July 19th, 2009 at 11:38am
Under Administrative Law
In Thailand, Bankruptcy Laws form part of the Commercial Law. Thai bankruptcy law is devised in such a way not only to help debtors to distribute their property but also to help them in rehabilitating via several reorganization provisions.
In other words, the Bankruptcy Law includes the Bankruptcy Act for Business Rehabilitation. The Business Rehabilitation Law was introduced in 1999 as Chapter 90 of the Thai Bankruptcy Law BE 2483. The main purpose of the Business Rehabilitation law is to assist a debtor facing liquidity problem by giving him an opportunity for rehabilitation before being insolvent.
The procedures in connection with rehabilitation are usually commenced by an eligible petitioner by filing a petition with a provincial or a civil court as per the domicile of the debtor. However, petition for business rehabilitation could be filed only if the debtor’s overall debt comes to an amount that exceed Baht ten million. Likewise, In order to file a petition for business rehabilitation, certain legal and perquisites must be complied with such as:
- The names and addresses of creditors must be specified to whom the debtor owes in total at least an amount of Baht ten million
- Specify reasonable methods in order to rehabilitate business functions
- Proposed planner’s name as well as qualification
- Planner’s consent
- In case the petitioner is debtor, then details regarding assets and liabilities must be given
- Consent of authorities which is applicable as mentioned below :
1.In case the debtor is commercial bank or finance company, then the consent of the Bank of Thailand
2.In case the debtor is a securities company, then the consent of the Office of the Securities and Exchange Commission
3.In case the debtor is a file insurance company or a casualty insurance company, then the consent must be of the Insurance Department
On filing the petition as per the above grounds, the liquidator will start the case once when he confirms and proves that the debtor’s assets could not pay off liabilities. The court’s concern with regard to the business rehabilitation is mostly on the basis of debtor’s balance sheet as well as accounting documents and liquidator’s power of arguments. Discussed further in detail in this article are procedures with regard to business rehabilitation.
According to the Article 90 of the Bankruptcy Act, once the petition for business rehabilitation is accepted, a planner is appointed, who in turn possesses duties and powers to manage the debtor’s business as well as assets. In case, a planner is appointed, then the debtor executive’s power in administering the business and assets would cease. In such a situation, until the appointment of a planner, the court will employ one or more persons or sometimes the debtor’s executive for a temporary period to deal with the debtor’s business and assets under the administration of the receiver.
During this interim period, the receiver has complete right to administer interim executives and to order them to prepare explanation regarding the account details as well as anything pertaining to the management of business and assets. The interim executives would be relieved from the powers of receiver by the court when the receiver makes a motion.
In such situations, the court would employ new provisional executive to presume the office. In case the court does not appoint interim executive, then according to the Section 90/20 of the Bankruptcy Act, the receiver would be given power for a temporary period to manage debtor’s business and assets. Likewise, according to the Section 90/21 of the Bankruptcy Act, until a planner is appointed, all of the rights of the debtor’s shareholders would be suspended except for in the case of right to obtain dividends.
Once the acknowledgement order for business rehabilitation has been received, the debtor’s executive should handover everything from assets and seals to book keeping ledgers and documents pertaining to business, assets, and liabilities of the debtor to the provisional executive or the receiver.
Nowadays, a number of leading law firms is in the scenario to provide excellent services in connection with business rehabilitation and bankruptcy. Many of them undertake a plethora of such services in connection with business reorganization as analysis as well as consultation with creditor or debtor, filing petition for business rehabilitation, plan administration, and planner representation.
By Law Article
July 19th, 2009 at 07:06am
Under Labor Law
The Labor Protection Act of 1998 (LPA) and the Civil Commercial Code (CCC) are primarily responsible for administering labor protection laws in Thailand. In other words, the rights and duties pertaining to the employer and employee are governed by series of a laws and procedures.
Apart from Labor Protection Act BE 2541 (1998) and Thai Civil and Commercial Code, the laws in connection with Thai labor issues cover Labor Relations Act BE 2518 (AD 1975), Provident Fund Act BE 2530 (AD 1987), Social Security Act BE (AD 1900), and Workmen’s Compensation Act BE 2537 (AD 1994.)
The Ministry of Labor and Social Welfare, via the Department of Labor Protection and Welfare, administers the laws as well as rights with regard to labor issues. Further, the Minister of Labor and Social Welfare also possess right to appoint labor inspectors as well as to issue regulations and notifications.
The Labor Protection Act and other related laws have set up employees’ minimum rights working in the country. This in turn includes rights covering almost every aspect of an employment such as working hours, remuneration, child and female labor, employee welfare fund, overtime wages, sick leave and maternity leave, holidays, employee dismissal and termination, provident fund issues, workers’ compensation, employee social security, and severance. Discussed further in this article are rights pertaining to certain aspects of employment in Thailand.
Working Hours
An employee is mostly entailed to work eight hours a day or 48 hours a week. However, it is reduced to seven hours a day or 42 hours a week, in case, the work is hazardous and affects employee’s health. In addition, an employee working continuously for five hours a day should be given a resting time of at least one hour. Likewise, an employee must also be given at least one day holiday in a week.
Remuneration
A remuneration committee has been set up, containing chairman who is the permanent secretary of the Ministry of Labor and Social Welfare, government representatives, and representatives of both employers and employees, in order to fix the wages and to determine basic pay.
Place of Payment of Remuneration
As per the Labor Protection Act, an employer is required to make payment of remuneration at the working place itself. However, it can be changed provided if employee is ready to accept payment at some other place or via some other payment modes.
