ILEC text

Language use 2: Verb + -ing form Some verbs in English are followed by another verb in the -/rig"form and others are followed by the infinitive with to. The email above contains several examples of verbs that are followed by another verb in the -/fig form. Look at this example from the text: I've finished drafting my closing argument for tomorrow. It would be incorrect to write: I've finished to draft my closing argument. You have to learn which verbs can be followed by which form.

Draft version of closing argument: Keats v. Jones Corp 1 In determining whether a landlord has unreasonably refused to consent to an assignment, the court should consider only those factors that relate to the landlord's interest in preserving the value of the property, and the court must evaluate whether a reasonably prudent person in the landlord's position would have also refused to consent. 2 Arbitrary considerations of personal taste, convenience or sensibility are not proper criteria for withholding consent under such a lease provision. The court must determine the credibility of witnesses and the weight to be given to evidence and draw all justifiable Inferences of fact from the evidence. 3 Here, when my client informed the defendant that he had a prospective buyer for his business, the defendant's lawyer requested that he provide personal and financial information on the buyer, as well as a business plan and evidence of the buyer's experience in operating a restaurant. The defendant's lawyer also provided my client with a commercial lease application for the buyer to complete. My client gave the defendant the completed application and information on the buyer and promptly responded to each of the defendant's requests for information. 4 As acknowledged by the defendant's lawyer, the proposed buyer had a 'perfect credit rating'. My client's expert on commercial lease transactions, whom the court must find persuasive, testified > that my client provided enough information for the defendant to make a decision and that its delay was unreasonable. Furthermore, there was evidence that the defendant's delay in approving the assignment was not related to the buyer's qualifications, but was predicated on a dispute with my client involving a prior lawsuit between the parties. 5 Based on the evidence presented, the court must conclude that sufficient evidence supports a determination that the defendant unreasonably withheld consent to the assignment. 6 The defendant nevertheless asserts that it did not refuse consent, but merely delayed giving my client an answer until additional information was obtained. We reject this argument. The terms of the lease provided that the defendant could not unreasonably withhold consent, but this is exactly what it did. As defined in Webster's Third New Internationa! Dictionary, 'withholding' means 'not giving', while 'refusing' on the other hand may require some affirmative act or statement. Jones Corporation did not refuse consent, It Is true. But Jones Corporation's decision to delay consent amounted to a withholding of consent, especially given my client's Indication that time was of the essence., And, as noted above, the evidence supports the determination that this decision was unreasonable. Therefore, the defendant's attempt to distinguish between withholding consent and refusing consent is unavailing under the lease provision here.

Nice to see you again, Mr Johnson. Please have a seat. It's a pleasure to meet you. Would you like a cup of coffee? I'll be asking you some questions about the situation ... We'll be spending the next hour discussing the facts of your case ... Let me assure you that everything you tell me today will be held in strict confidence. Before we get started, maybe i should tell you about my fees ... Would you like to tell me why you are here today? Please describe what happened. Tell me what brings you here today and how 1 can help you. So, if I understand you correctly, you are saying that... Let me repeat what I have understood so far. Allow me to summarise what you've said. As I understand the situation, ... What happened next? What did you do then? If they were a long-standing customer and Glaptech knew it, and if we can prove all of that at thai, you might be able to recover what are called consequential damages. You may be able to get what I mentioned earlier, consequential damages, which are damages that flow from the result of the breach of contract. Did they know what your deadline was? I need to know more about... Allow me to ask you more about... Can you explain why ..,

Generally, a contract operates to confer rights and impose duties only on the parties to the contract and no other parties. The principle that follows from this is that third parties have no rights and, as such, cannot enforce contractual provisions. This contractual relationship is summed up in the term privity of contract. However, In many jurisdictions, there are two exceptions to this general rule: the first is when the original contract provides for rights to be conferred on a third party, and the second is when contractual rights and duties are transferred to a third party at a later date. When speaking of the first type of situation, lawyers generally refer to third-party beneficiary contracts. The most common form of this type of contract is where party A enters into a valid contract with party B which stipulates that party B shall render performance for the benefit of party C, i.e. the third-party beneficiary. No problems arise if party B performs. But what happens when party B falls to perform? Have rights been vested in party C such that C can enforce the contract, or must party A do so? In many jurisdictions, this problem is addressed through a determination of whether the contract expresses an intent to create a legally enforceable right in the third party. However, must the intent be from both parties to the agreement (A and B) or just the recipient of the promise to be enforced, I.e. the promisee (A) as opposed to the promisor (B)? The courts usually look to the intent of the promisee and ask the question; According to the contract, who was to receive the benefit of the promise, the promisee or a third party directly? In deciding the promisee's intent, the courts look at the following factors: (1) is the third party identified in the contract?; (2) is performance to be made directly to the third party?; (3) does the third party have any rights (specific or general} under the contract?; and (4) is there any relationship between the promisee and the third party such that it could be Inferred that the promisee wished to enter into a contract for the benefit of the third party? Of course, the greater the number of times the court answers 'yes' to the above questions, the more likely It is that the court will rule that the third party is an intended beneficiary, and thus entitled to enforce the contract, as opposed to an incidental beneficiary. In the second case mentioned above, rights and duties are transferred after the original contract has been signed. If in the original contract the transferring party (A) is owed a right by the non-transferring party (B), then A is known as the obligee and B Is the obligor. However, if in the original contract A owes B a duty, then A is known as the obligor and B the obligee. When it Is not specified whether rights or duties are being transferred, the term assignor can be used for A, who attempts to transfer his rights and/or duties under the contract to a third party (C, the assignee), if a right is being transferred, C becomes the obligee in place of A. (Although this does not necessarily release A from any obligations to B under the original contract.) If a duty is being transferred, A is known as the deiegator, while C is referred to as the delegate1. The term assignment of contract can mean several different things. This term is ambiguous, as It does not Indicate whether there is both an assignment of rights and a delegation of duties. In everyday usage, it generally means that both are applicable. However, in the interests of precision, the term 'to assign' should really be reserved specifically for the transfer of rights, and the term 'to delegate' should be used in connection with the transfer of duties (and therefore with performance). This distinction is crucial because, while an obligee can rid himself of a right merely by making an effective assignment, an obligor cannot rid himself of a duty by the same means. Generally, in order for the obligor to discharge his duties under the contract through assignment, the obligee must first release him from his obligations under the contract. When this takes place, there is a novation of the original contract, in which the obligor's position is taken on by a new party. The right to assign is generally governed by an assignment clause in the contract, the enforceability of which depends on many factors, including the particular wording of the clause, the nature of the obligations to be performed and the nature of the contract.

Listening i: Protecting assets from judicial liens A lawyer is responsible for informing his clients about what they can do to legally minimise their risk of loss from the hazards of business and personal liability. This is known as asset protection. You will hear a lawyer speaking to a group of clients who are interested in learning about asset protection.

An insolvency practitioner advises insolvent entities about how to deal with their financial difficulties and assists with bankruptcy and liquidation procedures. The excerpt on page 194 from a career guide provides information about the profession in general. It explains how one can become a licensed insolvency practitioner in the UK, describes recognised professional bodies and outlines the routes to qualification.

Debtor-creditor is the area of the law which relates to the rights and obligations of debtors and creditors. The law outlines what happens when the debtor is unable or unwilling to make payments and what remedies are available to the creditor in this situation. It does not focus on the creation of the debtor-creditor relationship but, rather, on the collapse of the debtor-creditor relationship. With this in mind, debtor-creditor law largely involves how creditors get paid when the debtor does not have the resources to make payment. This question is determined by whether the creditor has some type of 'favoured status'. Broadly speaking, creditors get favoured status by two means, either by lien or by priority. There are three different types of liens: consensual, judicial and statutory. A consensual lien is one which is created upon agreement between the debtor and creditor. Usually, this type of lien must be perfected through some type of registration process in order to be invoked against third parties (e.g. other creditors seeking payment from the debtor from the same property). Examples of these types of liens would be mortgages and registered security interests. Mortgages are liens created in land, whereas security interests are generally related to other types of property. Judicial liens arise as a result of some sort of judicial proceedings brought by the creditor to secure an interest in the debtor's property. Examples of this type of lien include attachment liens, garnishment, judgment liens and execution liens. These liens generally entail seizure of the debtor's property by a public official (such as a bailiff) to enforce the obligations of the debtor. Statutory liens are liens created by legislation due to the economic relationship between the debtor and creditor. Common examples of this type of lien are tax liens and mechanic's liens. In some cases, perfection of this type of lien is required in order to be valid against third parties. Priority becomes an issue when the debtor is unable to make payment of his debts when they become due and a group of creditors take action to secure payment of their particular claim. Most commonly, creditors bring some form of action or claim during the course of insolvent liquidation1 proceedings. In such a circumstance, the usual procedure is to gather the debtor's property and to distribute it among the creditors. When there is not enough property to go around, the law has a system of priorities under which certain creditors are paid before others. Most of the rules that apply in this situation are first-in-time rules related to different classes of creditors. Examples of priority creditors would be wage earners, landlords and tax collectors. Other creditors are usually subject to first-in-time rules to determine their priority. The majority of creditors will not have any favoured status, either by lien or priority. These creditors are often referred to as general creditors. In the context of group actions, these creditors generally end up receiving nothing upon distribution of the debtor's property. In order for these creditors to secure their claims to some degree, they will have to bring an action to attain the status of lien creditor.

61.001 GENERAL GROUNDS A writ of attachment is available to a plaintiff in a suit if; (1) the defendant is justly indebted to the plaintiff; (2) the attachment is not sought for the purpose of injuring or harassing the defendant; (3) the plaintiff will probably lose his debt unless the writ of attachment is issued; and (4) specific grounds for the writ exist under Section 61.002. 61.002 SPECIFIC GROUNDS Attachment is available if: (1) the defendant is not a resident of this state or is a foreign corporation or is acting as such; (2) the defendant is about to move from this state permanently and has refused to pay or secure the debt due the plaintiff; (3) the defendant is in hiding so that tfie ordinary process of law cannot be served on him; (4) the defendant has hidden or is about to hide his property for the purpose of defrauding his creditors; (5) the defendant is about to remove his property from this state without leaving an amount sufficient to pay his debts; (6) the defendant is about to remove all or part of his property from the county in which the suit is brought with the intent to defraud his creditors; (7) the defendant has disposed of or is about to dispose of all or part of his property with the intent to defraud his creditors; (8) the defendant is about to convert all or part of his property into money for the purpose of placing it beyond the reach of his creditors; or (9) the defendant owes the plaintiff for property obtained by the defendant under fabe pretences.

Supervisory board E Not all market systems prevent shareholders from directly influencing management. In Germany, for example, the use of 'voice' is encouraged through the accountability arrangements of the Aufsichtsrat (supervisory tier). In the Germanic countries, there is a forma! separation of executive and supervisory responsibilities. With the Anglo-Saxon one-tier board, managing executives are also represented on the board, and all directors, executives as well as non-executives, are appointed by the controlling shareholders and must answer to the annual meeting. A two-tier board consists of an executive board and a supervisory board. The executive board includes the top-level management team, whereas the supervisory board is made up of outside experts, such as bankers, executives from other corporations, along with employee-related representatives. There is reliance on the supervisory board for overseeing and disciplining the management as well as for co-operative conflict resolution between shareholders, managers and employees. F This control function has a broader setting than in Anglo-Saxon countries, for in the Germanic countries, the supervisory boards of large companies are legally bound to incorporate specific forms of employee representation. Under co-determination laws, some corporations with at least 500 employees, and all those with more than 2,000 employees, must allow employees to elect one half of the members of the supervisory board. Co-determination rules cover the supervisory board, the functions of which are to control and monitor the management, to appoint and dismiss members of the management board, to fix their salaries, and to approve major decisions of the management board, in 1998, the power to appoint auditors was vested with the supervisory board (Organisation for Economic Co-operation and Development {OECD), 1998). G How effective is this 'voice'? Obviously, it allows a participatory framework between shareholders, managers and employees under the co-determination principie, but the supervisory-board system also is designed for overseeing and constraining management. The OECD argues that 'the degree of monitoring and control by the supervisory board in the German two-tiered board system seems to be very limited in good times, while it may play a more important role when the corporation comes under stress'. Of course, the same is true of Anglo-Saxon boards; they exert more authority in a crisis, too. But the boards in Anglo-Saxon countries have not been notably successful in preventing crises. Does the Germanic-type system of board structure do better? There is not much evidence on this point. Some argue that the system encourages worker commitment to the firm and reduces day-to-day interference in management decisions, allowing both to get on with the job. Others consider that the system encourages 'cosiness', with bad strategic decisions internalised rather than subjected to the public gaze as occurs when the 'exit' option is followed,

Language use 2: Common collocations (verb plus noun) Look at the following verb-noun collocations from the text on pages 38-39. Can shareholders exercise control if the directors fail to protect their interests? In return for the priviiege of limited liability under law, shareholders' powers are generally restricted. Any one small shareholder investing in the information needed to monitor management will bear all of the costs, whereas shareholders accrue benefits as a group. Co-determination rules cover the supervisory board, the functions of which are to control and monitor the management, to appoint and dismiss members of the management board, ...

Contractual remedies: Liquidated damages 1) When parties enter into a contract, they often wish to calculate the damages which would arise for one or both of the parties in the event that there is a breach of contract by the other party. Provisions in a contract stipulating the amount required to compensate an injured party in the event of a breach are referred to as 'liquidated damages'clauses.The purpose of liquidated damages clauses is for the nonbreaching party to avoid the costs which arise in the difficult task of proving the amount of the loss actually incurred. Such clauses are enforceable where they are carefully drafted to compensate the non-breaching party for the loss caused by the breach. 2) A contractual party may, in certain instances, try to make certain that the other party performs its contractual undertakings by including provisions which, in reality, constitute a penalty for failure to perform. In contrast to a liquidated damages clause, a penalty clause is not intended to compensate the injured party for anticipated loss arising from the breach. On the contrary, the purpose of penalty provisions is to serve as a deterrent to breach in that it provides for damages which the parties know extend far beyond that which would normally compensate the non-breaching party for its loss. In many jurisdictions, the courts will sever the penalty clause from the contract, holding it to be unenforceable as a penalty. The result is that the non-breaching party is forced to prove its loss in accordance with the general principles ot contractual remedies. In light of the above, it is crucial when drafting a damages clause that it contains the elements of an enforceable liquidated damages clause as opposed to an unenforceable penalty. 3) Historically, an enforceable liquidated damages clause will include the following elements: a) the anticipated damages from the relevant breach are uncertain in amount or difficult to prove; b) an intent by the parties to determine the damages in advance; and c) a stipulated amount which is reasonable, not considerably disproportionate to the presumed loss or injury.1 The recent tendency of the courts is to give less or no weight to the subjective intent of the parties. Instead, the courts take into consideration all three elements, together with other factual circumstances, such as the relative bargaining power of the parties, to determine the reasonableness of the clause at issue. The primary issue for the court to decide is that of reasonableness of the prescribed amount of damages in proportion to the presumed loss for the non-breaching party. As such, the court must assess whether the fixed amount is a realistic attempt to calculate the actual damages which may result from the breach, or whether the amount represents a penalty the nonbreaching party is attempting to impose on the breaching party. 4) The courts generally look to the time of contract in determining the reasonableness of the damages set forth in it. Consequently, the actual loss incurred is immaterial, provided the damages at the time of contract represent a reasonable prediction. Of course, the breaching party has a very difficult argument to make regarding unreasonableness where the predicted amount is close to the actual loss. The Uniform Commercial Code in the United States, in contracts for the sale of goods, permits liquidated damages clauses which prescribe amounts reasonable considering the actual loss. In rare cases, where the non-breaching party incurs no actual damages, the courts will not enforce a liquidated damages clause.

Language use i: Talking about court actions and rulings These phrases can be used for referring to the actions and rulings of the court. 1 The court upheld the decision. 2 The court dismissed the suit on the grounds that... 3 The court holds that... 4 The court is reluctant to ...

Text 3: excerpt from a case brief in the State of Bloomland Bangarth Management v. Business Linx pic In order for an implied term to be read into a contract if it has not been expressly included in the contract, it must: 1 be reasonable and equitable; 2 be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; 3 be so obvious that "it goes without saying"; 4 be capable of clear expression; and 5 not contradict any express term of the contract. The necessity (for business efficacy purposes) for an assignment of copyright would only be likely to arise in circumstances where the commissioner of the work requires the right to exclude the contractor from using the work and the ability to enforce the copyright against third parties.

Negotiable instruments1 are documents which represent an intangible right of payment. Examples include promissory notes, certificates of deposit and cheques2. When drafted using the correct and very particular language prescribed by common law or statute, a document becomes negotiable, which means that it can be freely transferred by endorsement3 (usually by signature) or delivery. One of the most important features of negotiable instruments is that they are generally not subject to the nemo dat rule. This general principle of law states that 'he who hath not cannot give', i.e. a transferor who does not hold title cannot transfer title to a transferee. In the realm of negotiable instruments, that rule is sacrificed in order to facilitate the free alienability of negotiable instruments, which aids commerce in general, A further explanation of 'negotiability' can be illustrated by a common type of negotiable instrument, a promissory note. A promissory note is a formal written document which contains an unconditional promise and is signed by the person making the note, the maker, to pay a certain sum of money to or to the order of a named person or to the bearer of the document. Payable 'to the order of means that the sum of money is payable to the certain person and 'to the bearer of means that the sum of money is payable to the holder of the instrument. Therefore, if a promissory note is eventually held by someone who is unconnected with the underlying transaction, but who holds the note in good faith and knows of no problems with the instrument, that person can become a bona-fide purchaser for value or holder in due course (HDC). Specifically, the HDC takes good title to the instrument, even where the person transferring the instrument to him did not hold title. Thus, in a lawsuit between the HDC and the maker, the HDC still gets paid because he Is Immune from the normal defences to payment. Negotiable instruments serve two different functions in commercial transactions: a credit function and a payment function. The credit function allows negotiable instruments to be used to obtain credit now, to be repaid out of future income. Common examples include promissory notes, certificates of deposit and debentures4.

Language use i: Contrasting information Look at this sentence from Reading 1 that defines issued share capital: Issued share capital, as opposed to authorised share capital, refers to shares actually held by shareholders. When describing a new idea, it can be contrasted with an idea that your listener is already familiar with, using the preposition as opposed to. The prepositions unlike and in contrast to can be used in the same way: Issued share capital, unlike authorised share capital, refers to shares actually held by shareholders. Issued share capital, in contrast to authorised share capital, refers to shares actually held by shareholders. All three of these prepositions can also appear at the beginning of the sentence if the previously defined term immediately follows them: As opposed to / Unlike / In contrast to authorised share capital, issued share capital refers to shares actually held by shareholders. These prepositions can also be used when defining two new terms at the same time. In such a case, however, it is necessary to insert which in the following way: Issued share capita! refers to shares actually held by shareholders, as opposed to / unlike / in contrast to authorised share capital, which refers to the maximum amount of share capital that a company can issue. Or: 4s opposed to / Unlike / In contrast to authorised share capital, which refers to the maximum amount of share capital that a company can issue, issued share capital refers to shares actually held by shareholders.

Shareholders A Shareholders are the owners of the company's assets. Normally, ownership of an asset entails a number of rights: the right to determine how the asset is to be managed; the right to receive the residual income from the asset; and the right to transfer ownership of the asset to others. The last two clearly apply to shareholders, but what of the first? Can shareholders exercise control if the directors fail to protect their interests? B Two factors keep them from doing so. Both are related to the spreading of ownership needed for risk diversification in large corporations. In return for the privilege of limited liability under law, shareholders' powers are generally restricted. There is the AGM to approve the directors' report and accounts, elect and re-elect the board, and vote on such issues as allowed for in company legislation. But, apart from this, shareholders' rights are limited to the right to sell the shares. They have no right to interfere in the management of the company. Awkward questions can be asked at the annual meeting, but the chairman of the board usually holds enough proxy votes to hold off any challenge. C The second factor is in many ways more fundamental. An essential requirement for the exercise of effective control is the possession of an adequate flow of information. As outsiders, shareholders face considerable obstacles in obtaining good information. Then there is the free-rider issue. Any one small shareholder investing in the information needed to monitor management will bear all of the costs, whereas shareholders accrue benefits as a group. Moreover, co-ordination of monitoring efforts is not easy to arrange. Often it is easier for the shareholder to sell the shares, and thus vote with one's feet. D In short, someone with ownership rights in a company can express their disappointment with the company's performance by either getting rid of their shares or in some way expressing their concern. Hirschman (1970) called this the dichotomy between 'exit' and 'voice'. Where there are obstacles to the exercise of voice, the right of exit and transferring ownership to another party becomes not so much the accompaniment but the substitute for the other two components of ownership rights.

Text analysis: Persuasive writing and speaking The closing argument presented above is an example of a persuasive text. A lawyer will use persuasive language in many professional situations: when arguing in court, when negotiating a contract, when writing a memo proposing a course of action to a client, or when discussing the choice of candidate to fill a position at a law firm. In all these situations, the key elements of a strong argument are the same: a clear statement of the issue and your position on that issue; the presentation of evidence and reasoned arguments to support your position; the rebuttal (arguing against) of opposing standpoints or arguments. Evidence can take many forms, such as physical proof, expert testimony and documents.

Speaking 2: Emphatic stress Sam suggests that Ron can improve his argument by giving more emphasis to key points. One way to emphasise ideas is to begin a sentence with a phrase that signals importance, e.g. It is imperative that ... or It is important to realise that... Another way to emphasise Ideas is through emphatic stress. Within a sentence in spoken English, some words carry stress in accordance with the natural rhythm of the language. Emphatic stress, however, involves stressing certain words more than is natural to convey the importance of a point or a particular meaning.

In the job interview in Listening 2, Mr Berger states that he welcomes the challenges posed by cross-border insolvencies in Europe, The writers of the following excerpt from an article from a financial law journal identify what they believe to be a serious weakness in the European legislation governing insolvencies and argue for its reform.

