Introduction to Law Learning Objectives Background of Law Distinguish Classes of Law Sources of US Law Law and Ethics Comparative

rative Study between US and Vietnam Outline Introduction to Law The Origin of Law The Definition of Law Categories of Law Objectives of Law Business Law Ubi Societas ibi Jus (If there's a society, law will be there)

(Marcus Tullius Cicero 106 43 BC) What do we learn from that quote? The origin of law Definition of law A set of rules that are enforced by a government authority Laws are legally enforceable rules made by authorities within a society Blackstones definition:

Law is a rule of civil conduct, commanding what is right and prohibiting what is wrong. See further at http://www.duhaime.org/LegalDictionary/L/Law.aspx Law and the State No law existed before the state occurred A state cannot exist if there is no law Law cannot be fully effective without state Law and rules in society Relations in society can also be governed by rules i.e. community rules, religious, moral and ethical rules How are rules different from laws? Rules apply to participants in the game or members of the organization. (i.e. School rules) Laws apply to all members of a society at all times. Law may be originated from rules, but not rules are law Religious beliefs and social morals are not laws because (1) they are not adopted by the government and (2) they do not impose a penalty for their violation Example Law: theft is forbidden by the state; is punished by imprisonment Moral: society embraces belief that one should help the poor; there is no punishment for failing to do so. What do laws do for us? Protect basic rights Promoting fairness Helping resolve conflicts Promoting order and stability

 Promoting desirable social and economic behaviors Representing the will of the majority and Protecting the rights of minorities . Categories of Law Private vs Public Law Public law: Body of law directly concerned with public rights and obligations. Private law: Body of law regulating the rights and duties existing between private persons. The rights and duties are created by the affected parties. Civil Law vs Criminal Law A branch of the law dealing with private or purely personal rights A lawsuit may be filed to enforce or protect a private right by any person A civil claim concerning compensation for damages suffered or other action for restoration his/her property A branch of the law dealing with crimes and the punishment of wrongdoers Crime? An offense that tends to injure society as a whole Prosecutor/district attorney: institutes and pursues criminal actions Crimes A person can be convicted of a crime only if proven guilty beyond a reasonable doubt Crimes are generally classified as: Felonies: The more serious crimes Usually punishable by death or by imprisonment in a penitentiary or state prison for more than one year

 Misdemeanors: Offenses of a less serious Punishable by a fine or imprisonment in a county or local jail May Include Forgery (a felony but disorderly conduct) Unauthorized entry of a dwelling Crimes (Cont.) Wobblers? Offenses that carry either misdemeanor or felony penalties Depending on the years of imprisonment imposed More than one year felony Less than a year misdemeanor Violations/Infractions? Offenses at a level below that of misdemeanors (speeding or breaches of driving rules) In some states they may not be considered as crimes fine or imprisonment only in a local jial for a few days Tort? A private or civil wrong or injury for which there may be an action for damage Can be intentional or caused by negligence Negligence? Failure to exercise reasonable care toward someone (e.g. careless drivers) Injured person must bring the tort action against person alleged to be negligent Torts can also be: fraud, trespass, assault, slander, interference with contracts Crimes or Civil?

1) A broke into the bank with guns; 2) The company refused to pay B 2 months salary according to contract between the company and B; 3) A has his apartment for foreigners for lease; 4) A stopped B with a knife asking for money 5) A drove a car with no driving licence and hit Bs car and broke his leg; 6) A married couple wanted to divorce 7) Seller fails to deliver goods on time to buyer 8) A used drugs and transports drugs for money Textbook Case (p. 7, Law for Business) Roosevelt Terry was charged of a theft and was sentenced in the state prison Due to his two felonies committed earlier, this time made him the third Under the three strikes sentencing law, he was finally sentenced to 25 years to life Terry did not agree with the sentence, arguing that the offense he committed could not be so severe Objectives Objectives of law in general The law establishes rules of conduct so that: Society can resolve disputes; Individuals and businesses can know the standards to which they must conform their conduct Society can effectively function because there is a stable, yet flexible, framework.

The law protects relations in the society (under the ruling classs will + societys demand). It is enforced by enforcing authorities with powers

 Education: the law influences peoples mind, thus educating peoples behavior Business Law

Business law is concerned with what is right or wrong regarding business transactions. The law is also concerned with establishing a business framework in which individuals and businesses can operate as smoothly as possible to avoid disputes. Importance of Business Law Employers know the rules of the game regarding their relationship to employees Employees know the rules with respect to their obligations to employers Businesses can rely on it to govern their debtor and creditor relationships The Roots of US Legal System Influences of European settlers English colonies English legal systems: common law and equity Common Law Definition of common law Custom that came to be recognized by the courts as binding on the community and therefore law History of common law Medieval England: no law ruling conducts The court prescribed rules for its own based on the customs Court decisions developed into a body of law The body of law brought to America Most US states were common laws US is a common law country

 Characteristics of common law See further at http://commonlaw.uslegal.com/ http://www.duhaime.org/LegalDictionary/C/CommonLaw.aspx Textbook Case (p. 3, Law for Business) William Egan was charged with the common law offense of nonfeasance (the failure to perform a required duty) It was provided by the state law that the common law of England would apply in the case of no statute applied to the subject Egan claimed the common law could not apply to him Quiz: what are common laws? a) Laws that evolve slowly over time and are usually part of the existing cultural tradition rather than being enacted by legislatures or rulers b) Laws that are enacted by legislatures or rulers and that apply commonly to everyone c) laws that are commonly found in all kinds of societies Law of Equity Definition of equity An additional system of justice that granted judicial relief when no adequate remedy at law existed Equity system Origin Petition to the king chancellors decide on the basis of equity What is good conscience ought to be done! Other types of equity measures Specific performance: implement the contract besides paying for damages Restraining orders: temporary remedies

 Injunction: prohibit future actions See further at http://www.duhaime.org/LegalDictionary/C/CommonLaw.aspx Sources of US Law Constitution Definition: The highest law of the country (supreme law of the land) A document that defines: The relationship of the parts of the government to each other

The relationship of the government to its citizens or subjects Quiz: What can be falling into scope of a constitution? US Constitution US Constitution Bill of Rights: ten amendments specifically designed to protect the civil rights and liberties of the citizens and the states See further at <http://definitions.uslegal.com/b/bill-of-rights/> Statutes Definition Laws enacted by legislative bodies Chief classes of US legislative bodies: Federal Congress State legislatures City Councils Composed of people that voters elect Lower statutes (laws) are made by: Ordinances: made by cities and municipalities

