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Thi, public.li"n i, J igned lu provide accUf.Ie and 3ulhOlil.ti,.., i"f"rl11.I;o" in regard '0 ,100 ,u bject ",'Uor or< availabl. at 'p p re~~analysi5, the televised m urt scssio n5, th e dozens of witnesses, ,md the incriminating eM cha.>;e, Sim pso n w~. /i,und not gui lty. 11u'reafter, the families of Nico le Brown Simp son aud Ronald Goldman Simp_,,,n civilly f"r wrongfu l death. They cbime d th,11 he was T,'spon-
_~ucd
sihle (or the loss of their love d ones. A jury trial en,ued. H igh.powe red bwycfS WeT" present. An d dl'sp ile thl' fact that Simpson was found not guilty of the crime, he was found liable to the Gol d man family and ordered to pay $8.5 million in damages. lie was also found guilty of committ ing battcry on his ex,wife, although no d"m~ges were sought by th e Brown fa mily. llow ea n this b~? You ca n't be tried twice fo r the same crime_ can )'ou? If a crim in al jury fin ds you not guilty-beyond a rcasonabll' dou bt-h ow ca n a civ il jury punish yo u? And why wasn't the jig up when Simpson tried to dude the poli ce in his Ford Bronco with a wad of cash , his passport, a nd a falo;c heard?
KEY CONCEPTS 111e law is a set of ru les "hout acc"ptab le conduct. Lega l types categorize the rul es that talk ahout conduct. lhc first main categories arc crimin,\! law and civil law.
Criminal Law Criminal law regulates pub lic standards of c<mduct. Each o f m lives in a community, or more accumtcly, in layers of comm unitk.~-a city, a c" unty, a st~tc, a nation. Th ere ,He principles of co ndu ct that your comm unity hu~ crime. called ,1 fdony. the conSC'iu ~nces ti,r viobting the puh li c .~tambrd of "'nduct could include large fines, hig los, of privileges, and even the loss uf your freedom to be in that sodety, (ommonly rderred to as priso n ti me. Because a felony co nvictio n cu ul d polI.'n tia lly deprive a citi7.en of const itutionally guaranteed
ri Sh\.~- lire.
liberty. and
propcrty~
the Slakes arc "c ry hiSh and the law goes out of its way to get it righ t. With felony charges comes a list of protections for thc accused citizen. includ ing the r ight to co u nse l. the right to trial by jury, t he right to confro nt accuscr.~. and the r ight against >e/f-incrh.jil1a lion. Breaches of public standards of con duct arc pmsed from the session ca n be "ery helpful to the realistic .1SM'ssment of the case at hand. Meoiators arc chnsen by the pa rties and .~hnulo be neutr,\l or inde· pendent. They may be chose n for lheir legal expertise. Many mediato rs are anorneys or retired judges. Some mediators He chosen for their knowl· "dgc in tbe field. For example, in a medical m" lpradicc cas.:, pcrbap.s a physician would serve as a mediator. In a construction casc, an engincer or architect may he tbe he~t judge of wbat is going on. There are many sources to [ocak mediators. among ttwm har associations and arbitration and mediation groups. The partic.~ to the di~pute u.~ually agree ou how to pay the mediator, whosc fees are not bas.:.-d on the outcome of the C"JSC (natumUy), but Me gcncrJ.l[y an hourly or daily mtc. "-'Iany employment contracts call for disputes 10 be mediated. as do many supplier contrJct!, conslmction mattcrs. consumer purchases, and even billing disputes. Like negotiation, mcdi;ltion (an be accomplished f,lste r than a trial. Depending on the jurisdiction inl'o[l'ed, getting a ca..... to trial could take hch"l"C1l two and five years. You cou ld agree \0 negotiate next week Of lind d
ClM PrER 3 • ALHRNATIVE OISPUH RESOLUTION
29
mediator for 10 days from now. Both negotiat ion and mcdiation ,Irc cheaper than a trial because th.-y arc less [o rmaL You do not have to develop your evidence as ~t rictly as with a courl trial. You nwy choose 10 have fewer witncs,e~ and experts 10 present to a mediator than yuu would to a judge or jury. It is a lc~s Ihreatening and forbidding setting than a court house, so parlies often arc more at case an d bettcr al telling their stories Ih an in fron t of a judge. jury, court reporter. and gallery. And like negotiation, mediholdcrs. include the following: L
'Ihe slwreholilers or owners of Ihe lJUsincss . The main d ut y to th is group is for the bu s i n~ss tu make a profit and k~ p a sterling reputation to encourage new illl'csto rs.