The case for unifying the EU's insolvency laws Over the last five years, there have been a number of big insolvencies and debt restructurings across Europe, It must be obvious to all objective commentators that Europe simply does not have an effective, or indeed any, legal regime to support court-supervised restructuring, as opposed to bankruptcies or liquidations. It is astonishing that there is simply no legal middle ground between out-of-court restructurings, with all of their uncertainties and differences of approach, and liquidations. Why does Europe not have an equivalent to the US practice of court-supervised debt restructuring? The principle that it is preferable for insolvent companies (as well as their creditors and other stakeholders) to be reorganised rather than liquidated has long been recognised in the US and is now accepted in most European jurisdictions. However while the US Bankruptcy Code's Chapter 1 I provides a clear framework for such reorganisations, the equivalent statutory regimes in Europe do not. Chapter I I provisions significantly improve companies' prospects of restructuring their balance sheets and avoiding insolvency.These provisions are not perfect, but after more than 20 years of application in the US, most commentators would probably agree that Chapter I I provides a comprehensive and workable mechanism for delivering a restructuring, The key provisions operating to minimise destruction of value in liquidation are: • early protection - a company is able to file for Chapter I I protection voluntarily and, importantly, can do so regardless of whether it can show that ft is, or is likely to be, insolvent; • the automatic stay, which prevents both secured and unsecured creditors from taking proceedings against the company (also leading to a sensible and practical approach to handling secured claims); • so-called debtor-in-possession powers, which permit existing management to continue running the company; • priority for debtor-in-possession (DIP) financing - this super-priority status has resulted in the evolution of a specialised market place where the DIP can borrow fresh funds to continue its business during the restructuring; and • limitations on contractual termination provisions. In addition, two sets of provisions that particularly help insolvent companies to restructure allow the US Bankruptcy Court to reorganise the equity of an insolvent company without a vote of the shareholders and provide for the Court to enforce a reorganisation plan, despite objections from some creditors (known as'cramdown provisions'). The absence of provisions equivalent to some or all of the above in Europe both affects the economics of restructurings in Europe and adds an onerous layer of complexity and transaction risk.

Dear Dr. Roballard ... You have requested advice regarding your possibilities for collecting damages in a lawsuit regarding an agreement with Pat Turner Breweries Ltd to supply the breweries with hops. ... I will outline the law in this jurisdiction as it applies to the facts in the instant case. ... According to the information my firm has received, you entered into several independent contracts for the sale of hops with Pat Turner Breweries Ltd. ... Pursuant to these contracts, the breweries would purchase a certain amount each crop year. ... The price of the hops went down, and the buyer used the occasion of your firm's recent financial difficulties to repudiate the contract. ... However, your firm still attempted to make the deliveries under the present contract. ... The buyer refused to accept them. ... You are inquiring as to whether you can bring an action for anticipatory breach of the contracts for the remaining years. ... It appears that the issue in the instant case is whether a seller of goods may bring an action to recover damages for anticipatory breach of a contract when the buyer states that he will refuse to accept the goods under the contract, even though the date for delivery has not yet arrived. ... The law in this jurisdiction is quite clear: when a party announces his intention not to fulfil the contract, the non-breaching party has two options. ... Firstly, he may take the other party at his word and treat the notification of repudiation as releasing him from his contractual obligation to perform. ... He may then immediately bring an action for damages, subject to the requirement that he must take good-faith efforts to mitigate the damages. ... The second option would be for the nonbreaching side to wait until the time when the performance was to take place, still holding the contract as prospectively binding, so long as such waiting is not harmful to the breaching side. ... The courts here have reasoned that, under the reliance principle, an unqualified refusal by one side to perform should be treated as being in the same category of cases where the breaching party has put it beyond his power to perform. ... The breaching party, once absolutely having declared that it plans to breach, should not be permitted to object to the non-breaching side taking him at his word. ... Furthermore, why should the non-breaching party be required to wait until the day of performance, making futile preparations, and always keeping himself ready to perform, if the breaching side has left for more lucrative prospects? ... To require the non-breaching party to wait would be to violate the reliance principle. ... Admittedly, there is a precedent stating that "to allow action before the date of performance is to expand the scope of the contract beyond the parties' consideration: A promise to perform in June does not preclude changing position in May." ... In Wohl v, Wadman, the defense argued that the announcement of intent to breach should be treated as an offer to rescind, not as a breach. ... Thus, the parties would keep the option to rescind until the date of performance, when it would become a breach. ... But the breaching side could revoke the offer to rescind at any time before then, if it is not acted upon by the other party. ... However, this would mean that the plaintiff, to recover anything, would have to remain ready and willing to perform, because if it accepted the "offer" to rescind, that would prevent any recovery. ... In a leading case on this point, Judge Hand stated that "a promise to perform in the future by implication includes an engagement not deliberately to compromise the probability of performance. ... A promise is a verbal act designed as a reliance to the promisee." ... In other words, if a party promises that he will do something in the future, he also commits himself to refrain from doing anything that might make it difficult for him to fulfil his promise. ... This seems to be the majority position in this jurisdiction. ... Therefore, we feel that you have solid grounds on which to pursue an action to recover damages for anticipatory breach of contract. ... I suggest that you contact my secretary in order to schedule an appointment with me at your convenience in order to discuss our future course of action. ... Best regards ... Susan Whiteman ... Susan Whiteman Attorney-at-law ...

Dear Mr Anderson ... As a follow-up to our meeting on June 24 at my office, allow me to summarise what we discussed at that time. ... According to the facts as I understand them, you are involved in a contractual dispute with the software-design company Glaptech concerning work you commissioned in order to fulfil a contract between you and a ferry company. ... The agreement that you concluded with the ferry company states that you would provide them with a website no later than 15 May of this year which would, among other things, enable customers to book a ferry passage online. ... Your contract states that this online booking feature would work for 'all customers using modern home computers'. ... You commissioned Glaptech to write a software program for the online booking feature to be incorporated into the website you designed. ... However, Glaptech delivered an unsatisfactory program to you, which contained unnecessary code and was not compatible with Macintosh computers. ... As a result, it was necessary to have Glaptech's program rewritten. ... For this reason, you requested an extension of three weeks from the ferry company. ... This extension was granted to you in exchange for a 20% discount on your work. ... The programmer you found to do the repair work charged a higher than normal rate, which meant that the work on the website as a whole resulted in a financial loss for you. ... Furthermore, you fear that the fact that you delivered your work late might result in the loss of a customer as well as damage to your professional reputation. ... You requested information from me regarding the recovery of damages. ... If you do in fact lose a long-standing customer, there is a chance that you may be able to recover consequential damages. ... However, proving that the defendant could have foreseen this loss will be difficult. ... It is also unlikely that you will be able to recover the full amount you spent to pay the relatively high-priced programmer who repaired the faulty program. ... Since you were obliged to make a reasonable effort to solve the problem as inexpensively as possible and you found another programmer without shopping around locally, it might be argued that you did not take sufficient steps to mitigate your damages. ... It would be necessary for us to show the court that another programmer would have charged more or less the same as the programmer you hired and would have done the same quality work. ... If we cannot do this, you will only be able to recover what a local programmer would have charged for the work. ... Nevertheless, it appears that your chances of recovering the discount that you gave to the ferry company are good, because your contract with Glaptech does not waive consequential damages. ... It will be necessary to show that Glaptech could have foreseen that you would have to give your customer a discount if the program they designed was unsatisfactory and had to be fixed, thus forcing you to deliver the goods late. ... While I believe your chances of recovering some damages are good, the amount will ultimately depend on what we are able to prove in court. ... The courts in our jurisdiction tend to strictly construe contracts between commercial parties and are generally hesitant to award consequential damages unless the plaintiff can clearly demonstrate that the loss was foreseeable to the defendant. ... The court will look at the course of dealings between you and Glaptech, as well as any documentation you can produce which indicates that Glaptech could have reasonably foreseen the loss. ... At this stage in the matter, it would be helpful if you could give me any documents or information which relate to the dispute. ... Naturally we will require a copy of the contract concluded with Glaptech in addition, it would be extremely useful if you could provide documents indicating the nature and extent of your previous business relationship with the ferry company, as well as anything that would bear witness to the poor quality of the faulty software program provided by Glaptech. ... Once I have received the contract from you, I will prepare the complaint, which I should be able to file within the week. ... I will keep you informed of the progress of the case. ... Please do not hesitate to contact me if you have any questions. ... Yours sincerely ... Clare Hayes ...

1 Exactly! 2 / agree with you, Mr Howard, but we have to look at what the law says. 3 / don't think we can risk waiting until they have had a chance to kick their drug habits! 4 John's right - we need to act on this now. 5 I'm afraid I have to disagree with you both. 6 In my opinion, you risk more by acting hastily, by making a knee-jerk reaction to the problem. 7 That may be true, but we can't just sit back and do nothing. 8 I couldn't agree more! 9 / see your point... 10 ... you're absolutely right - you do bear responsibility for the safety of others. 11 That's not a bad idea ...

Determining unfair dismissal cases by arbitration Since 21 May 2001, a voluntary arbitration procedure in unfair dismissal cases has been available to employers and employees in England and Wales as an alternative to the traditional way of resolving such cases via employment tribunals. Compared with a public hearing in front of a three-member employment tribunal, with a legally qualified chairperson, involving the cross-examination of witnesses and, in the vast majority of cases, the involvement of legal representatives, the new arbitration scheme, administered by the Advisory, Conciliation and Arbitration Service (ACAS), is intended to be 'speedy, informal, confidential [and] non-legalistic'. Key features of the scheme There are significant differences between the new arbitration scheme and the conventional employment-tribunal process. The key features of the ACAS arbitration scheme are as follows: • The scheme is entirely voluntary and is available only in respect of unfair dismissal claims. It can be used only where both parties agree to it and waive certain rights they would have at an employment tribunal. • Hearings will be held in private in such places as an ACAS office or a hotel and will normally be completed within half a day. Written statements of their case may be submitted by the parties in advance. • The case will be heard by an experienced arbitrator, chosen by ACAS, not the parties themselves. Legal representatives may be used by the parties. • There is no set format for the hearing. Arbitrators have a general duty to act fairly and impartially between the parties, giving each party a reasonable opportunity to plead his or her case and respond to that of the other party. The process is intended to be 'inquisitorial' or 'investigative', rather than adversarial as in tribunal hearings - no cross-examination will take place. • Each party covers their own costs in attending the hearing. However, if a dismissal is found to be unfair, the arbitrator can include in the calculation of any compensation a sum to cover the costs incurred by the employee in attending the hearing. • Arbitrators are required to apply EC law and the Human Rights Acts 1998 (on which a legal adviser may be appointed to provide guidance), but otherwise, instead of applying strict legal tests and case law, the arbitrator's decision will have regard to 'general principles of fairness and good conduct in employment relations'. • As with unfair dismissal cases determined by an employment tribunal, reinstatement, re-engagement and compensation are the available remedies if the dismissal is not upheld. Unlike tribunal cases, however, the award is confidential to ACAS and the parties, and the arbitrator's decision will be final and binding. • There is only very limited scope for appealing or challenging the arbitrator's award.

One of the principles underlying section 2-207 is neutrality. If possible, the section should be interpreted so as to give neither party to a contract an advantage simply because it happened to send the first or in some cases the last form. Section 2-207 accomplishes this result in part by doing away with the common law's "last shot" rule. At common law, the offeree/counter-offeror gets all of its terms simply because it fired the last shot in the exchange of forms. Section 2-207(3) does away with this result by giving neither party the terms it attempted to impose unilaterally on the other. Instead, all of the terms on which the parties' forms do not agree drop out, and the U.C.C. supplies the missing terms. Generally, this result is fair because both parties are responsible for the ambiguity in their contract. The parties could have negotiated a contract and agreed on its terms, but for whatever reason, they failed to do so. Therefore, neither party should get its terms.

1 English-speaking jurisdictions generally distinguish between real property and personal property. Real property is a general term for land, tenements and hereditaments. On the other hand, personal property refers to everything which does not fall under the heading of real property. This brief summary addresses key terms in relation to real property. 2 Real property can be divided into freehold estates and leaseholds. Freehold estates are those whose duration is not determined. By contrast, the duration of a leasehold is fixed or capable of being fixed. Essentially, there are four types of freehold estate: the fee simple, the fee tail, the life estate and the estate pur autre vie. 3 As its name suggests, a fee simple refers to a whole interest in a piece of real property and may pass through sale, inheritance or reversion, i.e. when the owner dies and there are no persons alive who have the right of inheritance, the property reverts to the State. Reversion Is also referred to as an escheat. A fee tail is an inheritable estate which lasts as long as the original grantee or any of his descendants live. A life estate is an estate granted only for the life of the grantee. When the life tenant dies, the remaindermen take possession, or the land reverts (see above). An estate pur autre vie is similar to a life estate, except that the estate is granted for the life of someone other than the grantee. 4 A leasehold is generally created through what is referred to as a lease, which is a contract for exclusive possession, generally for a term of years, usually for a specified rent or compensation. A leasehold should not be confused with a licence. The crucial test for determining whether a lease or a licence has been created is whether there is exclusive possession. If there is no exclusive possession, there is no leasehold. A good example of this is where the property remains in the control of the grantor, such as in the case of a hotel room or dormitory. 5 Generally speaking, the Statute of Frauds requires that agreements regarding the sale of or interests In land must be in writing to be enforceable. In respect of leases, the Statute of Frauds for a particular jurisdiction will specify that leases for more than a certain number of years must be in writing to be enforceable, e.g. three years in England. For land sales, the Statute of Frauds requires a formal writing. 6 There are numerous other areas of real property law which commercial lawyers deal with on a day-to-day basis. Real property law includes such things as easements, usufructs, mortgages and other financing measures.

1 A company1 is a business association which has the character of a legal person, distinct from its officers and shareholders. This is significant, as it allows the company to own property in its own name, continue perpetually despite changes in ownership, and insulate the owners against personal liability. However, in some instances, for example when the company is used to perpetrate fraud or acts ultra vires, the court may 'lift2 the corporate veil' and subject the shareholders to personal liability. 2 By contrast, a partnership is a business association which, strictly speaking, is not considered to be a legal entity but, rather, merely an association of owners. However, in order to avoid impractical results, such as the partnership being precluded from owning property in its own name, certain rules of partnership law treat a partnership as if it were a legal entity. Nonetheless, partners are not insulated against personal liability, and the partnership may cease to exist upon a change in ownership, for example, when one of the partners dies. 3 A company is formed upon the issuance of a certificate of incorporation3 by the appropriate governmental authority. A certificate of incorporation is issued upon the filing of the constitutional documents of the company, together with statutory forms and the payment of a filing fee. The 'constitution' of a company consists of two documents. One, the memorandum of association . states the objects of the company and the details of its authorised capital, otherwise known as the nominal capital. The second document, the articles of association5, contains provisions for the internal management of the company, for example, shareholders' annual general meetings6, or AGMs, and extraordinary general meetings7, the board of directors, corporate contracts and loans.

4 The management of a company is carried out by its officers, who include a director, manager and/or company secretary. A director is appointed to carry out and control the day-to-day affairs of the company. The structure, procedures and work of the board of directors, which as a body govern the company, are determined by the company's articles of association. A manager is delegated supervisory control of the affairs of the company. A manager's duties to the company are generally more burdensome than those of the employees, who basically owe a duty of confidentiality to the company. Every company must have a company secretary, who cannot also be the sole director of the company. This requirement is not applicable if there is more than one director. A company's auditors are appointed at general meetings. The auditors do not owe a duty to the company as a legal entity, but, rather, to the shareholders, to whom the auditor's report is addressed. 5 The duties owed by directors to a company can be classified into two groups. The first is a duty of care and the second is a fiduciary duty. The duty of care requires that the directors must exercise the care of an ordinarily prudent and diligent person under the relevant circumstances. The fiduciary duty stems from the position of trust and responsibility entrusted to directors. This duty has many aspects, but, broadly speaking, a director must act in the best interests of the company and not for any collateral purpose. However, the courts are generally reluctant to interfere, provided the relevant act or omission involves no fraud, illegality or conflict of interest. 6 Finally, a company's state of health is reflected in its accounts8, including its balance sheet and profit-and-ioss account8. Healthy profits might lead to a bonus10 or capitalisation issue11 to the shareholders. On the other hand, continuous losses may result in insolvency and the company going into liquidation.

Work with a partner, with one of you playing the role of a lawyer, Ms Chang, and the other the role of a client, Mr West, Mr West shows his lawyer the promissory note below and wants to know if it is valid. Ms Chang should discuss whether the following promissory note meets all of the six requirements for negotiability referred to in Exercise 8, explaining each requirement in plain language to Mr West. Mr West should ask Ms Chang to explain any special terms. These phrases for talking about requirements may be useful: I don't think it meets the requirement about ... There is also a requirement concerning ... It certainly fulfils that requirement. It doesn't satisfy the requirement dealing with ...

Dear Ms Chang Thank you for sharing your time and expertise with me last Thursday. I now realise (somewhat too late, I'm afraid) that promissory notes have to be drafted correctly to be legally binding. In order to avoid such regrettable situations arising in the future, I would ask you to provide the six requirements for me once more -this time in writing. Many thanks in advance. I look forward to hearing from you. Sincerely yours Keith West

1 Employment law entails contracts between employers and employees which are normally controlled by specific legislation. In the UK, certain laws have been enacted regulating the areas of sex discrimination, race relations, disability, health and safety, and employee rights in general. Also, certain aspects of employment contracts are covered by the Trade Union and Labour Relations Act 1992. 2 In the recruiting processes, employers must take into consideration that it is unlawful to discriminate between applicants for employment on the basis of gender, marital status, colour, race, nationality, or ethnic or national origins. It is also unlawful to publish job advertisements which might be construed as discriminatory. It is unlawful for a person to discriminate against another based on sex or marital status In the hiring process and In respect of the terms and conditions of employment. However, there are exceptions to this rule, such as where sex or marital status is a genuine occupational qualification {GOQ). 3 The law protects disabled persons by making it unlawful to discriminate against such persons in the interviewing and hiring process and regarding the terms of the offer of employment. Employers are required to make reasonable adjustments In the place of work to accommodate disabled persons. However, cost may be taken into account when determining what Is reasonable. 4 After the employee Is hired, protection is provided generally under the Employment Rights Act 1996. In particular, this Act requires the employer to provide the employee with a document containing the terms and conditions of employment. The statement must include the following: identities of the parties, the date of employment, a statement of whether there has been continuation of employment, the amount and frequency of pay, hours of work, holiday entitlement, job title and work location. 5 Matters related to termination of employment, such as unfair dismissal, discriminatory dismissal or redundancy dismissal, are governed by the Employment Rights Act 1996. Also, certain aspects of termination of employment are governed by the Trade Union and Labour Relations Act 1992 when the decision to terminate employment is in some way related to the activities of a trade union2. 6 The protections mentioned above are largely enforced through complaints to an employment tribunal. The tribunal has the power to render decisions and issue orders in respect of the parties' rights in relation to complaints. It may also order compensation for loss of prospective earnings and injured feelings. 7 Employment law relates to the areas covered above, while labour law3 refers to the negotiation, collective bargaining and arbitration processes. Labour laws primarily deal with the relationship between employers and trade unions. These laws grant employees the right to unionise and allow employers and employees to engage in certain activities (e.g. strikes, picketing, seeking injunctions, lockouts) so as to have their demands fulfilled.

EU employment laws mean case bonanza Employment lawyers will soon experience a major boom in work after the European Commission last month published plans to outlaw discrimination in the workplace on the basis of age, religion and sexual orientation. At present, UK domestic legislation only allows for claims against employers on the grounds of race, sex and disability. The proposed directive would also cover, inter alia, discrimination based on age and religion. Further directives are also planned. A second one would deal with outlawing discrimination on the grounds of race and ethnicity more generally, while a third envisages a 'programme of action', providing practical support and funding for education on race-discrimination Issues and for groups which target race discrimination. Once passed, the directives would place a deadline on transposition into the national laws of the member states and might allow people to bring claims against governments and other state employers, such as local councils. The directives would add to a large number of other European measures already enshrined in UK law, such as those covering maximum working hours and entitlement to parental leave, which were enacted last year, and have led to a huge growth in work for employment practitioners. It Is only since the Amsterdam Treaty was passed last summer that European law-makers have had the ability to Introduce antl-dlscrimination legislation on any basis other than sex. David Cockburn, the former chairman of the Law Society's Employment Law committee, said: 'The whole discrimination industry will take off in the next four or five years because of so much legislation in the pipeline.' He said advising employers on how to avoid claims and Increased awareness amongst the public of their rights would give rise to more work for solicitors. Mr Cockburn added that the scope of discrimination would also be opened up by a broader definition of indirect discrimination in the directive which would 'remove any artificial hurdles claimants currently have to cross'. Elizabeth Adams, chair of the Employment Lawyers Association's international committee, said the directives would mean 'more legislation for employers to tackle, more claims and more work for lawyers' as well as a 'simpler route for claimants'.

In what way? So, in other words, ... Yes, you have a point there. Yes, but you can look at it another way, too. That may well be true, but you have to see the bigger picture. Well, from a legal point of view, the debate is about ... Sorry, can I just finish my point? As I was saying, ... And what's more, ... Yes, but that's only one side of the problem. I think the important Issue here is ... Let me give you an example. It seems to me that the real issue is ...

Fleming Co. ('Fleming') was a company responsible for assisting new immigrants entering the State of Bloomland. One of its responsibilities was to report certain information, such as dates of arrival and departure. In order to cany this out, Fleming contracted with Linxus Co. ('Linxus'), a software development company, to develop a system that would provide Fleming with access to a database over the Internet. In developing the software, Linxus used some software codes that it had previously designed and used to support website-based databases for other companies. The contract between Fleming and Linxus to develop this software did not contain any express provision regarding ownership of copyright in the new database. When Fleming attempted to sub-license the software to another company, Linxus objected, and a dispute arose regarding what copyright rights Fleming had in the software, if any. Although not expressly written in the contract, Fleming argued that a term should be implied whereby Linxus assigns the copyright to Fleming, thereby granting Fleming the ability to sub-license the software to third parties.