Female Employees
According to the labor acts, both male and female employees must be treated equally in a working environment. However, there are certain exceptions in this case. For instance, an employer is restricted to employ female employee in such organizations engaged in mining as well as construction projects, underwater and tunnel works, and production and transportation of inflammable materials and explosives. Similarly, pregnant female employee is prohibited from working in plant or equipment that vibrates and lifting or carrying on her head more than 15 kilograms of weight. Additionally, an employer cannot terminate a female employee when she is pregnant.
Child Labor
According to the labor law, a child labor could be employed only if he has completed 15 years of age. But, in order to child labor below 18 years of age, the employer is required to notify it to the labor inspector regarding the employment of a child labor within 15 days from the date of his joining the job. Likewise, the law restricts an employer to make a child labor below 18 years to work on public holidays and to do overtime. Further, child labor below 18 are not allowed work in certain working environments such as metal stamping, working with hazardous chemicals, and working with poisonous microorganisms.
Sick Leave and Maternity Leave
As per the law, an employer must grant employees at least 30 days paid sick leave. However, an employee must furnish a doctor’s certificate in case, he takes sick leave continuously for three days. In the case of maternity leave, a female pregnant employee should be granted at least 90 days maternity leave, of which the employer should pay for 45 days of the maternity leave.
Termination
A notice in writing must be given to an employee prior to his termination. However, according to the Labour Protection Act BE 2541 (1998), an employer can dismiss or terminate an employee without any notice or severance payment in any of these following circumstances such as
- Performing his or her duties and responsibilities dishonestly
- Committing any kind of criminal offense
- Negligence from the part of employee that leading to serious damage or loss to the employer
- Disobeying working rules and regulations devised by the employer
- On imprisonment as per the final judgment of imprisonment
A plethora of law firms are now in scenario in order to help you dealing with the Thai labor law. Usually, these law firms provide a range of services in connection with labor issues such as labor disputes, labor court representation, payroll issues, social security, and labor law compliance issues.
By Law Article
July 19th, 2009 at 01:59am
Under Worker Compensation Law
Most people do not feel the need to understand workers compensation laws until they have suffered a serious injury at work. These laws can be quite complex and they vary from state to state. It is important for every worker to be aware of what workers compensation entails so they will be prepared in the event of a serious accident.
Worker’s Compensation, also known as ‘Workman’s Compensation” or ‘Worker’s Comp’, is a set of laws designed to protect injured workers. The purpose is to ensure that if a worker is injured at work, they will receive medical care, lost wages associated with the injury, rehabilitation, and retraining so they can return to work once they have recovered. If a worker is killed while at work, their families will usually receive death benefits. This systems permits injured employees to receive benefits without having to prove that the employer was negligent
While most injured workers usually qualify for benefits, there are situations where an employee may be denied benefits. This type of situation can become very complicated. Workers who are denied benefits usually consult with an attorney. An attorney who specializes in worker’s comp claims are Worker’s Compensation Attorneys. An attorney can advise a worker on how to protect their benefits and will defend them if they are denied benefits, denied extended or permanent disability, or had their benefits terminated early.
Employers tend to know more about worker’s comp law than the workers. Sometimes an employer may attempt to deny benefits. They may also send an injured employee to a doctor who may not have much experience in the area of the injury, or is working more for the employer than the patient. . An attorney will help protect a worker’s rights if an employer attempts an underhanded method of denying benefits or forces an employee back to work too soon after an accident. An attorney will also help a worker who returns to work for a period of time following an injury and suddenly finds himself laid off and no longer eligible to collect benefits.
Using the services of a worker’s compensation attorney will increases the chances of a worker receiving benefits. An attorney understands all aspects of the worker compensation laws and is familiar with the process, the officers and judges who preside over the process, and how the process works. Worker’s compensation proceedings are much different than other law proceedings. The setting and rules are more relaxed. Most personal injury lawyers will work on a contingency fee basis. This means that the attorney does not receive compensation unless the case is successful. Most states limit the amount an attorney can receive in fees for worker compensation claims so it can be difficult securing a personal injury lawyer. You should try to hire a personal injury lawyer that has experience with worker’s compensation claims
A worker who receives worker’s comp benefits usually cannot file a personal injury claim against an employer. A worker can file lawsuit if an employer intentionally causes an injury. The employer must have committed a precise act that intended to cause injury to the employee. For instance, if an employer pushes an employee down a flight of stairs, you can sue. A worker may also sue if an employer is required to provide compensation coverage and fails to do so.
If you find yourself facing obstacles to securing worker compensation benefits, you should consult with an attorney. The laws can be very complex for someone who does not have a legal background. A personal injury lawyer will have the expertise in handling a worker’s compensation claim.
By Law Article
July 19th, 2009 at 01:07am
Under Personal Injury Law
Anyone who suffers a personal injury caused by another individual or a company, government agency or any other entity should realize the importance of securing the services of a personal injury attorney. Attorney representation provides you with the professional assistance that is so necessary when dealing with the intricacies of civil law, and also sends a signal to whoever caused your injury that you are serious about being compensated.
Clearly, auto accidents are of primary importance when discussing the role of personal injury attorneys. Minnesota has its per capita share of auto accidents caused by many factors, which include the scenic nature of some of our highways distracting drivers. If you are in an accident and have reason to believe the other driver is at fault, there are standards for bringing suit in Minnesota.