2.
1he e",plo)',,~s of the bllsjn~ss. A co mpany has a d ut y to deal f~i rly with those who wo rk to ma ke ils profit. 'lhis includes a dury of loyalty to employees, a duty to provide a safc working environment, and a duty to keep th .. empl oyees inform ed of decisions affecting thei r welfare.
3.
'1/1C bminc55 partners of th e company. This constituency in d ud~s the suppliers. manu fJ cturcrs, and di stributors Ihat the company docs business with on a regubr basis. Wilh out ethical treatm ent 10 those who the hu,\ine.ls depends upon to pmdnce ~nd distribute its product, serious problems co ul d result, an d prohlcms ,lamage pro fi ts.
4. '[he (uMomers of lh~ business, TIlis gmup huys the proJuct or service th e husiness prov id es. Custome r di sapproval is rdlcctcd clearly ami imnK.Jiatcly in salcs numoers, whic h ~frcc l pro fits.
40 5.
PART I: LAW 101
111" pullU, alliITge or /lI e w mnlUnily /lIe bu was probably reckless. Reck· le.'s is the description used in the law for behavior about ..... hich you should have known better. My neighbor should have known b('tte rthJn to drive his car considering that he knew the bT"Jkes were getting funny. Or. he should have known better than to talk on the phone while driving. Being reckl('ss is troubl ing hehavior; the law usually doesn't ignore this type of actio n, hilt it doesn't co nsider it as diab olical as intentio nalmi.o;.co nduc t. Maybe he was jllst negligcnt. N~gligelll is the de!'Cription uscd in the law for oehavior thai i.~ can'less. H(' didn't mean to cause an accident. He had no w,lrning th,lt something might h~pl'en, but he wasn't being as careful as he should have been. Negligellcc describes a truc accid,'n1, uninh.'llded dnd unforesl'cn, but damaging nevertheless. Negligence is v('ry common and llsuaUy not ~s serio ous in its consequences as recklessness or intentional acts. To determine how to cIas.~ify the S l"Cn in if the acciden l had no t occurrccause of third-,legrce hurns she
~ uffered
when a Styrofoam
~ up
of co ffee purch a",.,J through a
drive-uJ' winrluw spilled in her lap. A jury awa rded her S200,000 in damages and $2 .7 mill ion in punitive damages. McDonald·s was punished for this accident beC"auSc to exchange Illy daytime huu rs for payment from mr h05.l. Cott~idcmtion is also refrJining from doing something you have evcry kgal right to do. Fo r example, my nephe w is over IS anJ has every right to smoke. r Jo not like smoking. I promis~ him $500 if he quits smoking for six months. He quits, and the only reason he docs is because I madl' an agreement with him . He is giving up something he has every right to do specifirully in exchange for my promise to pay him $500. lfhe quits for six months, 1owc him $500.1 Ie has ncry kg al right to colkd th at frolll tnt'. I OUlIIot s;lyto hilll, ~Ah , you should l];Ivl' 'lu it anyway, and I did YO Il a big favor." I havl' to pay. Capacity. ·Ihe next ingredient in a bi nding co ntract is capac ily. ·lhe law rcstricts so mc individuals from making binding contrach. ~'linors c~n not entcr int o hinding contracts unless th ey dre for nec~.'iS ities, like food aml ., helter.ll1is law prcVl'1l1s disreputah lc indi vidna ls and busin esscs from taking advantage of minors who may not be mature cnough to ~nter into contrdC\s knowl~d geahly. In most states, minori ty termina tes at 18 years of age. "Ihe law also protec ts those opemtins under a mental imp airme nt from enter ing into binding contmcts.l'1'lcntal impairment docs not relate to a ce rtain IQ or ase; it relates to whether an individual has an appreciation of the consequences of his act io ns. Ofte n elderly or infi rm individuals bave questio nahle conl mct cJ pacity, but 50 can healthy 30-year-olds after majo r surgery Of duri ng a significant illness,
