Business Law the Differences Between Civil Law Term Paper

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Business Law

The Differences between Civil Law and Criminal Law:

To a layman who is not familiar with the various concepts of Law, criminal Law may be more familiar because of intense interest in criminal cases that are tried in courts of law and the resulting media coverage. Civil law however, is quite an unknown subject. The differences between the two are many. In criminal law, the government generally files the litigation or the lawsuit, while in civil law; a private party who becomes known as the plaintiff always files the litigation. Apart from this basic difference, the most important difference is that under criminal law, the guilty person is punished by either a jail term, or a hefty fine to be paid to the government, or in certain extreme cases, by death. The crimes are also divided into 'felonies' that result in a jail term of more than a year, and a 'misdemeanor' that results in a jail term of less than a year. (Differences between Civil and Criminal Law in the U.S.A.)

In Civil Law, however, there is absolutely no jail term or any other method of punishment for the defendant, except in cases where there was 'malicious intent' or 'gross negligence' on the part of the defendant that had caused any sort of harm to the plaintiff. Under Criminal Law, the so-called 'burden of proof', that is, the necessity to prove that the person is actually guilty of the crime that he is being accused of rests on the State, while under Civil law, the burden of proof rests on the plaintiff at first, after which it gradually shifts over to the defendant. The procedure for the trial of the defendant under criminal law dictates that the case must not be tried for a second time if the first case found that he was 'not guilty' on a more serious charge, and also that a prosecution cannot appeal further if a 'not guilty' verdict has been passed. In Civil litigation, the plaintiff is allowed to have only one single trial for one single charge. This is known as 'res judicata', as against the 'double jeopardy' of criminal litigation. (Differences between Civil and Criminal Law in the U.S.A.)

How does Tort Law impact Businesses and Consumers?

A tort can be defined as the event that occurs when someone on account of his or her own carelessness or out of deliberation causes any sort of harm to another person or to his property. (Tort Definition) One example that would show how tort law has managed to impact a business is that of the Health Care Delivery System of Washington. The Washington State Medical association had decided to form a Company called 'Physician's Insurance' in the year 1982, when the insurance cost for physicians was becoming much too high. However, the Company was faced with numerous problems, just because of the vagaries of the Tort Law that was governing it. Though the State medical Association took charge of an effort to decrease the number of medical malpractice claims and brought about reforms in certain areas, the tort law could not be modified. (The Impact of Medical Malpractice Insurance and Tort Law)

The changes included the codification of the law of medical negligence, and the codification of the statute of limitations to create an 8-year statute of repose, and a change in the law that would allow physicians and other medical aid providers to pay all medical expenses of their patients without actually admitting to liability, so that physicians would be able to waive their bills without fear of repercussions in a court of law. These changes were not enough, and this led to the crisis of 'affordability' in the malpractice market. This was because the malpractice carriers were not able to settle repeated claims of malpractice and also the higher costs of the claims. Therefore, these companies began to increase the premium rates: 15 to 59% in 1985, and a rise of 35 to 60% in 1986, so that the projected losses could be covered. Even those groups who were not involved in health care began to show more concern for their own liabilities in insurance costs, and there was a sudden and urgent need for reforms in Tort Law. Tort law was now required to cut down the frequency of claims, some of which were repeat claims, and also of the severity of the liability claims. This led to the passing of the 'Liability Reform Act' of 1986. (The Impact of Medical Malpractice Insurance and Tort Law)

The law sought to cap non-economic damages, and also to create a new statute of limitations for claims of medical negligence, so that the extremely long waiting period in the cases of minors would be reduced, and also so that the system of 'structured settlements' wherein some part of future damages need not be paid as a matter of urgency was introduced. When the Government decided not to take the Tort reforms very seriously, a crisis began to arise. The average claim payments as well as the costs of reinsurance began to experience a rise again. This example demonstrates the way in which Tort Law can impact a business, as well as a consumer, in this case the consumer being the physicians who need the medical insurance, and the business being that of Medical Insurance. (The Impact of Medical Malpractice Insurance and Tort Law)

The Characteristics of a Legally Enforceable Contract:

legal contract can be quite in comprehendible, even to experts, due to the many clauses and all the subtle but legal ramifications that are involved in its writing. The first thing to understand is that a legal contract need not actually be written in confusing 'legalese'; it can very well be written in simple and understandable language. A legally enforceable contract must be 'in writing', no matter how understanding and friendly the two parties that are entering into the contract are: when a contract is not written, it is not legal and binding. Another important characteristic of a legally enforceable contract is that all the different parties involved must be in complete and total agreement; in other words, this means that the various terms and conditions of the contract have been read and understood and signed by all the parties. (How to make your Contracts Understandable and Legally Enforceable)

Generally, a 'contract' means that one party has put forth a proposal and the other party is accepting the said proposal. This proposal has to involve the exchange of something of value; this is called a 'consideration', and it can be a thing of value like property or cash, or a service, or even a promise for the future exchange of items of value, and a consideration is to be put forward and accepted by both the parties involved in the contract. A legal contract must contain the date in which the contract was signed; this would prevent the denial of any party to the effect that he had signed the contract. Generally, a time limit is specified for the acceptance of the initial offer. When this time is crossed, the contract stops being legal, even if the offer was accepted at a later date by one party. The phase during which negotiations for the contract are going on is supposedly the trickiest of all. (How to make your Contracts Understandable and Legally Enforceable)

This is because there may be many negotiations and then many more counter negotiations, and this may lead one party to accept the offer just to finish the task, without reading through all the terms of the contract. This may lead to the party signing up for as contract that may be disadvantageous to him. Therefore, the best way in which to enter into a legal contract is for all the parties involved to write up a set of basic agreements, and then to write up the contract in very simple language. Once this is done, this set of agreement can be handed over to the attorneys of both the sides involved, and then the final contract can be written. When all the parties have read through it, the legal contract can be signed, and now it becomes a legally enforceable and binding contract. (How to make your Contracts Understandable and Legally Enforceable)

Title VII's and other Federal Statutes Prohibition Against Discrimination:

The Title VII of the Civil Rights Act of 1964, also known as Title VII, is the act that will prohibit any sort of discrimination in the workplace that is based on issues of race or color or sex or religion or nationality. In addition, the 'Equal Pay Act' of 1963 also prevents discrimination based on the unequal salaries that may be paid on the basis of the gender of the individual. This act ensures that both men and women are paid equal salaries for the same work that they do. The 'Age Discrimination in Employment Act' - ADEA of 1967 serves to protect those individuals…[continue]

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