Of course, if you believe you may be at fault for the accident, you will need quality legal help to assist you in arranging for a settlement.
Bicycle accidents are an increasing phenomenon, as Minnesotans and people across the country have increased bicycle usage for both exercise and transportation purposes. Many accidents are car-on-bike and most of these involve failure of the motor vehicle operator to recognize the presence and rights of the bicycle rider. Again, if you are injured while riding, you need professional assistance,as most such accidents are the motor vehicle operator’s fault.
Similarly, both pedestrians and motorcyclists are familiar with the tendency of so many car and truck drivers to fail to acknowledge their presence on roads. With the advent of wide-spread cell phone usage this phenomenon has become even more prevalent. If you are struck while running or just crossing the street, you must seek a personal injury attorney that know the ins and out of Minnesota law.
Despite increased crack-downs and more harsh punishment for drunk driving, there are still many accidents involving drunk drivers striking other vehicles, bicycles, and pedestrians. Select a Minnesota personal injury firm to get the specialist of choice.
One area of increasing activity in legal processes is product liability cases. With so many foods and various other products being imported from China and other underdeveloped countries that have substandard manufacturing and food handling procedures, it is important to have an attorney who knows how to trace the responsibility back to the people or corporate representatives who should compensate the victims of faulty products.
Among the many other areas of personal injury law is medical malpractice. Medical malpractice is a very complicated situation and needs thorough investigation by a personal injury attorney. Often, medical malpractice results from the simple shortage of doctors, nursing care and other ancillary professional and even custodial personnel in a hospital environment. In an era with so many antibiotics available, some facilities have become lax in their handing of intrusive medical devices, and in simple cleanliness of both the environment and the patients wounds.
For medical malpractice cases, auto injuries, workplace injuries, or any type of wrongful injury or death case, go with the best Minnesota professionals you can find.
The information you obtain from this article is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
By Law Article
July 18th, 2009 at 07:08pm
Under Probate Law
Estate Planning Basics And The Law
Having a plan that determines how your assets are used during your life and after your death is a critical process that requires expert legal advice. Estate planning can help you decide how your assets are distributed. You may need to set aside resources for your long-term care. Plus, you might need to appoint someone to manage your estate in the event that you lose your own ability to do so. You may decide that a portion of your estate should be given to certain charitable organizations. Each of these circumstances can be included in an estate plan with the help of a lawyer.
Benefits Of Planning Your Estate
Without an estate plan, your assets can be distributed in a way that’s contrary to your wishes. When you die, a number of important legal issues regarding your assets emerge. The manner in which your estate is divided amongst your heirs, how taxes are handled, donations to charities and transfers of property are only a few of the many concerns an estate plan can address.
With the help of an experienced estate planning lawyer, you can ensure that your assets will be used according to your wishes. Your plan can distribute assets from your estate to your beneficiaries quickly and seamlessly. Your lawyer can help you determine an executor of your estate in the event of your death. An estate plan can minimize the taxes owed by your estate by giving the allowable maximum to various beneficiaries. If you’re a business owner, you can make sure your business operates uninterrupted by detailing plans of succession and distribution of income.
Potential Pitfalls Of Poor Planning
Millions of people fail to plan how their assets are divided when they die. As a result, their estate often ends up in probate. This is a process that’s best avoided whenever possible. In probate, a court examines a will (if one exists) and divides a person’s assets accordingly. When a will doesn’t exist, the court decides how best to allocate the assets from an estate. The entire process is time-intensive and expensive. You can avoid having your assets end up in probate by hiring an estate planning lawyer to set up trusts and other arrangements.
Using The Law To Protect Your Assets
The law stipulates how your assets can be divided after you die. With the help of an experienced attorney, you can leverage the law to protect your assets. A lawyer can help you ensure your estate isn’t vulnerable to a long and costly probate process. He can help you minimize the tax liability your estate will suffer upon your death. The sale and distribution of tangible assets can be detailed according to your preferences. By planning your estate with the advice of a qualified attorney, you can be confident that your affairs will be in order when you die. Not planning your estate well in advance can lead to an excessive and time costing adventure for your loved ones.
By Law Article
July 18th, 2009 at 02:52am
Under Banking Law
The banking industry in Thailand forms an essential segment of the nation’s financial services industry. In other words, banking sector in Thailand is well-established. The history of Thai banking dates back to 1865, when the Hong Kong and Shanghai Bank appointed its agents in Bangkok. Accordingly, the HSBC established a branch in Bangkok, thereby becoming the first bank to open a branch in the country.
Following the establishment of HSBC branch, many European as well as business banks opened their branches. As a result, foreign banks became the dominant players in the nation’s banking industry. In order to counter the supremacy of foreign banks, Siam Commercial Bank – the first Thai bank – was established in 1906. Later, more Thai banks were opened to trade with Asian countries, as a result of the Second World War, when majority of the foreign banks were forced closed.
After the world war, the Thai government introduced a protective policy in order to promote the growth of Thai banks in the country, which included limiting the operation of foreign banks to one branch office. As a result, foreign banks became less dominant players in the banking sector of Thailand. Since 1960, many innovative economic as well as social development plans have been introduced in the country, which in turn has led to rapid expansion of banking sector in Thailand’s provinces, resulting in banks numbering more than 3000 throughout the country.
Thailand’s modern banking system is made up of a variety of financial institutions including commercial banks, special purposes bank, and Government Savings Bank. Commercial banks are perhaps the most popular among the banks in Thailand. Commercial banks include both local and foreign banking institutions.