"' "
•
CHAPrElI 7 • THE REC IPE FOR A CONTRACT
79
Legulity. TIle fifth ingreJ ient in a h indingconlrdct is!eg,IIity.TIle law will no! enforce a contrdcl for an illegal purposc.lhcreforc, cu nlracts regarding prostilution, il1~'Sal gambling, ;11'1.1 agwcm~nts \0 co mmit torts arc not enforceahle. Anothertype nfcnntract thaI is lad::ing in legalilY ho ne Ihal is contr.lry 10 public pnlicy. -Ihese contracls wnuld includc agrccmcnt scontaining cxculpalory clauses. An e.nulpatory dame i~ a provision tha t atlemph 10 relieve o ne ]Xlrty from liah ility. A surg~on wou ld be using an e~cu lpatory clau se if he asked his pa tient.~ 10 ~ ign an agreement promising never to sue him under any circomstances. This is d iJfercnl frum signing an infi.,rmcd c1Cf is unusual hl'causl' it is rMe Ih,lt monelary damages can n" t lake c..tre oflhe breach. For the cou rt to a ..... ard specific performa nce, the casl.' has 10 in\,ol,,1.' unique or rare items. If I had J contr..tct to bu y a KUTt Vonncb'llt drJwing (ye.l, he was an artist as well
a.~
an author) for $2,500
and the ..leakr selling it changed his mind. I would not want to accept my $2,500 hack. I want that particular dmwing. 'Iherc is not anothcr onc likc
it and I madc a deal. 1he filet that the dealer got scntimental is too bad. 'Ihc fact that Kurt Vonncgul died beforc Ihe drawing was delivered 10 me, so that now its "alu~ is much
high~r,
is also too had fm the J~aler. Money
ca nn ot gh'e me the be nefit of the bargain. Only the item itsc!f wiH do, and in rare, uniquc cases like this, the court may on.l cr the parties to co Ulp1c\c the contrJ.cI as made.
SlibSlalltiul Performance. AsdiSQl&Scd in chapter I, the law docs not require a perso ll or husines.1 to be perfect. Sometimes things do 1I0t go as planned. 'Ihcre arc co nlra ct rules thai cover !C:;S than perfect performance. If you do all of what you promised. you get the benefit of rOUT barga in. If ),ou ,10 most of what YOli pwmislxl, shouldn't YOli Sd mnst of what you bargained fiJT? The law thinks that you should and exhibits this b~l i efin the doctrine of sub!r(H1 -
tial performance. If a person subslantiallyperformson a co ntrdct, he does not do a perfect job, but he makes an honest and eameSI atlc'mpi to perform com pletely. Fo r example, my brother-in· law builds bouses. He is a great builder and rarely hasa complaint from clients. I Ie has a solid reputation in the com munity for nlfering a fine product and excelle nt workmanship. If on the closing date for a houS do-uPIs J UiOS J"] UP.Oj r IJS pllr. )[lTrq JI[l 0 1 oS 0 1 p.1.l\I ] p UP. '1o-SJU]soq P. SU!\JP1S \lIP. I .\1'$ sp'] ·JJIj)Our. JO SlIPI' J lJI ,(r.d
SO l
t9 N ll l~M
N1191SnV'l
SlJlf~ l NOJ
ilfliM - 6
~3 1 dlf fn
106
PA.RT II; CIVll lA.W IN DETA.l l
What Type of Writing Do You Need? Once you have identified that the type of contract you afl' entering into n~'Cds to be in writing, the next quc~tion to raise is what type of writing do,es il haw 10 he? 'Ihere i.\ no rc
The Uniform Commercia l Code Early in the history ofthi' ,ounlry, the sliltes were (Iuite indepe ndcnt. rh cy could coin the ir own mo ney and set their own larilfs. lhis wasn't wo rk able for lon g so our I,}uuding fathers provided in th e U.s. Co nstitution th,]t the
ClMPTE~ 11 ' S ~ LES CON1RACTS AN D REMEOIES fOR BREAC H
