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200012 Lecture Notes - Lecture 4: Western Law, Homeowner Association, Property Law

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School
UWS
Department
University of Western Sydney
Course
200012
Professor
anon

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Document Summary

Western law gives great emphasis to the concept of possession, it has had considerable difficulty in making intangible things the object of property. Some western legal systems still deny the possibility of property in intangibles. In all western legal systems, however, the great increase of wealth in the form of intangibles (stocks, bonds, bank accounts) has meant that property or property-like treatment must be given to such intangibles. Certain government-created rights such as patents and copyrights have traditionally been treated as property. Others, such as the right to receive social- insurance payments, have not normally been so treated, although there appears to be some tendency to treat these rights as property also. (this is the new property of recent writing. ) The use of property, particularly property in land, is extensively regulated throughout the west. Neighbours injured by adjoining land uses may sue in nuisance in the anglo-american countries. Similar actions exist in the civil law countries.

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Related Questions

The primary costs of FDI to host countries are:

Loss of sovereignty and patriotism

Adverse effects on competition and exports

Capital outflow

Loss of sovereignty, adverse effects on competition, and capital outflow

____ suggests that FDI, unrestricted by government intervention, will enable countries to tap into their absolute or comparative advantage by specializing in the production of certain goods or services.

The radical view

The free market view

Pragmatic nationalism

Expropriation

What are the benefits of FDI to home countries?

Repatriated earnings from profits from FDI.

Increased exports of components and services to host countries.

Learning via FDI from operations abroad.

All of these answers

When one firm enters a foreign country through FDI, its rivals are likely to follow by undertaking additional FDI in a host country to:

Create knowledge spillover

Discover a new market for its goods

Overcome and combat market failure through FDI

Acquire location advantages or neutralize the first mover’s location advantages

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FDI may be viewed as a reflection of firm motivation to extend firm-specific capabilities abroad and their responses to overcome imperfections and failures.

True

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True

False

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True

False

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True

False

A firm's resources and capabilities are tangible assets a firm uses to choose and implement its strategies.

True

False

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True

False

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True

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True

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True

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Adam Smith

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The communication between members of similar location.

The collective programming of the mind, which distinguishes the members of one group or category of people from another.

The main component of formal institutions.

The attitudes and behaviors characteristic of a particular social group or organization.

When an expat employee returns to her or his current employer but the employer does not provide attractive opportunities, she/he often may be hired by a competitor firm. Why?

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Patents

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On the Edge: A Traditional Business section on page 23 of the Velasquez textbook

In over 28 countries, mostly north African nations, female circumcision—or female genital mutilation, as its critics call it—is generally accepted.58 Female circumcision is normally per- formed when a girl is between 7 and 12 years old. It involves cutting the girl’s external genitalia. In most countries, the pro- cedure is done by a female “practitioner” who uses a small knife or razor blade but no anesthesia. A young girl will often resist, so several women must hold her down while the practi- tioner works. The women who perform circumcisions charge for their services and see their work as a business. It is esti- mated that in countries where the practice is widely accepted, the annual fees collected by all the businesses that provide circumcision services total tens of millions of dollars.
Mothers in these countries feel they must have their daugh- ters circumcised because otherwise no “good” man will marry them. Many believe that circumcision controls a woman’s sex- ual desires and cleanses her spiritually so that others can eat what she cooks. Although the practice is not mentioned in the Koran, many North African Muslims believe that female circum- cision is required by certain sayings they attribute to Muham- mad, the founder of Islam. However, Muslim scholars dispute both the authenticity and the interpretation of these sayings.
Many Americans and Europeans feel strongly that female genital mutilation is an immoral assault on a helpless and unwilling girl, an assault that provides her no medical benefit, risks serious infection, and permanently deprives her of the ability to feel sexual pleasure. They have pressured foreign governments to outlaw the practice and to crack down on the women who make a business of it because they are violating the human rights of thousands of girls.
Practitioners claim that Westerners who w want to prohibit female circumcision are trying to impose their own morality on others. A Somali practitioner said: “This is a great offence and a great interference with our lives and our lifestyle. For too long Europeans have come into our countries and told us how to live our lives and how to behave and we believe that is totally unac- ceptable. We will not allow foreigners to tell us how to behave or put our businesses at risk any longer. In order for our daugh- ters to be free they must have this procedure. It is their right as women and our obligation as adults to make them into the best young women we can. Circumcision is a fundamental part of becoming a young woman and we will not deny them that because of some misplaced sense of morality from foreigners.”
Phillip Waites, a doctor and medical analyst for a news service noted, “The core issue here is whether or not Europe- ans have the right to step into another country and demand that they change their traditions and culture.” Remarking on the many practitioners for whom female circumcision is a busi- ness, he said: “There aren’t a whole lot of jobs in Somalia. There really isn’t a whole lot of anything in Somalia frankly, and these women have a specialty that not only garners them a good living but also gives them a certain status in the country that they might not otherwise have.”