Language use i: Giving emphasis An experienced speaker will make use of phrases which highlight the importance of an idea before it is presented. For example, the speaker in Listening 1 uses the following phrase to point directly to important information: It's important to realise that negotiating with a contract template means that it's necessary to review the terms and conditions it contains carefully. This phrase can be emphasised further by the use of such adverbs as particularly or especially. it's particularly / especially important to realise that negotiating with a contract template means ... A speaker would give these adverbs greater emphasis by making them louder, longer and higher in pitch. The beginning of the second part of the listening text contains several other examples of phrases that can be used to give emphasis to a point, in speaking as well as in writing.

New law makes e-signatures valid Contracts created online are now as legal as those on paper While contract basics generally apply to any contract, regardless of form, there are some now and emerging rules that apply specifically to contracts created online. Thanks to federal legislation recently signed into law, electronic contracts and electronic signatures are just as legal and enforceable as traditional paper contracts signed in ink. The law, known as the Electronic Signatures in Global and International Commerce Act, removes the uncertainty that previously accompanied e-contracts. However, consumer groups worry that the law doesn't adequately protect against online fraud and may create disadvantages and penalties for consumers who prefer printed agreements. What are electronic contracts and electronic signatures? 1) An e-contract can also be a "Click to Agree" contract, commonly used with downloaded software; the user clicks an "I Agree" button on a page containing the terms of the software license before the transaction can be completed. One of the more difficult electronic contract issues has been whether agreements made in a purely online environment were "signed" and therefore legally binding. Since a traditional ink signature isn't possible on an electronic contract, people have used several different ways to indicate their electronic signatures, including typing the signer's name into the signature area, pasting in a scanned version of the signer's signature, clicking an "I Accept" button, or using cryptographic "scrambling" technology. While the term "digital signature" is used for any of these methods, it is becoming standard to reserve the term for cryptographic signature methods, and to use "electronic signature" for other paperless signature methods. Are e-signatures secure? 2) PKI uses an algorithm to encrypt online documents so that they will be accessible only to authorized parties. The parties have "keys" to read and sign the document, thus ensuring that no one else will be able to sign fraudulently. Though its standards are still evolving, it is expected that PKI technology will become widely accepted. No paper needed The most significant legal effect of the new e-signature law is to make electronic contracts and signatures as legally valid as paper contracts. The fact that electronic contracts have been given solid legal support is great news for companies that conduct business online. Under the law, consumers can now buy almost any goods or services—from cars to home mortgages-without placing pen to paper. 3) Federal law versus state law The federal electronic signature law won't override any state laws on electronic transactions provided the state law is "substantially similar" to the federal law or the state has adopted the Uniform Electronic Transactions Act [UETA). This ensures that electronic contracts and electronic signatures will be valid in all states, regardless of where the parties live or where the contract is executed.

Using the letter on page 210 as a model, write a proposal in the form of a letter to a client who is the managing director of a large company in the service sector. Your client's industry has seen cases of cartel formation and price-fixing in the past. In order to protect your client against the risks of anti-competitive activities, you recommend that he set up guidelines for his employees to help prevent anti-competitive behaviour. In your letter, you should: state the reason for writing; outline the problem and warn your client of the risks of anti-competitive activities; make your recommendation as a solution to this problem; point out the benefits to his firm; briefly discuss how such guidelines can be developed and implemented with your assistance; offer to provide further help, if necessary.

Sotheby's fined £12.9m by EU over illegal price-fixing cartel SOTHEBY'S auction house was fined £12.9m by the European Commission yesterday for colluding with Christie's to cheat wealthy players in the international art market. The fine represents 6 per cent of the company's annual turnover and comes after a court case In America which saw its former chairman Alfred Taubman, 68, fined £4.7m and jailed for a year for the fraud, which cost sellers £290rn. Christie's escaped a fine because It provided the evidence that proved the operation of a cartel between the world's two leading art houses. Mario Monti, the European commissioner in charge of competition policy, said: This case shows that illegal cartels can appear in any sector, from basic industries to high-profile service markets.' He said Sotheby's and Christie's, which hold 90 per cent of the market, had breached EU competition rules. After fierce competition in the 1980s and early 1990s, a price-fixing agreement was struck in 1993 at the highest level in the two companies, the commission said. The key aspect of the Illegal agreement was an increase in the commission paid by sellers at auctions. But it also involved advances paid to sellers. The commission said Taubman and his Christie's counterpart, Sir Anthony Tennant, 'entered into secretive discussions at their respective private residences in London and/or New York'. The meetings were followed by regular meetings between the companies1 chief executives at the time, Dee Dee Brooks of Sotheby's and Christopher Davidge of Christie's, Sir Anthony refused to go to America to stand trial for the collusion. He cannot be extradited from Britain on the antitrust charges he faces. The European Commission began Investigating in January 2000 when Christie's approached the American Department of Justice and Brussels offering evidence in the hope of gaining leniency. Bill Ruprecht, president and chief executive of Sotheby's Holdings, said it had anticipated the fine, which would be reflected as a special charge in Its financial statements. 'Sotheby's co-operated fully with the Commission throughout, and as the fine is materially less than it could have been, we are pleased to have the investigation behind us,' he said. 'No current employee of the company was involved in, or aware of, the anti-competitive practices.' A Christie's spokeswoman said: 'We're pleased that it brings this chapter In the history of the art market closer to a conclusion.

LAW 121: Introduction to English law This course provides a general overview of English law and the common-law system. The course will look at the sources of law and the law-making process, as well as at the justice system in England. Students will be introduced to selected areas of English law, such as criminal law, contract law and the law of torts. The relationship between the English common law and EC law will also be covered. The course is designed for those international students who will be studying at English universities later in the academic year. Other students with an interest in the subject are also welcome to attend, as the contact points between English law and civil law are numerous. The seminars and all course materials are in English. More individuals in the world solve their legal problems in the framework of what is called the civil-law system than in the Anglo-Saxon case-law system. This course will introduce students to the legal systems of Western Europe that have most influenced the civil-law legal systems in the world. It aims to give students an insight into a system based on the superiority of written law. The course will cover the application and development of Roman law in Europe to the making of national codes all over the world. The course Is intended to prepare students who are going to study in a European university for the different approaches to law that they are likely to face in their year abroad.

The claim for breach of contract fails inter alia to state facts sufficient to constitute a cause of action, is uncertain as to what contract plaintiffs are suing on, and is uncertain in that it cannot be determined whether the contract sued on is written, oral or implied by conduct. The complaint alleges breach of contract as follows: 'At all times herein mentioned, plaintiffs were a part [sicj to the Construction Contract, as well as intended beneficiaries to each subcontract for the construction of the house. In light of the facts set out above, defendants, and each of them, have breached the Construction Contract.' On its face, the claim alleges only that defendants 'breached the Construction Contract'. But LongCo is not a party to the Construction Contract. Therefore LongCo cannot be liable for its breach. See e.g. GS1 Enterprises, Inc. v. Warner (1993).

As we have clearly demonstrated here today, the contract concluded between my client and the defendant, the software design company Glaptech, unambiguously stipulates that the defendant agrees to create a computer program enabling all customers to book a ferry passage online. Specifically, the contract expressly reads that the program must work for "all customers using modern home computers." We heard today, in the testimony of a recognized computer expert, that the concept of "modern home computers" can reasonably be construed to include Apple Macintosh computers. Therefore we must conclude that the creation of a program which does not function on this very type of computer system constitutes a clear breach of the contract concluded between my client and the defendant.

UK enacts third-party rights statute 1) On 11 November, 1999, the Contracts (Rights of Third Parties) Act 1999 became law in England, Wales and Northern Ireland. The act applies to contracts governed by English law or the law of Northern Ireland entered into beginning 11 May, 2000. It also applies to each English law contract entered into beginning 11 November, 1999 which expressly provides for its application. 2) The new statute has a significant effect on a variety of contracts, and, as contracts are at the heart of business transactions, on business in general. It fundamentally alters the English law principle of privity of contract that permits only parties to a contract to enforce its terms, even if the contract clearly purports to confer a benefit on a third party. 3) The statute enables a pe rson that is not a party to a contract to enforce its terms if the contract expressly provides that the non-party may do so, or if one or more terms of the contract purport to confer a benefit on the non-party, unless on a proper construction of the contract, it appears that the parties did not intend the term to be enforceable by the non-party. 4) Therefore it becomes important that contract drafters take into account whether any third party has been given rights under a contract. The parties may agree in the contract to exclude the application of the statute. If this is not done, one or more of the parties may be exposed to unexpected claims by third parties who were not intended to be beneficiaries of the contract. 5) The new act does not affect rights granted to third parties by means other than the act itself. Therefore, if the parties to a contract wish to grant third-party rights under it, they may continue to do so through the use of collateral contracts, novations, assignments, deed polls, trust relationships and other established English law mechanisms.

Dear All ... I know this comes at really short notice, but there's going to be an interesting seminar at the Shuttleworth Institute in Boston next Thursday and Friday. ... I really think that all the members of the secured transactions team should attend. ... Have a look at the attached flyer - John Kellogg will be holding the seminar and he's a real expert on Revised Article 9. ... Since two of you are newcomers and also since you've got some big cases coming up. ... I think a seminar like this is just what we need right now. ... You may need to rearrange your schedules a bit to be able to take part. ... It's probably a good idea to fly to Boston on Wednesday, since the seminar starts on Thursday morning. ... I think this is a good opportunity for us. ... Let me know what you are going to do. ... Best wishes ... Jennifer Sampson ...

Dear Ms Sampson ... In response to your email concerning the upcoming seminar on Revised Article 9. I am writing to inform you that I will unfortunately be unable to attend. ... The Balboni case is going to trial, and I am scheduled to appear in court on the days the seminar takes place. ... I am sure you will agree that this court appearance takes precedence over the seminar. ... I would like to add that I fully support the initiative you have taken to provide more training opportunities for the secured transactions team. ... I firmly believe that both my experienced colleagues and the junior members of the team will profit from the chance to learn more about the changes in the law that directly affect our work. ... However, I am afraid that a few of my colleagues will also be unable to attend. ... Therefore, I strongly recommend that we arrange for the seminar to be held on another date. ... To my knowledge, the Shuttleworth Institute also carries out in-company training courses upon request. ... Might that be a solution for our team as well? ... If you would like me to make arrangements for such a seminar I would be happy to do so. ... Best regards ... Chiara Lawson ...

High-profile cases involving competition law violations committed by large, well-known companies often appear in the news. However, undertakings of all sizes and sectors of the economy are equally bound by the laws prohibiting anti-competitive activities. For this reason, lawyers must advise their business clients about the competition law risks associated with certain business practices and warn them of the possible consequences of such illegal behaviour. The following dialogue takes place between a US lawyer, Mr Langston, and his client, Mr Greene, the owner of a taxi company.

In the discussion, Mr Langston warns his client of the risks associated with anti-competitive activities. He uses the following phrases: Let me caution you that in this jurisdiction the fines can be very high for this sort of activity. I must warn you that individuáis directly involved in serious anti-competitive behaviour face the threat of criminal prosecution, which could lead to imprisonment. You should be aware that the risks of being a party to an anti-competitive agreement or abusing a dominant position are serious. Other phrases that can be used in this way are: I must advise you that ... I urge you to consider that...

The power to alter, amend or repeal the bylaws or to adopt new bylaws shall be vested in the Board of Directors; provided, however, that any bylaw or amendment thereto as adopted by the Board of Directors may be altered, amended or repealedby a vote of the shareholders entitled to vote for the election of directors, or a new bylaw in lieu thereof may be adopted by 5 vote of such shareholders. No bylaw which has been altered, amended or adopted by such a vote of the shareholders may be altered, amended or repealed by vote of the directors until two years shall have expired since such action by vote of such shareholders. [...] The Corporation shall keep as permanent records minutes of all meetings of its shareholders and directors, a record of all action taken by the shareholders or the j-o directors without a meeting, and a record of all actions taken by a committee of the directors in place of the Board of Directors on behalf of the Corporation. The Corporation shall also maintain appropriate accounting records. The Corporation, or its agent, shall maintain a record of its shareholders in a form that permits preparation of a list of the names and addresses of all shareholders, in alphabetical order, by class of shares, showing is the number and class of shares held by each.

In legal documents, the verb shall is used to indicate obligation, to express a promise or to make a declaration to which the parties involved are legally bound. This use differs from that in everyday speech, where it is most often used to make offers {Shall I open the window?) or to refer to the future (/ shall miss you), although this latter use is less frequent in modern English. In legal texts, shall usually expresses the meaning of 'must' (obligation): Every notice of the meeting of the shareholders shall state the place, date and hour. or 'will' (in the sense of a promise): The board of directors shall have the power to enact bylaws. Shall can also be used in legal texts to refer to a future action or state: ... until two years shall have expired since such action by vote of such shareholders. In everyday speech, this future meaning is commonly expressed using only the present perfect (... until two years have expired ...). Another verb commonly found in legal documents is may, which generally expresses permission, in the sense of 'can' (this use is less common in everyday English): ... any bylaw or amendment thereto as adopted by the Board of Directors may be altered, amended or repealed by a vote of the shareholders. In everyday English, may is sometimes used as a substitute for might, indicating probability (He may want to see the document).

Retention of title clause created a trust, not a charge 1 The High Court of Australia has breathed new life into retention of title ('ROT') clauses. By a four-to-one majority, the Court has upheld the effectiveness of an agreement providing for the proceeds of sale of manufactured goods to be held in trust, thereby securing the manufacturer's indebtedness to the seller. The fact that the ROT clause created a trust, rather than a charge, meant it was effective despite not being registered under the Australian equivalent of the Companies Act. 2 In the case of Associated Alloys v ACN 001 452 106, Associated Alloys ('Seller1) sold steel to a customer ('Buyer') subject to a ROT clause. The critical provision in the clause stated: 'In the event that the [Buyer] uses the goods/product in some manufacturing or construction process of its own or of some third party, then the [Buyer] shall hold such part of the proceeds of such manufacturing or construction process as relates to the goods/product in trust for the [Seller]. Such part shall be deemed to equal in dollar terms the amount owing by the [Buyer] to the [Seller] at the time of the receipt of such proceeds.' 3 The Buyer used the steel in the manufacture of pressure vessels, heat exchangers, and columns ('steel products'). It was agreed that the Seller had not retained title to the steel products since the steel it had supplied was no longer ascertainable in the products; the steel products were physically different property. The steel products were sold to a third party, with the third party making payments to the Buyer. The question for the Court to consider was whether the Seller had priority over those payments by virtue of the provision set out above. 4 The Judge at first instance, and the Court of Appeal, had held that the clause insofar as it operated to confer on the Seller a proprietary interest in the proceeds, was a charge over book debts and was void for non-registration. The majority in the High Court rejected that reasoning. In the majority's view, there is a critical distinction to be drawn between trusts and charges. 5 in drawing the distinction in relation to the particular clause in question, the Court noted that effect had to be given to the legal relationship the parties had entered into. On that basis, the Court held that the ROT clause created a trust. The fact that the amount subject to the trust was determined by reference to the amount that the Buyer owed the Seller did not reduce the importance of this characterisation. 6 In the end, and despite substantially upholding the Seller's arguments as to the effect of the clause, the Court dismissed the Seller's appeal on an evidential ground. The Seller had not adduced evidence to show a link between the steel it had supplied and the payments for products supplied to the third party. This gap in the evidence meant that the Seller's appeal failed. 7 However, despite the Seller's ultimate failure, the majority's decision strengthens a seller's position and consequently could alter the balance where sellers and secured creditors compete for priority.

Language use 2: Talking about corresponding laws and institutions The first paragraph of Reading 2 contains the sentence The fact the ROT clause created a trust, rather than a charge, meant it was effective despite not being registered under the Australian equivalent of the Companies Act. The phrase in bold refers to a law in Australia which more or less corresponds, or is comparable to, a law in the UK. This phrase and the ones like it below can be used to refer to laws of all kinds as well as to institutions, and thus are useful for comparing one's own legal system to that of another country or another jurisdiction. Look at the examples: The law is the Australian equivalent of the Companies Act. This statute corresponds to the German law on ... That's what we in France would call... In Russia, we have something similar called the ... Our law is comparable to the UK's Companies Act. It's basically the same as our/your ...

The Shuttleworth Institute of Continuing Education for the Legal Profession Understanding Revised Article 9 of the Uniform Commercial Code: What you need to know August 19-20 A selection of topics to be covered • Filings and perfections under Revised UCC Article 9 • Creating a secured interest: seven steps to follow, including drafting security agreements • Secured transactions: rules governing transition from Prior Article 9 of the UCC to the new Revised Article 9 of the UCC • Special rules applying to consumer secured transactions in Revised Article 9 of the UCC • Intellectual property as collateral • Security interests in personal property Target audience This two-day seminar is intended for attorneys and paralegals, loan officers, vice presidents, commercial loan officers, credit and collection managers, branch managers, loan department personnel, accountants, and auditors. Featured speaker John T. Kellogg (Partner), Knowles, Kellogg, and Granger Mr. Kellogg has substantial experience in all aspects of business litigation emphasizing creditors7 rights, secured transactions, and real-estate matters; bankruptcy and business reorganization; loan documentation and loan restructuring. Mr. Kellogg has represented secured and unsecured creditors, bankruptcy trustees, creditor's committees, and business debtors for the past 30 years. Materials Participants will receive a manual which has been compiled by the Institute specifically for this seminar. The seminar will be recorded; registration constitutes consent to such recording. If a registered participant cannot attend, he or she may order a set of the digitally recorded CDs and the accompanying manual from this program. Con fací the Shuttleworth Institute for hotel/seminar information at (555) 456-6048 (please call hotel for accommodations or directions only). Cancellations: If you cancel six or more business days in advance, you will receive a full refund, less a $20 service charge. If you cancel within five business days, you are not entitled to a cash refund.

Lawyers need to inform themselves of recent developments and rulings in unsettled areas of the law. Generally speaking, an unsettled area of the law is one in which the law is open to interpretation, due to the fact that case law decisions are inconsistent with each other or with legislation. Often such areas are new, growing and with little precedent. The text on page 185 deals with an unsettled area of the law in which two of the key terms introduced in this unit, fixed charges and floating charges, play an important role.

Article 47: Renewal 1 Registration of the Community trade mark shall be renewed at the request of the proprietor of the trade mark or any person expressly authorised by him, provided that the fees have been paid. 2 The [Trade Mark] Office shall inform the proprietor of the Community trade mark, and any person having a registered right in respect of the Community trade mark, of the expiry of the registration in good time before the said expiry. Failure to give such information shall not involve the responsibility of the Office. 3 The request for renewal shall be submitted within a period of six months ending on the last day of the month in which protection ends. The fees shall also be paid within this period. Failing this, the request may be submitted and the fees paid within a further period of six months following the day referred to in the first sentence, provided that an additional fee is paid within this further period. 4 Where the request is submitted or the fees paid in respect of only some of the goods or services for which the Community trade mark is registered, registration shall be renewed for those goods or services only.

Writing and Speaking: Paraphrasing in plain language Lawyers often need to explain the contents of a legal text to a client in plain language the client can understand. Generally, when paraphrasing complex sentences written in formal language, it is helpful to do the following: C Break long sentences down into shorter sentences. C Make passive sentences into active ones: The request may be submitted -* You can submit the request C Replace shall constructions with other verbs, depending on the meaning: - future forms: Registration shall be renewed for those goods or services only —> Registration will only be renewed ... or You will only be able to renew registration ... - verbs of necessity: The fees shall also be paid > You have to / must / are required to pay the costs. C Replace formal vocabulary with more common, everyday words.

Section 16.2 Corporate opportunity The doctrine of corporate opportunity requires a corporate director to further the interests of the corporation and give to it the benefit of his uncorrupted business judgment. He may not take a secret profit in connection with the corporate transactions, compete unfairly with the corporation or take personally profitable business opportunities which belong to the corporation. The basic test is a two-part test. The first part requires a determination of whether the opportunity falls within the line of business of the corporation; if this is so, then the second part examines the circumstances under which the director is nonetheless permitted to exploit the opportunity. The 'line of business' test compares the closeness of the opportunity to the areas of business in which the corporation is engaged. Other factors may be relevant to this consideration, such as (i) whether the director became aware of the relevant opportunity as a result of his or her position, (ii) whether the director utilised property belonging to the company to take advantage of the opportunity, (iii) whether previous discussions were held regarding the opportunity within the corporation, and (iv) whether the opportunity was presented to the director as an agent of the corporation. The second part of the test allows for a justification to relieve liability from an affirmative answer to the first part of the test. In this part, courts examine whether the director had a persuasive reason to take advantage of something which was in the company's line of business. Some examples of situations that courts have considered to be fair are that the corporation is incapable of taking advantage of the opportunity.