127
fedl'ral guvl'Tnme nt wuuld he respon~ihle for coining the monl'y and providing the rules for interst~le commerce, This helped merchants in Bos/un know how to gd thcir producls to Baltimore, Howevcr, there were still is.lues ofintrdstJte commerce lhal each ~lale rcguIalcd wilhin ilS borders. Also, contract laws differed from state to state, as did commo n law. or co urt opinion~ ~bout interpreting contract teTim. For private citi ze ns., this mishmJsh of state laws didn't make J hig difference. In the t940s you still went to the lucal hardware store for YOUT furnace filters, the gmcer (or vegetable"" and the hutcher for meat. Dut for merchants, it was fast becuming an illtimid,uint', maze, So, in 1952, after more than 10 years of debate, the first Unif
129
Article 2 even a llow ~ the accept,mee of an otrer tn he for addition,11 or differc nt terms from those ordered. For cxample, Deere & Co, ma y put in ,I ru~h order for 5,000 Number 553 holts to Bolts, Inc. Unfo rtunately, the compa ny ju,t shipped its last available Nu mber 553 boh.~ to Mitsuhishi, but it knows that Deere & Co. can use Num be r 552 bolts to complete its job wit h no problem. It fills the' o rd er wi th Numher 552 boh .• for a oumber of re asons: It wants (he husiness, it kn"w s these will work, Deere kn ows th ese will work, evnyo ne stays h~ppy. In business, thi s works. Merchants C'1n even moJi fy the co nt rdct krms ~nJ maintain a valid agreement. For example, my fabric store orders 50 bolts of var i· ous Hallowee n fab r ic~ o n August 30 for delive ry o n September 5, My di str ibutor only ha s 40 bolts on han d but will get more on Septe'mb,'r 10. Both of us wan t th e deal to work. H,' wants the sal e and I want the fabric. Even if I can o nly get ,10 bolts by September 5, I'll take them and he know.~ that I will. So. the di~tributor shi p$ 40 bolts now and ]0 bolts on September 10. All the sewi ng mo th er.~ and future goblins are happ)' wi th their ,election, and well hct,ne tIl\.' holid,IY (will h,lYe what! need for the seaso n, The UCC do es proviJe some safeguarJ s aga inst sellers just sendin s any old thing to fill an order. Buyers have riSht s to li mit acceptance of adJitional or modified goods within time limits, which puts the o nu s on buyers to inspect thl'ir products in a timely fashion. !n ad ditio n, the UCC doe,~ not change the extreme freedom of wntl'dct th at the law all nws. tf a specific item or term is important to a trans'Ktio n in goods, you must wri te it in the CO lltr~ ct. Specific re'luirements or the partie' written into agreem ents sti ll control ovuthe relan'd Art ide 2 ru le,•. Fina lly, thedratlcr.• of the· code trb.lto promo\c' fair dealing ,Iod high standards of bl'ha"ior in the marketplace. There arc specific Art icle 2 se"ions ahout the duty of all wntracting pa rties to act in good faith. The code als.o Tl'coSnizes the concept of an un co nscionable contr"ct, or o ne that is Srossly unfairnr onesided. The code gives the cou rts powers to remedy such unfairness. The code aiM) imposes ccrtai n st,mdards of qua li ty on ~ellc rs of goo d~ by pro· viJing imp lieJ warranties on goods. Wa rra nties will he discuss,'...! further in chapter 12.
J, ....
*
~I
h
130
PA.RT II I, CO~ TRJ\C TS IN BUSINESS
Review of Contract Damages The legal remedy of damages is designed to compensate the Ilo nbreaching party a nd pu t them in >lpproxim atcly the .'ame position they would have becn in if no breach had occurr~'e receipts (r~"Sard i ng Buods in slorage).