Being the biggest financial institutions in the country, Thai commercial banks render an array of services including acceptance of time savings as well as demand deposits, lending money via overdrafts, discounting of bills, and leasing. Their activities also cover fee-based services like custodian services, syndication of loans, feasibility studies, and consultations for mergers as well as acquisitions. Apart from these, in some instances, these banks issue negotiable instruments of deposit, apart from underwriting and issuing of debt instruments.
Commercial banks in Thailand, consisting of branches as well as representative offices of foreign banks, are functioned in accordance with the Thai laws and regulations formulated by the Ministry of Finance (MOF) and the Bank of Thailand (BOI.) Formed in 1875 by the Ministry of Thailand, the Ministry of Finance initially acted as an agency of the government to administer national finance, collect revenues, and disburse royal funds.
In 1933, it got its present name and status as a result of the passing of the Civil Service Reform Act. With eight departments and 16 state enterprises under its control, MOF’s major duties include supervision of matters in connection with operations of Government monopolies, property, and treasury. Additionally, it has power to provide loan guarantees for financial institutions, government agencies, and state enterprises.
Bank of Thailand started its operation in accordance with the formulation of the Bank of Thailand Act, on April 28, 1942. Among its duties are devising of monetary policy and supervision of financial institutions.
Now we will discuss banking regulation with regard to bank licensing. As per the Commercial Bank Act, first of all an application, containing particulars as entailed by the Ministry, must be filed with the Ministry of Finance in order to set up a commercial bank in Thailand. On the approval as well as the obtaining of a license from the Ministry, a commercial bank is opened as a limited public company.
However, a foreign bank has to comply with regulations formulated by the Thai government in order to open a branch in the country, such as the money should be brought from its head office. When comes to investment, Thai government permits foreign banks to hold 100% shareholding for up to a period of 10 years. After a period of 10 years, they are not required to divest their shares. But, in case, if they hold more than 49 percent of shares sold, they are not allowed to acquire additional shares.
In addition, the Commercial Banking Act has put forward certain laws and regulations for the maintenance of capital funds and reserves. As such, the commercial banks are required to maintain certain amount and types of the assets in the country.
Special purposes banks are state-owned financial institution whose activities are administered by the Thai government. However, they deal with only specific clients or projects. Included in the special purpose banks are the Bank for Agriculture and Agricultural Cooperatives, the Government Housing Bank, and the Government Savings Bank. When comes to the Government Savings Bank, it consists of an extensive network of branches throughout the nations.
Banking and financial sectors in Thailand are further categorized into: Asset Management Companies, Credit Froncier Companies, Finance and Securities Companies, and International Banking Facilities (IBF.)
By Law Article
July 18th, 2009 at 01:25am
Under Tax and Taxation Law
Taxation Law in Michigan
There are more than 52 taxes from both the state and local entities in Michigan, but they all fall into one of the five main types of taxes levied against individuals or businesses. These are
Through these, the state of Michigan and the local governments earn enough money to support the public programs and services offered.
The most well known tax is the state and local sales tax. Since every individual and business makes purchases, all residents and nonresidents of Michigan pay this tax. The income taxes are those placed upon earnings. Closely resembling the federal income tax, these are the most well known next to the sales tax.
The business and privilege taxes are those paid by businesses and for gambling. These also include various service taxes for statewide services. Since business taxes can be very complicated, many businesses have in house accountants or they seek outside assistance in the filing.
Transportation taxes are included in the price of gasoline, vehicle registration, other types of transportation, and fuel. Income from these is used in the building and maintenance of roadways.
The last category of Michigan taxes includes some of the most hotly contested taxes. Property taxes include those levied on property for the state and local education funds, utilities, real estate transfers, and estate taxes. Many also call estate taxes death taxes as they are levied on an estate after a death.
To learn more about Michigan Taxation Law please contact Demorest Law Firm.
By Law Article
July 17th, 2009 at 08:56pm
Under Constitutional Law
LAW OF CONTRACT SUMMARY, WITH EXPLAINATIONS OF LAW OF CONTRACT DEFINITIONS, AND CASES(Based on author’s site www.geocities.com/cntrct)
Of the various agreements made some are social or domestic; some others are contracts – legally enforceable.
Jones -v- Padavattan 1969 was about an agreement between a mother and daughter ~the mother had promised to support her daughter during her studies the daughter argued -the judge decided that it had not been intended to be legally binding, so it was a domestic agreement.
But in Simkins -v- Pays 1995, the mother and daughter had intended to be legally bound by jointly entering a competition to share the prize won, it was a contract.
In Jones -v- Vernon Pools Ltd. 1938, and also in Appleson -v- Littlewoods Pools 1939, there was an intention to be bound legally, but it was one-sided; the other had not so intended it to be, for the football pool company showed that the coupon contained the words ‘binding in honour only’, and it was not enforceable.
A Local Authority did not have to sell a house at the price applicable at time of application -which it was to consider; no offer existed to accept but an invitation to treat: Gibson -v- Manchester C. C. 1997.
A reward-poster (if a product did not protect against influenza) was Intention to be legally bound, as Offer, and Acceptance too had Consideration -the essentials of a contract: Carlill -v- Carbolic Smoke Ball Co. 1893.
