Gupton Business Law Comp

Joint and Several Contracts

- two or more persons are bound both together (jointly) and individually by the contract. (ex: if a husband and wife sign the funeral contract to be individually or both together responsible)

Courts of Equity

have the authority to settle controversies concerning dead bodies. (if a family were having a dispute regarding the final disposition of a body, they would apply to a court of equity to decide the resolution)

Blank Endorsement

having no words other than the signature of the endorser

Statutes

laws which are enacted by legislative bodies

ANTITRUST

laws which seek to promote competition among businesses

Goods

movable tangible personal property

Limited Liability Corporation

newest form of business ownership recognized in the U.S.; combines features of both the corporation and partnership

Breach of Contractural Duty

not fulfilling part or all of the tasks that were agreed upon in a contract. (If a funeral director leaves the cemetery before interment and the body is damaged, the funeral director did not fulfill the duties that he was contracted to perform, therefore is facing a lawsuit.)

Implied Contract

one in which terms of the contract are implied by acts or conduct of the parties. (If a funeral home is called to remove a body from a nursing home or hospital, there is an implied contract that the family is responsible to pay for the removal. If the bottom of the casket falls out, the funeral home has breached the implied contract.)

Cosignee

one to whom goods are shipped by common carrier. (the funeral director receiving a body that has been shipped)

Devisee

one who inherits real estate under a will

Consignor

one who ships goods by common carrier (the funeral director shipping a body)

Title

ownership; evidence of ownership of property

Endorser

person who writes his or her name on back of instrument

Tort

private or civil wrong for which the law grants a remedy. ( The purpose of the tort law is to compensate the aggrieved)

Usury (Usurious)

rate of interest which exceeds the maximum that is allowed by law.

Uniform Commercial Code

recognized as the most important statute in business law, it includes provisions which regulate certain sales of goods and negotiable instruments

Degree of Kindred

relationship to decedent of his relatives; each generation is one degree, counting to a common ancestor

Custodian

status associated with funeral service practitioner/funeral establishment who becomes legal protector of dead human body from time of removal until final disposition.

Funeral Service Law (mortuary law/mortuary jurisprudence)

that branch of law which relates to matters concerned with the disposal of the dead and regulation of funeral directors/embalmers and funeral establishments

Burial (interment/inhumement)

the act of placing the dead human body in the ground

Bill of Landing

the contract existing between the consignor and the carrier

Eminent Domain

the inherent power of a government to take private property for public use. In the U.S. just compensation to the property owners is required

Fraud

the intentional or reckless false statement of a material fact, upon which the injured party relied, which induced the induced party to enter into a contract, to his or her detriment. (If a funeral director intentionally misrepresents a benefit of a pre-need funeral arrangement....it is fraud)

Assignor

the party making the assignment

Bailee

the party who acquires possession, but not the title, of personal property by one party to another, under agreement. The Funeral Director that receives the personal effects of the deceased from the family.

Bailor

the party who gives up possession, but not the title, of personal property in a bailment. (The NOK who delivers the personal effects of the deceased to the funeral home.)

Defendant

the person against whom legal action is brought

Drawer

the person who executes any draft

Drawee

the person, company, or financial institution ordered to pay a draft

Actual Custody

the physical possession of the dead human body or other property (A Funeral Director has the dead body in his possession)

Estate

the property of a deceased person, both real and/or personal

Disaffirmance

the repudiation of, or election to avoid, a voidable contract (if a minor, intoxicated, or mentally incompetent person decides to avoid legal obligations within a contract that they signed.)

Endorsement

the signature or statement of purpose by the owner on the back of a negotiable instrument, which indicates the future control of the instrument.

Bailment

the transfer of possession but not the title of personal property by one party to another, under agreement. (The property of the deceased person is considered to be BAILED property.)

Law

those rules of conduct commanding what is right and prohibiting what is wrong

Business Law

those rules of conduct prescribed by government and its agencies in regulating business transactions

Administratrix

woman who has been appointed by the court to settle an estate

Bequest

(Legacy) a gift of personal property by will

Mutual Benefit Bailments

- benefits both the bailor and the bailee (ex: rental of personal property such as an automobile - leasing a coach from a livery service)

Malpractice

A breach of contract by a professional person; failure to perform a professional service with the ability and care generally exercised by others in the profession.

Sole Proprietorship

A business owned by one person who is subject to claims or creditors

Corporation

A business owned by stockholders who share in its profits but are not personally responsible for its debts

Duress

A means of removing one's free will, obtaining consent by means of a threat to do harm to the person, his family, his property, or his earning power.

Assignment

A means whereby one party in a contract conveys rights to another person, who is not a party to the original contract.

Funeral Insurance

Life insurance used to fund a separate pre-need contract. The funeral home is the beneficiary or assignee of the policy

Clinical Death

A phase of somatic death lasting from 5-6 minutes during which life may be restored.

Statute of Frauds

A state statute under which certain types of contracts must be in writing to be enforceable. ONLY BE ENFORCED IF IN WRITTEN FORM

Deed

A writing that conveys title to real property.