Is the business of providing female circumcision services morally wrong? Why?

If a practitioner asks for a small business loan from a Western "micro-finance lender" like www.kiva.org (Links to an external site.) would it be wrong for the lender to refuse?

Would it be wrong for the lender to agree? Explain.

Is it wrong for Westerners to pressure North African governments to prevent practitioners from doing female circumcisions?

Does the case support ethical relativism or does it suggest that there are certain things that are wrong no matter what, or neither of these positions?

This questions are based on FINANCE LAW subject,
If you guys can solve it using IRAC METHOD.
PART A
Jasper is a furniture manufacturer who runs a successful business in Caroline Springs as a sole trader. He owns the land on which his existing factory is built together with plant and equipment including two motor vehicles. He wants to take on partners to help put into effect his grand plans for expansion including the setting up of several more factories. Obviously, he says to himself, I need an injection of funds to finance these great plans.
So Jasper goes to a branch of the Very Accommodating Bank (‘VA Bank’) that has just opened up in his area.
On 31 August he sees the local manager of the VA Bank, a lady called Gloria. He discusses with Gloria the amount of borrowed funds Jasper thinks he will need for his business. They agree that a loan of $750,000.00 would meet Jasper’s immediate needs.
They discuss different types of loans and Gloria says: ‘Well, Jasper that is all very interesting. Based upon my experience with similar businesses to yours, I can say that the Bank would be very interested in lending you what you need. Of course we would require security. We would certainly require a mortgage over your real property together with a fixed/floating charge over your other assets.’
Jasper says that he doesn’t want to pay high fees and requires an interest rate of no more than 7% payable quarterly for the loan. Gloria says: ‘As to interest, I can only tell you that our current rate is 7.25%. What do you think about all of this? ‘Jasper says to her: ‘I will think about it and get back to you.’ Gloria says: ‘Well, don’t take too long about it.’
Jasper is getting a little fed up with Gloria’s over bearing manner and thinks he can get a better deal elsewhere. Unfortunately, he finds that in fact no one else will lend to him. So two weeks later on 14 September Jasper emails Gloria, in which email he states: ‘I accept your offer of 31 August.’
A week later Jasper phones Gloria to ask when he can access the loan. Gloria says to him: ‘Sorry, Jasper, but there has been a downturn in the Bank’s shares and the interest rate for loans such as yours is now 8.5%.’
(a) Ignoring legislation or Codes of Conduct, advise Jasper as to whether or not VA Bank is obliged to provide him with a loan of $750,000.00 at 7.25%. Give reasons for your answer.​ [5 marks]
Although he is dismayed at the Bank’s attitude, Jasper is desperate to get his plans under way and phones Gloria saying: ‘We agree to your terms but I have one question of importance to me - Can I have the option of repaying the loan on an interest only basis instead of repaying principal and interest should my circumstances make such a change necessary?’ To which Gloria replied: ‘I am fairly certain you can have that facility.’
Jasper receives the Bank’s standard contract documents for the loan, signs them and returns the documents to Gloria. Unfortunately Jasper was pressed for time and did not actually read the contracts before signing. On reading them the next day he is dismayed to find that they contain the usual obligations to repay regular instalments of principal and interest but there is no reference to an option to pay interest only.
(b) Advise Jasper if he can insist upon the Bank including an option clause in the loan agreement.​​ [3 marks]