1 Under the common law1, a promise becomes an enforceable contract when there is an offer by one party (offeror) that is accepted by the other party (offeree) with the exchange of legally sufficient consideration (a gift or donation does not generally count as consideration); hence the equation learned by law students: offer + acceptance + consideration = contract. The law regards a counter offer as a rejection of the offer. Therefore, a counter offer does not serve to form a contract unless, of course, the counter offer is accepted by the original offeror. 2 For a promise to become an enforceable contract, the parties must also agree on the essential terms of the contract, such as price and subject matter. Nevertheless, courts will enforce a vague or indefinite contract under certain circumstances, such as when the conduct of the parties, as opposed to the written instrument, manifests sufficient certainty as to the terms of the agreement. 3 An enforceable agreement may be manifested in either written or oral words (an express contract) or by conduct or some combination of conduct and words (an implied contract). There are exceptions to this general rule. For example, the Statute of Frauds requires that all contracts involving the sale of real property be In writing. 4 In a contractual dispute, certain defences to the formation of a contract may permit a party to escape his/her obligations under the contract. For example, illegality of the subject matter, fraud in the inducement, duress and the lack of legal capacity to contract all enable a party to attack the validity of a contract. 5 In some cases, Individuals/companies who are not a party to a particular contract may nevertheless have enforceable rights under the contract. For example, contracts made for the benefit of a third party (third-party beneficiary contracts) may be enforceable by the third party. An original party to a contract may also subsequently transfer his rights/duties under the contract to a third party by way of an assignment of rights or delegation of duties. This third party is called the assignee In an assignment of rights and the delegate In a delegation of duties. (See Unit 7 for a more detailed look at assignment and third-party rights,)

The last word on book debts1? 1 There have been court battles for more than a century over whether it is possible to have a fixed charge on the book debts of a company. This is a topical issue of particular concern to company directors, bankers, other lenders and creditors. 2 The modern practice of lenders taking a fixed charge on book debts arose in the UK from a court decision in 1979, in the case of Siebe Gorman & Co. Ltd v. Barclays Bank Limited. In that case, Barclays Bank had taken a fixed charge on book debts and a floating charge on other assets of the company. The judge held that the charge on book debts was a valid fixed charge. He said that the critical feature distinguishing a floating charge from a fixed charge was the company's power to deal with assets in the ordinary course of business. He interpreted the charge as meaning that the company was not free to draw its account without the consent of the bank, even when it was in credit, and so the charge on book debts and their proceeds was a fixed charge. The overall effect of the Siebe Gorman case was to expand the practice of banks and other lenders taking fixed charges on book debts. 3 In the most recent case of National Westminster Bank Pic v. Spectrum Plus Limited, the court said that Siebe Gorman had been wrongly decided. It held that the bank only had a floating charge over the book debts because the company was entitled to collect its book debts and use the proceeds in the normal course of business unless the bank intervened. However, the case went to appeal, and the Court of Appeal reversed the decision and said that the restrictions imposed by the debenture on the use of the proceeds of the book debt were enough to give the bank a fixed charge. 4 What is significant about this case is that the Court of Appeal pointed out that, for the last 25 years, debentures with the wording that had been approved in the Siebe Gorman case had been used on the understanding that this would create a fixed charge. The Court of Appeal said that banks have relied upon this understanding and bank guarantees have been given on this basis. It also said that even if the interpretation in the Siebe Gorman case had appeared erroneous, it would have held that the wording had, by customary usage, acquired the meaning which the Siebe Gorman case had attributed to it. However, the case of Spectrum Plus Limited is going to be looked at by the House of Lords, and it may very well reach a different conclusion to that of the Court of Appeal. 5 But does all this really matter? Well, yes, it does, because the reason why there has been so much conflict over charges is that book debts are often a very significant part of a company's assets. If a company becomes insolvent, book debts can become critical for a debenture holder. If the charge was a floating charge only, then the book debts would go to the company's preferential creditors - mainly the Inland Revenue, Customs & Excise and employees. That said, the picture changed radically in September last year when, by legislation, the Inland Revenue and Customs & Excise lost their rights as preferential creditors in insolvencies. Now they are part of the body of unsecured creditors. 6 As time goes by, the number of such cases will fall away, but it is still a problem for many debenture holders and for people who gave guarantees on behalf of companies that later became Insolvent If a debenture holder is unable to be paid from book debts, where possible, a claim will be made under a personal guarantee instead.

Another unsettled area of secured transactions law concerns intellectual property [IP]. In recent years, lawyers and lenders have seen a significant increase in the importance of IP as collateral. However, in the US, as in many other countries, rulings in this area remain inconsistent, while the applicability of statutes is not yet always clear. The continuing legal education seminar on the revised UCC in Listening i included a presentation called 'Intellectual property as collateral'. You will hear two lawyers who attended the session, Peter and Jack, telling a colleague, Tina, about it.

Treasury shares (acquisition of own shares) Under current company legislation, companies that have used surplus cash reserves to buy back their own shares are required to cancel those shares and not hold them in treasury to be resold at a later date. On 22 December 1999, Dr Kim Howells, then Parliamentary Under Secretary of State for Competition and Consumer Affairs at the Department of Trade and Industry (DTI), announced that the law prohibiting companies to hold their own shares in treasury was to be deregulated. Following the publication of a draft document detailing likely amendments to the regulations in 2001, it was announced that a new company law will come into force in December 2003 that will permit companies to buy back their own shares and hold them in treasury rather than having to cancel them. This new legislation will only apply to company shares that are listed on the London Stock Exchange's official list, the Alternative Investment Market (AIM) or a comparable European Economic Area (EEA) market, and will therefore not include the shares of other public companies or private companies. Qualifying shares will be held in treasury until they are either resold or transferred to an appropriate employee share scheme. This change to company law has been made to assist companies amend their share capital without incurring the costs of cancelling and re-issuing shares that exist under current legislation. The new law will also bring the UK Into line with other EEA countries. Companies must buy back shares out of distributable reserves, and these shares must not at any time exceed 10% of their issued share capital (surplus treasury shares must be disposed of within 12 months). Whilst held in treasury, these shares will not carry any voting rights or be entitled to a dividend.

At some point in the life of a company, the owners may wish to make fundamental changes to the company. Some of these changes may merely be basically administrative, such as changing the company's name. Other changes may entail alteration of the company's structure. These changes sometimes place the rights of creditors and minority shareholders at risk and are thus subject to special statutory regulation. The main examples of the types of alterations which fall into this group are constitutional amendments, mergers, consolidations, sale of substantially all assets, acquisition of controlling shares and liquidation. The most common constitutional alterations in a company include alteration of the company's name, capital or objects. According to English law, a change of name can be made by special resolution in a general meeting, or all the members must sign a written resolution that the name of the company be changed to the new name. A signed copy of the resolution containing the new name must then be submitted to the Registrar of Companies. If the submission is in order, Companies House will issue a Certificate of Incorporation on Change of Name. A company may alter its capital structure, provided that the articles of association grant such power. Such an alteration might entail such things as an increase In share capital, a consolidation or division of shares, a subdivision of shares or a cancellation of shares. A company may only reduce its share capital following court confirmation. A company may alter its objects clause by special resolution. However, the court may at its discretion set aside such a resolution upon application by a small group of minority shareholders. A merger takes place when one company is absorbed into another company. Where company X is merged into company Y, company Y is the acquiring company and survives, while company X is the acquired company and disappears, in a consolidation, both company X and company Y disappear and a new company Z is formed. A company may also gain control of another company by purchasing substantially all of the other company's assets. At common law, a sale of this kind normally required unanimous shareholder approval. However, today such sales may take place upon approval by some majority of the shareholders. Acquisition of shares is another method of gaining control of another company. This is achieved by purchasing all or the controlling portion of outstanding shares In a company. Many times this is achieved through a takeover bid1, whereby company Y (the acquiring company or acquirer) makes a public invitation to shareholders of company X (the acquired company or target) to sell their stock, generally at a price above the market price. There can be hostile takeovers and friendly takeovers. In the former, the takeover is opposed by the target company's management, white in the latter the action is supported by management. Various regulations apply largely to protect the target company shareholders. Finally, winding-up or liquidation of a company is the process by which the life of a company is brought to an end. Compulsory winding-up2 is ordered by the court when the company is insolvent. However, a voluntary liquidation3 refers to a process which may be instigated by the members of the company where the company is solvent.

Another important area of anti-competitive policy is merger control. Lawyers working for governmental institutions are involved in the investigation of proposed mergers. Their work is aimed at preventing the creation of structures that will lead to anti-competitive activities. You will hear an excerpt from a speech on the evaluation of mergers given by a representative of the South African Competition Tribunal to an audience of business people and lawyers. The purpose of Competition Tribunal is to adjudicate competition matters in accordance with the South African Competition Act. The speaker outlines the steps taken in the evaluation of mergers.

Lawyers assist their corporate clients in the EU in getting clearance from the European Commission or a Member State[s] on the competition law aspects of a merger or acquisition. Naturaily, they need to be aware of any changes in the procedures to follow and the deadlines which apply. The text on page 214 is an excerpt from a report on changes resulting from the reform of the European Community Merger Regulation [ECMR]. The report was published on the website of a law firm serving large corporations.

1 The term 'spin-off refers to any distribution by a corporation to its shareholders of one of its two or more businesses. Sometimes the spun-off business is transferred first to a newly formed subsidiary corporation. The stock of that subsidiary is then distributed to the shareholders of the distributing corporation. Other times, the stock of a pre-existing subsidiary is distributed. 2 Spin-offs can include distributions on a proportional basis (i.e. pro rata), in which the receiving shareholders do not give up any of their stock in the distributing corporation when they receive the spun-off stock. Sometimes the distribution only goes to certain shareholders. In this case, the receiving shareholders give up some (or all) of their stock in the distributing corporation in exchange for the stock of the controlled subsidiary. Non-pro-rata spin-offs are sometimes referred to as split-offs' A non-pro-rata spin-off that results in one group of shareholders holding all the stock of the distributing corporation and a second group holding all the stock of the former subsidiary corporation is referred to as a 'split-up'. 3 A spin-off is used to separate two businesses that have become incompatible. In a case where investors and lenders may want to provide capital to one but not all business operations, a spin-off can be a good solution. Spin-offs are also used to separate businesses where owner-managers have different philosophies. Spin-offs may furthermore be: used by publicly held companies when the stock market would value the separate parts more highly than combined operations. The separation of business operations could also lead to a greater entrepreneurial drive for success, 4 The tax characteristics of a qualifying spin-off under Internal Revenue Code Section 355 make this an attractive tool for solving certain corporate challenges. Without Section 355, the distributing corporation would have to recognize a gain on the stock it distributed as if it had sold that stack. In addition., shareholders receiving the distribution would be taxed on the shares received, either as a dividend or as capital gain. This double tax usually makes spin-offs extremely expensive. Code Section 355 permits a spin-off to be accomplished without tax to either the distributing corporation or to the receiving shareholder. Any gain realized by the shareholder is deferred until the stock is sold.

Language use i: Explaining a procedure When explaining how a procedure is carried out, the order of the steps to be taken can be indicated using sequencing words. Look at the following examples from the listening text: Well, the first thing you have to do is check the memorandum of association ... Then you have to find out whether they've issued all their share capital already or not. The next step would be to determine the amount of increase of share capital. But before the EGM can take place, the shareholders have to be informed by notice about the EGM. Finally, within 15 days, the following documents have to be filed at Companies House ... Here are some more sequencing words: After that, Afterward(s), At this point, Following this, Once you have done that, Subsequently Another feature of such an explanation is the use of words and expressions indicating necessity, such as fo have to, must, to be required and to be necessary: The first thing you have to do is ... Tell your client that they have to call a board meeting .., This notice must state the following things ... The chairperson is required to preside at the EGM, and it's necessary that a quorum is present. Minutes of the two meetings ... have to be drawn up.

All the security Interests mentioned above are consensual, since they are created through a security agreement whereby the debtor grants to the creditor an interest in debtor property (collateral) in order to enforce the performance of the debtor's obligations to the creditor. There also exist non-consensual security interests, such as those created by operation of law, e.g. unpaid sellers' Hens, where a seller has a lien over goods in his possession for which he has not received payment. In order to invoke consensual security Interests against third parties, perfection of the security interest must take place. Perfection is the action which gives the creditor priority over certain other creditors in the enforcement of the security interest. Perfection can take place in three ways: by registration of the security agreement, by possession of the collateral, and by attachment of the security interest. The underlying purpose of perfection is to put third-party creditors on notice of the security interest and so avoid any hidden interests in property. Attachment refers to the time at which the creditor's interest fastens to the property offered as security, giving the creditor a vested interest. In certain cases, attachment also constitutes perfection. Perfection upon attachment is sanctioned by statute, generally for purposes of commercial convenience and availability of other methods of protecting creditors.

SECURITY AGREEMENT This SECURITY AGREEMENT is made on this 11th day of May, 2005, between Appleby Designs Ltd ("Debtor"), and Riehard J. Cross ("Secured Party"). 1 SECURITY INTEREST. Debtor grants to Secured Party a security interest in all inventory, equipment, appliances, furnishings and fixtures now or hereafter placed upon the premises located at 99 Appleby Road, Baltimore, MD (the "Premises") or used in connection therewith and in which Debtor now lias or hereafter acquires any right and Lhe proceeds therefrom. As additional collateral, Debtor assigns to Secured Party a security interest in all of its right, title and interest to any trademarks, trade names and contract rights which Debtor now has or hereafter acquires. The Security Interest shall secure the payment and performance of Debtor's promissory note of even date herewith in the principal amount of twenty thousand ($20,000) Dollars and the payment and performance of all other liabilities and obligations of Debtor to Secured Party of every kind and description, direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising.

The text in Reading 4 represents a letter of advice, a type of text written by a lawyer for a client. The function of a letter of advice is to provide an analysis of a legal problem so that the client can make an informed decision concerning a course of action. Another type of text which should be mentioned here because of its similarity to a letter of advice is a legal opinion. While the language of this type of text is similar, a legal opinion is generally much longer, as it entails thorough research and covers the issues in greater detail. A legal opinion also carries much more weight and greater potential liability for the lawyer or firm issuing It, Regarding the contents, we can say that, in general, a letter of advice: identifies the legal issue at stake in a given situation and explains how the law applies to the facts presented by the client; ¡3 indicates the rights, obligations and liabilities of the client; outlines the options the client has, pointing out advantages and disadvantages of each option; 0 considers factors such as risk, delay, expense, etc., as well as case-specific factors; makes use of facts, relevant law and reasoning to support the advice. The structure of the letter can be made clear by using standard signalling phrases. The table on page 31 provides examples of phrases used to structure the information in a text. These phrases serve as signals, pointing to information before it is presented, thus increasing the clarity of a text.

The term capitalisation refers to the act of providing capital for a company through the issuance of various securities. Initially, company capitalisation takes place through the issuance of shares as authorised in the memorandum of association1. The authorised share capital2, the maximum amount of share capital that a company can issue, is stated in the memorandum of association, together with the division of the share capital into shares of a certain amount (e.g. 100 shares of £1). The memorandum of association also states the names of the subscribers. The minimum share capital for a public limited company in Great Britain is £50,000. Issued share capital, as opposed to authorised share capital, refers to shares actually held by shareholders. Accordingly, this means that a company may authorise capital in excess of the mandatory minimum share capital but refrain from issuing all of it until a later date - or at all. The division of share capital usually entails two classes of shares, namely ordinary shares3 and preference shares4. The ordinary shareholder has voting rights, but the payment of dividends is dependent upon the performance of the company. Preference shareholders, on the other hand, receive a fixed dividend irrespective of performance (provided the payment of dividends is legally permitted) before the payment of any dividend to ordinary shareholders, but preference shareholders normally have no voting rights. There is also the possibility of share subdivision5, whereby, for example, one ten-pound share is split into ten one-pound shares, usually in order to increase marketability. The reverse process Is, appropriately enough, termed share consolidation6. Shares In British companies are subject to pre-emption rights7, whereby the company is required to offer newly issued shares first to its existing shareholders, who have the right of 'first refusal'. The shareholders may waive their pre-emption rights by special resolution. A feature of public companies is that the shares may be freely traded. Shares are normally sold to existing shareholders through a rights issue, unless pre-emption rights have been waived. Even here, though, new shares are not always offered in the first instance to the general public, but rather may be sold to a particular group or individuals (a directed placement). Share capital is not, of course, the only means of corporate finance. The other is loan capital, typified by debentures. The grant of security for a loan by giving the creditor the right to recover his capital sum from specific assets is termed a fixed charge6. Companies may also borrow money secured by the company's assets, such as stock in trade. This arrangement is known as a floating charge.

Our firm was formed in 2005, following the merger of Johnson and Hall in the UK, Europe and Asia, and Paoletti, Heider and Robinson in the US. The merged firm comprises over 3,000 people in 29 offices and 17 countries around the world. Our vision is to be one of the top full-service international law firms, while upholding strong core values, which include investing in our employees, our clients and the community. As an associate in the Restructuring and Insolvency team, you will act for insolvency practitioners, creditors, debtors, investors and regulators on corporate restructurings, rescues, formal insolvency procedures and investigations. You will gain international experience which may include cross-border co-operation activities. As our clients' business becomes increasingly global, you will be working to find creative commercial solutions to reconcile the often differing requirements of several domestic law regimes. Your general role as an associate will comprise three main components: • Pure legal work • Managing the client relationship • Raising your personal profile within the practice by participating in client events and contributing to training sessions and the production of know-how Professional requirements/qualifications • Keen interest and relevant experience in restructuring and insolvency work • Current membership in a recognised Insolvency Practitioners Association • Strong analytical skills • Fluency in spoken and written English and preferably another European language • Willingness to travel • Excellent interpersonal and communication skills • Ability to work effectively in a multi-ethnic and multicultural environment Applicants may send their application to [email protected]

We are offering an exciting opportunity for a NQ Company Commercial Solicitor to join an established team. Our clients include small and medium-size enterprises, as well as large firms, among them international corporations based in the UK. The position will involve general company and commercial work, including some insolvency. You will be working with the head of the department and supporting the team as a whole on transactional work. You will also have the opportunity for some specialisation within the areas of IT and e-commerce, and this will involve working closely with a salaried partner. This is a great opportunity for someone wishing to join a market-leading, forward-thinking firm. Applicants may send their application to [email protected]

Do you want paper or electronic? It you prefer paper, the law provides a means for you to opt out of using electronic contracts. An online company must provide a notice indicating whether paper contracts are available and. informing you that if you give your consent to use electronic documents, you can later change your mind. If you withdraw consent to use electronic contracts, the notice must explain what fees or penalties might apply if the company must use paper agreements for the transaction. 4) Prior to obtaining your consent, the business must also provide a statement outlining the hardware and software requirements to read and save the business's electronic documents. If the hardware or software requirements change while you have a contractual relationship with the business, the business must notify you of the change and give you the option to revoke your consent to using electronic documents. Although the e-signature law doesn't force consumers to accept electronic documents from businesses, it poses a potential disadvantage for low-tech citizens by allowing businesses to collect additional fees from those who opt for paper. Consumer concerns 5) The law establishes only that electronic signatures in all then forms qualify as signatures in the legal sense, and leaves it up to software companies and the free market to establish which electronic signature methods will be used. Since electronic-signature technology is still evolving, many kinds of e-signatures offer little, if any, security. If a consumer uses an insecure signature method, identity thieves could intercept it online and use it for fraudulent purposes. It is expected that secure methods of electronic signatures will be adopted and become as commonplace as credit cards. However, stolen electronic signatures have the potential to become as widespread a problem for e¬commerce as credit-card scams and stolen passwords. Consumer-protection groups suggest caution before signing anything online.

When there has been a breach of contract, the non-breaching party will often seek remedies available under the law. This area of the law, known as 'remedies', is a broad area, but can be summarised generally. Most remedies involve money damages, but non-monetary relief is also available in some cases. The basic remedy for breach of contract in the Anglo-American legal system is pecuniary compensation to an injured party for the loss of the benefits that party would have received had the contract been performed. Some examples of this kind of remedy include expectation damages or 'benefit of the bargain' damages. Certain damages are recoverable regardless of whether the loss was foreseeable, while the recovery of other damages hinges on foreseeability. Where the damage is the direct and natural result of the breach, the breaching party will be held liable to pay damages for such without regard to the issue of foreseeability. When lawyers plead these damages in court, they commonly refer to general damages. However, where the damage arises due to the special circumstances related to the transaction in question, damages are limited by the foreseeability rule, which states that they are only recoverable when it can be established that the damage was foreseeable to the breaching party at the time the contract was entered into. When lawyers plead these damages in court, they commonly refer to special or consequential damages. Where it Is not possible to prove expectation damages, the non-breaching party can seek reliance damages, where the compensation is the amount of money necessary to compensate him for any expenses incurred in reasonable reliance on the contract. The non-breaching party is thus returned to the status quo ante with no profit or benefit from the contract. Another measure of damages is restitution damages, which compel the breaching party to give up any money benefit it obtained under the breached contract. Restitution damages are, for example, awarded when one party (the breaching party) completely fails to perform its obligations under the contract. The parties to a contract may, however, agree at the time they enter into the contract that a fixed sum of money shall be awarded in the event of a breach or to a formula for ascertaining the damages or for certain other remedies, e.g. right of repair. This type of damages is known as liquidated damages or stipulated damages. In some cases, a party will be able to obtain punitive or exemplary damages through the court which are designed to punish the breaching party for conduct which is judged to be particularly reprehensible, e.g. fraud. This type of damages is normally only awarded where specifically provided by statute and where a tort in some way accompanies the breach of contract. Where monetary damages would not be an adequate remedy, such as in a case where two parties enter into a real-estate contract and the seller decides to sell to a third party, the court may order specific performance. Specific performance involves an order by the court compelling the breaching party to perform the contract. Finally, there are other remedies available; for example, if there has been a default by one party, the other party may rescind or cancel the contract. This constitutes an undoing of the contract from the very beginning. In addition, legislation such as sale of goods legislation also allows for various remedies, including a right to reject goods in certain cases and a right to return or demand repair or replacement.