Codicil

An addition or amendment of a last will and testament executed with the same formality as the will. (it must be witnessed and signed in order to be enforced)

Contract

An agreement between two or more parties that is enforceable in court

Valid Contract

An agreement resulting in an obligation that is legally enforceable.

Voidable Contract

An agreement which would be enforceable, but due to circumstances, may be set aside by one of the parties.

Punitive Damages

An award to the plaintiff to punish the defendant for malicious, oppressive, and high-handed conduct

Restrictive Indorsement

Any indorsement on a negotiable instrument that requires the indorsee to comply with certain instructions regarding the funds involved. A restrictive indorsement does not prohibit the further negotiation of the instrument. (ex. signing a check "for deposit only")

Sherman Antitrust Act

federal legislation intended to promote competition among businesses by prohibiting restraint of trade

Civil Law

Body of law dealing with private rights of individuals

Escheat

forfeiture of a decedent's property to the state in the absence of heirs

stare decisis

Case Law. The principle that the decision of a higher court should serve as a guide or precedent and control the decision of a similar case in the future.

Formal Contract

Contracts which must be in special form or produced in a certain way, such as under seal.

AGENT

Drivers hired by funeral homes. Funeral Homes are directly responsible and can be sued.

Assignment

If a Funeral Home agrees to give money from an upcoming funeral service to a bank in order to satisfy a lien.

Criminal Law

Laws dealing with offenses against society (murder, rape, arson). Prosecuted by the government, violation results in fines or prison sentences

Administrative Law

That body of law created by Federal and State administrative agencies to implement their powers and duties in the form of rules, regulations, orders and decisions. (OSHA, FTC, STATE BOARD RULES)

Express Warranties

The actual and definite statement of a seller, either orally or in writing, at the time of the sale. (guaranteeing a standard or level of performance)

Liquidated damages

The amount of the damages stipulated in a contract to be paid in the event one party breaches the contract.

Negligence

The failure to exercise the standard of care that a reasonable person would exercise in similar circumstances.

Constructive Custody

The situation whereby one party has a right to acquire custody/ possession of the dead body although another party has actual physical possession. (the funeral home that has control of final disposition although the body may not be in their possession)

Novation

The substitution, by agreement, of a new contract for an old one, with the rights under the old one being terminated.

ADA (Americans with Disabilities Act)

federal act prohibiting discrimination based on disability in the areas of employment, state, and local government, public accommodations, commercial facilities, transportation, and telecommunications

Implied Warranties

Warranties imposed by law, arising automatically because the sale has been made.

Bilateral Contract

a contract which consists of mutual promises to perform some future acts

Subchapter S Corporation

a creation of the tax codes; shareholders elect to be taxed as a partnership (no double taxation) without losing corporation status

Bill of Sale

a document of conveyance which provides written evidence of title to tangible personal property.

Devise

a gift of real estate made by will

Administrator

a man who has been appointed by the court to settle an estate

Felony

a more serious criminal offense that is punishable by death or by imprisonment in a penitentiary for more than one year

Process (Summons)

a notice given to a defendant, attaching the complaint and stating a time frame in which an answer must be filed or an appearance made.

Injunction

a permanent judicial order or decree forbidding the performance of a certain act

Endorsee

a person who becomes the holder of a negotiable instrument by endorsements which names him or her as the person to whom the instrument is negotiated

Abatement

a proportional reduction of a legacy under a will when assets out of which such legacy are payable are not sufficient to pay it in full

Fiduciary

a relationship of trust and confidence, such as that which exists between partners in a partnership

Easment

a right to cross or otherwise use someone else's land for a specified purpose.

Conditional Sale

a sale in which the buyer, so long as the buyer is not in default, has a right to possession before payment in full is made.

Donee Beneficiary

a third party beneficiary to whom no legal duty is owed and for whom performance is a gift (ex. a beneficiary in a life insurance policy)

Nominal Damages

a token award to symbolize vindication of the wrong done to the plaintiff, generally the award is $1.00

Void Contract

an agreement of no legal effect

Compensatory Damages

an award paid to the injured party to cover the exact amount of their loss, but no more

Promissory Estoppel

an equitable doctrine that prevents the promisor from revoking the promise when the promisee justifiably acts in reliance upon the promise to his detriment. (if a client refuses to pay a cash advance the funeral home can collect under promissory note)

Counteroffer

an intended acceptance which changes or qualifies an original offer and in effect, rejects that offer and becomes a new offer

Crime

an offense which is injurious to society as a whole

Common Carrier

any carrier required by law to convey passengers or freight without refusal if the approved fare or charge is paid (airline, train, etc.)

Case Law

appellate court decisions that establish precedented principles. (the U.S. Constitution is the ultimate authority and each state constitution is the primary law in each state.)

Rescission

cancelling, annulling, avoiding

Ratification

conforming an act which was executed without authority or an act which was voidable. ( ex. the restatement of a promise made as a minor)

Executed Contract

contracts in which the terms have been fulfilled by the contracting parties

Common Law

customs which have become recognized by the courts as binding on the community

Deed of Trust

deed that transfers property to trustee for benefit of creditor

Intangible Personal Property

evidences of ownership of personal property such as stock of corporations, checks and copyrights

Libel

false statements made in writing for the purpose of injuring the reputation of another.