 Code: A systematic collection of the laws, rules or regulations of a government body or authority Statutes (cont.) Conflict between statutes enacted by different legislative bodies? Statutes enacted by higher legislative bodies prevails over those of lower legislative bodies State law vs county/municipal legislation Constitutional federal statute vs state statute Advantages of statutes? (in comparing with Constitution) Are possible to be enacted, repealed, amended Response more to the changing demands of the people Important statute in business law? Uniform Commercial Code UCC) <http://www.law.cornell.edu/uniform/ucc.html#a2> Areas of regulation of UCC? Sales and leases of goods Negotiable instruments Secured transactions Banking and fund transfers: letter of credits, warehouse receipts, bill of lading, investment securities Note: individual states made changes to the UCC variations in the UCC exist from state to state Judicial Decisions Definition The interpretation of law by courts Interpretations of the highest courts are called precedents Precedent: is a decided case or court decision

 Precedent determines the decision in a subsequent cases (due to the similarity of cases) Precedents bind lower courts (under the doctrine of stare decisis (Stand by the decision) - Let what has already been decided stand Courts must generally adhere to the judicial precedents set by earlier decisions Any state supreme court or the US Supreme Court can reverse a decision of a lower court Textbook Case (p. 5, Law for Business) The state supreme court held that the courts, judges, lawyers and citizens have a right to rely on precedents under the doctrine of stare decisis Clark v. Snapper Power Equipment, Inc. 488 N.E. 2d 138 (Ohio) Administrative Agency Orders Administrative agencies: commissions or boards that have the power to regulate particular matters or implement laws Administrative agencies powers May be given practically the same power to make law as the legislature Almost have the same power to decide cases as the courts The power to enact law only if the legislature has delegated them that power Heads of federal administrative agencies are appointed by the President with the consent of the Senate Administrative agencies issue orders and decrees to enforce the law, these can be set aside if being challenged by the courts Conflict with a statute? Statute takes over an agency rule or decision Examples of US Administrative Agencies Central Intelligence Agency Environment Protection Agency Commodity Futures Trading Commission

 Federal Election Commission Federal Communications Commission Federal Trade Commission General Services Administration National Archives and Records Administration National Labor Relations Board National Transportation Safety Board Small Business Administration Securities and Exchange Commission (SEC) United States Agency for International Development United States Postal Service Federal Energy Regulatory Commission Textbook Case (p.6, Law for Business) Auringers application for license to the Department of Citywide Administration Services (DCAS) was rejected due an DCASs interpretation saying that he must have two year full time experience Auringer asked a court to vacate and annul the denial Ethics Definition Principles that helps a person determine the morality of conduct, its motives and its duties (what is considered as right or wrong?) Ethics and Law? Laws are the result of societys changing concepts of what is right and what is wrong Laws are based on our judgment regarding: What human conduct is right and therefore should be encouraged

 What human conduct is wrong and therefore should be discouraged Ethics evolve from Values of a society Values from a religion Values of a school, business or organization Values from family and heritage Values of an individual Values of different cultures Basic Ethical Rules Honesty Responsibility Fairness Tolerance Ethical Rules or Law? Ethical Principles Seriousness of consequences: level of seriousness of a behavior Law: minimum standard for behavior. Ethics: higher When unethical behavior occurs that can harm others Laws are enacted to regulate Law cannot reflect everything people believe to be right or wrong Less serious behavior (can be wrong) but is not regulated by laws concerned by ethics Consensus of the Majority There are various ethical principles but not all are reflected in law Law just reflects ethical views of majority, Change in Ethical Standards

 The concept of right/wrong behavior is changing over time Some acceptable has become unaceptable reflected in law Business Ethics Business Ethics: Principles/standards that help determine practices of business people Ethical business codes of conduct are standards higher than required by law Encourage behavior that is fair, honest If disclosed not embarrassing to the individual or business In business, ethical decisions are the application of moral and ethical principles to the marketplace and workplace. Many businesses/organizations adopt codes of ethics to guide the behavior of their members Business codes are generally voluntary, some are legally enforceable Voluntary: violation subject to internal rules E.g. employees violate code of conducts can be disciplined by their employer Legally enforceable (codes of professional responsibility) When violated basis for penalties against members of the professions Examples: codes of lawyers, doctors.. http://www.lawsociety.ab.ca/files/regulations/Code_New.pdf QuizQuizQuizQuiz A principle ruling or law established during a court case is called what? a. precedent b. primary ruling c. habeas corpus

 The Federal Trade Commission (FTC) issued a rule requiring website operators to obtain parental consent before gathering personal information from children. This rule is an example of common law. a. True b. False. All three bodies of government create laws. The legislative branch creates law through _______________ and _____________ . The judicial branch creates law by issuing court _____________ . Finally, the ______________ branch creates law by creating regulations. A. constitutions, statutes, opinions, executive. B. statutes, opinions, rules, administrative. C. opinions, constitutions, statutes, council D. voting, statutes, regulations, federalism Legal Environment for Business in Vietnam Institutionalization of rights and obligations of business entities and the state authorities Legal environment is important to ensure the stability and safety of business activities In particular, legal environment includes two categories: For business entities: the right of freedom to do business, including the rights and obligations in terms of: Establishment, operation and management of business Contracts and business relations Competition and settlement of business disputes Bankruptcy For state management agencies: rights and obligations in relevant areas of business (particular tasks and operation of these tasks) Legal Framework Governing Business Activities

 Laws and Regulations governing business activities, are those applicable for all business entities and the others: Enterprises: setting up, registration of business and investment and corporate governance Contractual relations Employment and labor relationship within enterprises Re-organization, liquidation and insolvency of enterprises Settlement of business disputes Laws Regulating Business Activities Legal Normative Documents Legal Documents: Constitution and Laws/Codes passed by the National Assembly Constitution 1992 The Civil Code 2005 Commercial Law 2005 Enterprise Law 2005 Competition Law 2004 Secondary Regulations (sub-laws): passed by Standing Committee of the National Assembly, state organs at levels Ordinances Governmental Decrees Decisions of the Prime Minister Circulars, Joint-circulars of Ministries, Ministerial level bodies Resolutions of Peoples Council Decisions of Peoples Committee Customary laws in business/commercial Reserved and searchable sources

 General Law vs Specific Law General Law: The Civil Code 2005 Enterprise Law 2005 Commercial Law 2005 Investment Law 2005 Competition Law 2004 Specific Law: Laws enacted to regulate particular areas of business environment (e.g. contracts, sale of goods, insurance, bankruptcyetc) In a certain area, it is important to determine whether a particular law is general or specific For example, the Civil Code, Enterprise Law and Law on Credits and Financial Institutions General Law vs Specific Law (Cont.) Lex specialis derogat legi generali Specific law supersedes general law! System of Legal Normative Documents in Vietnam Definition Definition of Legal Normative Document (LND) (Article 1 of the Law on Promulgation of LNDs): Legal normative documents mean documents issued by State agencies, either by themselves or in conjunction with others, in accordance with their authorities, forms, the process and procedures stipulated by law, including general codes of conducts of general applicability, to govern social relationships

 Characteristics of LNDs Issued by authorized state agencies, either by themselves or in conjunction with others . Under process and procedures stipulated by law Contains general codes of conducts of general applicability The implementation is secured by the state.