Competition law1 concerns itself with the regulation of business activities which are anticompetitive2. This area of the law is very complex, as it combines economics and law. The legal English used is also complex and is made even more so by the differences in the language and law employed by the two major actors in competition regulation, the European Union and the United States. EC competition law is rooted in the creation of the single European market and, as such, prohibiting private undertakings3 from partitioning the Community market along national lines is a fundamental goal. The origins of competition law in the United States, on the other hand, can be found in the term 'antitrust'. In the late 19th century, enormous amounts of wealth were amassed In some important national industries such as railways, steel and coal. The 'barons' who controlled these industries artfully created trusts to shield their fortunes and business empires. Those who fought against these practices came to be called trustbusters. Their efforts culminated in the Sherman Act, which was enacted to put an end to these practices. The overall purposes of competition law are often the subject of debate and differ from jurisdiction to jurisdiction. However, on the whole, it is accepted that competitive markets enhance economic efficiency because they maximise consumer benefit and optimise the allocation of resources, which is good for market economies. Competition law regulates cartels, monopolies, oligopolies and mergers. A carte! is a type of agreement among undertakings which would normally compete with each other to reduce their output to agreed levels or sell at an agreed price. One of the key ingredients in sustaining a cartel is a defined relevant market with high barriers to entry so that new undertakings cannot penetrate the market. The classic tool used by the cartel to gain monopoly profits is price-fixing. In broad terms, a monopoly is an undertaking or inter-related group of undertakings which either control the supply (and therefore the price) of a product or service or exclude competition for that product or service. An oligopoly is a market with only a small number of market actors, who are able to adopt parallel behaviour In relation to price-setting or output decisions. Common aspects of enactments aimed at preventing anti-competitive activities include restrictions on abuse of a dominant position4 through such instruments as predatory pricing and tie-in arrangements, among others. The United States even prohibits behaviour which attempts to gain a monopoly position. Merger regulation is another common aspect of legislation aimed at limiting anti-competitive concentration of market power. In this context, it is also important to discuss the terms horizontal and vertical. 'Horizontal' denotes the joining of undertakings which are at the same level in the economic supply chain; 'vertical' denotes the joining of undertakings at different levels in the economic supply chain.

Germany In December 2004, the German Cartel Office initiated proceedings against five gas utility companies suspected of abusive pricing practices. Italy On 16 November 2004, the Italian Competition Council fined Telecom Italia €152 million for an abuse of its dominant position on the market for fixed network telecommunications services for business customers. Poland Poland's Office for Protection of Competition and Consumers fined PKP Cargo, the largest Polish railway carrier, PLN 20 million for abusing its dominant position by applying dissimilar conditions to equivalent transactions with other trading parties. Portugal On 11 January 2005, the Portuguese Competition Authority fined Abbott, Bayer, Johnson & Johnson, Menahni, and Roche €658,413.22 per company for colluding on bidding prices. Czech Republic On 21 December 2004, the Supreme Administrative Court of the Czech Republic upheld a decision by the Competition Office finding that the GSM operator Eurotel Praha (Eurotel) had abused its dominant position in the mobile telecommunication services market by charging discriminatory prices for connection to the network of Cesky Mobil. Latvia The Latvian Competition Council has fined members of a price- fixing and information-exchange cartel in the market for chickens' eggs. The Netherlands The Netherlands Competition Authority has confirmed that 11 parties In the shrimp-fishing industry participated in an Illegal cartel. Sweden The Competition Authority filed a fine petition at Stockholm City Court on 15 December 2004 accusing Nynàs of having abused its dominant position on the bitumen market by applying business conditions that discriminated against other companies In order to limit their access to the market. The Competition Authority demanded that several oil companies be fined a total sum of SEK 394 million. Slovak Republic In December 2004, the Anti-monopoly Office of the Slovak Republic Imposed fines on the telecommunications companies Orange Slovensko (Orange) and SAPEKO for concluding a vertical agreement restricting competition.

Studying law in the UK In the UK, a legal education usually begins with the completion of a bachelor degree in law, known as an LLB, which usually takes three years. In the subsequent vocational stage, a person who wishes to become a barrister joins one of the Inns of Court before beginning the Bar Vocational Course. The completion ot this stage is marked by a ceremony referred to as the call to the Bar. A third stage, known as pupillage, is a year-long apprenticeship, usually at a set of barristers' chambers, which customarily consists of groups of 20—60 barristers. Similarly, a person wishing to become a solicitor must also complete three stages: the first stage involves gaining a law degree; the second stage requires passing a one-year Legal Practice Course (LPC); and the final stage entails working for two years as a trainee solicitor with a firm of solicitors or in the legal department of a local authority or large company. Studying law in the USA In the USA, a legal education comprises four years of undergraduate study followed by three years oflaw school. A law-school graduate receives the degree of juris doctor (J.D.). In order to qualify as a lawyer, a law-school graduate must pass the bar examination.

One factor which plays an important role in the culture of a law firm is its size. Law firms can range from a one-person solo practice (conducted by a sole practitioner) to global firms employing hundreds of attorneys all over the world. A small law firm, which typically engages from two to ten lawyers, is sometimes known as a boutique firm, as it often specialises in a specific area of the law. A mid-size law firm generally has ten to 50 lawyers, while a large law firm is considered to be one employing 50 or more attorneys.

Listening 2: A job interview The job interview gives an employer an opportunity to form an impression of you as a person and to decide whether you would be suited to join the firm. An interviewer will typically pose questions which invite a wide range of possible responses and lead to discussion.

Read these questions, typically posed in an interview for a legal position. Which do you think would be most difficult for you to answer? 1 What can you tell me about yourself? O 2 What are your greatest strengths/weaknesses? 3 Why did you decide to study law? 4 What was the most valuable experience you had in law school? • 5 What qualities do you think a good lawyer needs to have? 6 Which accomplishment are you most proud of? 7 What do you know about this firm? 8 Why do you want to work for this firm? • 9 Why should we hire you? O 10 How would you describe your ideal job / boss / law firm? 11 What can you tell me about your work experience?

The Greenview Company, a public company incorporated under the laws of the country of Westland, owned a golf course. Some land adjoining the golf course became available for sale, and one director of the corporation informed the board of this availability. If Greenview bought the adjoining land and sold it together with the golf course, this would greatly increase the value of the golf course. In fact, on several occasions, the directors and stockholders had discussed the possibility of acquiring more land next to the golf course. Although the board and the stockholders expressed an interest in buying this land, it again did not take any immediate steps to purchase it. A few months later, two other directors of Greenview (not including the one who had informed the company that the land was for sale) decided to buy the land in their individual capacities. A few years later, the golf course and the adjoining land were sold as a package to outside investors for a high price. A large share of the profit went to the two directors because of their ownership of the adjoining land. Now a group of disgruntled minority shareholders wishes to bring an action against the two directors for a breach of their duty of loyalty to the company through the theft of a corporate opportunity.

Text i: excerpt from Section 202 of the Westland Corporations Act 202 (1) Every director and officer of a corporation in exercising their powers and discharging their duties shall (a) act honestly and in good faith with a view to die best interests of the corporation; and (b) exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. Text 2: Westland Principles of Corporate Law, Section 5.05, Part 3 The Westland Principles of Corporate Law, published by the Westland Law Institute, is used as a guideline for the interpretation of corporate law in Westland. Part 3 of Section 5.05 deals with the duty of loyalty owed by a director to his company. 5.05 A director shall act in the best interests of the corporation. This includes the duty of loyalty and the duty of care. (3) The duty of loyalty includes not taking advantage of a corporate opportunity. A corporate opportunity is a business opportunity that: (a) a director or senior officer becomes aware of in his or her corporate capacity; (b) a director or senior executive should know the outside party is offering to the corporation; (c) a director or senior executive, who became aware of it through the use of corporate information, should know the corporation would be interested in; (d) a director or senior executive knows is closely related to the corporation's current or expected business.

A certificate of deposit is a bank's written acknowledgment of a deposit and a promise to pay the depositor to his order, or to some other person or that person's order. A debenture is the most common form of iong-term loan used by companies in the UK. It is usually repayable at a determined date in the future and secured by the assets of the company, although sometimes it Is unsecured and referred to as a naked debenture. The payment function allows negotiable instruments to be used in lieu of cash payments which may be inconvenient (or risky) to transfer directly. Common examples are cheques and bills of exchange3. A bill of exchange is a three-party instrument written and signed by the first party (the drawer), ordering the second party (the drawee) to pay a third party (the payee) a sum of money on demand or at a fixed or determinable future time. A cheque is a more specific term for a bill of exchange, usually on a printed form, drawn on a bank and payable on demand. Another example of a negotiable instrument which should be mentioned here is the letter of credit. A letter of credit is a document issued by a bank (the issuer) to a third party (the beneficiary) at the request of an applicant, instructing the bank to pay a certain specified amount of money to the beneficiary once certain conditions that are stated on the document are met. Letters of credit are often used in the international import and export business, as they provide good documentary evidence of financing for the transaction.

The following text is an excerpt from a US promissory note, which is a written promise to repay a debt at a certain time through a series of payments or on demand. Generally, a promissory note states the parties involved, the amount to be repaid and the terms of repayment (when the payments are to be made and how much interest is charged). Additionally, some promissory notes include a kind of 'acceleration clause', stating under which circumstances the entire amount will become due.

1 Mr Simmons is engaged in a dispute with Mr Burns concerning repairs that must be made to a pipe leading through Mr Burns' property to Mr Simmons' house. Mr Burns refuses to allow the workers access to his property. 2 Mr Wyatt produces a natural insecticide from the seeds of a type of Indian tree which grows on his property and has been selling it to organic farmers in his region. A pharmaceutical company is suing him for infringement of patent rights. 3 Mr Parker's neighbour operates a private childcare centre within her property. During the summer, the children spend a lot of time outside, and the noise level Is extremely high. Mr Parker and his neighbour agreed to install a fence, but disagree about the exact boundary between their properties and about who should pay for the fence. 4 Mr Tanaka is a landscape architect working under subcontract with a construction company on the site of a large private home. The lead contractor has filed for bankruptcy protection. Mr Tanaka wants to know whether he can stop work, pack up his gear and walk off the job site. He also wants to know whether he can enforce his mechanics' lien rights against the real property's owner.

Reading 3: Understanding a Lease or tenancy agreement A landlord who wishes to lease property to a tenant will often consult a lawyer for assistance in drawing up a lease. A prospective tenant, on the other hand, might ask a lawyer to review the terms and conditions of a lease before entering into such an agreement. Both will require the services of legal counsel in the event of a serious dispute concerning a lease.

Text 1: excerpts from the contract between Fleming and Linxus 3 Development of software Linxus hereby agrees to develop computer software for Fleming regarding an Internet-based database with respect to Fleming's business (the 'Developed Software'). 5 Licensing Linxus hereby grants a perpetual license to Fleming for the Developed Software for the purposes of its business, which includes the right to repair, maintain and upgrade it for the purposes of Fleming's business. 8 Confidentiality Fleming has released certain confidential information about its business practices and procedures to Linxus in order for Linxus to develop the Developed Software. Linxus agrees to keep all such information confidential, including the Developed Software and information regarding the Developed Software, and Linxus further agrees that it will not make use of the information on Fleming's operating procedures, other than what is strictly necessary for the development of the Developed Software.

Text 2: Copyrights Act of Bloomland, sections it and 91 11 (l) (2) The author of a work is the first owner of any copyright in it, subject to the following provisions. Where a literary, dramatic, musical or artistic work is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary. 91 (1) Where by an agreement made in relation to future copyright, and signed by or on behalf of the prospective owner of the copyright, the prospective owner purports to assign the future copyright (wholly or partially) to another person, then if, on the copyright coming into existence, the assignee or another person claiming under him would be entitled as against all other persons to require the copyright to be vested in him. the copyright shall vest in the assignee or his successor in title by virtue of this subsection. (2) In this Part, "future copyright" means copyright which will or may come into existence in respect of a future work or class of works or on the occurrence of a future event; and "prospective owner" shal I be construed accordingly, and includes a person who is prospectively entitled to copyright by virtue of such an agreement as is mentioned in subsection (1).

Listening i: An employment tribunal claim Lawyers are often consulted in employment rights disputes, providing consultation and representation for clients who want to make or defend claims to an employment tribunal. Employment tribunals are judicial bodies established in the UK to resolve disputes between employers and employees over matters involving employment rights, such as unfair dismissal, redundancy payments and discrimination. Do you have employment tribunals in your jurisdiction? Generally speaking, the handling of a claim in the UK proceeds as follows: firstly, a claimant submits a claim, usually in person, to an employment tribunal. If there are any outstanding issues concerning such things as witness testimony, necessary documents, etc., the chair of the tribunal then holds a case-management discussion to clarify them. Sometimes this is followed by a pre-hearing assessment or review [which the claimant may attend if desired), at which time the tribunal decides whether the claim has merit. Lastly, there is a final hearing where a decision is made as to whether the claim succeeds or fails, and if it succeeds, the amount of damages to be awarded. The following telephone conversation is between a lawyer (Jane) and a client [Gwen], who is an employer defending a claim filed with the employment tribunal. They discuss the preparations for a pre-hearing assessment. They mention a document called an entry of appearance. This is a written notice of appearance providing the respondent's full name and contact details, as well as a statement of opposition to the claim, including the grounds upon which it is opposed.

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Jurisdiction One of the great strengths of the ECMR is its one-stop shop - the ability to notify once to the Commission rather than in each of the 25 Member States.Whereas the largest mergers and acquisitions meet the ECMR thresholds and need therefore be notified only in Brussels, it has become clear that a significant number of mergers with a European dimension do not meet the ECMR thresholds and require notification in each of several Member States, creating unnecessary burdens and costs for the parties. In future, where a case falls below the existing thresholds, and where notification would otherwise have been required in at least three Member States, the parties will be able to make a pre-notification request to the Commission to take over the case from the national authorities. If no Member State concerned opposes the application within 15 working days, the Commission will have exclusive jurisdiction throughout the EEA, If any Member State objects, the case will not be referred. In the opposite scenario, the parties may also make a pre-notification request that the case should be examined by a national competition authority rather than the Commission. If the Member State does not object and the Commission agrees within 25 working days that a distinct market exists in that Member State and that competition in that market may be significantly affected by the concentration, it may refer the case to that national authority and national law will apply in that Member State.The Commission will apply EC law in other Member States. This pre-notification process will inevitably involve a degree of uncertainty pending the final case allocation and will therefore need to be managed carefully if the desired result (usually a single filing) is to be achieved. Clearly, this additional stage will tend to increase the timescale to obtain clearance.The criteria for post-notification referral of cases between the Commission and national authorities and vice versa are also made more flexible.

A competition law case which received a great amount of publicity was the Microsoft case. One of the key charges in the antitrust suits against Microsoft was that the packaging of the Internet Explorer browser with the Windows operating system constituted an illegal tie-in sale. You can refer to the opinions of others using the following expressions; The Microsoft vice president suggests/implies that... Attorney General John Ashcroft maintains/claims that... You can say whether you agree or disagree by saying: I completely agree/disagree (with this view). He/She is clearly right (with regard to this).

US Attorney General John Ashcroft, on the settlement imposing restrictions on Microsoft's behaviour: A vigorously competitive software industry is vital to our economy, and effective antitrust enforcement is crucial to preserving competition in this constantly evolving high-tech arena. This historic settlement will bring effective relief to the market and ensure that consumers will have more choices in meeting their computer needs.' Microsoft Vice President Bob Herbold In a letter to Ralph Nader, activist attorney and consumer rights advocate: '[The] premise that Microsoft has been a disincentive to competition and innovation is simply wrong. As an AT&T executive observed last year, the cost of computing has fallen 10 million-fold since the microprocessor was Invented In 1971 ... Meanwhile, American software companies provide over 600,000 direct American jobs and grew at seven times the rate of the US economy from 1987 to 1994. That's certainly not a portrait of an industry in decline due to lack of competition. In fact, the growth in jobs and decline in the cost of computing has been helped by the operating system technology in Microsoft Windows, which has enabled software developers and hardware manufacturers to develop thousands of compatible products.'

Dear Mr Easton ... I am writing to inform you of a change in the pre-notification procedure for mergers in the EU, as I believe it is relevant for the merger which your company is considering. ... According to this new procedure, in cases where the combined turnover of the parties to a merger falls below prescribed thresholds and notification would have previously been required in at least three Member States, ... a company can now submit a pre-notification request to the Commission, which under certain circumstances would then take over the case from the national authorities. ... Alternatively, if the merger in question would affect a distinct market in a particular Member State, a company may submit a pre-notification request that the case be examined by that Member State's national competition authority rather than by the Commission. ... The clear advantage of these two options is that they result in less paperwork and expense, as only a single filing is required in each case. ... However, there are disadvantages to the new procedure, including uncertainty concerning the allocation of the case and a likely increase in the length of the clearance process. ... I hope that this information was of interest to you. ... Should you have any questions in this matter I would be happy to provide assistance. ... Yours sincerely ... Samuel Lee ...

Memorandum ... To: All members of the legal staff of the Mergers & Acquisitions department ... From: John Thornton ... Date: 10 February 2006 ... Subject: In-company seminar on contract negotiations ... As part of our in-company training programme focusing on professional communication skills, we have arranged for the well-known communication trainer and practising lawyer, Mr Tom Boland, to hold a half-day workshop on the topic of Successful Contract Negotiations. ... We would like to invite all members of the legal staff in the department to attend this workshop, which will take place on 27 February, 9 - 11.30 a.m., Conference Room 12. ... The workshop consists of a theoretical part, followed by practical role-plays offering an opportunity for negotiating skills training and personal feedback from the trainer. ... Thus it is imperative that you arrange your schedules so that you can be present for the entire workshop. ... Please let me know by 9 a.m. on Monday, 13 February by email ([email protected]) whether you can attend. ... J. Thornton ...

Dear Mr Fraser ... Thank you for your email of 26 September, in which you request information concerning the two-tier corporate management system found in German-speaking countries. ... I understand you are interested in investing in a German company and would therefore like to have a clearer idea about how this system differs from the one you are familiar with here in England. ... Allow me to provide a brief explanation of how the two systems differ. ... In the German two-tier system, in contrast to the Anglo-Saxon one-tier system, there is an executive board and a supervisory board. ... The executive board consists of the top management, and the supervisory board includes outside experts and executives from other corporations, as well as employee-related representatives. ... The supervisory board serves to oversee the management and resolve conflicts between shareholders, managers and employees. ... Unlike in Anglo-Saxon countries, employees in large corporations in Germanic countries are entitled to elect half of the members of the supervisory board, and so employees have greater representation on the board. ... I hope these remarks are of use to you. ... Please do not hesitate to contact me should you have any further questions. ... Yours sincerely, ... Max Appleby ...

A covering letter1 is an important part of a job application. Submitted along with a CV2, the covering letter serves as an applicant's introduction to a potential employer. As such, it is a valuable opportunity for you to communicate a few key facts about yourself and your suitability for the position in question. It also gives you a chance to demonstrate your ability to write a clear and well-structured business document in English. Thus it is necessary to proofread your covering letter carefully and to make sure it does not contain errors of any kind. Like most professional correspondence, a covering letter ideally has a three-part structure consisting of: 1 an introductory paragraph stating the purpose of the letter; 2 a main part [one or more paragraphs] with the most important information; 3 a concluding paragraph bringing the letter to a close and a final sentence inviting further contact.

Dear Mr Jackson 1) I would like to apply Tor the post of a Company Commercial Solicitor in your firm as advertised on the website www.legalpositions.com. 2) As a recent law-school graduate, 1 wras particularly happy to see that the position you are offering is open to newly qualified lawyers. 3) You will see from my enclosed CV that I completed my law studies in Rome with honours, and spenl one year studying law in Edinburgh. 4) 1 am especially interested in the position you are offering, since I have relevant work experience in the field of insolvency. 5) I spent three summers working as a clerk in a mid-sized commercial law firm in Manchester. 6) While assisting with the insolvency work carried out die re, I developed a keen interest in becoming an insolvency practitioner. 7) In addition, I am a student member of the insolvency Practitioners Association in the UK, and two articles I wrote in English were published in their newsletter. 8) 1 may also add that 1 achieved a high score on the International Legal English Certificate Examination. 9) I would welcome the opportunity to work as part of your successful team, to benefit from your extensive experience, and to put my training, experience and enthusiasm into practice for your firm. 10) i look forward to hearing from you. Sincerely Fabio Scataloni

Practice areas ... The law firm of Johnson, Fabian, and Brugger was founded in 1983. ... Our staff lawyers are experienced in handling cases involving Natural Resources, Property and Real Estate law and have represented clients with issues involving local and national authorities and organizations. ... Our firm has dealt with a wide range of natural resource matters, including endangered species, forestry/timber, grazing, irrigation, mining claims, oil and gas, water, and wildlife. ... We have assisted clients in various property matters, including federal, public, state and private lands, communication sites, condemnation, easements, land exchanges, property boundary disputes, ownership disputes, and rights of way. ... In addition, our lawyers have handled a broad array of real-property/real-estate transactions, including commercial, residential, agricultural, and conservation easements. ... Due to our comprehensive natural resource and property capabilities, our firm can provide experienced counsel for all environmental and natural resource matters affecting property owners. ...

Dear Mr Mason ... In your email of 9 April, you asked for information concerning the new arbitration procedure. ... You specifically requested my judgment concerning the advantages and disadvantages of arbitration from the point of view of an employer. ... I will first explain some of the features of the existing employment tribunal process and then look at the new arbitration scheme. ... Employment tribunals hear the full range of employment-related disputes. ... They are public hearings held in front of a panel of three people. ... The fact that they are public can be a disadvantage for employers, since well-publicised employee disputes can lead to unwanted bad publicity. ... As a result, there is also the drawback of a greater tendency to reach out-of-court settlements which are favourable to employees. ... A further disadvantage of employment tribunals is the fact that they typically take longer than the new arbitration process. ... However, employment tribunals have the important advantage that decisions reached by them can be appealed. ... In contrast, the new arbitration procedure only deals with unfair dismissal cases. ... The proceedings are held in a private setting, such as a hotel. ... Another difference is the relative speed of the proceedings, which typically last only a half a day. ... This is clearly advantageous for an employer, as it would save a great deal of time and money. ... However, the new arbitration scheme does have a significant drawback: the decisions reached by the arbitrators are considered binding, and so appealing or challenging a decision is very difficult. ... On balance, I would say that the new arbitration scheme is attractive from the point of view of an employer, and I recommend that you consider making use of this new process to deal with unfair dismissal disputes. ... Please do not hesitate to contact me if you would like further information. ... I have attached an article about this topic to this mail which may be of interest to you. ... Yours sincerely ... Elisabeth Stephens ...

