Applied Business Law - Definitions

Justine Pierre
Flashcards by Justine Pierre, updated more than 1 year ago
Justine Pierre
Created by Justine Pierre over 3 years ago
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Flashcards on Applied Business Law - Definitions, created by Justine Pierre on 03/27/2017.
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Enforceable To compel observance of or obedience to. If you have a disagreement, you can go to court and it can help you out, usually by money exchange. Enforceable: --> by commercial court --> by civil court
Trial court - Court of first instance A trial court is a court having original jurisdiction in which a trial takes place. (Un tribunal de 1ère instance est souvent la 1ère juridiction qui doit examiner un litige et rendre une décision. Par la suite, certains recours à l'encontre de ce jugement peuvent être disponibles, notamment l'appel et le recours devant une juridiction suprême)
Appeal Timely resort by an unsuccessful party in a lawsuit or administrative proceeding to an appropriate superior court empwered to review a final decision on the ground that it was based upon an erroneous application of law. (L'appel est une voie de recours contre une décision rendue en première instance. Le plaideur porte alors le procès devant une juridiction supérieure.)
Offer and acceptance (Consentement): they are elements required for the formation of a legally binding contract: the expression of an offer to contract on certain terms by one person (the offeror) to another person (the offeree) and an indication by the offeree of its acceptance of those terms. The other elements traditionally required for a legally binding contract are (1) consideration and (2) intention to be legally bound
Intent (of the parties) (Commune intention des parties) Intent to be part of the contract. Intention to be legally bound is a concept used in contract law, to denote whether a court should presume that parties to an agreement wish it to be enforceable at law -A contract is a legally binding agreement. Once an offer has been accepted, there is an agreement but not necessarily a contract. The element that converts any agreement into a true contract is "intention to be legally bound". The courts seek evidence that the parties to the agreement intended that it shuld be governed by, and subject to, the law of contract, so that the agreement gives rise to legal consequences. Each party thus adopts a legal obligation, and each may seek a remedy in the event of breach.
Custom (usages) Custom in law is the established pattern of behaviour that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law". - Customary kaw: --> (1) a certain legal practice is observed and --> (2) the relevant actors consider it to be law
Duty of good faith (Bona Fide) In contract law, the implied covenant of good faith and fair dealing is a general presumption that the parties to a contract will deal with each other honestly, fairly and in good faith, so as not to destroy the right of the other party to receive the benefits of the contract. It is implied in every contract in order to reinforce the express covenants or promises of the contract.
Precontractual liability (Rupture des pourparlers) The mandatory principle of autonomous will of contracting parties gives to the parties freedom to decide whether they will enter into a contract, what will be the terms and conditions of such a contract and what form of contract they will use. In other words, everybody is free to hold contractual negotiations and freely decide whether or not he will enter into a contract or not. At the same time, such freedom is not unlimited and is defined by the precontractual liability -> the negotiating parties undertake certain rights and obligations throughout the contracting process, such as obligation to act in good faith, not to misuse it position or right, including rightof contracting freedom and autonomy of will. A breach of obligation to act in good faith and fairly represents precontractual liability.
Tacit renewal (tacite reconduction) Clause whereby the renew automatically the contract unless the party has given notice of cancellation at anniversary date. Renewed for the same period of time and under the same conditions -A contract for a definite periode ends by operation of law.
Adhesion contract (contrat d'adhésion) A type of contract, a legally binding agreement between 2 parties to do a certain thing, in which one side has all the bargaining power and uses it to write the contract primarily to his advantage. -A standard form contract drafted by one party (usually a business with a stronger bargaining power) and signed by the weaker party (usually a consumer in need of goods or services) who must adhere to the contract and therefore does not have the power to negotiate or modify the terms (Ex: règles d'adhésion d'Apple)
One-sided (clause abusive) Unilateral offer - a contract in which only one party makes an express promisen or undertakes a performance without first securing a reciprocal agreement from the other party. -In a unilateral or one-sided contract, one party, known as the offeror, makes a promise in exchange for an act by another party, known as the offeree. If the offeree acts on the offeror's promise, the offeror is legally obligated to fufill the contract, but an offeree cannont be forced to act, because no return promise has been made to the offeror
Capacity The capacity of natural and juridical persons (legal persons) in general, determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into a contract or writing a valid will. Capacity is an aspect of status and both are defined by a person's personal law
Insolvency, bankruptcy (Insolvabilité, entreprises en difficulté) Is the state of being unable to pay the money owned, by a person or a company, on time
Reorganization (Redressement judiciaire): the process of carrying out, through agreements and legal proceedings, a business plan for winding up the affairs of, or foreclosing a mortgage upon, the property of a corporation that has become insolvent
Liquidation Liquidation judiciaire: The act or process of settling or making clear, fixed and determinate that which before was uncertain. The dissolution of a company such that its assets are made liquid (converted into cash) in order to pay an debts and the remainder is distributed among the companies shareholders.