System of LNDs (Article 2 of the Law on Promulgation of LNDs) 1. Constitutions, laws, resolutions issued by the National Assembly. 2. Ordinances, resolutions issued by the Standing Committee of the National Assembly 3. Orders and decisions issued by the State President 4. Decrees issued by the Government 5. Decisions issued by the Prime Minister; 6. Resolutions issued by the Judicial Council of the Supreme Peoples Court; Circulars issued by the Chief Justice of the Supreme Peoples Court. System of LNDs 7. Circular issued by the Director of the Supreme Peoples Procuracy. 8. Circulars issued by Ministers, Heads of Ministerial-legal Agencies 9. Decisions issued by the General State Auditor; 10. Joint resolutions issued by the National Assembly Standing Committee or the Government in coordination with central bodies of socio-politic organizations; 11. Joint circulars issued jointly by the Supreme Peoples Court and the Supreme Peoples Procuracy; 12. Legal normative documents issued by the Peoples Councils and Peoples Committees in accordance with the authorities, procedures and formalities as stipulated in the Law on promulgation of legal normative documents by Peoples Councils and Peoples Committees. Summary

 What is Law? Blackstones definition is famous: Law is a rule of civil conduct, commanding what is right and prohibiting what is wrong. Introduction Business law is concerned with what is right or wrong regarding business transactions. The law is also concerned with establishing a framework in which society can operate as smoothly as possible to avoid disputes. Roots of the US Legal System English, French, and Spanish influences. Mostly from English because the 13 original colonies were English. Got our common law and equity concepts from English law. Types of Law Common law - customs that gradually became law. Colonists brought this concept of law to America from England. Equity law - system based on fairness in which money damages sometimes are not sufficient. This gave rise to the following: Restraining orders Injunctions Sources of Law Judicial decisions Constitutional interpretation Statutory law Administrative agency orders Civil Law and Criminal Law Civil law: concerned with private or purely personal rights.

 Criminal law: injures society as a whole. Felonies big crimes Misdemeanors less serious crimes Violations and infractions much less serious Torts Torts are private or civil wrong or injury for which there may be an action for damages May be intentional or it may be caused by negligence Example of tort that is not a crime A business negligently leaving debris in an area of customer traffic Examples of torts that can also be crimes Fraud, assault Ethical Principles Seriousness of consequences Laws do not reflect everything we believe about right or wrong; less serious matters are not addressed. Consensus of majority Laws cant possibly reflect every individuals concept of right or wrong. Change in ethical standards Behavior evolves as society evolves. Law links Law http://en.wikipedia.org/wiki/Law Common Law <http://en.wikipedia.org/wiki/Common_law> Common Law and Equity <http://en.wikipedia.org/wiki/Law#Common_law_and_equity> Courts and Court Procedure

 Learning Objectives Explain the function of the courts. Explain the relationships of the various courts in our society. Describe the procedure for filing a lawsuit. Describe the basic procedure for a jury trial Overview of the settlement of business/commercial disputes through the court system in Vietnam Outline Function of the Courts Jurisdiction of Courts Venue Federal Court System State Court System Procedures in Courts of Records Trial Procedure Settlement of Business Dispute in Vietnam Summary Function of the Courts Interpret the law Apply the law Federal statute vs state statute Jurisdiction of Courts Definition The power or authority of a court to hear a case The determination of court jurisdiction

 Subject matter Involved persons Geographic area where the event in question occurred The Decision of Venue Definition Location where a case is to be tried After determining what court system has jurisdiction to settle the case Bases for deciding court venues The location of both plaintiff and defendant Where it could give the defendant a fairer trial (criminal cases) Federal Court Federal Courts have exclusive jurisdiction over such matters as bankruptcy, claims against the United States, Patent and Copyright cases Federal courts system: Special federal Courts Federal District Courts Federal Courts of Appeals US Supreme Court Federal Court System Special Federal Courts Federal trial courts with limited jurisdiction Jurisdiction limited by the laws of Congress creating them Some Special Federal Courts Court of International Trade: rates on duty on imported goods, collection of revenues and similar controversies Court of Federal Claims: cases against US government

 Tax Court: tax controversies Bankruptcy: Only bankruptcy cases Federal District Court Trial court of federal court system or the court of original jurisdiction at federal level (94) At least one district court in each state (max. four e.g. California) Criminal cases: cases involving a violation of the federal law Civil suits: Brought by the United States Arise under the US Constitution brought by citizens of different states (diversity jurisdiction) Between citizens of one state and foreign nation Where the amount in controversy is $75,000 or more. Federal Courts of Appeals There are 12 federal judicial circuits throughout the US each has a court of appeals to hear appeals arising in its circuit Court that hears appeals in federal court system Appeals from federal district courts Appeals from federal administrative agencies and departments A decision of the court is binding on all lower courts within the jurisdiction of that circuit Conflicts between the circuits? One circuit changes its decisions, or The US Supreme Court rules on the issue The Court of Appeals for the Federal Circuit? It reviews: Decisions of special federal courts

 Decisions of four administrative agencies Appeals from district courts in patent and claims cases US Supreme Court The highest court in the US Decisions are binding all other courts Decisions are final, until the Court reverses its own decisions or A given decision can be changed by a constitutional amendments or by an enactment of the Congress Jurisdiction of the Court: Cases affecting ambassadors, public ministers and consuls Cases in which a state is a party Appellate jurisdiction in cases based on the US Constitution, a federal or a treaty The US Supreme Court hears: Most of decisions appealed from the federal courts of appeals It may hear a decision appealed directly from a federal district court under certain circumstances, It hears a decision of a state supreme court if: The case involves a federal constitutional question A federal law or treaty has been held invalid by the state court It chooses the appealed case to hear (not all appealed cases) Application for Writ of certionari to require the lower court which has decided the case to produce the record of the case State Court System Inferior Courts Courts that hear cases involving minor criminal offenses and minor disputes between citizens