A Contract is distinguished from other forms of agreement by determining whether it contains those three basic essentials -as matters of fact, oftener of law.An agreement is a Contract if it contains the three basic elements of Intention to create Legal Relations, Offer & Acceptance, and Consideration; but what constitute these, how, and why, or not, are matters, mostly, of precedent; therefore, it is useful, on each of these, to look at some more of such precedent…Intention to Create Legal Relations: It is, of course, most unusual when commercial agreements between businesses are made that a legal relationship was not by both parties intended to be created; it is, essentially, more so a different situation than an exclusion clause making it binding in honour only, when, while may have been intended as a matter of fact, that an agreement may not be made the subject of the jurisdiction of the courts -in terms at least of whether it is legally binding, is not capable in law of having been intended; yet a contract in Rose & Frank Co.-v- J P Crompton 1925 was not the agreement -it showed that a legal relationship was not intended to be created.
That the husband would pay his wife £30pm was not intended in Balfour -v – Balfour 1919 to be binding; that he was to repay the mortgage and transfer ownership of the property to her in Merritt -v- Merritt 1970, as she had asked him to be put in writing and he had, was intended as binding ~as meant a travel firm’s sign that failed holidays would be reimbursed for in Bowerman -v-ABTA Ltd. 1995Offer and Acceptance: An ‘offer’ is not an ‘invitation to treat’ ~an advert. in Partridge -v- Crittenden 1968 was an invitation to treat as the numbers of birds could not be infinite to make it capable of being ad-infinitum accepted -in Pharmaceutical Soc. -v- Boots 1953 drugs in self-service store could not be an offer to sell as a chemist at pay-point could refuse to. Nor is it ‘information’ ~’Will sell? State lowest price’ replied to stating it was information in Harvey -v- Facey 1893; the announcement of the auction cancelled did not in Harris -v- Nickerson 1783 entitle to travel expenses, as in Pane -v- Cane 1789, a bid constituted the offer.
Nor is an offer unwithdrawable if the offeree is informed -by anyone Dickinson -v- Dodds 1876, before acceptance Byrne -v- vanTienhoven 1880 ~and it can lapse eg shares Ramsgate Victoria Hotel -v- Montefoire 1866, or if goods become damaged or destroyed, or by a counter-offer (£950 ok?) Hyde -v- Wrench 1940, or if the offeror rejects it or dies.
A valid offer, therefore, as an expression of a proposition willingly to contract, can be, as by a reward poster in Carlill to any or many persons, if communicated -e.g. by biding by raise of hands, with clear terms, while it exits capably of being accepted.
Acceptance of such a valid offer constitutes contract.
Agreement to the offer is ‘acceptance’ -if communicated.
Generally, the offeree’s silence is not tantamount to acceptance and ‘if I don’t hear from you I’ll deem it so’ in Felthouse -v- Bindley 1862 did not constitute it.
Any effective way will do, Entores -v- Miles Far East 1955, if fax or e-mail, during working hours or the following work day: Brinkbon -v- Stahag Stahi 1982. If acceptance is posted or telegraphed, it is effectively made, even if it is incorrectly addressed and delayed Adams -v- Lindsell 1818, or lost in the post Household Fire -v- Grant 1879 -unless handed to a postal staff not authorised to receive mail; such acceptance is, and the contract is made, at that time -even if before its receipt the offer is withdrawn Byrne -v- vonTienhoven 1876 ~and, Blackpool Aero Club -v- Blackpool C.C. 1990, the offeror must check his mail before closing the offer.
The offeror may prescribe a way of acceptance -then only that, or possibly one more advantageous to the offeror, will do; in Ediason -v- Henshaw 1819 postal acceptance was not as specified -giving it to the driver; if unspecified conduct may imply it -e.g. purchasing aware of the offer, Carlill.-v- Carbolic Smokeball Co. 1893.
Acceptance must be unqualified, ’subject to contract’, or Neale -v- Merrett 1930 ‘the rest later’, is not so; unless it is capable itself of acceptance, Hyde -v- Wench 1840, requesting information is not a counter offer barring later acceptance, Stevenson -v- McLean 1880.Consideration: A contract’s point is consideration: ‘executed’ -something done because of which another has to also; or ‘executors’-to be done because of which a contract will exist that another will have too ~it is the benefit or the detriment involved: Currie -v- Misa 1875.
What is contributed to the bargain must be of some value – not necessarily adequately matching the other’s: in Thomas -v- Thomas 1842 £1pa rent was so; and in Chappel & Co.-v- Nestle Ltd. 1960 chocolate wrappers were the stipulated consideration for a music record.
Consideration is owed in return for pre-agreement considerations: the King’s favour was got upon the other’s request, not for £100 overjoyed promised later in Lampleigh -v- Braithwaite 1615; the children’s promise to pay was after repairs were begun in Re. McArdle 1951; also not for a duty: in Glassbrook Bros. -v- Glamorgan C.C. 1925 it was more than the job of the police, in Hartley -v- Ponsonby 1857 more than the sailor’s, but in Stilk -v- Myrick 1809 it was the sailor’s job -his duty. Nor, in is it owed to thirds parties -in Tweedle -v- Akinson 1861 the bridegroom was not a party to the parents’ agreement to give the couple £500 ~unless since Contracts (Rights of Third Parties) Act 1999 named in or identifiable from a contract as beneficiary.