Delegation (Représentation): a group of persons appointed to represent others. A person officially elected to represent another or others. Differences between formal delegation and apparent delegation.
Power The ability or capacity to act or do something effectively
Apparent authority (mandat apparent): it is a concept used in agency law that refers to the situation that arises when a principal, such as a corporation, indicates to a third party that an officer or agent is authorized to act on its behalf and the third party relies in good faith upon such authority -the situation where, objectively looked at, it seems that an agent does have the apparent authority of his principal -Where an agent has apparent authority to enter into a transaction, the fact that he lacks real authority will not necessarily render the transaction void; the appearance of authority will opperate.
Force majeur An overiding impulse that you can't control. -The term force majeur is used to protect the parties in the event that a segment of the contract cannot be performed due to causes that are outside the control of the parties, such as natural disasters, that could not be evaded through the exercise of due care. (Unpredictable)
Condition precedent Condition precedent is a contract, an event which must take place before a party to a contract must perform or do their part
Condition subsequent In a contract, a happening which terminates the duty of a party to perform or do his/ her part. A event that brings an end to something else. A condition subsequent is often used in a legal context as a market bringing an end to one's legal rights or duties.
Applicable law A term of art reffering to the body of statutory law that a court uses to guide decisions in a particular type pf case or for a particular group of parties -Statute, judicial decision or regulation having the force and effect of law that determines the legal standind of a case or issue.
Mandatory (legal rule) Mandatory rule is a legal rule that is not subject to contrary agreement. It is legal rule which is in all cases binding and cannot be departed from by agreement between the parties concerned. For ex, the Uniform Commercial Code's obligation of good faith and fair dealing is a rule that cannot be disclaimed.
Default (legal rule) Default rule is a legal principle that fills a gap in a contract in the absence of an applicable express provision but remains subject to a contrary agreement. It can be overriden by a contract, trust, will or other legally effective agreement. Most contracts theorists find that default rules fill in the gaps in what would otherwise be incomplete contracts
Conflict (of law) A situation in which both state and federal laws or courts, or laws of more than one state, are applicable to a potential lawsuit or interpretation of a document and seem to be inconsistent or in conflicts -The plaintiff's attorney's 1rst pb is to decide in what state or federal court the lawsuit should be filled.
Treaty A treaty is an agreement in written form between nation-states that is intended to establish a relationship governed by international law
Franchise The right one has to operate a store or sell goods or services under a franchise agreement
Franchisor A corporation that grants a franchise, as to a franchisee
Franchisee One that has been granted the right by a corporation to sell its products or service within a particular area
Exporter export: to send or transport abroad, especially for trade or sale.
Importer Import: To bring or carry in from an outside source, especially to bring in (goods or materials) from a foreign country for trade or sale
Legal personality Companies, like people, can go to court and ask people to help them fix their problems. -To be capable of having legal rights and duties within a certain legal system, such as to enter into a contract, sue and be sued.
Distribution The act of divinding up the assets of an estate or trust, or paying out profits or assets of a corporation or business acording to the ownership percentage.
In cash en numéraire: payment in money (cash, cheques, transfers, etc.)
In kind (en nature): payment by advantages that are not money
Management the person or persons who control or direct a business or other enterprise; the act of managing, supervising, etc.
Board (of directos) (Conseil d'administration, de surveillance): a group of persons chosen to govern the affairs of a corporation or large institution
Directors (Administrateurs): Persons appointed or elected to law, authorized to manage and direct the affairs of a corporation or a company. They are generally invested with certain powers, by the acts of the legislature, to which they own their existence.
Chair (président): A person who holds an office or a position of authority, such as one who presides over a meeting or administers a deparment
Officers, executives (Cadres dirigeants): Someone with administrative or managerial authority, who has the authority to carry out administrative or managerial duties
Transfer To remove or convey from one place or person to another. The removal of a case from one court to another court within the same system where it might have been instituted. -An act of the parties, or of the law, by which the title to property is conveyed from one person to another
Sale (Cession): transfer of something (and title to it) in return for money (or other thing of value) on terms agreed upon between buyer and seller. The price paid may be based on a pested cost, established by negotiations or by auction
Shares (Actions): a stake in the ownership of a company
Stokes (Parts sociales): A security issued by a corporation that represents an ownership right in the assets of the corporation and a right to a proportionate share of profits atfer payment of corporate liabilties and obligations
Dematerialized To deprive of physical substance, make immaterial. To convert from paper to digital or electronic form.
Joint venture (50/50 JV) The undertaking of a specific commercial project by 2 or more companies or persons. A business enterprise in which 2 or more companies enter a temporary partnership
Shareholder agreement (pacte d'actionnaires): An employement agreement among the shareholders of a small corporation permitting a shareholder to take a management position with the corporation without any claim of conflict of interest or self-dealing agains the shareholder/ manager -A shareholder's agreement is an arrangement among a company's shareholder describing how the company should be operated and the shareholders' rights and obligations. It also includes info on the regulation of je shareholders' relationship, the management of the company, ownership of shares and privileges and protection of shareholders
Organizational documents, by-laws (Statuts): A by-law is a rule or law established by an organization or community to regulate itself, as allowed or provided by some higher authority (legislature, gov body). -Organizational documents: means, with respect to each Grantor, the documents by which such Grantor was organized and which relates to the internal governance of such Grantor.