 Various names: district, magistrate, county, municipal, small claims, justice or taxi courts Civil jurisdiction: depending on particular states Controversies involving a maximum amount of money, generally varies from $1,000 to $25,000 Particular types of controversy Criminal jurisdiction: all criminal cases involving misdemeanors Appeals go to a Court of original general jurisdiction Courts of Original General Jurisdiction Court of record in which case is first tried The Courts have broad jurisdiction over: Disputes between two or more parties Criminal offenses against the state They can hear appeals from inferior courts, at this stage these cases cases of original jurisdiction Courts of Record: the Courts keep official records of proceedings including testimony, evidence, statements of counsel and the judge, the judgment and findings of the court Various names: circuit, district or superior court. Appellate Courts Each state has Intermediate appellate courts and one final appellate court The Courts hear appeals to the final judgment of the trial court or any of its rulings and instructions Decisions of courts bind lower courts The State Supreme Court is the highest appellate court of a state Special Courts Many states have courts established to deal with special subjects They are not courts of general jurisdiction, but of special jurisdiction

 In some states, they are the same level as trial courts considered as trial courts and courts of record. In some states same level as inferior courts and not courts of record. Procedures in Courts of Record (civil action) Filling Suits in a Civil Action One of parties in a dispute must request the court to settle the case A request is in written form called complaint or petition Plaintiff: the one who institutes a civil action Defendant: the one against whom action is brought The plaintiff fills its complaint or petition with the clerk of the court This petition sets forth the jurisdiction of the court, the nature of the claim and the remedy sought Notice of Suit (Summons) As soon as the petition is filled, the clerk issues a summons (also called process) The summons gives the defendant: Notice of the complaint Time in which to response Response It is defendant who response to the complaint Defendant file an answer or a motion Answer: admits or denies charges (the fact alleged in the complaint) Motion: requests the judge an act to be done in favor of the moving party The complaint and answer constitute the first pleadings Discovery

 Means of obtaining information from other party before a trial Discovery may include: Interrogatories: written questions to be answered in writing Deposition: examination of a party or potential witness outside court and under oath Admissions: Requests to agree that a certain fact is true or a matter of law is decided Medical examination by a physician Access to real and personal property Failure to comply to discovery? Compelling discovery by the court can result in punishment Party who does not comply may be found in contempt of court or the case may be dismissed by the judge Trial Before the trial, a party may take a number of motions: A motion to dismiss the case A motion for a judgment based solely on the pleadings A motion to obtain a ruling on the admissibility of certain evidence or to suppress evidence prior to trial If disagreements occurs about the fact of the case, a panel may be impaneled to decide the facts No jury is requested? The judge tries the case alone (judge acts as both judge and jury) Trial Procedure Opening Statement Opening statement is made by attorney for the plaintiff Statement indicates the nature of the action and what the plaintiff expects to prove

 After statement by the plaintiffs attorney, the attorney for defendant makes opening statement Presentation of Evidence and Argument The plaintiff presents evidence in the form of testimony of witness The plaintiff presents exhibits designed to prove the allegations The plaintiff has the burden of proving facts adequate to support the petitions allegations If this burden is not met, the case can be dismissed resulting in the end of the lawsuit The defendant tries to disprove the plaintiffs allegations The defendant also may presents evidence excusing the behavior complained by the plantiff Ruling and Verdict The judge has the sole power to determine the points of law The jury decides what weight is to be given to each point of evidence Jury makes decision secretly (verdict) The judge makes a judgment in accordance with the verdict If verdict is contrary to the law and the evidence, it can be set aside by the judge Appeals An appeal may be taken when each side is dissatisfied with the judgment and can cite an error of law by the court A complete transcript or written record of the trial court proceedings is given to the appellate court The appellate court reviews the proceedings from the transcript The attorneys for each side file a written belief setting forth their arguments to convince the court in affirming or reversing the judgment (sometimes oral arguments can be made before the court

 The decision of appellate court becomes judicial precedents and is binding on lower court. Procedure in Small Claim Courts It is simpler than filling and trying a suit in a court of record The plaintiff obtains complaint form from the court and fills out without lawyers help The complaint is sent to defendant The case is tried without jury Evidence and witnesses are presented in an informal way The judge makes judgment which is subject to appeal by both plaintiff and defendant Legal Terms Oath: A religious or solemn affirmation to tell the truth or to take a certain action. "I swear to tell the truth, the whole truth and nothing but the truth..." Motion A proposal made to a Court or at a meeting and intended to be considered and decided upon. Attorney An alternate word for lawyers or barrister and solicitor, used mostly in the USA. http://www.duhaime.org/LegalDictionary/ Further Reading http://www.ll.georgetown.edu/tutorials/cases/cases01.swf Understanding State and Federal Courts <http://www.uscourts.gov/EducationalResources/FederalCourtBasics/CourtStru cture/UnderstandingFederalAndStateCourts.aspx>

 Comparing States and Federal Courts <http://www.uscourts.gov/EducationalResources/FederalCourtBasics/CourtStru cture/JurisdictionOfStateAndFederalCourts.aspx> Jurisdiction of State and Federal Courts <http://www.uscourts.gov/EducationalResources/FederalCourtBasics/CourtStru cture/JurisdictionOfStateAndFederalCourts.aspx> QuizQuizQuizQuiz

The lowest level of the federal court system is the: a. Court of appeal. b. Highest level of the state courts c District court d Justice of the peace. Settlement of Business Disputes in Vietnam Settlement of Business Disputes Settlement of Business Disputes by the Court under Vietnamese Law Business Disputes Conflicts arose between business entities due to non-performance or improper performance of obligations in business activities Characteristics: Directly arise and connect to business activities Decided by parties involved Parties are business entities (legal persons or individuals with business licence) High value Methods of Dispute Resolution

 Negotiation Mediation Arbitration Court System Negotiation Negotiation is informal discussion of the parties, normally without a third party Differences are settled directly between parties with the goal of coming to a meeting of the minds in resolving the case Negotiation must be conducted before seeking alternative means Advantages: Simple, less costly, quick and flexible, confidential Disadvantages: depends mostly on cooperation and goodwill of parties; lack of mandatory or sanctions, enforcement depends on the parties Mediation Mediation follows if negotiation is unsuccessful. A neutral third person (mediator) the parties in identifying and articulating their own interests, priorities, needs and wishes to each other. Mediation is a peaceful dispute resolution tool that is complementary to the existing court system and the practice of arbitration. Advantages: few rules, customize process, parties control results (winwin). Disadvantages: mediator fees, no sanctions or deadlines, confidential problem Arbitration Settling of a dispute by a neutral 3rd party (arbitrator) who renders a legallybinding decision; usually an expert or well-respected government official. Ordinance on Commercial Arbitration 2003 Arbitration is a mode of settling disputes that arise from commercial activities, which is agreed upon by the involved parties and carried out

according to the proceeding order and procedures prescribed by this Ordinance Arbitration agreement is an agreement between the involved parties pledging to settle through arbitration disputes which may arise or have arisen in commercial activities. Advantages: freedom of voluntariness, simple rules, confidential, time saving Characteristics of Arbitration Non-governmental institution A combination of agreement and judicial measures Voluntariness of the parties (freedom to select arbitrator, venue, arbitration rules, applicable law) Arbitration awards are final and cannot be appealed Involved parties can seek support from the court if the other does not comply with the arbitration award Arbitration Ad hoc: single case Permanent Arbitration Arbitration Procedure