Finally, Jasper had previously banked at the ​Westfall Bank. In the course of discussions between Gloria and Joe, the Manager of Westfall Bank, Joe tells Gloria that Jasper needs to be kept an eye on as he was always writing cheques in favour of the local casino. Gloria passes this information on to Jasper, who is appalled at this slight on his reputation.
(c) Advise Jasper what rights he has against Westfall Bank. [2 marks]​
PART B
Chameleon Ltd is a customer of the Caring and Wealthy Bank. It is a very large company and employs more than 100 people and therefore the Code of Banking Practice does not apply to it. When it opened its account with the Caring and Wealthy Bank, Chameleon Ltd agreed to be bound by this Bank’s terms and conditions as notified to it from time to time. Six months after the account is opened Caring and Wealthy Bank sends its statement to Chameleon Ltd together with the following letter:
PLEASE READ THIS LETTER. IT CONTAINS EXCITING NEW INFORMATION ABOUT YOUR ACCOUNT.
Dear Customer (‘you’),
The Caring and Wealthy Bank (‘us’) is always trying to find new ways to service you.
To enable us to do this, however, we have decided to introduce a new term of the contract between you and us. This is to enable us to reduce costs in one area so we can provide you with exciting new services. The new clause 12 of the contract between you and us is as follows:
The customer (‘you’) must read each bank statement sent to you. If there are any inconsistencies in the statement you must notify the bank of the inconsistencies within 10 business days. Failure to notify us of such inconsistencies means the amount of the balance contained in the incorrect statement represents what you owe us or what we owe you, as the case may be.
The managing director of Chameleon Ltd receives the bank statement and letter. She doesn’t read the bank statement. She starts to read the letter but throws it in the bin after she reads the first sentence thinking the bank is trying to sell new products to the company. ‘Just another publicity stunt,’ she remarks to the office cat.
The bank statement shows that between 1 February and 1 April $1 million has been fraudulently withdrawn from the company’s bank account. Chameleon Ltd does not notify the bank of the fraudulent withdrawal within 10 business days of receiving the statement. It is later discovered by the bank that an employee of Chameleon Ltd, called Cynthia, had fraudulently withdrawn the $1 million and then proceeded to lose the whole sum at the casino. The bank was then informed.
Two months later on 1 June the managing director becomes aware that on 15 May, Colin, the company’s accounts clerk, had fraudulently stolen $2,000 from the company’s current bank account at The Caring and Wealthy Bank by forging company cheques. Colin’s wife had just died and the managing director does not tell the bank about the forgeries. On 30 July, Colin steals a further $1,000 from the company account in the same manner.
After discovering on 30 July what Colin has done, the managing director comes to you and asks you to advise Chameleon Ltd what to do and whether The Caring and Wealthy Bank is entitled to debit the company’s account for
1. the $1million stolen by Cynthia and
2. the $3,000 in total stolen by Colin.
Advise Chameleon Ltd giving reasons with relevant cases. Consider what effect, if any, the letter from the Bank purporting to introduce a ‘NEW TERM’ has on the situation? What Duties of the Banker and Customer ,if any,are involved here? ​ [7 marks]
PART C
Martin Pty Ltd has an account with the Caring and Wealthy Bank named ‘Wages Account’ used (as Martin’s CEO explained to the Bank’s Manager ) for payment of wages to staff. The balance in credit was $25,000.The company also had a current account in debit to the extent of $10,000 and a loan account so designated in debit to the extent of $15,000.
Can the Bank combine any of these accounts? Explain the concept of Combination of Accounts using case law to illustrate your answer. [3 marks]