Dear Mr Jackson ... I would like to apply for the post of a Company Commercial Solicitor in your firm as advertised on the website www.legalpositions.com. ... As a recent law-school graduate, I was particularly happy to see that the position you are offering is open to newly qualified lawyers. ... You will see from my enclosed CV that I completed my law studies in Rome with honours, and spent one year studying law in Edinburgh. ... I am especially interested in the position you are offering, since I have relevant work experience in the field of insolvency. ... I spent three summers working as a clerk in a mid-sized commercial law firm in Manchester. ... While assisting with the insolvency work carried out there, I developed a keen interest in becoming an insolvency practitioner. ... In addition, I am a student member of the insolvency Practitioners Association in the UK, and two articles I wrote in English were published in their newsletter. ... I may also add that I achieved a high score on the International Legal English Certificate Examination. ... I would welcome the opportunity to work as part of your successful team, to benefit from your extensive experience, and to put my training, experience and enthusiasm into practice for your firm. ... I look forward to hearing from you. ... Sincerely ... Fabio Scataloni ...

Hi everyone! ... Several of our corporate clients hold the rights to valuable intellectual property assets, and they have asked if we could help them with matters concerning secured transactions and these assets. ... That's why I really think it's important that we make sure that our knowledge in this area is up-to-date. ... So I'm writing to tell you that I've arranged an in-company seminar on perfecting IP assets as security interests. ... We'll have the seminar on Monday, October 26 from 9 a.m. to 5 p.m. ... A very important expert will hold the seminar. ... Please note: it starts at 9 a.m. sharp! ... I've attached a list of topics for the seminar. ... Please look through it. ... I really think you should take part in the seminar. ... So I suggest that you make sure you have no other appointments that day. ... I really hope you can come. ... Let me know! ... Best ... Martin Black ... Dear colleagues ... Several of our corporate clients possess the rights to valuable intellectual property assets, and they have enquired if we could assist them with matters concerning secured transactions and these assets. ... For this reason, I firmly believe it is important that we ensure that our knowledge in this area is up-to-date. ... Therefore I am writing to inform you that I have arranged an in-company seminar on perfecting IP assets as security interests. ... The seminar will be held by a highly respected expert in the field on Monday, October 26 from 9 a.m. to 5 p.m. ... Please note that the seminar commences at 9 a.m. ... I have attached a list of topics to be covered in the seminar which I would ask you to peruse. ... I strongly advise you to take part in the seminar. ... Thus I suggest that you make sure you have no other appointments that day. ... I sincerely hope you can come. ... Please inform me whether you will attend by the close of business today. ... Yours sincerely ... Martin Black ...

Dear Mr Rodrigez ... As a follow-up to our telephone conversation yesterday in which we discussed a case of anti-competitive behaviour in your market sector, I would like to propose that your firm establish anti-competitive guidelines as a preventive measure against such behaviour. ... As I am sure you are aware, the recent case of price-fixing in your industry is not unusual; several cases of cartel formation and price-fixing have occurred in recent years. ... You should also be aware that such behaviour does not always originate at the level of top management, and that employees at all levels are at risk for such activities. ... Practices such as exclusive dealing arrangements with suppliers or even unintentionally misleading advertising - to name but two examples - can harm competition and may be considered to represent an infringement of antitrust law. ... Employees at all levels of the firm need to be informed of the wide range of possible anti-competitive activities, as well as of their potential legal consequences. ... I must warn you that individuals directly involved in serious anti-competitive behaviour face high fines as well as, under certain circumstances, the threat of criminal prosecution. ... I propose that we draw up a comprehensive set of guidelines for preventing anti-competitive behaviour by your firm. ... Initially, these guidelines could be presented to all employees in informative workshop sessions, and later reinforced through regular anti-competitive internal memos. ... The benefits for your company are clear: an increased awareness of the risks of anti-competitive behaviour at all levels of your enterprise would greatly lessen your risk of exposure to antitrust lawsuits and actions. ... The implementation of this proposal could be carried out in a four-stage process:1) assessment of anti-competitive behaviour risks; 2) drawing up of guidelines; 3) holding workshops for employees; and 4) follow-up reinforcement. ... Should you be interested in pursuing this course of action, the Competition Department of our firm could begin work immediately. ... If you would like to discuss this proposal and the details of its implementation, please do not hesitate to contact me. ... I look forward to hearing from you. ... Yours sincerely ... Andrew Chase ...

Dear Mr Richardson ... As a follow-up to our telephone conversation last week in which we discussed some of the tendering difficulties your construction company has been having recently, I would like to make a few recommendations. ... You described in detail the sudden and marked drop in the number of contracts awarded to your company in the last 12 months, particularly in the commercial property sector, which has traditionally been one of the principal areas of activity of your firm. ... You also told me about several recent calls for tender in which your company participated; your very competitively priced bids were all rejected, and the contracts in every case were awarded to two of your competitors. ... After consulting with my colleague David Fisher of our Antitrust and Competition Department, I have come to the conclusion that it would be wise to look into the possibility that anti-competitive agreements have been concluded by your competitors. ... As you are surely aware, behaviour of this kind is not unusual in a market situation such as the present one. ... It could certainly account for the dramatic decrease in business you have been experiencing. ... In the event that your competitors are found to have been engaging in activities of this kind, the benefits for your own company would be considerable. ... These benefits would range from a likely increase in market share to more intangible, but nonetheless valuable, benefits such as a reputation for honest dealings. ... Should you be interested in pursuing this course of action, David Fisher would be happy to assist you. ... Mr Fisher has a great deal of experience in investigating cases of this kind. ... At your request, he could begin an enquiry into the matter, which, in its early stages, would involve information-gathering in the broadest sense (including an analysis of relevant tendering processes). ... Such an enquiry could take a substantial amount of time to conduct. ... Should this enquiry uncover information confirming our suspicions, then our firm is well prepared to assist you. ... Please let me or David Fisher know if you would be interested in having us undertake such an enquiry on your behalf, or if you have any other questions about the matter. ... I look forward to hearing from you. ... Yours sincerely ... Martin Stockvvell ...

To: ST Team ... From: J. Sampson ... Subject: Seminar ... Dear All ... Although I am aware that this arrives at rather short notice, I have attached a flyer about an interesting seminar being held at the Shuttleworth Institute in Boston next Thursday and Friday ... and would strongly advise that all of the members of the secured transactions team attend this two-day event. ... The seminar will be held by a highly respected expert on Revised Article 9. ... Considering the fact that there are two young newcomers in the department and several important cases dealing with secured transactions currently in the pipeline, I firmly believe that we cannot afford to miss this seminar. ... Naturally, it may be necessary for some of you to rearrange your schedules so that you can fly to Boston next Wednesday and participate in the seminar which commences on Thursday morning. ... I sincerely hope that all of you welcome this opportunity to improve our knowledge and thus our ability to serve our clients. ... I look forward to your response in this matter. ... Sincerely ... Jennifer Sampson ...

Dear Mr. Lawson, ... I am writing to you in respect of the promissory note which the prospective buyers of your property intend to give you for a down payment. ... I would like to advise you not to accept this note in its present form for the following reasons: ... The safest way to bind all the principals is to have all of them sign the note as makers. ... As you know, one of the principals is currently serving a jail sentence on a financial charge. ... I do not recommend entering into a business transaction with a person whose financial trustworthiness is questionable. ... I propose that you refuse to accept the note unless it has been signed by all of the principals. ... I also suggest that I contact the agent on your behalf and inform him of this fact. ... I can recommend ways for him to obtain the signatures of the other principals quickly (fax, e-signature, courier), as all of the parties involved are interested in concluding the deal as soon as possible. ... I look forward to receiving further instructions from you in this matter. ... Yours truly ... J.P. Wadman ...

Facts of the case: ... State Street Bank & Trust Co. vs. Signature Financial Group (1998). (known as the 'State Street' case) involved the patentability of a data-processing system for managing mutual funds. ... Legal issue in question: ... The legal issue was whether a patented data-processing system fell within two exceptions to patentability -mathematical algorithms and methods of doing business - and the issued patent was thus invalid. ... Holdings and reasoning of the courts: ... The lower court held that the software patent involved was invalid on the grounds that it entailed two exceptions to patentability. ... However, the United States Court of Appeals for the Federal Circuit affirmed the patentability of business met hod-related software and rejected both exceptions to patentability. ... The court held that since the claims of the patent-at-issue were directed to a machine programmed with software, and such a machine produced a useful, concrete and tangible result, the software constituted patentable subject matter. ... General legal significance of the case: ... As a result of the ruling, business-method software may now be patended. ... now be patented. ...

Dear Ms Armstrong ... Thank you for your email of 11 June in which you requested information about my experience and areas of expertise as a real-estate lawyer. ... As a sole practitioner specialising in the sale of real estate, my work involves helping individuals and businesses negotiate fair deals in both the residential and the commercial real-estate markets. ... I have ten years' experience in drafting landlord-tenant agreements and other documents related to the purchase of multiple-family dwellings or single-family homes. ... During this time, I have also negotiated the terms of leases, sales and purchases of commercial properties. ... Furthermore, I have extensive experience in real-property litigation, having successfully represented clients in a number of court cases involving easements and property boundaries. ... I hope this information was of interest to you. ... I would welcome the opportunity to provide any legal assistance you may require. ... Yours sincerely ... Matthew Wright ...

Dear Mr West ... I am writing to you in response to your letter of 21 September in which you request a written explanation of the six requirements which a promissory note must meet in order for it to be negotiable. ... The requirements, which we discussed at our meeting last Thursday, are as follows: ... < The note must be in writing. ... < The note must be signed by the maker. ... < The note must contain an unconditional order or promise to pay what is called a 'sum certain' in money. ... What this actually means is the amount must be certain, or capable of being made certain by calculation. ... < The note must say that it is either 'payable on demand' (that is, whenever the person for whom the instrument was made wants to be paid) or at a definite time. ... Put simply, this means that a date or a fixed time after a date must be stated (e.g. '90 days after the date of this instrument'). ... < The note must say that it is payable to order or to bearer. ... In other words, the words pay to the order of or 'payable to bearer' should appear on the note. ... < The note must not contain any other order or promise. ... This means that no conditions, such as 'if I get my raise' or the like, should be stated in the note. ... I hope that the information I have provided meets your expectations. ... Please feel free to contact me should you have any questions. ... Yours sincerely ... Christine Chang ...

Dear Ms Fox ... In response to your request of 18 December for information concerning the renewal of registration of a Community trade mark, allow me to answer the three questions you posed. ... First of all, the Office for Harmonisation in the Internal Market (0H1M) informs the owner of the Community trade mark (as well as and any person having a registered right in it) when the registration will expire in good time before it expires. ... However, even if you don't get notice of expiry, you still have to renew your registration, so you should be aware of the date of expiry. ... Secondly, as the owner of the trade mark, you can renew the registration of the trade mark yourself. ... Alternatively, another person can renew the registration if you, the owner, have authorised this person to do so. ... Naturally, this means that I can do it for you if you wish. ... Finally, in response to your third question, you must submit the request for renewal six months before the last day of the month in which protection ends. ... Furthermore, you must pay the renewal fees within this six-month period. ... If you don't pay the fees within this period, you can submit the request and pay the fees within a further period of six months, but you would then have to pay additional fees. ... I hope that the information I have provided is of use to you. ... If you would like further assistance in this matter, please do not hesitate to contact me. ... Yours sincerely ... Estella Walters ...

Reading 5: Reference email In the previous listening exercise, Ms Blackwell discusses the steps to be taken by Mr Watson and his Spanish solicitor, Señor Martinez, when purchasing a house in Spain. The following email, written by Señor Martinez, is referred to by Ms Blackwell in the dialogue. In the email, Señor Martínez provides an account of his professional experience as a lawyer.

Intellectual property is an expansive and rapidly changing area of the law which deals with the formulation, usage and commercial exploitation of original creative works. A majority of the issues that arise within this area revolve around the boundary lines of intangible property rights and which of those rights are afforded legal protection. The abstract quality of the property rights involved presents a contrast to other areas of property law. Furthermore, the rapid changes occurring in this field raise topical debates over such things as gene patenting, genetically modified food and peer-to-peer networking (e.g. music piracy on the Internet). Traditionally, intellectual property rights are broken down into three main areas: patents, trade marks1 and copyrights. Other areas which warrant mentioning are trade secrets, design rights and the concept of passing off. A patent is a monopoly right in an invention. Patent law Is regulated In various jurisdictions through legislation. A patent must be granted pursuant to the relevant legislation in order to create the monopoly In the invention. Once the patent Is granted, the protection remains in force for a statutory period of years, e.g. 20 years In the UK. Most patent legislation requires that a patentable invention: 1} is novel; 2) involves an inventive step; 3) is useful or capable of Industrial application; and 4) is an invention or, in the US, non-obvious. Many things are excluded from patentable subject matter due to unsuitability, public policy and morality. A registered trade mark is similar to a patent in that it provides the holder with an exclusive right to use a 'distinctive' mark in relation to a product or a service. A common aspect of applicable legislation is that the mark must be distinctive. In other words, it must be capable of functioning as an identifier of the origin of the good and thereby avoid confusion, deception or mistake. Deception has been deemed to include, for example, the use by another of a domain name that is substantially similar to the trade mark, so-caiied cybersquatting. Copyright is a right subsisting in original literary, dramatic, musical and artistic works and in sound recordings, films, broadcasts and cable programmes, as well as the typography of published editions. Copyright holders possess economic rights associated with their works, including the essential right to prohibit unauthorised use of the works. The most common requirements for copyright protection are that the work must be in material form (i.e. not just an idea} and it must be original in the sense that the work 'originates' from the relevant author. Copyright only provides a partial monopoly in a work, as various rules provide exceptions by which a work may be copied without infringing on the rights of the author. A good example of such an exception is the right of fair use recognised in the United States2. Of course, infringement of intellectual property rights may result in enforcement actions being brought against the infringing party. As part of these actions, remedies might include damages, injunctions and account of profits, depending on the right infringed and the extent and nature of the infringement.

Dear Mr Nazarenko ... In your email of 8 November, you enquired about recent anticompetitive activities in the telecommunications sector in the EU and the measures taken against them. ... I would like to provide information about three cases from the past month. ... A telecommunications corporation in Italy was fined for abuse of a dominant position, while a group of telecommunications companies in Slovakia were fined for concluding a vertical agreement which restricted competition. ... In the Czech Republic, the decision of the Office for the Protection of Competition, which had found that a telecommunications company had abused its dominant position by charging discriminatory prices, was upheld by the Supreme Administrative Court. ... I hope that this information is of use to you. ... Should you require any further assistance please feel free to contact me. ... Yours sincerely ... Marie Delapre ...

Dear Ms Hall ... Thank you again for the opportunity to interview for the position of Associate Lawyer in your firm. ... I appreciated your hospitality and enjoyed meeting you and members of your staff. ... I especially enjoyed hearing about your firm's mentoring programme. ... The interview convinced me that my background as a commercial lawyer, my interest in different legal systems, and my foreign language skills are compatible with the goals of your firm. ... As I mentioned during our conversation, the experience I gathered in my previous employment has prepared me well for corporate restructuring work. ... I am confident that my ability to deal with complex cross-border insolvency cases will be of value to your firm. ... I look forward to hearing from you. ... Yours sincerely ... Franz Berger ...

When speaking briefly about a topic of professional interest, experienced speakers will organise their thoughts in advance. A simple but effective structure divides information into three parts: 1 introductory remarks; 2 main points; 3 concluding statement. Similarly, the main points are best limited to three, as this is easy for the speaker to remember and for the listener to follow. Notes for a response to Exercise 14 might look like this: Introductory remarks A publikt aktiebolag is the closest Swedish equivalent to a public limited company - most common form for major international businesses in Sweden. Main points 1 liability: no personal liability 2 management: board of directors (Swedish equivalent, styrelsen) has power to make decisions; shareholders don't participate in management 3 needed for formation: memorandum of association (siiftelseurkund) and articles of association (bolagsordning) Concluding statement An aktiebolag is similar to a public limited company, with the most significant difference being that its shares do not need to be listed on an exchange or authorised marketplace.

Draft Limited Liability Partnership Bill 1 The Limited Liability Partnership Bill was introduced into the House of Commons in July this year in response to the growing concerns surrounding large accountancy firms moving their business operations offshore. Large accountancy practices had expressed their unhappiness about organising their affairs by way of partnership, especially since a partner is liable under the Partnership Act 1890 for his own acts as well as for those of his colleagues. It is unrealistic to assume that each partner can stay informed about his fellow partners' actions, let alone control them. 2 Thus, the Bill sets out to create a new institution, the limited liability partnership (LLP), in which obligations accrue to the name of the partnership rather than the joint names of its individual members. The only personal liability that an individual partner has will be in respect of his predetermined contributions to partnership funds. This is somewhat similar to a shareholder in a limited liability company. However, unlike a company, the LLP will be more flexible in terms of decisionmaking, and board meetings, minutes books, and annual or extraordinary general meetings are not required. In addition, the LLP will enjoy the tax status of a partnership and limited liability of its members. 3 The Bill is not without its weaknesses, however. One weakness which has been observed is the fact that the accounting requirements contained in Part VII of the Companies Act 1985 are proposed to apply to the LLP. Not only are these rules some of the most demanding in Europe, they will also prove expensive to comply with for small and medium-sized LLPs. For example, the LLP must submit an annual return to Companies House and maintain a list of accounts according to Companies Act formulae. Annual accounts must be prepared, and if the turnover of the LLP exceeds £350,000 annually, the accounts must be professionally audited.

The whole system works like this: the court must first determine whether an order for specific performance should be granted. Of course, the breaching party can do two things: either comply or not comply with the order. In other words, the defaulting party either takes the action necessary to perform the contract or he doesn't. If he doesn't, the other party can decide to go to the judicial enforcement agent. This judicial enforcement agent is called the foged in Denmark A foged is similar to the bailiff In common law. He basically fulfils the functions of a bailiff. The Danish Code of Procedure 17 regulates what the foged has to do. This code stipulates that the foged can convert the plaintiff's claim into money damages. So, in reality, most claims for which specific performance is granted are converted into money damages.

FAILURE TO FINISH THE WORK ON TIME It is mutually agreed by and between the parties hereto that time is of the essence and that in the event of the Contractor's failure to complete the contract within the time stipulated and agreed upon, the Owner will be damaged thereby; and because it Is difficult to definitely ascertain and prove the amount of such damages, inclusive of expenses Foi inspection, necessary traveling expenses and other similar expenses, it Is hereby agreed that the amount of such damages shall be the liquidated sum ofTwoThousand Dollars ($2,000.00) per calendar day for each day of delay in finishing the Work in excess of the number of working days prescribed; and the Contractor hereby agrees that such sum shall be deducted from amounts due the contractor under the contract or, if no amount is due the Contractor, the Contractor hereby agrees to pay to the Owner as liquidated damages, and not by way of penalty, such total sum as shall be due for such delay, calculated as aforesaid.

Speaking 2: A job interview Using one of the job advertisements on page 196 or one you have found in a newspaper or on the web, prepare to be interviewed for the job. Think about how your education, skills and work experience relate to what is required of the applicant. Your partner should play the role of the interviewer and should ask you some of the questions from Exercise 18. When the Interview is finished, discuss which of your answers were good and which need Improvement. Then switch roles and interview your partner for the job he or she has found.

Following a job interview, it is a good idea to send a short note thanking the person who interviewed you. The purpose of this note is to show your continued interest in the position and to reinforce a positive image of yourself. For this reason, it is common to emphasise one or two of your strong points once again, while referring specifically to something discussed in the course of the interview.

DEMAND PROMISSORY NOTE Principal: $10,000 Date issued: March 31, 2006 Interest rate: 6% per annum Maturity date: April 1, 2008 Soderton, New York For value received, the undersigned ("Maker") promises to pay on demand to the order of Soderton National Bank ("Payee") at its offices at 99 Hartsdale Avenue, Soderton, New York, the principal sum often thousand dollars ($ 10,000), together with interest at the rate and in the manner hereinafter provided for on the outstanding principal hereof from time to time until paid in full. Interest shall accrue on the outstanding principal balance of this note commencing on the date hereof and continuing until repayment of this note in full at a rate per annum equal to 6%. Interest-only payments shall be made by Maker to Payee on or before the 1 st day of each month. Maker shall make all payments hereunder to Payee in US dollars. The maturity of this note may be accelerated by Payee in the event Maker is in breach or default of any of the terms, conditions, or covenants of any other agreement with Payee or its affiliates. In the event of default in payment of any interest payments when due hereunder, the whole sum of principal and interest shall become immediately due and payable.

Here are some of the phrases Ms Benton uses in the interview to rephrase ideas so that the client can understand them: There are certain formal requirements that have to be met [by a promissory note] for it to be negotiable, that is, to be enforceable by you as a holder in due course. The note has to mention what is known as a 'sum certain'. That is to say, ... Allow me to explain. 'Unconditional' means that... Other phrases that can be used after an unfamiliar word or a difficult concept to Introduce an explanation are: in other words ... Put simply, ... What this actually means is ...

Language use i: Terms and conditions of sale Lawyers often assist suppliers of goods in drawing up standard terms and conditions of sale. These terms and conditions may be incorporated into contracts for the sale of goods or may be relied on as the legal framework of consumer sales. Legal counsel ensures that the terms and conditions are relevant to the specific circumstances of the seller in his particular trade, and that they provide adequate protection of the seller's rights.

Listening 2: A case brief Law students are often required to summarise the facts and outcome of a case in the course of their studies. Practising lawyers also encounter situations in which they are asked to provide a case brief, either orally or in writing; a colleague may want to be briefed on the particulars of a certain case, for example, or a superior will request a written report on cases and rulings in an area of the law in which the firm is currently preparing a case for trial. In a university taw seminar, students are often asked to present case briefs which then form the basis of group discussion and debate. In the following exercise, you will hear a law student presenting the brief of a case involving an issue related to the sale of goods. The issue is known as 'shrink-wrap contracts'.