Consideration less than agreed is not good -Pinnel 1602 -except in settling debts, but is if fair commercially -more funds to complete job: William -v- Roffley 1990.Terms: Those conditions which, if breached, entitle to remedies (depending on their status and the type) are ‘terms’.Express Terms, subject only to judicial interpretation, as a rule, cannot be argued, if in writing, to have misstated intentions: Jacobs -v- Batavia etc. Trust 1924 -unless unreasonably creating an inequity ~where oral, parole evidence is allowed: Hanish -v- Bank of Montreal 1969.Implied Terms, unless by statute so, if customary or not occurring to the parties (’the bystander test’) disregards business efficacy, are deemed so: In The Moorcock 1889 safety of the anchorage did not have to be express, nor in Liverpool CC -v- Irwin 1977 that dwellings must habitable. In Rowland -v- Divall 1923 that seller transfers ownership, Microbeads -v- Vinehurst Road Markings 1975 buyer’s right to quiet possession, Priest -v- Last 1903 (scalding hot water bottle) merchantable quality and Grant -v- Australian Knitting Mills 1936 (underpants -dermatitis) fitness for the purpose, Beale -v- Taylor 1967 that sale is by description also when upon inspection, are, respectively, ss. 12 & 12(1), 12(2), 15, Sale of Goods Act 1979 ~in s. 15 the bulk must be as the sample in quality, ss. 1(2) & 1(2B) Sale & Supply of Goods Act 1994 limited fitness to ’satisfactory’, s. 1(2C) quality if defect not told of or where examined could not have been reasonably noticed ~they must not be serious: Frost -v- Aylsbury Diaries 1905 (contaminated milk -death), ss. 13, 14 Supply of Goods & Services Act 1982 imply reasonable care-skill-time; interpretation is strict: Re. Moore & Landau 1921.Conditions are terms entitling to withdraw from the contract and sue if breached. A singer’s partly not turning up to perform breached a condition: Poussard -v- Spiers & Pond 1976. In e.g. the Sale of Goods Act 1979 s. 12(1), seller transfers ownership, s. 15, bulk must correspond to sample, are implied conditions.Warranties if breached are of trivial consequence, not entitling to withdraw from the contract: 19 out of 24 months could still be worked a ship in Hong Kong Fir Shipping -v- Kawasaki Ltd. 1962; a singer only from rehearsal had been partly absent: Bettini -v- Gye 1876. In s. 12(2) SGA a buyer’s quiet possession is an implied warranty.Exclusion Clauses limit or disclaim liability, if not inequitably in bargaining power, as in Photo Productions -v- Securicor Transport 1980 for failures of employees -both equal in power and legal advice. In standard contracts, they are binding on who sign them: L’estrange -v- Graucob 1934; but how & when incorporated matter; on a receipt it would not do: Chapelton -v- Barry UDC 1940, it had to be pointed out: Spurling -v- Bradshaw 1956 -’red hand rule’, it could not be relied on contained in the delivery: Interphoto Picture Library -v- Stiletto Visual Programmes 1988, nor on a sign in a room (theft) -contracted at the reception: Olley -v- Marlborough Court 1949.
They are confined to the matters excluded, strictly interpreted -ambiguity unfavourably to a party seeking enforcement -’contra-preferentum rule’: Pollock -v- Macrae 1922.
The Unfair Contract Terms Act 1977 makes them void for death, personal injury, loss, damage, negligently caused -reasonableness in circumstances as proof of one relying on it. Supply of Goods & Services Act 1982 & 1984 invalidate suppliers’ exclusion of statutory implied terms; so the Unfair Terms in Consumer Contracts Regulations 1994 any unfair individually unnegotiated -it requires plainness in written consumer contracts, allows consumer organisations to challenge terms.Discharge of Contracts: Fulfilled or comes to an end.Performance is when the parties have fulfilled their obligations -not necessarily fully nor all at once. Part performance, if substantial, does not entitle to withdraw: Hoenig -v- Isaacs 1952 (£55 of £750) ~in severable contracts if performance in stages ceases, part performed must be paid -so also if prevented performance: Planche -v- Colburn 1831 (cancelled £100 job done £50 payable on a quantum meriut basis); to accepted part performance ends the contract and any remainders may be contracted for anew.
Agreement to other considerations is new contract: Pinnel 1902.Breach of a condition frees the other party of obligations; of a warranty, only entitles to sue for damages.Frustration is when it is, or becomes, due to no fault of either party, not possible to carry out the contract; if so when made, it does not exist: Paradine -v- Jane 1647; else, it is a breach which makes it void: Taylor -v- Caldwell 1863 (destruction of the subject -hall burnt down) and Condor -v- Boron Knights 1966 (incapacity re. personal service -ill) and Re. Shipton, Anderson & Co. 1915 (government intervention or supervening illegality -state requisitioned it) and Krell -v- Henry 1903 (non-occurrence of sole purpose -event cancelled). Under The Law Reform (Frustrated Contracts) Act 1943 money paid before the frustration is irrecoverable, if due is not payable; a party is entitled to expenses, and a valuable benefit has to be paid for: Gamerco -v- ICM Fair Warning Agy. 1995.Remedies: Breach of one’s contract entitles remedies.Damages are the actual financial loss of the wronged party that were in the reasonable contemplation of both of the parties, at the time they contracted, as would naturally arise from the wronged party’s normal activity: Hadley -v- Bexendale 1845, and any not so but of which the parties were expressly informed: Victoria Laundry -v- Newman 1945, in loss aiming to put the wronged party in the position that he would have been if the contract had been completed: Jarvis -v- Swan Tours 1973 ~general damages for distress or annoyance being recoverable where comfort or freedom from discomfort (e.g. holiday contracts) is the basis of a normal commercial contract: Alexander -v- Rolls Royce Motor Cars 1995 -but Forthsyth -v- Ruxley Electronics & Construction 1995 did awarded for amenity and disappointment (less deep pool than ordered); but one’s must have taken steps to mitigate his loss: Brace -v- Calder 1895.Quantum Meruit is piecemeal as an implied term, unless conditional to completion: Sumpter -v- Hedges 1898.Equitable Remedies may be specific performance if only that would do (e.g. land sale), except for personal services: Lumley -v- Wagner 1852; or injunction if must prevent, also in personal services: Warner Bros. -v- Nelson 1937.Liquidated Damages as terms in advance agreed which are fair Dunlop Tyre Co. -v- Garage Motors 1915, not tantamount to a penalty: Ford Motor Co. -v- Armstrong 1915 (above list-price). This is an outline of the English Law of Contract ~laws change, always ascertain current law.The author has a website at: http://www.geocities.com/eoa_uk
By Law Article
July 17th, 2009 at 02:58pm
Under Criminal Law
Whether you want to prosecute or defend yourself, finding a criminal attorney in LA can be a daunting task especially if you don’t have or know someone having, links with an attorney. Most people find attorneys with references or suggestions from others. An attorney that clicked for others might or might not be the one to defend or prosecute on your behalf.
