Business Law Which Type of Term Paper

Excerpt from Term Paper :

Part 6 also gives guidance in the case of some specialized types of contract. UCITA in Part 7 for the major part carries over the popular rules of Article 2 involving breach when suitable in the perspective of the tangible medium on which the information is fixed, but also takes up a common law rules from Article 2 on the waiver, cure, assurance and anticipatory violation in the perspective of computer information transactions. (Overview of the Uniform Computer Transaction Act - UCITA)

3) Why is fraud in the inducement treated as a personal defense and fraud in the inception treated as a real defense? Is this distinction justifiable? On what grounds?

Defenses might be used to evade payment to an ordinary holder, but not an HDC or a holder having the rights of an HDC. In case there is a violation of the underlying contract for which the negotiable instrument was issued, the maker of the note can refuse payment, or the drawer of a check can place order to stop payment. Breach of warranty might also be claimed as a defense to liability on an instrument. The lack of failure of consideration might constitute a defense in some instances. Fraud in the inducement comprises of situations in which a person who issues a negotiable instrument basing upon false statements by another party will be able to avoid payment of the instrument till the holder presenting the instrument for payment is an HDC. Illegality is considered as acts that make a contract violable and make a defense against an ordinary holder, but not against an HDC. In cases of personal defenses on mental incapacity the law states that a person, who has not been ruled mentally incompetent, nevertheless might claim incapacity as a defense against an ordinary holder, but an HDC. (Signature Liability: Primary)

There are other personal defenses which are (i) discharge by payment or cancellation (ii) unauthorized completion of an incomplete instrument (iii) non-delivery of the instrument and (iv) putting of undue pressure making the contract voidable. However there are federal limits on HDC rights. (i) FTC Rule 433 restricts the rights of an HDC in an instrument giving proof that a debt emanating out of a consumer credit transaction and (ii) Rule 433 applies to any seller of goods or services who takes or receives a consumer credit contract, as also any seller who accepts as full or partial payment in case of a sale or lease the sale proceeds of any sort of purchase money made in relation to the consumer credit contract. The objective of Rule 433 is to safeguard consumers from being compelled to pay a third party for problematic goods and thereafter make the expenditure pursuing the seller separately. As an outcome of Rule 433, a consumer who finally takes possession of a defective product might impose the flaw as a defense to any claim for payment by the seller or any subsequent holder. (Signature Liability: Primary)

The discharge from liability in an instrument can happen in a lot of ways. (i) in case the party is mainly liable pays the instrument in full settlement, all the parties on the instrument are discharged and (ii) in case a secondarily liable party pays for an instrument, exclusively that party and the arties coming next are discharged. The primary party i.e. The make or drawer and any indorsers before the paying party become liable. Intentional cancellation for instance writing PAID across the face of the instrument that destroys the instrument, discharges the liability of all parties. Besides, material alteration might discharge the liability of any party impacted by the alteration and a party re-acquiring an instrument discharges the liability of all middle indorsers to the next holders those who are not HDCs and in case a party's right of recourse for instance the right to look for reimbursement might be discharged from additional liability. (Signature Liability: Primary)

References

Bilateral Contracts. http://law.jrank.org/pages/4745/Bilateral-Contract.html

Brousseau, Eric; Glachant, Jean-Michel. The Economics of Contracts: Theories and Applications. Cambridge University Press, 2002.

Buckley, F.H. Just Exchange: A theory of Contract.

Routledge, 2005.

Contract Law. PSU -- Student, Legal and Mediation Services. http://www.slms.pdx.edu/ContractLaw.html

Denny, William R; Anderson, Potter. Overview of the Uniform Computer Transaction Act

UCITA. Report of the Joint Task Force of the Delaware State Bar Association Sections of Commercial Law, Computer Law, Intellectual Property, and Real and Personal Property. January, 2000. http://www.nccusl.org/nccusl/ucita/DE_Bar_Report.pdf

Nagarkar, Ketki. E-Contracts in India: A Legal perspective. Asian School of Cyber Laws. 2004. http://www.asianlaws.org/projects/e-contracts.htm

Signature Liability: Primary. http://profj.us/outlines/ch26.doc

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