Arbitration vs Court Procedure Arbitration vs Court Procedure (Cont.) Arbitration vs Court Procedure (Cont.) Settlement of Business/Commercial disputes by the Court The Court System in Vietnam Business/Commercial Cases falling into the Courtss Jurisdiction Order and Procedures for Settling of Business/Commercial Cases The Courts Jurisdiction in Settling of Business/Commercial Disputes

 Jurisdiction over cases (Articles 29,30 Civil Procedure Code 2004) Jurisdiction according to the Court levels (Arts 33, 34 CPC 2004) Territorial Jurisdiction (Article 35 CPC 2004) Jurisdiction according to plantiffs choices (Article 36 CPC 2004) Jurisdiction over Cases (Articles 29,30 CPC 2004) 1. Disputes arising from business or trade activities among individuals and/or organizations with business registration, which are all for the purpose of profits 2. Disputes over intellectual property rights or technology transfers among individuals or organizations, which are all for the purposes of profits. 3. Disputes between a company and its members or among members of a company 4. Other business, trade disputes prescribed by law Jurisdiction according to the Court Levels (Arts 33, 34 CPC 2004) The jurisdiction of the court is divided between district-level courts and provincial courts If the case is falling into the jurisdiction of the court involved, that court will hear the case at first instance Territorial Jurisdiction (Article 35 CPC 2004) The courts of the localities where: The defendants reside or work, if the defendants are individuals, The defendants are headquartered, if the defendants are agencies or organizations The involved parties may agree in writing to request the courts where: The plaintiffs reside or work (individuals) or The plaintiffs are headquartered (organisations)

The courts of the areas where exists immoveables shall have the jurisdiction to settle disputes over such immoveables

Jurisdiction according to plantiffs choices (Article 36 CPC 2004) If the residence or work of the defendants or the location of their head-offices is unknown: The courts of the areas where the defendants last reside or work or Where the head-offices of the defendants are last located or where the defendants' properties are located If disputes arise from the operations of a branch of an organization: The court of the area where the organization's head-office is located or Where its branch is located If disputes arise from contractual relations: the courts of the areas where the contracts are performed; If the defendants reside, work or are headquartered in different places: The court of the area where one of the defendants resides or works or is headquartered If disputes are over immoveables which exist in different localities: The court of the area where one of such immoveables exist Procedures for Settling Business/Commercial Cases at the Courts Institution and Acceptance of cases Conciliation and trial preparation Trial Enforcement Institution and Acceptance of cases Individuals, agencies and organizations are entitled to institute cases by themselves or through their lawful representatives

 The time limit for initiating a lawsuit is two years as from the date the legitimate rights and interests are infringed upon A case is lodged directly or via post and is recorded by the court Conciliation and Trial Preparation Time limit for trial preparation is two months counting from the date of acceptance of the cases It is subject to an extension up to 1 month The Court notices to parties Collect and verify evidences Conciliation Trial First instance : the time limit for the court to bring the case to trial is two months (extension up to one month) Appeallation: preparation two months, bring the case to trial is one month (extension up to one month) Cassation or reopening trial Enforcement Judgments and decisions will be enforced (Article 375 CPC 2004) Right to request enforcement of court judgments or decisions (Article 377 CPC 2004) Procedures for enforcing courts judgments and decisions (Arts 380 through 383 CPC 2004) Summary The Court System Functions of the court system To interpret the law To apply the law

 If a conflict arises between a state statute and a federal statute, Federal statute takes precedence Jurisdiction of Courts The power or authority of a court to hear cases is called its jurisdiction. Courts must have jurisdiction over the subject matter of the case and jurisdiction over the persons involved. Venue Venue is the proper location where a case is to be tried. Proper venue requires choosing the proper court. The right to a particular venue can be surrendered. In criminal cases venue is frequently changed by the court to try to give the defendant a fairer trial. Federal Court System State Court System Procedures in Courts of Record Trial Procedure: Jury trial proceeds Selection of jury Attorneys statements Presenting of evidence by plaintiff and defendant Summarizing of evidence and arguing Judge instructs points of law to jury Jurors make verdict Judge makes judgment Business Torts Learning Objectives Discuss the basis for intentional and negligent tort liability.

 List and explain the generally recognized business torts. Explain what business crimes are. Outline Torts and business torts: basic concepts Basis for tort liability: Intentional and Negligent Business torts Civil liability outside contract in Vietnams law Concept of Torts A private of civil wrong or injury for which there may be an action for damages That (wrong) is based a breach of a duty imposed by law A tort can be caused by: Negligence Intentional act Tortfeasor: the person who causes the injury The Aims of Tort Law Loss distribution/adjustment: shifting losses from victims to perpetrators Compensation: Through the award of (pecuniary) damages The object of compensation is to place the victim in the position he/she was before the tort was committed. Punishment: through exemplary or punitive damages. This is a secondary aim. The Difference between a Tort and a Crime A crime is public /community wrong that gives rise to sanctions usually designated in a specified code. A tort is a civil private wrong. Action in criminal law is usually brought by the state. Tort actions are usually brought by the victims of the tort.

 The principal objective in criminal law is punishment. In torts, it is compensation The Difference between a Tort and a Crime (cont.) Differences in Procedure: Standard of Proof Criminal law: beyond reasonable doubt

Torts: on the balance of probabilities Crimes vs Torts (comparisons) Intentional Torts Assault: Putting a person in a fear of wrongful touching Battery: A wrongful touching Trespass: Invading someones property False Imprisonment Improperly confining a person Recovery for Intentional Torts To recover for an intentional tort, the injured person must show three things: An act by the defendant An intention to cause the consequences of the act Causationthe injury was caused by the defendants act or something set in motion by the act Negligence Torts The elements of a cause of action in tort for negligence are: (1) a duty to use ordinary care;

(2) breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury and (4) resulting damage. Recover for a Negligent Tort To recover for a negligence tort, the injured party must show: Duty of tortfeasor and breach of duty; Breach was the cause of injury; Actual damage or injury If plaintiff's injuries are caused by proximate actions of two or more persons all of them could be liable

Types of Negligence Contributory negligence: Injured party has been negligent Negligence on the part of the injured party contributed to his or her own injuries Comparative negligence: The injured party has been partially at fault Plaintiff is contributorily negligent for his or her injuries Damages proportioned between plaintiff and defendant Courts could reduce damage awards to plaintiff according to the percentage of the damage attribute to his/her negligence Common types of negligence: automobile accident Others: Medical malpractice Injuries from products Injuries resulting from the condition of a landowners property