Group (of companies) A group of companies is an economic entity formed of a set of companies which are either companies controlled by the same company, or the controlling company itself. Controlling a company means having the power to appoint the majority of its directors
Parent (Société-mère): An enterprise which is also known as a parent corporation, that owns more than 50% of the voting share of its subsidiary. -A company that controls other companies by owning an influential amount of voting stock or control
Subsidiary A subsidiary company is one in which another, larger corporation (the parent company) owns all or at least a majority of the shares. As the owner of the subsidiary, the parent corporation may control the activities of the subsidiary
Control The power to direct, manage, oversee and/ or restrict the affairs, business or assets of a person or entity. To exercise the power of control.
Voting rights The voting right of some shareholders to participate in the company's decision making process, especially at the annual meeting or at some other special meetings. Some decisions, such as friendly takeovers or whether to make a new issue, must be put to shareholder votes, though the list of what decisions are included varies by company. Because voting rights give these shareholders the most control over the company, other shareholders are compensated with benefits, such as guaranteed dividends. -The type of voting and the amount of control held by the owners of a class of stock.
Deadlock (blocage): a state of affaires in which further action between 2 opposing forces is impossible
Leverage (Effet de levier): A method of financing an investment by which an investor pays only a small percentage of the purchase price in cash, with the balance supplemented by borrowed funds, in order to generate a greater rate of return than would be produced by paying primarily in cash for the investment; the economic benefit gained from such financing.
BATNA Best Alternative To a Negotiated Agreement The most advantageous alternative course of action a party can take if negotiation fail and an agreement cannot be reached
National courts Tribunaux nationaux: a court of an individual nation or state
Inquisitorial (judge seeks truth) A method of legal practice in which the judge endeavors to discover facts while simultaneously representing the interest of the state in trial. Ask questions in order to seek the truth and find out what happened.
Adversorial (judge= referee) (Accusatoire: juge = arbitre): having or involving opposing parties or interests in a legal contest. The result is obtained through the battle between the opponentswithout the seeking of absolute truth being part of the process. Traditionally, this meant that the judge was a referee rather than a participant and that the parties had control of the process. -2 parties fighting, judge is a referee and is there to make sure that it's a fair fight. Not seeking the truth.
Code A systematic and comprehensive compliation of laws, rules or regulations that are consolidated and classified according to a subject matter. -A collection of written laws gathered together, usually covering specific subject matter
Precedent (Jurisprudence): A court decision tat is cited as an example or analogy to resolve a similar question of law in later cases -Past cases
Notice Mise en demeure: Information, usually in writting in all legal proceedings, of all doc filled, decisions, requests, motions, petitions and upcoming dates. Notice is a vital principle of fairness and due process in legal procedure, and must be given to both parties, to all those affected by a lawsuit or legal proceeding, to opposing attorney and to the court -Plan to get to the court --> give notice to the other side --> Info, knowledge of certain facts or a particular state of affairs. The formal receipt of papers that provide specific info
Time to cure (Délai supplémentaire): time after the notice, gives the other side time to do what you are demanding (deadline)
Process serving Delivery of a summons, or other legal papers to the person required to respond to them. -The delivery of copies of legal doc such as subpena, order to show case, complaints, etc. usually by personal delivery to the defendant or other person to whom the docare directed
Evidence Any matter if fact that a party to a lawsuit offers to prove or disaprove an issue in the case. A system of rules and standards that is used to determine which facts may be admitted, and to what extent a judge or jury may consider those facts, as proof of a particular issue in a lawsuit.
Summary judgement A procedural device used during civil litigation to promptly and expeditously dispose of a case without a trial. It is used when there is no dispute as to the material facts of the case and a party is entitled to judgement as a matter of law. -A court order ruling that no factual issues remain to be tried and therefore a cause of action can be decided upon certain facts without a trial
Settlement The act of adjusting or determining the dealings or disputes between persons without pursuing the matter through a trial -The resolution of a lawsuit (or of a legal dispute prior to filling a complaint or petition) without going forward to a final court judgement
ADR Alternative Dispute Resolution Procedures for setting disputes by means other than litigation
Mediation A settlement of a dispute by setting up an independent person between 2 contending parties in order to aid them in the settlement of their disagreement. -Preserve the relationship -The attempt to settle a legal dispute through active participation of a third party (mediator)who works to find points of agreement and make those in conflict agree on fair results
Arbitration The submission of a dispute to an unbiased 3rd person designated by the parties to the controversy, who agrees in advance to comply with the award - a decision to be issued after a hearing at which both parties have an opportunity to be heard --> like a private court --> winner & loser --> judges = arbitrators
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