154
PA.RT II I, CO~TRJ\C TS IN BUSINESS
Collatel'dl could indude a"ou nts. If! h,ld an accou nt duc to mc from my neighbor who owcs me $250 for lawn mowing on July 5, I could give that acco unt or IOU to my brother to hold until I paid him back his S.WO. If I goofed up, he could go to my neighbor, present my accou nt sta tement, and collect my mo ney. thus satisfying his debt. In a business context, accounts could refer to the business\ hank accounts. which take in receip ts cvery day. l:inally, collatel'dl could include g~ner'll il1llcs- ilcms thaI rep resent muncy but art not mont), in and ofthemwlvts. If I had a wpyright on a piece of Ill llsic for which I was cnti tled 10 d ro)"! and pay Collten the halancc. If brry finds that the amount owed the hank is in l'xceu "fwhat he is willing to P,IY, he can1I0t purchase the C".Ir free and dear. Larry should walk away from Ihe dea l. Of course, in automobi le sale!\, the certificale of ti lle is another place that sl"Curity interests arc no ted, and many lenders actually hold auto titles until they arc paid in full, so more than likely, Larry would discover the lien by looking at Colleen's car title. Not all pledged aSSC\5 have certificates of title, however. so if I.arry were buying Colleag is so recugniuble and so closely identified with li.lXury goods that infcrior imitations of the product copy the · LV~ mark ratha than any other design dctailto (onvince the consumer to buy. A certiJiw/ioll IImrk is also similar to a tmdemark. [t may be Tl'lj,istercd to 5how that the vendor hclongs to a group or association. The Ul TESTE D stamp is a certification mark of the Undrrv.. ritds labomtory. '1his lah allows th e u.•c of the mark to ap pear on m~mbers' products that mec! the lcsting standards ofth~ l~b(}rJtory. Hav ing this mark "n an electrical product tells a purchaser something abuulthc 4.uality of the itcm an d adds value to thc product. Other cl,rtifiC;ltiun marh include the GOOD HousF.KHI'ING SIlAL or union tags. n
Patents Patents arc all about inventions. A polem is a grant from the federal governmen t allowi ng an inven tor exclusive rights to his product for 20 yC"drs. This means the im'cntor has control of the production. usc. and distribution ...... hich can he a wry valu able and lu cratiw right. like an inventor. ,1 designer can apply for a patent; a patcnt on a dc.,iSn is good for 14 yea rs. T" he patentable. an invention or a design ne.ods to be genuine,
CHAPTER 15 • INTEl LECTUAL PROPERTY
183
novel, useful, and not obvious. TheM: terms ha"e a SPCCi'lllcg'll mean in g, and in the app li ca tio n for a patent, the inventor or designer bas to describe thc process he went through to develop the idca, note that th e jdea is not us.:d for this purpose presentl)·, prove that the idea has a useful app li cation that meets a need, and ex plai n why this application is nnt readily available or obvious to others. A succes.~ful appli ca nt will gd the grant of a patent, which entitles him 10 mark hi5 dcsign o r product with thc word parenl o r pal. and incl ude the numher of the patent, if desired. Many ,lppli ca nts mark ite ms distri buted before a pakll1 is gf".lnu..J asp"lenr pending to put uther.; un nutice that thi s de.~ign o r idea has heen put ill usc. In the United States, patent protection is given to the first party to inve nt a design o r prodoct, as opposed to the first perwn to app ly for it. Mosl other countries gr,Ult pall"nts to th ..· firs t to file for palent protection. The U.S. method means that disputes can arise du ring the pMenting process from claimants alleging th ey put products into prior lI .• e or invented the product sooller hut never put it into lISC. An il1\'~ntor ca n choose not to put his product in osc. I k ~ till has rights to gd a patent an d .kal with the pruduct cxclusiycJy fo r the patent pcriod. If a patented invc ntion or design is osed withou t aothorization, that pa tent is jrifring~d . A p,lll'nt infringer can f,lee th e sam e type of damages as a trademark infringer, "'hiclt inclodc.