 Business Torts Types of tort caused by a business or involving a business Business torts include: Product liability Business Activity Business tort: Product Liability Injuries caused by a business lead to liability for products provided Businesses incurred potential liability for causing injuries because of their products include: Manufacturers Dealers Suppliers Rental companies The claim for injuries in the case of product liability can be done via two channels (based on two theories) Negligence Strict liability Product Liability: Negligence The liability of manufacturers, sellers, and others for the injuries caused by defective products. The suppliers of products are potentially liable for negligence as a result of one of the following three reasons: The use or conditions of the product A design defect Failure to warn Claim for Product Liability: General Rules

 A person through the use or condition of a product could sue on the basis of manufacturers negligence in the preparation or manufacture of the product The duty of plaintiff is to prove the negligence Plaintiff must prove that the defendant acted negligently that defendants conduct fell below the standard of care. The defendant breached a duty of due care to the plaintiff that caused the plaintiffs injuries. Plaintiff must go (figuratively) into the defendants plant or factory, learn how the article was made and prove negligence. Failure to exercise due care includes: Failing to assemble the product carefully. Negligent product design. Negligent inspection or testing of the product. Negligent packaging. Failure to warn of the dangerous propensities of the product. Failure to warn: a manufacturer should foresee that a particular class of people would be injured by the product Product liability: Strict Liability Entities in the chain of manufacture of a product are liable without proof of negligence Entities are liable include: Manufacturers (including component part manufacturers) Distributors Retailers Each may be liable regardless of which entity created the defect Privity of contract is not required for a plaintiff to sue for strict liability. The doctrine of strict liability applies even if the injured party had no contractual relations with the defendant.

 Strict Liability: Basic Rules That the defendant company was involved in the manufacture or distribution of the product; That the product possessed a defect when it left the possession, custody, or control of the defendant company; and That the defect in the product was a cause of injury to a person or property. Plaintiff must prove that the defect in the product caused his or her accident, injuries, and damage. What damages generally are available? Economic damages (bills, loss of earnings, etc.) Non-economic damages (pain and suffering, emotional distress) Punitive damages (designed to punish the defendant) (Dominick W. Savaiano & J. Ryan Hemingway, US Product Liability, Overview and Recent Developments, May, 2005) Defective Product (cont.) Defect in Manufacture Defect that occurs when the manufacturer fails to: 1. Properly assemble a product 2. Properly test a product, or 3. Adequately check the quality of a product Defect in Design Defect that occurs when a product is improperly designed. Design defects include: 1. Toys designed with removable parts that could be swallowed by children. 2. Machines and appliances designed without proper safeguards. 3. Trucks designed without a backup warning device

 Defect in Design(continued) In evaluating the adequacy of a products design, the courts apply a riskutility analysis 1. Gravity of the danger posed by the design 2. Likelihood that injury will occur 3. Availability and cost of producing a safer design 4. Social utility of the product Failure to Warn Defect that occurs when a manufacturer does not place a warning on the packaging of products that could cause injury if the danger is unknown. Proper and conspicuous warning insulates all in chain of distribution Defect in Packaging Defect that occurs when a product has been placed in packaging that is insufficiently tamperproof. 1. Manufacturers owe a duty to design and provide safe packages for their products. 2. Failure to meet this duty subjects the manufacturer and others in the chain of distribution of the product to strict liability. Doctrines of Negligence and Strict Liability Compared Business Tort: Business Activity Interference with a contract or economic advantage Confusion about product Interference with a Contract or Economic Advantage When? A third party causes one party to end a contractual relationship the other party to this relationship injured from this interference may take actions against that third party, or

 A person unjustifiably interferes with a anothers business relationship or reasonable expectation of future economic advantage, for examples: Interference with leasing opportunities Interference with the opportunities of buying or selling goods or services Interference with the hiring of employees The interference must be improper. It results from: An improper motive An improper means Acting other than in the legistimate of defendants own rights It is not improper to protect ones economic, safety interests or assets honest claims Confusion About a Product Intentionally causing confusion about anothers product. It can be: Making false statement about anothers product (Injurious Falsehood)

Representing goods or services as being goods or services of someone else (Confusion of Source) Injurious Falsehood Also called as commercial disparagement or trade libel The making false statement of fact that degrade the quality of anothers good s or services Requirements of an injurious falsehood: This must be made to a third person (communication) The hearer must understand the statement to refer to the plaintiffs goods or services and to degrade their quality The statement must be proven that was a substantial element in causing damage

 The statement must result in specific customer lost (in some states) The statement must have been made maliciously. In particular: It was a result of ill will, spite of hostility The intention of causing harm to the plaintiff In some states, it is enough to show that the defendant knew the statement was false or had a reckless disregard as to its truth or falsity Confusion of Source A person attempts to represent goods or services being goods or services of another causing the confusion of customers as to the source of the goods or services Types of confusion of sources: Trademark/trade name infringement Unfair competition Trademarks Trademark: word, symbol, name, device or combination of them used to identify distinguish goods Trademark/trade name gives the owner the exclusive right to use a word or device to distinguish a product or a service Qualification of trademark/trade name to be protected? It must be used by a business in a way that: Identifies its goods or services Differentiates its goods or services from others Trademark Entitled to Protection Trademark Infringements The unauthorized use or confusingly similar imitation of another persons mark or name To decide the an infringement of trademark case, the court must rely on a number of factors

 Imitation is not always done to cause confusion and does not always lead to infringement, e.g. for the purpose of jest or commentary An owner of a trademark is protected from unauthorized use of the trademark even when confusion might not result Trademark/trade name dilution Trademark/trade name dilution: lessening the capacity of a famous mark to identify and distinguish goods Trademark/trade name dilution can be either: Blurring: means to diminish the selling power of a trademark by unauthorized use on non-competing products Tarnishing: a trademark is used in a disparaging manner or on low quality goods Trademark Infringements Determining Confusion of Marks Similarity of the marks Similarity of products Similarity of marketing and customers Similarity and amount of advertising Area of overlapping use Intent of parties in adopting the marks Strength of the marks Actual confusion by the public

Unfair Competition Total impression a product results in confusion of customers as to its origin Impression of a product includes Packaging Size Color

 Shape Design Wording Decorative indicia Name Total physical image conveyed by the product and its name are considered together when considering a unfair competition claim Summary Intentional Torts To recover for an intentional tort, the injured person must show three things: An act by the defendant An intention to cause the consequences of the act Causationthe injury was caused by the defendants act or something set in motion by the act Intentional Torts Some intentional torts include: Assault Battery Trespass False imprisonment Negligence Torts To recover for a negligence tort, the injured party must show: Duty of tortfeasor and breach of duty; Breach was the cause of injury; Actual damage or injury. Torts

