I.
The trial judge looks for evidence that the defendant acted intentionally, outrageously, recklessly or with conscious disregard for the rights of others. Such conduct is generally deemed sufficiently egregious to warrant the imposition of punitive damages. If the facts can support such a finding, the punitive damage issue is allowed to go to the jury.' Once the question has been submitted to the jury, the generally accepted rule is that the jury, in its sole, unfettered discretion, determines whether to award punitive damages and in what amount.' "It is the long settled and uniformly adhered to rule in our jurisprudence that the amount of punitory or exemplary damages is solely within the discretion of the jury, and, no matter what the sum of their * Professor of Law, Marquette University Law School, Milwaukee, WI.