Showing papers on "Principal (commercial law) published in 1989"

Agency Theory: An Assessment and Review

Abstract: Agency theory is an important, yet controversial, theory. This paper reviews agency theory, its contributions to organization theory, and the extant empirical work and develops testable propositions. The conclusions are that agency theory (a) offers unique insight into information systems, outcome uncertainty, incentives, and risk and (b) is an empirically valid perspective, particularly when coupled with complementary perspectives. The principal recommendation is to incorporate an agency perspective in studies of the many problems having a cooperative structure.

The Landau Commission Report – Was the Security Service Subordinated to the Law, or the Law to the “Needs” of the Security Service?

Abstract: The principal significance of the Landau Commission Report lies in its conclusion that, under the provisions of the necessity defence, the exertion of a moderate measure of physical pressure is both justifiable and permissible in the interrogation of persons suspected of hostile terrorist activity (HTA). This conclusion extends both forward to the future and backward to the past. For the future, it licenses the employment of physical pressure in such investigations; as to the past, it lends significant support to another of the Commission's conclusions, that no proceedings be instituted against persons who were found by the Commission to bear prima facie responsibility for serious criminal offences (i.e., perjury at the very least). In my opinion, the Commission's central conclusion and its implications are unjustified. It is based upon factual findings and evaluative judgments which are, as I shall attempt to demonstrate, problematic.Before embarking, however, I should like to sketch a synoptic view of the Report for the reader, which will then enable me to expand upon the connection between the Commission's factual and evaluative findings and its normative conclusions. Regarding the facts, the Commission determined that: 1) GSS interrogators had systematically employed physical pressure on HTA suspects; and 2) interrogators had lied about this fact to the courts. The Commission's normative conclusions were that it is permissible to employ physical pressure in HTA interrogations, but forbidden to lie to the court.

Cases and materials on torts

Abstract: The casebook, which is organized along traditional doctrinal lines, teaches students how tort law works to resolve disputes in the real world of litigation and settlement negotiations A teacher can start with intentional torts or with negligence The first chapter is an overview of trial court procedure in tort cases; the second is a concise treatment of intentional torts and defenses; and the third introduces negligence law with a streamlined treatment of the core breach-of-duty/substandard conduct concept Subsequent chapters treat the remainder of the prima facie case in negligence, the principal defenses to negligence liability, and some of the basic concepts entailed in multiparty litigation The book's concluding chapters are basic coverage of medical malpractice, common law strict liability, products liability, and nuisance

Basic Principles of Civil Law in China

Abstract: This is an abridged translation of the principal Chinese textbook on civil law, which was published as part of the restructuring of China's legal system following the Third Plenum of the Chinese Communist Party in late 1978. Because the closest thing China has to a civil code - the General Provisions of Civil Law enacted in 1986 - is very incomplete, this treatise is an authoritative source on the subject. "Basic Principles of Civil Law in China" translates those portions of the Chinese text that are likely to be most useful for foreigners dealing with China, such as material on contracts, torts, joint-ventures, negotiable instruments and technology transfer. It also contains general material on such matters as agency and partnership, the general principles of juristic persons, and statutes of limitations.

Affirmative action in the law of tort: the case of the duty to warn

Abstract: One of the principal features in the development of private law in recent years has been the dramatic increase in the variety of circumstances in which courts are willing to hold that one party owes a duty of care in tort to another. The view that the categories of relationship which attract a duty of care at common law are immutably fixed by precedent and that any decision to extend them must be left to the legislature, expressed by one Law Lord as recently as 1970, now seems somewhat quaint and it is generally accepted that courts can, in appropriate cases, extend the scope of liability for negligence to embrace new types of relationships, conduct and harm. As the boundaries of liability have been rolled back, old immunities have been removed and duties of care (albeit sometimes restricted) have been established in areas previously considered to be beyond the scope of the law of tort. But there are still areas of confusion and difficulty, perhaps the most prominent of which in recent years have been the extent of liability for economic loss and for nervous shock. Another area of doubt, however, is the extent of liability for omissions. While it has not attracted as much attention as economic loss or nervous shock, the distinction between acts and omissions still exercises a powerful influence on judicial decision making on the question of tortious liability. This article considers the question of liability for one such omission, namely liability for a failure to warn someone of imminent danger. Before doing so, however, it is necessary to clarify exactly what is meant by an “omission.”