To prove a breach of contract, the injured party must prove: Defendant knew of contract Intentional interference caused breach Actual breach Business Torts: Product Liability Manufacturers are potential liable for injuries caused by the products. A person injured through use or condition of a product could sue on the basis of the manufacturers negligence. The plaintiff must prove negligence. Unless plaintiff shows negligence, it is unlikely the plaintiff will be able to prove negligence. Business Torts Interference with a contract or economic advantage occurs when a business relationship has been formed, and a third party causes a breach of that business relationship. Confusion about a product looks at: Injurious falsehood (also called commercial disparagement or trade libel) Confusion of source Trademarks Trademarks: words, symbols, or devices used to distinguish ones goods from anothers. Includes only those marks used by a business that distinctively differentiates it from others. A secondary trademark has come into use through common practice. Trademarks may be registered or unregistered. Determining Confusion of Marks Similarity of the marks Similarity of products

 Similarity of marketing and customers Similarity and amount of advertising Area of overlapping use Intent of parties in adopting the marks Strength of the marks Actual confusion by the public

Nature of Personal Property Learning Objectives Discuss the types of property and how it can be acquired. Explain the difference between lost and abandoned property. Outline Definition of Property and Personal Property Classes of Personal Property Methods of Acquiring Personal Property Lost and Abandoned Property Definition of Property Anything that may be owned Property includes Physical things Things such as bank deposits , notes, bonds that give the right to acquire physical property or to use such property Person who is not owner can use property through a contract with the owner The law protects both the right to own property and the right to use it

 Personal Property Property is frequently classified according to its immovability Personal property includes: Movable property Examples: clothing, foods, TVs, theater tickets and even house trailers Land is not personal property but an interest in land less than complete ownership such as leasehold is personal property Right to money: rights as to notes, bonds and all written evidence of debt Classes of Property Tangible personal property: Personal property that can be seen, touched and possessed Includes: animals, merchandise, furniture, annual growing crops, jewelry and similar terms Methods of Acquiring Personal Property Purchase Will Descent Gift Accession Confusion Creation Purchase: The buyer pays the seller and the seller conveys the property to the buyer Will:

 The title to a property is conveyed to another by will as soon as the owner of that property dies and appropriate judicial proceedings have take place Descent: The conveyance of property in a case where the owner dies without leaving a will Heirs of the owner acquire the title to property according to the laws existing at the owners state of residence Gift: The transfer of property to another without consideration in return Donor: the person who makes the gift Donee: the person who receives the gift Conditions of a valid gift: Donor must have intention to make the gift There must be a delivery of the property being given to the donee Accession: The acquiring of property by means of the addition of personal property of another When two people combine their property to form one property, the one who owned the majority part of the materials owns the product Confusion: The mixing of the personal property of different owners so that the parts belonging to each owner cannot be identified and separated Examples: grain, lumber, oil and coal The property may be mixed by common consent, by accident, or by the willful act of some wrongdoers Confusion by common consent or accident: each party will be the owner of a proportionate part of the mass

 Confusion by the willful act: The title to the total mass will pass to the innocent party If it is clearly proven how much of the property of the one causing the confusion was mingled with that of the other person each party will be the owner of a proportionate part of the mass Creation The acquiring of personal property through creation which applies to intellectual property productions Creation of personal property applies to: Inventions Paintings Musical compositions, Books Artwork Trade secrets The creator is given title for a period of years by the law through: Patents Copyrights Trademark Trade Secret Protections Patents: The title to the invention is given to the one who first applies for and obtains a patent Creator gets absolute title and is protected for seventeen years Within that period, any person who wants to use that invention must get the permission of the owner Copyrights
Exclusive rights given to author of books, songs and composition

Exclusive rights include the right to reproduce, copy, perform, display the work or authorize another to do so

Exceptions? Teaching, research or scholarship

Copyright is protected from the time of creation but the owner of the work must register it in order to sue for infringement

Copyrights protect author for their timeline plus seventeen years

Trademarks The protection of trademarks/trade names applies to symbols, names and images A trademark can be established by use or by registration with federal government Trademarks are protected in: The jurisdiction in which they are used, Internationally under international trademark laws Trade Secret Trade secret is generally defined as secret, economically valuable information Information (formulas, plans, customer and financial information) With economic value Not generally known outside the business entity (different from patents, copyrights and trademarks) The subject of efforts to keep them secret Rules as to Trade Secrets One may not misappropriate the trade secrets of another theft or misappropriation of trade secrets is strictly prohibited and constituted a crime under federal law Acquiring, using or disclosing them is wrongful acts the owner of trade secrets may sue to protect them under state law Independently developing or discovering them is not misappropriation and is legal

 The copy, distribution and sharing of information on the internet are illegal Lost and Abandoned Property The difference between lost and abandoned property is the intention of the owner Abandoned Property Lost Property Abandoned Property Property becomes abandoned when the owner actually discards it with no intention of reclaiming it To be abandoned, the property must be personal property The prior owner must have relinquished ownership completely The property has never been reclaimed by the owner The person who finds an abandoned property has the right to claim title to it and thus has an absolute right to possession In some state, an abandoned property must be returned to the state under the Uniform Disposition of Unclaimed Property Lost Property A property is considered as lost property if it is: Unintentionally left No intention to discard (through accident or negligence) Rules applying to the finder of lost property: The finder has the right to possession against all, but the true owner No right to possession exists against the true owner Exceptions: if the finder cannot find the true owner through reasonable diligence and he or she has fulfilled certain statutory requirements In some states, property found by employee in the course of employment belongs to the employer

 When a property found as mislaid, not lost, the owner of premises has first claim against all, but the true owner (property left on train, airplanes, in restaurants and hotels) Summary Acquiring Personal Property Purchase - buyer pays the seller and seller transfers property to buyer Will - someone dies and leaves a written statement on how they want their property conveyed Descent - someone dies without a will and leaves heirs to receive property Gift - transfer made without consideration in return Acquiring Personal Property Accession - acquiring property of another Confusion - inseparable mixing of goods of different owners Creation - bring property into existence Abandonment - discarding property with no intention of retrieving it Legal terms Deposit Notes Bonds Heir Nature of Real Property Learning objectives Define real property and explain the rules about vegetation, running water, and fixtures. Name the types of multiple ownership of property. List the estates and other interests in real estate. Identify methods of acquisition exclusive to real property