Quiet enjoyment Goldmile Properties ltd v. Lechouritis What steps must landlords take, in deference to their covenants of quiet enjoyment, when complying with their repairing obligations under a lease? Is it enough for a landlord to take all reasonable precautions - or is the landlord required to take all possible precautions - to avoid disturbing its tenant? The landlord brought in contractors to repair and clean the exterior of a building which was let as a restaurant. The contractors erected scaffolding and fixed sheeting to the exterior of the premises. The interior of the premises became dusty and dark, and the restaurant appeared closed. proper effect, where possible, to each. The landlord's obligation to keep the building in repair had Lo co-exist with the tenant's right to quiet enjoyment and vice versa. Neither obligation should take priority over the other. It would have been possible to restrict the work to the days on which the restaurant was closed, but diis would have been costly and impractical. The landlord had sent the tenant a copyr of the estimate for, and had agreed to spread the cost of, the work. It had also postponed the start of the work to avoid interfering with the tenant's busiest period and had arranged the work to meet the tenant's requirements in so far as it could. The landlord was under an obligation to take all reasonable steps - but not ail possible precautions - to avoid disturbing the tenant, and had done so. The Appeal Court said that, where the provisions of any contract come into conflict, they are to be interpreted and applied to give

Listening 2: Buying a house in Spain Lawyers are often involved in all stages of the sale and purchase of real property. These stages include drafting, reviewing and negotiating the contract of sale, handling payment, as well as preparing and filing the documents required to close on the property. When the purchase involves real property in another country, it will be necessary to obtain the help of a lawyer who is well acquainted with the procedures and documents required in that country.

Two ideas can be contrasted with each other using the words whereas and while: Real property refers to land and anything permanently attached to the land, whereas/while personal property refers to all other property. Both whereas and while can appear at the beginning of the sentence as well: Whereas/White real property refers to land and anything permanently attached to the land, personal property refers to all other property. It should be noted that whereas is used In Legal English in two distinct ways. The first use has the meaning of 'but on the contrary' (as in the present example). The second use is at the beginning of recitals, I.e. the setting forth of facts or other important matter in a deed, contract or other legal document. Whereas, the parties wish to amend certain terms of the Sales Contract; and Whereas, certain capitalised terms not otherwise defined herein are defined in the Sales Contract...

Listening i: Easements One of the key terms mentioned above is easement, which is a right acquired for access to or use of another person's land for a specific purpose. In the following listening exercise, you will hear an excerpt of a seminar held by a lawyer as part of a training course for estate agents. It is the lawyer's task to provide basic legal information on issues which the agents may one day encounter in the course of their work. In the excerpt, the lawyer presents a general classification of easements, explaining the different types his listeners need to know about.

RIGHT OF FIRST REFUSAL The right of any party to assign, transfer or sell its interest in the shares shall, except for a transfer to the party's heirs, personal representatives or conservators in the case of death or legal incapacity, be subject to the non-assigning party's right of first refusal. This right of first refusal shall be exercised in the following manner: (1) The assigning party shall serve upon the non-assigning party a written notice clearly and unambiguously setting forth all of the terms and conditions of the proposed assignment and all available information concerning the proposed assignee, including but not limited to Information concerning the proposed assignee's employment history, financial condition, credit history, skill and qualifications and, in the case of a partnership or corporate assignee, of its partners or shareholders. (2) Within ten (10) days after the non-assigning party's receipt of that notice (or if that party shall request additional information, within ten (10) days after receipt of the additional information), the non-assigning party may either consent or withhold its consent to the assignment, or at its option, accept the assignment to itself or to its nominee upon the terms and conditions specified in the notice. The non-assigning party may substitute an equivalent sum of cash for any consideration other than cash specified in the notice. (3) If the non-assigning party elects not to exercise its right of first refusal and consents to the assignment, the assigning party shall be free to assign the shares to the proposed assignee on the terms and conditions specified in the notice. If, however, the terms are materially changed, the changed terms shall be deemed a new proposal, and the non-assigning party shall have a right of first refusal with respect to the new terms.

Listening i: Preparing a lawsuit and developing an argument When a lawyer is engaged to represent a client in court in a contract-related lawsuit, a good deal of time will be spent on the following: gathering information about the case; collecting evidence; researching relevant legislation and legal precedent; developing a strong line of argument. The strength of the argument presented in court will significantly affect the outcome of the case. Generally speaking, the strength of such an argument depends on several factors: the clarity of the reasoning, the quality of the evidence presented to support it, and the lawyer's skill in using language to convey ideas. The following dialogue deals with a lawyer's preparation of a contract-related lawsuit. In the first part of the dialogue, you will hear Ron, the lawyer preparing the case, talking with Sam, a senior partner in Ron's law firm, about the facts of the case.

4 These additional requirements have made a further restriction on the management freedom of LLPs necessary. Each LLP will have to appoint a 'designated member' who will be responsible for administrative obligations and may incur criminal liability in certain circumstances. On the subject of liability, it is worth noting that an LLP member will enjoy less limited liability than a company director. In the ordinary course of events, a company director is not liable to a third party for his negligent acts or omissions in the course of his duties. His liability is to the company of which he is a director. The position is reversed in relation to an LLP member. The claw-back provisions of the Insolvency Act 1986 will also apply to LLPs. Thus, a liquidator will be able to set aside any transactions (drawings of salary or repayment of money owed) within two years prior to insolvency where the member knew, or had reasonable grounds for believing, that the LLP was or would thereby become insolvent. 5 Indeed, limited liability is often highly illusory or perhaps even over-rated, especially when one considers that banks often require personal investment guarantees from directors in order to lift the corporate veil which protects company officers. The same will undoubtedly apply to LLPs. 6 In conclusion, the value of this new institution has been weakened by the proposed incorporation of the accounting requirements. That is its single most noticeable weakness; otherwise, it could be said that the Bill is long overdue and will hopefully have the effect of appeasing those businesses which are considering moving their operations overseas.

Re: Special shareholders' meeting of Longfellow Inc. I have now had an opportunity to research the law on this point and I can provide you with the following advice. Firstly, to summarise the facts of the case, a group of shareholders of Longfellow Inc. has filed an action In the district court seeking to set aside the election of the board of 5 directors on the grounds that the shareholders' meeting at which they were elected was held less than a year after the last such meeting. The bylaws of the company state that the annual shareholders' meeting for the election of directors be held at such time each year as the board of directors determines, but not later than the fourth Wednesday in July. In 2001, the meeting was held on July 10 18th. At the discretion of the board, In 2002 the meeting was held on March 20th. The issue in this case is whether the bylaws provide that no election of directors for the ensuing year can be held unless a full year has passed since the previous annual election meeting. The law in this jurisdiction requires an 'annual' election of the directors for the ensuing 15 'year'. However, we have not found any cases or Interpretation of this law which determine the issue of whether the law precludes the holding of an election until a full year has passed. The statutes give wide leeway to the board of directors in conducting the affairs of the company. I believe that it is unlikely that a court will create such a restriction where the legislature has not specifically done so. 30 However, this matter is complicated somewhat by the fact that there is currently a proxy fight underway In the company. The shareholders who filed suit are also alleging that the early meeting was part of a strategy on the part of the directors to obstruct the anticipated proxy contest and to keep these shareholders from gaining representation on the board of directors. It is possible that the court will take this into consideration 25 and hold that the purpose in calling an early meeting was to improperly keep themselves in office. The court might then hold that, despite the fact that no statute or bylaw was violated, the election Is Invalid on a general legal theory that the directors have an obligation to act in good faith. Nevertheless, courts are usually reluctant to second-guess the actions of boards of directors or to play the role of an appellate body 3D for shareholders unhappy with the business decisions of the board. Only where there is a clear and serious breach of the directors' duty to act in good faith will a court step in and overturn the decision. The facts in this case simply do not justify such court action and I therefore conclude that It is unlikely that the shareholders will prevail.

Dear Mr Carpenter ... You have requested advice concerning the founding of a Limited Liability Partnership (LLP) and whether this form of company would be advantageous for your accounting firm. ... I have now had an opportunity to research the matter and can provide you with the following advice. ... First, allow me to outline the features and some advantages of an LLP. ... In an LLP, obligations accrue to the name of the partnership rather than to the joint names of its individual members. ... Similar to a shareholder in a limited liability company, an individual partner is only personally liable for his pre-determined contributions to partnership funds. ... Unlike a limited liability company, however, the LLP is more flexible in terms of decisionmaking. ... Furthermore, board meetings, minutes books and annual or extraordinary general meetings are not required. ... In addition, the LLP enjoys the tax status of a partnership and the limited liability of its members. ... However, an LLP also has some significant disadvantages. ... The accounting requirements are very demanding and are expensive to comply with for small and medium-sized LLPs, as accounts must be professionally audited. ... It should also be mentioned that there is a restriction on the management freedom of an LLP. ... Each LLP must appoint a member who is responsible for administrative obligations. ... This member may incur criminal liability in certain circumstances. ... Moreover, an LLP member enjoys less limited liability toward third parties for negligent acts or omissions in the course of his duties than a company director. ... Finally, in the case of insolvency, stricter provisions apply to an LLP. ... Weighing the above considerations carefully, I firmly believe that it would be a wise decision for your firm to form an LLP. ... As an accountancy firm, you should have no difficulty complying with the stricter accounting procedures. ... Please contact us if you have any questions about the matters here discussed, or any other issues. ... Yours sincerely, ... Paul R. Sutherland ...

Re: Special shareholders' meeting of Longfellow Inc. ... I have now had an opportunity to research the law on this point and I can provide you with the following advice. ... Firstly, to summarise the facts of the case, a group of shareholders of Longfellow Inc. has filed an action in the district court seeking to set aside the election of the board of directors on the grounds that the shareholders' meeting at which they were elected was held less than a year after the last such meeting. ... The bylaws of the company state that the annual shareholders' meeting for the election of directors be held at such time each year as the board of directors determines, but not later than the fourth Wednesday in July. ... In 2001, the meeting was held on July 18th. ... At the discretion of the board, in 2002 the meeting was held on March 20th. ... The issue in this case is whether the bylaws provide that no election of directors for the ensuing year can be held unless a full year has passed since the previous annual election meeting. ... The law in this jurisdiction requires an 'annual' election of the directors for the ensuing 'year'. ... However, we have not found any cases or Interpretation of this law which determine the issue of whether the law precludes the holding of an election until a full year has passed. ... The statutes give wide leeway to the board of directors in conducting the affairs of the company. ... I believe that it is unlikely that a court will create such a restriction where the legislature has not specifically done so. ... However, this matter is complicated somewhat by the fact that there is currently a proxy fight underway In the company. ... The shareholders who filed suit are also alleging that the early meeting was part of a strategy on the part of the directors to obstruct the anticipated proxy contest and to keep these shareholders from gaining representation on the board of directors. ... It is possible that the court will take this into consideration and hold that the purpose in calling an early meeting was to improperly keep themselves in office. ... The court might then hold that, despite the fact that no statute or bylaw was violated, the election is invalid on a general legal theory that the directors have an obligation to act in good faith. ... Nevertheless, courts are usually reluctant to second-guess the actions of boards of directors or to play the role of an appellate body for shareholders unhappy with the business decisions of the board. ... Only where there is a clear and serious breach of the directors' duty to act in good faith will a court step in and overturn the decision. ... The facts in this case simply do not justify such court action and I therefore conclude that it is unlikely that the shareholders will prevail. ...

Language use 3: Giving a presentation -structuring and signalling transitions A presentation should begin with a clear statement of the topic. You should also use language for classifying ideas to help you structure your talk. For example: My presentation will deal with the topic of X. I will discuss the three most important types of X in my jurisdiction. I would like to explain X in my jurisdiction. In our country, we distinguish between two main classes of X ... The overall structure of the presentation will be determined by the elements in the classification scheme, i.e. a three-part classification will lead to a presentation which includes an introduction, three main points and a conclusion. When making the transition from one point to another, it is common to signal the move to a new point by using phrases such as the following: Moving to my second point, ... That brings me to my next point. To turn to / Turning to the second type of X, ...

Reading 2: A law firm's practice areas Law firms commonly print brochures or create web pages in order to make their areas of expertise known to prospective clients. This kind of text, or competency statement, is usually entitled 'Practice Areas' and generally lists the areas of the law in which the firm has performed successfully and the areas which staff members have most experience in. Practice areas The law firm of Johnson, Fabian, and Brugger was founded in 1983. Our staff lawyers are experienced in handling cases involving Natural Resources, Property and Real Estate law and have represented clients with issues involving local and national authorities and organizations. Our firm has dealt with a wide range of natural resource matters, including endangered species, forestry/timber, grazing, irrigation, mining claims, oil and gas, water, and wildlife. We have assisted clients in various property matters, including federal, public, state and private lands, communication sites, condemnation, easements, land exchanges, property boundary disputes, ownership disputes, and rights of way. In addition, our lawyers have handled a broad array of real-property/real-estate transactions, including commercial, residential, agricultural, and conservation easements. Due to our comprehensive natural resource and property capabilities, our firm can provide experienced counsel for all environmental and natural resource matters affecting property owners.

STATUTORY CONDITIONS The following statutory conditions apply: 1 The landlord shall keep the premises in a good state of repair and fit for habitation during the tenancy and shall comply with any statutory enactment or law respecting standards of health, safety or housing. 2 (a) Where the landlord provides a service or facility to the tenant that is reasonably related to the tenant's continued use and enjoyment of the premises such as, but not as to restrict the generality of the foregoing, heat, water, electric power, gas, appliances, garbage collection, sewers or elevators, the landlord shall not discontinue providing that service. 2 (b) A tenant shall conduct him/ herself in such a manner as not to interfere with the possession or occupancy of other tenants. 3 The tenant shall be responsible for the ordinary cleanliness of the interior of the premises and for the repair of damage caused by wilful or negligent act of the tenant or of any person whom the tenant permits on the premises. 4 The tenant may assign, sub-let or otherwise part with possession of the premises subject to the consent of the landlord which consent will not arbitrarily or unreasonably be withheld or charged for unless the landlord has actually incurred expense in respect of the grant of consent. 5 If the tenant abandons the premises or terminates the tenancy otherwise than in the manner permitted, the landlord shall mitigate any damages that may be caused by the abandonment or termination to the extent that a parry to a contract is required by law to mitigate damages. 6 Except in the case of an emergency the landlord shall not enter the premises without the consent of the tenant unless: (a) notice of the termination of the tenancy has been given and the entry is at a reasonable hour for the purposes of exhibiting the premises to prospective tenants or purchasers; or (b) the entry is made during daylight hours and written notice of the time of the entry has been given to the tenant at least twenty-four hours in advance of the entry. 7 Except by mutual consent, the landlord or the tenant shall not during occupancy by the tenant under the tenancy alter or cause to be altered the lock or locking system on any door that gives entry to the premises.

Reading 4: Case review Legal publications which present the outcome of disputes involving commercial property leases are of interest to lawyers, landlords and tenants alike. The decisions in such cases indicate how courts in a jurisdiction tend to rule in real property cases, and are therefore useful for parties when preparing a court case. The following account of a case was published in a law firm newsletter.

Insolvency is possibly the most demanding career option a professional can undertake. It is certainly one of the most challenging, involving and rewarding. The Insolvency profession is also one of the smallest - there are fewer than 2,000 licensed insolvency practitioners In the UK, Insolvency practitioners can find themselves running businesses, constructing and negotiating deals, or investigating and advising on the viability of a business and its restructuring (and, sometimes, the integrity of its directors). The work of the insolvency practitioner affects the lives, prospects and livelihoods of both creditors and debtors. Insolvency work is as much about people as it Is about figures. Insolvency practitioners need the personality and skills to deal with angry creditors, anxious directors, distraught employees and, amongst others, hard-bitten businessmen with an eye for a bargain. The insolvency scene is always changing, In particular, the effects of the Insolvency Act 1986 and the attitudes of banks and other creditors mean that, more than ever, insolvency practitioners are business rescuers, Whilst much of the work done by the profession involves formal insolvency procedures, Increasingly Insolvency practitioners are using their skills to restructure and rescue businesses (both in the UK and abroad) without recourse to formal insolvency procedures. Where an insolvency practitioner Is appointed In a formal insolvency, the most common procedures are the liquidation of companies by a variety of routes and bankruptcies of individuals. Even In these cases, often regarded as the 'end of the line' for businesses, imagination and determination are still needed to preserve as much of the business (and Its associated jobs) as possible, or, as a last resort, to get the best possible price for its assets. Even where a formal Insolvency procedure is necessary, in many cases a positive approach to the rescue of businesses and jobs can be taken through the application of administrations, administrative receiverships and voluntary arrangements, The profession has been able to rescue increasing numbers of jobs and businesses in recent years, both because of legislative changes and the changing attitudes of creditors. Overall, some 20 per cent of Insolvent businesses are rescued In one form or another, in part or in whole, and one In every six insolvent Individuals enters a voluntary arrangement as an alternative to bankruptcy. Since 1986, all insolvency practitioners have been required to be licensed by a recognised professional body (RPB) or the Department of Trade and Industry (DTI) in England and Wales, or the Department of Enterprise Trade and Investment (DETI) in Northern Ireland, An individual's licence can be revoked If the holder ceases to be a fit and proper person to act as an insolvency practitioner. Only licensed Insolvency practitioners are authorised to take appointments as administrative receivers, administrators, liquidators, trustees in bankruptcy or sequestration, supervisors of voluntary arrangements, and trustees under deeds of arrangement and trust deeds. If you have decided to make your career in this area of insolvency, you will first need to choose a route to becoming a licensed insolvency practitioner.

Reading 4: Job opportunities in insolvency Recent law-school graduates and young lawyers with a few years' working experience often read job advertisements in the hope of finding interesting and well-paid career opportunities. What sources of job advertisements are you familiar with? Which do you prefer and why?

The text on page 153 makes use of discourse markers to indicate how ideas interrelate. When placed at the beginning of a sentence, these openers point to a relationship between ideas or highlight individual ideas. Look at the following sentence from Reading 3, in which the discourse marker as a result signals a cause and effect relationship: As a result, business methods are eligible for U.S. patent protection, subject to the other requirements of the Patent Act. In the next example, the word notably, which here means 'it should be noted that', serves to emphasise the idea expressed in the sentence: Notably, the Supreme Court has declined to review these business method patent decisions. There are a number of discourse markers expressing a variety of meanings. One meaning already covered in previous units is that of contrast,

Reading 4: Trade-mark statutes Lawyers assist their ciients with all matters relating to trade marks, including advising on the availability of trade marks and trade names, registering trade marks and renewing trade-mark registrations, preparing licence agreements, identifying trade-mark infringement, and representing plaintiffs and defendants in litigation, to name a few. The following text is Article 47 of the Council Regulation (EC) No. 40/94 on the Community Trade Mark. A CTM is a trade mark registered in the European Union. The Article deals with the process of renewing a Community Trade Mark, and would have to be consulted by an attorney assisting a client with the renewal of a registration.

A sex discrimination case In the UK, the law provides for sex-discrimination cases to be brought before an employment tribunal, which has the power to award compensation to the claimant. If the tribunal decides that the law has been broken, it can award compensation for financial loss, as well as for injury to feelings or health which has been suffered as a result of the discriminatory treatment. Furthermore, a tribunal may also award aggravated damages if the injury to feelings has been made worse by the manner in which the discrimination has been carried out. In certain circumstances, the tribunal may even order exemplary damages in order to punish the respondent. The article on page 112 provides information about the outcome of a case heard by an employment tribunal.

Solicitors are not immune from employment law cases being brought against them; in what is being heralded as a landmark case, a tribunal has awarded two female former employees of the London finn Sinclair, Roche and Temper] ey awards totalling £900.000. The employees successfully claimed that they were victims of sex discrimination and, in particular, that the discriminatory culture pervading the firm prevented women from becoming senior equity partners. An interesting feature of the case is that the tribunal found that the way in which a partner at the firm behaved during the litigation was malicious and designed to discredit one of the applicants without having any real foundation. In consequence, the tribunal imposed £3,000 extra aggravated damages. Such awards encourage caution in the way in which proceedings are defended.

Language use i: Nouns ending in -or and -ee Words ending in -or and -ee (such as promisor/promisee) are commonly found in legal texts of all kinds, but particularly in contracts. In these words, the -or ending indicates the person initiating the action, and the -ee ending the one receiving it. Thus promisor refers to a person making a promise, while the promisee Is the recipient of the promise, or the person to whom something has been promised. Note that words of this type are also found in everyday English (for example empioyer, someone giving employment; employee, someone receiving employment).

Speaking i: Explaining third-party rights Paragraphs 1 and 3 of Reading 1 refer to third-party rights. In the context of third-party beneficiary contracts, the time when the third party's rights actually arise differs between jurisdictions. Some jurisdictions find that the third-party rights take effect Immediately at the time the contract is made, while others find that these rights do not arise until the third party acquires knowledge of the rights and agrees to accept the benefits. Finally, some jurisdictions find that the third-party beneficiary must change his position in reliance upon the contract in order for his rights to arise. This means that in some jurisdictions the third-party beneficiary must take some type of action which he would not necessarily have taken or refrain from taking some type of action which he would not necessarily have refrained from taking, unless he thought he was to receive some benefit under the contract.

1 The seller's liability for damages shall in no case exceed the purchase price of the particular quantity delivered with respect of which damages are claimed. 2 Whenever, within the sole judgment of Seller, the credit standing of Buyer shall become Impaired, Seller shall have the right to demand that the remaining portion of the contract be fully performed within ten (10) days. 3 Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to, acts of God, government restrictions (including the denial or cancellation of any export or other necessary licence), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected. 4 This Agreement may not be assigned without the prior written consent of the other party, except that Buyer may assign the Agreement to a subsidiary or related corporation so long as the owners of at least seventy-five per cent (75%) of the stock of such corporation are either Buyer or the shareholders of Buyer. 5 In the event Operator defaults in the performance of any covenant or agreement made hereunder, as to payments of amounts due hereunder or otherwise, and such defaults are not remedied to the Supplier's satisfaction within ten (10) days after notice of such defaults, the Supplier may thereupon terminate this agreement and all rights hereunder of the Operator but such termination shall not affect the obligations of the Operator to take action or abstain from taking action after termination hereof, in accordance with this agreement. 6 This Agreement, including the Schedules and Exhibits attached hereto, constitutes and contains the entire agreement of the parties with respect of the subject matter hereof and collectively supersedes any and all prior negotiations, correspondence, understandings and agreements between the parties respecting the subject matter hereof. No party is relying on or shall be deemed to have made any representations or promises not expressly set forth or referred to in this Agreement.