The Copyright Designs and Patents Act 1988: The Triumph of Expediency over Principle

Abstract: On 14 November last year the Copyright Designs and Patents Act1 received the Royal Assent. It is scheduled to come into force sometime during the summer of 1989. The Act, which has taken some eleven years to reach the statute book, marks an epochal change in one of the principal ways in which the United Kingdom regulates its information economy. The principles which underlie the law of copyright are purely theoretical. Unlike theories in the natural and the social sciences, which seek to explain events in the real world and to have a predictive capacity, the theories of copyright law have been developed to regulate the relations between authors and their publishers, their works, and their users. They do not therefore arise out of the real world, but are imposed upon it, to achieve desired economic and political ends. The most influential 'theory' of intellectual property is that of the author's right, since it is an ideology which commands wide political assent. But in practice, copyright law is not derived from one overarching principle, but from the negotiation of a series of contradictory premises. Copyright law has to reconcile three separate interests, those of the author, the publisher, and the public.2 A theory of copyright law has been developed to justify each of these interests. For the author, the theory of the author's right is that of the right of the author to 'authorize', by legal contract, the use of the work. For the publisher, the theory of copyright is that of the right of the publisher to acquire from the author, and to control, the right to copy the work. While for the public, copyright serves the public by promoting the progress of science and the useful arts in society. Clearly these theories overlap. The theory of copyright requires the existence of an author to assign the copyright to a publisher. The theory of public service gives authors the rights in their works in order to promote the production of useful artefacts. And the theory of the author's right not only fulfils the needs of the publishers and the public, but seeks to transform these limited rights into a natural right of the author to control completely the use of the work. As

Financial abuse of the elderly. Recognizing and acting on it.

Abstract: 1. Within a trust situation, one party (the trustee) holds the title and control of property, but has a responsibility to use the property for the benefit of another (the beneficiary). 2. A durable power of attorney is a written document in which one person (the principal) has granted another person (the agent or attorney-in-fact) the authority to act for him and the delegation of authority continues even if the principal becomes incapacitated. 3. A representative payee is a person or organization who receives payment as a substitute for the beneficiary. 4. A joint tenancy is a form of co-ownership in which two or more persons hold a single interest in property and each co-owner has the right of survivorship.

The UAE Commercial Companies Law: Recalled To Life

Abstract: UAE Federal Law No. 13 of 1988 enacts various amendments to the UAE Commercial Companies Law, Federal Law No. 8 of 1984 ("the Companies Iaw"), and brings that law into effect as amended after a suspension of several years. The amendments took effect upon publication in the Federal Official Gazette on 8 January 1989, and they provide for a two-year grace period from the effective date for existing companies to comply with the provisions of the law as amended. The amendments themselves do not represent major substantive changes to the law as previously enacted. Their principal purpose is to transfer primary authority for the establishment and supenision of UAE companies of all kinds from the Federal Government to authorities in the individual Emirates. From the point of view of most businessmen, therefore, the greatest significance of the amendments is not their specific provisions, but rather the fact that they appear to signal the likely implementation of the provisions of the Companies Law generally. If so, this will dramatically alter the forms of business available to local pariies and to joint ventures between foreign companies and local parties. In particular, the Companies Law provides for the routine establishment of companies having limited liability, whereas formerly, in the absence of any relevant statute, limited liability companies could be formed only by a decree from the Ruler of an individual Emirate, which had become increasingly difficult to obtain. As a practical matter, therefore, most foreign firms have engaged in joint ventures in the UAE in the form of partnerships with local individuals or entiiies. However, under the Companies Law the partnership form of business is reserved for UAE nationals only. As a result, existing joint venture partnerships will apparently be required to adjust their present structures to conform to the requirements of the law.

Quality Assurance's Role in Reducing Liability Costs

Abstract: This article provides information on containing liability protection costs. The authors, experienced corporate and institutional liability protection specialists who provide risk management services to the medical and business community, describe the causes of the high cost of liability insurance and cost-saving alternatives to traditional insurance. Quality assur- ance's role in working with risk management to prevent losses and reduce costs in a self-insured program is covered. Insurance costs rise and fall in inevitable cycles, but the medical community can protect itself from these cycles. Quality assurance and risk management can work together to reduce costs and prevent losses. The principal conclusion is that through policies, procedures, and information exchange, quality assurance can expand its risk management role to help maintain high quality health care and financial stability. Within a self-insured liability program, direct savings to the institution will result.