In any case you can be your own best judge when it comes to finding a criminal attorney in L.A. A few simple points can help you decide whether the attorney you want to hire is the right one.
An attorney could be a part of a criminal law firm or have his or her own solo practice. This has its own pros and cons. A law firm can give you a choice of attorneys to handle your case that can make finding a criminal attorney in LA easier. On the other hand an attorney having his own practice could strike the right chord with you from the very beginning.
Irrespective of whether you find a criminal attorney in a firm or working as an individual, you should be at ease and feel at home when discussing the case with him or her. Your attorney should inspire and lift your spirit whether you are defending yourself or prosecuting.
What does it take to find a good criminal attorney?
For finding a criminal attorney in L.A., make sure that you don’t go just by the cost of hiring an attorney but also consider his or her reputation. Give equal importance to good experience and cost before hiring an attorney. An attorney with less experience and high fees could be as bad as the one charging very low fees and paying less attention to your case.
An attorney who has experience, listens to your case, gives you ample time, has adequate staff to cover your needs regarding the case and more importantly discusses his own business as a criminal attorney instead of trying to demean a competitor, can be the right choice.
Some of the areas covered by criminal attorneys include Domestic Violence, Drunk Driving, Juvenile Crimes, Possession of Drugs, Assault and Battery, Burglary, Robbery, Fraud, Sex Crimes, Grand Theft, Terrorist Threats, Illegal Firearm Possession, Capital Offenses and White Collar Crimes.
Make sure that your attorney has a good investigative team to cover and analyze every aspect of your case. Finding a good criminal attorney in L.A. can make the difference between getting charges framed and proved, for or against you. Take your time discussing your case with an attorney till you reach your comfort level and feel confident, before hiring one.
By Law Article
July 17th, 2009 at 02:53pm
Under Banking Law
The answer is simple. All your transactions with a Panama Law Firm are covered by tight Attorney Client Privileged Communication. The lawyer/law firm can not reveal anything about the client or their transactions, business dealings, etc. unless specifically authorized by the client. The exception to this would be if ordered by a Panama Court which is a possibility but something very rarely seen.
Lawyers have to pass background checks from their government in addition to attending law school. The government knows who their lawyers are and regulates them. Lawyers have obligations and fiduciary responsibilities to their clients.
We see many people buying corporations, trusts, etc. from non-lawyer web based businesses and also for bank accounts. It for some reason never occurs to the client that the entity they are doing business with has all their private financial information such as name of their company, ownership of the company, passports, bank and business reference letters, addresses, phones, email, business information, where their bank account is, etc. These entities they are doing business with have no binding legislation or regulations on them preventing them from revealing any of this information to whoever they wish to reveal it to. In most cases they could not protect the client if they wanted to since they have no privileged communication. If they got a phone call from a governmental agency from 6,000 miles away the chances are they would cave in and provide the requested information. These phone calls usually go like this: I am so and so Inspector with the Tax Police of ABC country. Your country already knows that I am investigating this case. This means he sent an email to the government. I have a court order signed by a Judge would you like me to fax it over to you? This means the court order is as a rule almost never valid in the jurisdiction he is calling. Now when your friendly corporation registered agent says something cute like the court order is not from here and you have no authority here what he gets back sounds like this. If you fail to cooperate I will file a suspicious criminal actions report with your police since for all we know you are the owners of the corporation in question and are the guilty parties and we will ask that you be investigated by your police. This is usually done in a threatening way since it is a bluff. Now the corporate agent thinking the last thing he needs is to be the subject of an investigation by his own police and has to hire a lawyer, etc. says, wait a minute what is it you want? Okay wait while I pull it up for you. This probably took 3-5 minutes and your privacy is violated. No attorney client privilege means no downside for the corporate agent to cooperate. What would we say? We’d say there is attorney client privilege in Panama and you must get a court order from a Panama Judge ordering us to release any information about any client and then we’d hang up without providing any information.