~ an order to cease the infringement, destruction of all the infri nging prod uct. and monetar y damages to the patent holde r. Patent infringement ca n occu r even if only part of the paten ted product is copied o r lls~xI; not all fcaturcs have to he infringed upon 10 haye J case for da mages. If an infrin ger wan ts to co nti no (' h ) usc tlte patented f('a turcs of the product, he must nt'go tiate wi th the p.dent holder fora Iice nSl." or a right to usc thl' prot,,'c tl'd in vention Of design for a period " ftim e. 1\ licl'll.~e call he gf",lIltcd hy the patent holder or not. dependi ng on his wishes. Afte r 20 years of exelllsi\"(' rights to the in"cntion or design. a paten t expires. The patent owner can still pro doce and distribu\c the product, but competiti on can. too. The exclusivity period of a patent allows the crealorto recoup some of the dc,'elopmcnt costs, which ca n bl' cxten.,ivc. and henefi t from his application. llowever. co mme rce moves O il. and a free market is impnrtant to ou r cC()llomy. After 20 year . . rishts must he shared with the
184
PA.RT W: TRENDS 11'1 BUSIN,SS
puhlic at large. Of (ourM:, Ill.my inven tors II" on to phase two ur phase three ofthdr in ventio ns well before the patents expire. Many products invented and put into u~e 20 yeJrs Jgo art' totally obsolete today. In the pharmaceutical industry, where research and development co,ts arc astronomica l, there has been a move to extend patent ljfe b)' developing a ~econda!)' usc for a drug. For example, if an antidepressant'~ paten t is exp iring in three years, the nlJnufacturer wu ld wnd uct tri'lb with the drug to see if another appliCJlion i ~ helpful. Pcrhaps that drug co uld also he osed elfectively as J weight-loss treatment. If a secondary ose is verified, th; films and other audiovisual works; and sound recordings. Software has been addeJ to Ih\' types of expression that can be protcckd bythcComputerSoftw,jium th~t can he peTcd"ed, reproduced, orcommunicat ed. It is not possihle to copyright an idea; only an applica ti on of an idea can be protected. A copy right is a grant hy the federal gove rnlll \'ut to the creator of a literary or arti stic production of the exclll~i\'e' right to the prope'r ty for Ih\' life of the author plus 70 yea rs. Fur copyrights owned by puhlishi ng houses, the protection is for ~5 yean; fro m th\' first dati' of pnblication or 120 years from the dale of crea tion, whicheveris first. Thus, co pyrights have a longer initial life th an d thcrtradcmarks or patents, I lowevcr, yon arc not rcqoircJ to registcr with th{" U.S. Copyright Officc in W
In tellectua l property
I~
the
faste~t
growing a rea of property rights
worldwide. Intellectual property i n clude~ trademarks, pat
L
Germany. Hans was a very bright 16-year-old attending h;gh school
and ilssoc iilting with others his age. In Berlin. Hilns enjoyed drinking wine with his family and in public. He was quite put out that he cou ld not enjoy
alcohol as freely in the Uni ted Slates. After
Doing Bu siness Internationa ll y It C,U\ he very attract i,'e to ma nu fact ure or dist ribu te products lor .~al~ slo j,ally. Dccrea.ent to fully hear the la.~e, the defendant may join the party in the law.~uil by a cross·claim. Remember also, the more defendants, the more possible parties (rom which to rccova damages. 4. Thc pbintitfs reside in lUinois. Heat-all Industries resides in Minnesota. Sears corporate headqnarters is in Chicago, Illinois, so it certainly residcs thcrc. hut it docs husinc.\S in evcry st~tl' of the union. Iherefure, Scar,~ may he sued in any statc of the union. 5.
Yes. this CJ.,O;C can he filed in federal coun if thc l.)'ncheHue only [-leatall Industries. There i~ diveThity of citizens hip hetween the plaintitfs and Ihc defendant and there is more than $75,000 at issue for each (Of the pl~intiffs. lfth~ plaintitl;; want ttl sue Seilfs, which resides in Illinois also, there is no diversity jOfisdiction, and the case will h,,\'c tu he filed in the Illinois circuit court. The case could also be flied in Minnesota stale cou rt where the defendants reside. Heat-all Industric.~ i~ lucated there and Scars docs ousiness there.