Developments in Soviet Property Law

Abstract: This Article summarizes certain aspects of new Soviet initiatives in the area of property law. The Article also touches on the interrelationship between the new developments in property law and developments in the area of Soviet company law that have given rise to new forms of legal entity, in particular, joint ventures. DEVELOPMENTS IN SOVIET PROPERTY LAW Richard C. Schneider, Jr. * Viewing the Soviet Union from a distance recalls the experience of looking into the sliding and circling jumble of colors at the back of a kaleidoscope. Important changes are happening but it is difficult to focus the eye on any one change long enough to gain an understanding of a detail. In the meantime, even if one has managed to watch One sliver develop, the whole has changed so drastically that the new understanding changes independently as a result of the radically new context. At the heart of the changes overtaking the Soviet Union today is a new set of legislation affecting one of the principal concerns, both theoretical and historical, of Soviet communism: Soviet concepts of socialist property. The notion of "socialist property" has guided Soviet economic thinking since the abolition by the Bolsheviks after the 1917 Revolution of certain crucial types of ownership.' Now, Soviet economists and legislators are beginning to redefine "socialist property" to create an environment for economic decision-making that is more flexible than the traditional model of State-controlled central planning. In November 1989, Mikhail Gorbachev, acting in his role as Chairman of the Supreme Soviet of the Soviet Union, promulgated a new draft of a law on property (the "Draft Law on Property"), 2 a new law on leasing (the "Law on Leasing"), * Richard C. Schneider, Jr. is an attorney in the New York office of Cleary, Gottlieb, Steen & Hamilton. He would like to express his appreciation to Mahir Babayev, a professor of international law at the Azerbaijan State University in Baku and a legal intern at Cleary, Gottlieb, Steen & Hamilton, for his comments on an early draft of this Article. 1. W.E. BUTLER, SOVIET LAw 175-77 (2d ed. 1988). 2. The draft law on property was published in two Soviet periodicals. Ekonomicheskaya Gazeta, No. 48, Nov. 1989; Pravda, Nov. 18, 1989 [hereinafter Draft Law on Property]. 3. The law on leasing, known as the "Fundamental Law on Leasing of the Soviet Union and of the Soviet Republics," was also published in two Soviet periodicals. Ekonomicheskaya Gazeta, No. 49, Dec. 1989; Pravda, Dec. 1, 1989 [hereinafter Law on Leasing]. It took effect on January 1, 1990. Id.

Disclosure and Fair Dealing by Stockbrokers

Abstract: The fundamental fiduciary principle of agency law is that of the economic loyalty owed by agent to principal. This duty of the agent (in this paper, the stockbroker) to act in the interests of the principal (its client) can be strengthened by the terms of the agency contract, and specific requirements set out in securities industry legislation and the relevant stock exchange market conduct rules. This priority to be accorded to the principal has in the United States been confirmed as the ‘Shingle Theory’ under which a securities dealer (the agent), by the fact of putting up its shingle, impliedly represents that it will deal fairly and competently with its customers (its principals). Neither the common law, securities industry legislation nor stock exchange rules permits an agent to enter any transaction where its personal interest may conflict with legal duties owed to its principal, but the agent’s duty of economic loyalty can be diluted by full disclosure and informed consent on the part of the principal. Transactions between agent and principal are therefore not void per se. They may be supported by the rules of custom or usage of the stock exchange if such can be imported into the agent/principal contract as an implied term of the contract on the basis of notoriety, certainty and acquiescence. But without full disclosure and informed consent to anything less expressly or by implication, the fundamental fiduciary principle of agency owed by a stockbroker to its client by law can never be diluted.

Computers and the Law

Abstract: At the end of this chapter you should be able to: • Outline some of the more important provisions of the principal legislation concerned with the use of computers in a commercial environment including: (i) copyright and similar forms of protection (ii) the Data Protection Act (1984) • Discuss the rights and liabilities usually conferred upon the users of ‘off the shelf software packages. • Discuss the liability for errors which might arise from the use of software packages whether bought ‘off the shelf or developed in-house. • Discuss the general legal issues surrounding contracts for the purchase of computer hardware and software.