Corporate Agents Offering corporations in Many Jurisdictions – Do not be deceived by firms that offer bank accounts and corporations from numerous countries. They are merely corporate agents or resellers of corporations from these countries. It is not very hard to become a reseller in many of these countries. Their ploy for credibility is selling from many different countries so you see a big shopping list of jurisdictions and think they are a real credible operation when they are really nothing more than a relatively unregulated offshore corporation based in some tax haven selling you formations in different jurisdictions most of which are not any good for asset protection, corporate privacy, or even bank secrecy. If you read through our web site you will soon realize that most if not all of these jurisdictions are “has been” privacy jurisdictions that are no longer private. They sell these products to people who are familiar with the jurisdiction from the past reputation but have not followed the recent changes in the laws relating to these jurisdictions in the post 9-11 world. If we knew of a better jurisdiction than Panama we would offer it!
Law Firms in Your Own Country – Be careful about using a law firm in your own country even if they offer to set up an offshore structure for you. The weak link in the chain is the attorney is located in the country where you are. If you felt your country respected the individual’s right to privacy and operated a fair and equitable court system you would probably not be reading this.
Attacking Attorney Client Privilege – An adversary can attack the attorney client privilege claiming your attorney conspired with you or was complicit in some way in something you allegedly did like the fraudulent conveyance of assets to avoid creditors, fraud, misrepresentation, tax violations pertaining to income tax, sales tax, property tax, gift tax, inheritance tax, probate tax, corporate tax, capital gains tax and other assorted and sundry taxes, creation of straw man trusts and other asset protection shams, money laundering, and the list can go on and on. We are not saying you did or should do such things, in fact you should not do such things, we are saying it can be alleged that you did such things and these allegations in these non-privacy countries are enough to break the attorney client privilege you have with the attorney. Jurisdictions that do not respect privacy and do not have fair and equitable court systems are not going to let a thing like attorney client privilege stop a big law firm from taking away your assets in the name of justice.
Suing your Attorney – Let’s assume the judge not understanding too much about offshore structures says well I don’t see anything here to justify the violation of attorney client privilege, what do you think the other side does next, walk away and forget about you? Not so fast, they can smell your assets and want a big bite as soon as they can get it. They see a chink in your armor that they are not finished exploiting. The chink is you did not use an attorney in a privacy oriented jurisdiction even though you might have used an offshore structure in one. So now they just add your attorney into the lawsuit as an additional defendant alleging him or her to be a conspirator in the plot to defraud the creditor out of his pound of flesh he wishes to take from your life savings, real estate, business, estate, etc. This gives them a shot at piercing attorney client privilege which is to say the attorney used an offshore structure to make discovery impossible thus thwarting justice and is sheltering the defendants assets behind attorney client privilege as an another layer in the scheme to defraud their client from collecting his lawful court ordered debt by grabbing your assets. If the other side is motivated and has money they will wear down your asset protection strategy until they can reach out and grab your assets. If you sued a lawyer in a privacy jurisdiction like Panama and did your formations there and banked there, you would be the one wearing down your adversary who would be getting frustrated spending time and money and getting nowhere in the Panama courts. They would be getting their cases dismissed for lack of jurisdiction, incorrect venue, etc. This could motivate your adversary to settle for pennies on the dollar after they had a very expensive taste of the Panama Courts, or they just decide they can’t penetrate your structure not even being sure what your structure is and plain give up. Using a lawyer in your own country to formulate your asset protection strategy is a weak link that should not be presented to a financial enemy. The same applies to using an attorney in another country where privacy and justice have disappeared. One privacy hating unfair jurisdiction can usually reach out to another privacy hating unfair jurisdiction and get their assistance, alleging almost anything will work in these jurisdictions. Some of these countries actually respect the court orders from another country, all that is required is a trip to the local court to have the foreign court order rubber stamped and thus domesticated and made enforceable. This is common with money judgments from foreign countries in the privacy hating jurisdictions but you do not have much to worry about in Panama.
How to do it -Use a law firm only in the jurisdiction where your corporation, foundation and bank are located. This way not only can the law firm that did your asset protection structure help you if trouble comes knocking on your door but your confidential information is out of reach of the courts your financial enemies will use. Do not use a corporation agent or non-lawyer for your asset protection. There is no attorney client privilege.
Anonymity is your Friend – Anonymity is your first line of defense. Only use anonymous bearer share corporations or anonymous foundations where no ownership records are in existence in any government registry (Panama). Panama Foundation assets are not sequesterable (not freezable). This makes discovery of ownership impossible even with a court order. Make sure the corporation or foundation need not file any tax returns and has no tax liabilities based on profit, income or assets (Panama). Tax returns could lead to an audit. Make sure the publicly recorded nominees of the corporation or foundation do not know the owners (Panama). Make sure there is tight Bank Secrecy (Panama has the best in the world now). Make sure there is strong attorney client privilege ( Panama). Make sure the jurisdiction in question is in no tax treaties with any country (Panama). Make sure the jurisdiction in question allows for no fishing expeditions (Panama). Make sure the jurisdiction in question does not cooperate on fiscal offenses (Panama, in Panama all tax offenses are civil not criminal). Make sure the jurisdiction does not allow civil lawsuits concerning matters that did not take place in the jurisdiction to be tried in their courts just because the corporation, foundation or bank account is domiciled there (Panama). Make sure the jurisdiction is dependent on corporate privacy and bank secrecy for its economy (Panama has 400,000 corporations domiciled there and there are 150 banks in country whose population is 2.9 million people, employing 20% of the workforce.
Hello Panama, Goodbye Switzerland!
For more information, please visit:
http://www.panamalaw.org
email at: panamalegal@hush.co
By Law Article
Previous Posts