Brai n Teaser 6_
With these t;lets, the best choice is probaoly hI file in Cook Coun ty, Ill inois, and sl"t:k a state cou rt resolution of the case. A federJ.I co urt case is not autom~tically mul\' important o r morc prestigious than ~ state cuurt. You gu to the pbce that can "~pcak the bw" that rou wan t tu hear. One is not superiur tn the other.
"' "
•
210
TEST YOURSELF ANSWER S
Questions Future Chapters Will Answer 7.
See chJpter 5 fora discussion on the impact of whne businesses reside. Chapter 14 discusses some isslles involved in doing bus iness online.
8.
Even complex cast's can be settled without a trial. See chapter 3 to discover other way.' of negotiating a dispute to a rcwlution without a trial.
CHAPTER 3 Review Questions I.
Yes. the pel owners have a cause of action again.lIowing; Be quicker Be cheal)er
,
"
TEST YOURSE lf ANSWERS
2\ \
Involve less publi city Not be au admis~ion of guilt or liahility Pre serve cu~t o mcr relationships Prese rve rdationships with the dog food companies they do husiness with Show the community that they ,1re seriously concerned and re~p"llsive
5. Fro m !Jog's Best Frien d Co,'s point of vie\\', I would want a mediator with legal experience to weigh how unilltenti\lIl al and unavoidable this incident was. I would want so nH.'onc who would note how quickly Dog's Best Friend respo nded once they kne w of the problem. I would also wd nt an unemotionaJmediator who would q uestion how responsive pet owners werl' to signs of illnl'ss in their pets and how quickly they noticed the recall and sto pped using the product.
From the I'd ownns' point of view, ! would want a vctninarian who would know how much pain and suffering this injury caused to the pets and the owners. I would want someone who knew ab out dog pedigrees and breed va lu es to co rr~'< lly eva lu ate the dam~ges done to thc sickencd an imals and the va lu c of the dt"Ccased dogs.
Brain Teaser 6.
No amount of money wiU bri ng back a dcad dog. Perhaps !Jog's Ucst Friend could olfer to pay ex penses and th e value of the animal ~ but avo id other clai ms like emoti o nallo.~ses for the owners. Instead, they c(lol.1 olfer to put $10,000 inlo a resl:aTcb pruject on kidney diM:ase in dogs, or tO Wilnl a dog shdt~r, or to developing 5a ferca nn~d dog (\lod. This typ e of f:.1ir and concerned respo nse could help Dog's Best f riend regain market trust and customer goodwill by showing conccrn and also promoting prevention measures.
Question Future Chapters Wi ll Answer 7. Yes, there is it requirement that goo ds distributed to the public be tit for th cir ,ldwrtiscd purposes. In cha pter t2 we review thc htw of warranties in detaiL
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TEST YOURSELF ANSWERS
CHAPTER 4 I.
Yes, capping an ~xcco(ive sabry related to worker pa), is illl tlhical decision. :-"bny co mpil1lirs have used this trchni'llI e, with different multipliers, to Illake a statement about the value of eyery worker. This is not an "'!loistic choice on the part of the m~nagcrlH.'nt of Ben & /c rr{s h,·cause an cgoi.~licchoice ,~ouIJ emphasize the highest possible salary forthe CEQ, with the hopes that infbted levels of pay would run through aJi top management tiers. This could he a utilitarian choice by the compan)', to provide the greatest good for the greatest number, hu t this choice docs so indirectly, by freeing funds to pay supplieTh and workers fairly. Thi., is definitely a choice by the owners to foJlow the principle of the e~tegorica l irnperJt iye, which operates out of pure IlwtivC'. "The owners arc willing to live with this choice because it is a clUJicc they an: willing to have iml'oscd on them by others.
2.