Speaking i: Paraphrasing clauses To paraphrase means to express something in your own words. The following phrases may help you to paraphrase: This clause deals with ... and says that... According to this clause, the parties agree to ... This clause regulates ...It simply says that... This is about what happens when ...In such a case, ... Here it says ... , which means that... This part basically just says that...

Listening 2: Discussing issues - copyright and fair use The rapidly changing technologies regulated by intellectual property law - among them computer and Internet technologies - are the source of debates on various legal issues, in particular issues related to copyright. In the following listening exercise, you will hear a discussion on the topic of the use of copyrighted material for educational purposes. An American junior lawyer named Thomas has been assigned to shadow two senior lawyers working on a case involving the 'fair use' doctrine in connection with distance learning courses. Thomas meets Patrick, the senior lawyer, and his associate, Rebecca, in Patrick's office to begin shadowing them as they work on the case.

Speaking: Phrases for discussions When taking part in discussions, it is necessary to know how to express your own ideas and opinions in English [see Unit 3 for phrases for expressing your opinion). It is equally necessary to know how to react to the statements of others [see Unit 8 for phrases for agreeing and disagreeing]. The table on page 158 provides further useful phrases for presenting and responding to ideas.

Dear Gwen ... Further to our phone conversation on Monday, I would like inform you of the steps I have taken in the Myers case since we spoke. ... I have submitted the completed entry of appearance you sent me, along with an application for a pre hearing assessment of the case. ... I have also drafted a written submission of the case and forwarded this to the tribunal. ... These two documents have been attached to this mail for your perusal. ... I am now awaiting the response of the tribunal and will naturally inform you as soon as I hear anything. ... I am quite confident that the tribunal will decide to handle this case solely on the basis of the written submission, and that the outcome will be positive for your firm. ... Please do not hesitate to contact me in the meantime if you require any further information or assistance. ... Yours sincerely, ... Jane ...

Subject: Myers dismissal case ... Attached: entry of appearance.pdf; reasons for dismissal_Myers.doc ... Dear Jane ... Further to our phone conversation this morning, I attach the revised entry of appearance form which you requested. ... In addition, please find attached a document providing a complete factual account of the circumstances of the theft. ... Kindly let me know if anything needs to be changed or if you require further information. ... I'd appreciate it if you could let me know as soon as possible whether the case can be handled solely on the basis of a written submission as you mentioned. ... Many thanks for your assistance in this matter. ... Sincerely ... Gwen Hill ...

Dear Ron ... In response to your email this morning, let me first say that I enjoyed reading your closing argument - well done! ... You asked me to give you some feedback, which you will find in the margins of the attached document. ... For the most part, the changes which I think should be made involve giving more emphasis to important points and generally being more explicit. ... I suggest emphasising that the delay was clearly unreasonable (due to perfect credit rating and sufficient information being provided). ... I don't think the importance of this point can be stressed enough. ... I would even repeat the word 'unreasonable' a few times! ... You also need to be more explicit about the evidence showing that the delay was based on personal animosity. ... I also recommend explicitly stating the reason why the defendant dislikes your client - that there was a lawsuit is not enough. ... It is imperative that you point out that the defendant lost the suit and had to pay high damages to your client and therefore dislikes him. ... Finally, I suggest emphasising that your client informed the defendant that time was of the essence in the matter of the assignment - this makes the delay appear more like an intentional attempt to harm your client. ... Hope that these comments are of use to you. ... Feel free to contact me again if you have any questions. ... Best ... Sam ...

Subject; Keats case: update and closing argument ... Attached: Draft version of closing argument: Keats v. Jones Corp ... Hi Sam ... Haven't been around for the last couple of days - I've been in court on the Keats case. ... You asked me to keep you posted on how things are going. ... I have to say, it's going pretty well. ... I've finished drafting my closing argument for tomorrow. ... Would you mind looking at the draft and letting me know what you think of it? ... I'm basically quite satisfied with it, but I would still appreciate getting some input from you. ... It would be great if you could give me some feedback on this. ... Can I ask you to send it to me by 5 p.m.? ... That way I'll be able to make any changes that you think are necessary. ... I look forward to hearing your suggestions. ... Best ... Ron ...

Commentary It remains to be seen what impact the new arrangements will have. Lawyers and other commentators are uncertain about the merits and likely attractiveness of the new scheme. Some have expressed concern that, because the criteria for arbitrators' decisions ( general principles of fairness and good conduct in employment relations') differ from the statutory tests applied by the tribunals, a 'two-tier' system of justice may develop. It has also been suggested that the arbitration scheme offers employers and employees less certainty of outcome, and that the confidentiality of awards may mask variable standards within the arbitration scheme. Some lawyers think that the confidentiality of proceedings under the arbitration scheme may be a significant attraction to employers who want to avoid the damaging publicity sometimes associated with tribunal cases. Conversely, however, some lawyers predict that the fact that the process is private may make arbitration less attractive to dismissed employees. According to this view, arbitration lacks the 'embarrassment value' of public tribunal hearings which may lead to favourable out-of-court settlements for dismissed employees. The limited grounds for appealing against an arbitrator's decision are considered a disadvantage for employers. The irony of the new arbitration scheme is that employment tribunals were themselves intended as an 'easily accessible, informal, speedy and inexpensive' alternative to the ordinary courts for dealing with individual employment disputes when the LIK's unfair dismissals legislation was first introduced 30 years ago.

The sale of goods entails a broad area of the law which is largely governed by legislation. Where an aspect of the law is not regulated by legislation, it is governed by the common law or often by general principles of law in non-common law jurisdictions. The applicable legislation sets forth the nature of what is involved in the sale of goods. Maturally, this includes definitions of what constitutes a sate and goods1, A sale entails the transfer of title in a good from the seller to the buyer. Goods can be defined broadly as some type of tangible chattel. Application of the legislation depends upon: the type of sale; whether the seller is a merchant or not; and, if the seller is a merchant, whether he is trading in the course of his usual business. The aspects of sale of goods governed by legislation include such things as contract formation, price, passage of title, warranties of title, implied warranties, express warranties, disclaimers of warranties, remedies for breach of warranty, delivery and acceptance of goods, and the passing of risk. The principal relevant legislation in the UK is the Sale of Goods Act 1979 (including its amendments). Contract formation in this context includes the requirements applied to contracts in general with some added details such as agreements implied by conduct of the parties. The price to be paid for the goods is usually set forth in the agreement, but in some instances relevant legislation will determine the price if this term is left out. At the very least, the buyer is generally required to pay a reasonable price. Contractual provisions concerning the transfer of title dictate when good title is transferred, for example between a person who has possession but not title to a third-party buyer. Generally, good title cannot be transferred to a third party from a person not authorised to do so by the holder of title. Naturally, aspects of good faith and apparent authority come into play in this context. Different warranties play a major role in the sale of goods. Implied warranties are such warranties which do not need to be expressed but which the law implies. Some of these types of warranties would include warranties of title, fitness for a particular purpose, and quality or merchantability. Many times the application of the latter two types of warranty depends upon the type of sale (for example sales by sample) and whether the seller is a merchant acting in the course of business. Express warranties are warranties which are specifically stated either in writing or orally, as the case may be. Under many statutory provisions, an express warranty cannot negate an implied warranty of the relevant legislation. A common feature of legislation governing the sale of goods is to restrict the ability to limit warranty liability through exclusions or disclaimers in the contract. Another general aspect of this type of legislation is to regulate performance between the parties. Aspects covered in this area would include delivery and acceptance, inspection by the buyer, the buyer's right to refuse acceptance and return of goods. An internationai convention which should be particularly mentioned in this context is the United Nations Convention on Contracts for the International Sale of Goods Act (CISG). The Convention sets forth rules that govern contracts for the international sale of goods and takes into consideration different social, economic and legal systems to remove legal barriers and foster the development of internationai trade.

Writing: Summarising The ability to summarise welt is essential for legal writing; a lawyer will need to summarise the facts of a case, provide an overview of the legislation in a particular area, or characterise the viewpoints of others in respect of a legal issue. Summarising involves expressing the ideas of another in your own words, usually in a shorter form, including only the key ideas and the main points that are worth noting. At the same time, however, a summary should faithfully represent the standpoint and emphasis of the original source, while remaining neutral and impartial in tone. How to summarise C Read the text to be summarised at least twice. C If possible, identify the main sentence of every paragraph; if it expresses the meaning of the paragraph, it can serve as a summary of that paragraph. C Look for key points or any important distinctions which form the framework of the ideas. ^ Express those key points or distinctions in your own words.

Text analysis: Understanding legalese Legalese often poses problems for those unfamiliar with it, such as non-lawyers (clients). However, non-native English-speaking lawyers may also find legalese difficult to read. An awareness of some of the typical features of this writing style can make it easier to understand texts of this kind. Some of the features of legalese are the following: 0 lengthy and complex sentences Several clauses are joined together with commas or the co-ordinators and/but. C archaic words and expressions Words formed with here- and there- or words like such, said, same, aforesaid are used. Q passive constructions Passive constructions are common, e.g. All assets shall be distributed ... By whom? No agent is mentioned, thus highlighting the action to be carried out and not the person who does it.

Listening i: Training of junior lawyers Law firms generally provide training for young lawyers entering the firm in the form of formal instruction and practical work experience. Seminars are held by experienced lawyers to provide a theoretical framework for understanding the legal, business, ethical and practical issues that junior lawyers are likely to encounter. On the practical side, the practice known as 'shadowing' gives junior lawyers a chance to observe senior lawyers at work. Shadowing may include anything from attending meetings with a client and other lawyers, to participating in negotiations with opposing counsel, to attending a trial, or observing the closing of a transaction. The following listening exercise presents an extract from a seminar held for junior lawyers at a US law firm.

The 'State Street' case expands patent protection to methods of doing business __________________________________________ In 1998, the United States Court of Appeals for the Federal Circuit handed down a landmark decision in State Street Bank and Trust Co. v. Signature Financial Group, Inc. The 'State Street' case has attracted wide attention because it has opened up the patent system to inventions which are not within traditional technologies. The case involved a patent issued to Signature Financial Group which was called a 'Data-Processing System for Hub and Spoke Financial Services Configuration'. The data-processing system allowed for complex calculations to be provided very quickly in relation to mutual funds (Spokes) pooled in an investment portfolio (Hub) which was organised as a partnership. The patent was challenged by State Street Bank and Trust. The lower court held that the invention fell within two exceptions to patentable subject matter: 1) the mathe-matical algorithm exception, and 2) the business method exception. The court reasoned that the data-processing system merely performed a series of mathematical functions and that the patent was further invalid under 'the long-esta-blished principle that business "plans" and "systems" are not patentable' However, on appeal, the Federal Circuit Court reasoned that the cases relied upon by the lower court were inappropriately applied to the case. It stated that the focus of what constitutes patentable subject matter should be the essential characteristics of it and, in particular, its practical utility. And, with regard to the Hub and Spoke software in question, it produced a 'useful, concrete and tangible result'. The court ended by dismissing the 'ill-conceived' business method exception to patentability in total. Naturally, this new approach to business method patents has been welcomed by inventors in the field of business. This is witnessed by recently issued patents in such areas as architecture, investment and marketing. The decision has truly increased the possibility of patent protection for ever-expanding methods of doing business.

Look at some of the expressions used by the senior lawyer in the previous dialogue when making suggestions to her colleague. I suggest that you tell your client to refuse to accept the note until it has been signed by all of the principals. I recommend that you advise the buyer that there are ways to get his business partners to sign the promissory note. Why don't you propose that option? I would advise you to look into e-signatures. One other way of getting the signatures of all of the principals would be to send the document by courier and have it signed. Both suggest and recommend can also be followed by a verb + -ing form (see Unit 7): I suggest telling your client... I recommend advising the buyer that...

The purpose of secured transactions is to provide credit for the borrower and security for the lender. 'Credit' refers to the provision of a benefit for which monetary payment is to be made to the beneficiary of the security interest (the lender} at some time in the future. The most obvious example of this is a loan. Security (in the context of the law of secured transactions) differs from other arrangements securing payment or performance because it gives the lender a right in rem which binds third parties, so that anyone interested in buying the security from the borrower cannot freely do so. These other types of arrangements are sometimes referred to as quasi-security. (It should be noted that mortgages are a form of security in land and are usually addressed within the scope of real-property law.) There are two types of security interests, possessory and non-possessory. With a possessory interest, the creditor takes possession of the property which is the security interest (the pledge). The debtor (pledgor) transfers personal property to the creditor (pledgee) in order to secure payment or performance of the underlying obligation. An example of this would be pawning personal property to raise money. The most commonly encountered non-possessory security interests are the fixed charge1 and the floating charge2. A fixed charge creates a security interest in specific property and affords the creditor control over its alienation. This means that the debtor cannot deal in the property without first satisfying the indebtedness secured by the property or receiving the creditor's consent. A floating charge creates a security interest in the assets of the debtor at any given time, which means that the debtor may freely deal with them in the ordinary course of business. It is only when there is a default or a similar event that the charge 'crystallises' and becomes fixed.

In the previous listening exercise, Tina asks her colleagues Jack and Peter to tell her about the seminar which she was unable to attend. These are the phrases she uses to request information. Can you fill me in on what he said? And what did he say about the situation internationally? Can you give me an example? And what did he have to say about perfecting security interests in the US? I'm interested in copyrights. What can you tell me about those? Where could I get more information on what was covered in the seminar? The style of Tina's requests for information is informal, suitable for speaking with colleagues with whom she has a friendly relationship. One way to make requests of all kinds more polite and thus more formal - including requests expressed in writing - is to use the word could instead of can. Could you help me with these forms? Another way to make a request more polite and formal is to begin the request with one of the following phrases: I wonder if you could help me with these forms. I was wondering if you could help me with these forms. Would you mind helping me with these forms ?

This task is intended to give you an opportunity to present information in the course of a discussion and to make use of the phrases for requesting information presented above. Gather information about one aspect of secured transactions in your jurisdiction. You may want to choose a topic :-<,e perfocTing a trade mark or patent as a security interest, or the appropriate institutions, methods or deadlines for filing, for example. Present the information informally to two or three others, as if you were telling colleagues about a topic you are knowledgeable about in the course of a discussion. The listeners should ask for further information about the points you raise as you are speaking. Then switch roles and listen to another speaker. Ask about points that are of interest to you.

Dear Sr Martinez ... Thank you very much for your email of 17 May, in which you offer to provide your services in assisting my client, Mr Edward Watson, in purchasing a house in the Costa del Sol region of Spain. ... I had a meeting with Mr Watson this morning, and I would like to inform you of the matters we discussed in connection with the sale. ... First of all, Mr Watson stated that he would gladly make use of your services for the transaction, and has agreed to the flat fee of 1,000 euros you have requested. ... I also informed Mr Watson about the steps involved in the process, from the initial drawing up of a power of attorney, to setting up a bank account and arranging financing, through to the final signing of documents. ... Mr Watson now knows what to expect. ... I have one request: could you please provide me with copies of all documents you draw up in connection with the house purchase? ... Please do not hesitate to contact me if I can be of any assistance. ... Thank you for your efforts on Mr Watson's behalf. ... Yours sincerely ... Teresa Blackwell ...

To: T. Blackwell ... From: M. Martinez ... Subject. Spanish property purchase ... Dear Ms Blackwell ... Thank you for your email of 15 May, in which you request my services as legal counsel for your client, Mr Watson. ... Allow me to provide some information regarding my professional background. ... As a Spanish lawyer specialising in the sale of real property, I have 15 years' experience in assisting buyers from the UK in purchasing holiday or retirement homes in the Costa del Sol region. ... During this time, I have provided my services for the successful completion of hundreds of real-estate transactions. ... I have not only accompanied my clients through all of the steps involved in the process of buying a home in Spain, from drawing up an initial pre-sale contract to final completion, but have also gained particular expertise in negotiating the terms of sale of real property. ... May I also add that I have studied law in both Spain and England, and therefore possess knowledge of the legal systems of both countries. ... I also speak English fluently. ... I would appreciate it very much if you would inform Mr Watson that I would be happy to assist him in purchasing a home. ... Please could you forward this email to him and ask him to contact me at his convenience. ... Thank you for your assistance in this matter. ... Yours sincerely ... Mateo Martinez ...

Colonial Incorporated makes cooling units that contain steel tubing supplied by a company called Lehigh Steel Incorporated, Each year, Colonial sends a purchase order to Lehigh for the tubing Colonial will need for the year. During the year, Colonial sends out release orders to receive parts of the year's order from Lehigh. In return, Lehigh sends acknowledgement forms in response to the release orders to Colonial and then ships the tubing. Lehigh's acknowledgement form disclaims all liability for consequential damages (such as lost profits) and limits Lehigh's liability for defects. These terms are different from Colonial's purchase order and, of course, are not contained in it. Unfortunately, some of the tubing supplied by Lehigh, which Colonial incorporated into a cooling unit, was defective and burst, causing considerable damage and loss to one of Colonial's customers, Best Produce Corporation. Best Produce Corporation is claiming damages against Colonial, including consequential damages. In turn, Colonial has claimed recovery from Lehigh. In response, Lehigh argues that it has disclaimed all liability for any damages in accordance with the terms set out on its acknowledgement form.

U.C.C. §2-207 Additional terms in acceptance or confirmation. (1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms. (2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless: (a) the offer expressly limits acceptance to the terms of the offer; (b) they materially alter It; or (c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received. (3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case, the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of the Uniform Commercial Code.

The Uniform Electronic Transactions Act (UETA) The National Conference of Commissioners on Uniform State Laws (NCCUSL) adopted the UETA on July 29, 1999.The UETA's purpose is to provide a uniform national framework governing use and application of electronic transactions. The act defines the terms "record," "electronic record," and "electronic signature" and provides as a general rule that electronic records and signatures satisfy legal requirements that a record be in writing or signed, The UETA also applies only to transactions between parties when each has agreed to conduct transactions by electronic means. Some types of transactions will be exempt. Although the UETA is intended to have broad application, under certain circumstances transactions governed by the Uniform Commercial Code (UCC) or the Uniform Computer Information Transactions Act (UCITA) will be excluded from the statute's affect. The UETA contains provisions governing provision or transmission of information in electronic form, attribution of electronic records and signatures, distributing risk of error in electronic transmissions, and retention of "original" electronic records. Other provisions govern automated electronic transactions or the use of so-called electronic "agents" and acceptance of electronic records and signatures by governmental agencies. The UETA also creates a form of electronic negotiable instrument, called a "transferable record." As long as an entity has "control" of the transferable record, it is a holder of the record as defined by UCC § 1-201(20) and has the same rights and defenses as a holder of a negotiable instrument or document under UCC Articles 3, 7, and 9.The requirements of delivery, possession, and endorsement are eliminated. A person has "control" over the record if "a system employed for evidencing the transfer of interests in the transferable record reliably established that person as the person to which the transferable record was issued ortransferred."This requirement can be met by a system that creates, stores, and assigns the transferable record in a manner that satisfies six specific conditions listed in the UETA. The UETA will affect the rules governing creation of enforceable contracts or instruments. Transactions existing or signed electronically that might be unenforceable under traditional principles of law may become enforceable when taking

When encountering problems with a case, it is common for junior lawyers to request advice from senior partners in a law firm. A senior partner may have experience with simitar cases, may be aware of relevant legislation or court decisions, or may be able to refer the junior colleague to other colleagues who are experienced in the matter at hand. The following dialogue between two lawyers [Ms Turner and Ms Wadman) involves a real-estate transaction and a promissory note.

3 DEFAULT. The Debtor shall be in default under this Agreement upon the happening of any of the following: (a) any misrepresentation in connection with this Agreement on the part of the Debtor; (b) any non-compliance with or non-performance of the Debtor's obligations under the Note or this Agreement; (c) if Debtor is involved in any financial difficulty as evidenced by (i) an assignment for the benefit of creditors, or (ii) an attachment or receivership of assets not dissolved within thirty (30) days, or (iii) the institution of bankruptcy proceedings, whether voluntary or involuntary, which is not dismissed within thirty (30) days from the date on which it is filed. Upon default and at any time thereafter, Secured Party may declare all obligations secured hereby immediately due and payable and shall have the remedies of a Secured Party under the Uniform Commercial Code.

When legal agreements like the one on page 178 are drawn up, the drafter will strive to anticipate possible events which may arise and plan contingencies, i.e. to deal in advance with events that may or may not occur. This is done by wording the text in such a way that these possible events are mentioned and thus covered by the agreement. Often opposing pairs of words are used in order to cover the full range of possibilities. Look at this example from the security agreement: As additional collateral, Debtor assigns to Secured Party, a security interest in all of its right, title, and interest to any trademarks, trade names, and contract rights which Debtor now has or hereafter acquires. The word pair now or hereafter is used to refer to both currently existing assets as well as assets which may become the property of the debtor in the future.

The Security Interest shall secure the payment and performance of Debtor's promissory note of even date herewith in the principal amount of twenty thousand ($20,000) Dollars and the payment and performance of all other liabilities and obligations of Debtor to Secured Party of every kind and description, direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising.

When legislation is revised, it is important for lawyers to find out what changes will take place and it is therefore common for them to attend intensive seminars focusing directly on the revised legislation and its practical implications. The following advertisement is for an upcoming seminar concerning the Uniform Commercial Code (UCC], which is a code of laws regulating legal aspects of business and financial transactions in the United States.