Yes, r,·,civing all esecutive comp,'nMtion package thil t relleets what the market will bear is ethical. Many companies USc this technique 10 attrJct tht, brightest and the best to lead their businesses. The willing market determines Ihe scales paid and the benefits included. ·Jbis is not necessarily a decision that respects the categorical imperative. Those who wi~h 10 o utbid for talent do not genrrallywant to be outbid thcmsclv~s. Th is is not a uti lita rian approach to compensalion. offering the !)reatc.' t b,'ncfit.~ to the Brcat,'~t lllllllb",rs. ·Jbi,. al'pro~ch is "'Boistic. TIle company tha t pays 101' dollar want s what is best for iI, amI the CEO who accepls tol' dolla r is gelling what is best fo r hinl.
J.
These sur\"~y results could r~ise legal concerns, heca use they cuu ld show that physicians llSC facto rs other than thei r best clinical judipncnt \0 trea t patients. In cases where out co mes arc nut good, thiscuuld cause conce rns abou t levd of CdT(' and conflicts of in teres I. Chapter 6 on tort law discusses personal injury cases and the concept of TIL'!lligcnce. These su rvey T('su lts can also rdise et hiedl concern .• hCClUse the stati~tical re~ults indicate that phy"icians arc being inflm'na-d by personal. egno may have been a crime, hu t thi.~ in cident is not ~ to rt . Who is ;It fault? Mo th er Na ture? There is no clear duty here, alth ough th,'re arc horri hle ddfnagcs. No tort. 4.
JR Ewing is sil1ing at his dc sk working latc, comforted by the thoug ht that in thc last t 3 episodes he h~sa!icn~ted ~very perso n he knew. Every family member, work collcague, and competito r h~s a reaso n to dcspise him. Some h~vc good reason to fight b'lCk. But the pe rso n who ope ned the office door and cased in the barrel of a revolver was breaching a duty to the o il gian t. [vii o r not, a re aso nable pcrso n doesn't cxpect to he shot sitting at his de.sk. The t o rtf~ as"r did shoot and i( was deilr JR was s~riou~lywoundcd; theTt'forc, damage ha s !>ccn dou~. Thc final eI~ ment to cstithlish is that the tortfcasor causcd thc dam agc. Clea rlr th;lt person did, in a I)rossly negligent. ifn ot intenlional, fashion. It was n't until the beginning of the next season that we knew the shootcr was Kristin Shepard, IRs sister-in-law and mistress_Tort.
CHAPTER 7 l.
David is obviously not as knowk.Jgcablc abo ut antiques as h,' th ought. He sold a I'ery valuable chest for one one-thousandth of its worth. Six mo nths ago, at the timeofthe sale, there wasan offer and an acceptan ce. The parties had capacity to enter into thi s co nt ract. which wa s legitl and voluntary. 'Ihe issue Dav id rtall y wants \0 rJise is co nsid crd tion,
"' "
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TEST YOURSELF ANSWER S
hut he will lose his claim. The law docs "0\ ca re if con~ideratin i., Cair in monetar y terms and wi ll not protect people from entering into ha d deals. Forconsideration to be v;l1i d there must be I n exchange of promisc.\ or itcms of vJ lue - not necessJ(i1 y equal valuc. Pcoplc over· pay and underpay all the time. and the law all ows co nt racting p~rties to make their ow n dcals with out inkrferenCI'. Commercc would not be very dependable if e"cry disgrun tled seller «)uld reclaim an item he rq~ret.~ selling or if a buyn could ha" e remorse ove r t he price paid and return his pu rchase., at whim . 2. The o tfer was the depositing of S1 into the vending machine. 1111.' acce ptance was the giving ofproduCl. Co nsideration wa.~ present. lhcre was no illegali ty or incapacity or illvulun tarin t'ss involved, so this W;1S a good con tr;ICl. When a pHty to a contract doe.~ !lOt get whal was promised, a breach has occu rred. Tht' vending machine malfunc tionl'd, and although thl" colfel' was not delivered as expected, the machine did perform. Judy has a brcach uf contract act ion against the ve nding machine co mpany. She will probably just forget about a $1 cup of cappuccino, but if the ruin ed shoes wcre valmlblc, ~he may ask for co mpensatio n fo r tho se as a damage incidental to the lllaifunction. Shc co uld also con.