 Outline Concept and Distinguishing Real Property Multiple Ownership Estates in Property Other Interests in Real Property Acquiring Real Property Concept and Distinguishing Real Property Real Property consists of land and permanent attachments to land, in particular: Actual soil Fences Walls Other additions and improvements Timber Other growing things Rules identifying and distinguishing from personal property are accumulated through court interpretations: Vegetation: trees and personal crops Waters: rivers and streams Fixtures Trees and Perennial Crops Vegetation can be real or personal property, depending upon the type of vegetation and harvestation When a person sells land, the parties should agree before completing the sale as to how to classify whether an item: Belongs to the land (real property) or Constitutes personal property

 Rivers and Streams If non-navigable river flows through the property, the owner of property owns the riverbed (not the water that flows over the bed) If the river/stream forms the boundary line, the owner of each side of the river owns the land to the middle of the riverbed In some states: the owner only owns the land to the middle of the riverbed Rules concerning the use of water: The water cannot be impounded or directed to the owners own use and not to deprive the use of any neighbors Fixtures Personal property (movable) but attached to land or a building that becomes a part of it Factors to determine if personal property has becomes real estate: Secure Attachment Intention of Installed Property Securely Attached The secure attachment to the real property is important to determine whether a personal property becomes real property Two rules for the personal property attached to the real estate: If it has become a part of the real estate and lost its identity fixture If it cannot be removed without damaging the real property it ceases to be personal property Examples? Fireplaces, water heaters, light fixtures, Built-in appliances, wall-mounted mirrors, window coverings, air-conditioners, dishwashers

 Intention of Installed Property This criterion applies when a personal property is loosely attached to the real estate The owners intention when installing the personal property is important. The courts consider two criteria Purpose of attachment? The purpose for which the fixture is to be used? Who attached the item? Owner or tenants Examples? Multiple Ownership A property is owned by two or more persons each person has the right to use and possess it The most common forms of multiple ownership: Tenancy in Common Joint Tenancy Tenancy by the Entirety Community Property Tenancy in Common Occurs when two or more people own property. Owners often dont have an equal share of the property Each owner determines his/herself who gets the share of the property at his/her death When one owner dies, his/her interest in the property passes to a person named in the deceaseds will If he/she has no will, the interest pass to his/her heirs Each owner has the right to convey the property while alive through giving away or selling new owner becomes a tenant in common with the remaining owner or owners

 Tenancy in Common (Cont.) Each owner owns undivided fractional share of the property (according to the percentage interest as to the entire property) But, they do not own a specific portion of the land Owners in a tenancy in common may not own equally shares of interest in the property When the type of ownership is not clearly stated, it will be assumed that there is a tenancy in common Joint Tenancy Multiple ownership in which, at death of one, that share passes to remaining owners Each owner does not have the right to determine who owns the property at his/her death At the death of one of the joint owners, the remaining joint owner or owners automatically own the entire property (right of survivorship owned by surviving owners) Each joint owner owns an undivided interest in the property, not a specific portion of the property The Destruction of a Joint Tenancy When one joint tenant sells or gives away his/her interest to another person, the joint tenancy is destroyed the new owner becomes a tenant in common of the interest conveyed If a joint tenancy has three or more joint tenants and one sells his or her interest: The new owner is a tenant in common The remaining, original joint tenants remain joint tenants as between themselves In case of a suit for partition when one joint tenant sues for a division of the property, the joint tenant is destroyed A joint tenant cannot dispose of his/her interest by will.

 Tenancy by the Entirety Co-ownership by husband and wife with right of survivorship When one of that couple dies, the other becomes the sole owner of the property (recognized by almost half of the states) The right to own the entire property is acquired automatically without any court proceedings Creditors of just husband or wife cannot claim the property unless they are creditors of both Neither the husband nor the wife alone may sell or otherwise dispose of it they must join in any conveyance of the property In case of divorce, husband and wife become tenants in common with respect to the property Community Property A type of ownership reserved from married couples: property acquired during marriage owned separately and equally by both spouses Property acquired by a husband and wife during their marriage becomes community property, unless they agree that it shall be separate property In case of divorce, one owns one-half of the property that acquired during marriage Property that one owned before marriage is not community property, it remains as ones separate property. Estates in Property Interest that a person has in real or personal property. Include: A Fee Simple Estate A Life Estate A Fee Simple Estate The largest and most complete right that one may possess in property. The owner of fee simple estate has the right to possess property forever. The owner may also sell, lease or otherwise dispose of the property temporarily or permanently

 When the owner dies, the property will pass to: People indicated in the owners will The heirs at law if there is no will The fee simple owner has the right as to: Surface of the land (not minerals, oil, gas and other valuable property under the topsoil, as well as timber) The air above the land all the way to heaven (not absolute in the case of plane flying over the land) Subsoil beneath the surface all the way to the center of the earth Life Estate Estate in property by which the property is owned for duration of a persons life Life tenant: the person who owns the property for the lifetime When the tenant dies, the title passes as directed by the original owner Reversion: when the tenant dies, the title returns to the grantor (the one who conveyed the life estate to the deceased. Remainder: interest in life estate may go to someone other than grantor if the life tenant dies Life tenant has: The exclusive right to use the property Exclude the holder of the reversion or remainder during his/her lifetime Life tenant has the duty to preserve the property and commit no acts that would harm the remainder interest permanently Other Interests in Real Property Easement: a right to use anothers land nonexclusively or intermittently Examples: a right-of-way across anothers land; a right to use anothers driveway An easement does not give an exclusive right to possession, but the right of permanent, intermittent use.

 Non transferable: only the specific person who is granted an easement can use it Easement can be transferred to any subsequent owner of the real estate to which the easement is granted License: the right given to a person to do certain acts on land (for specific purpose, but not the right to stay in possession The licensor may terminate a license at will Acquiring Real Property Real property can be acquired in the same ways as personal property Two other acquiring ways that applies to real property Accretion Adverse Possession Accretion Addition to land by gradual deposits (when streams, river, lake, ocean constitutes the boundary line of the property) including dirt deposited along the boundary In navigable river, the shifting of river flow can extend the title to the land to the low water mark The accretion can be the result of dredging or channeling of the river where the silt and sand are thrown up on the riverbank Adverse Possession Acquiring title to the land owned by another by occupying it for fixed period of time Conditions: The original owner may no longer object to a trespass Occupancy must be continuous, open, hostile, visible, actual and exclusive Occupancy must be apparent enough to give the owner notice of trespass

 The fixed period depends on certain states ranging from seven to twenty one years Summary Real Property Trees and perennial crops Can be real or personal, depending upon the type of vegetation and harvestation. Rivers and streams Riverbed is owned by a property owner if an unnavigable river flows through the property. Fixtures Personal property attached to land or building. Multiple Ownership Tenancy in common When two or more persons own property, and when one dies, the property passes to decedents heirs. Joint tenancy When two or more persons own property and upon death of one, property passes to other owner(s). Tenancy by entirety and community property Exist between husband and wife whereby upon the death of one, the spouse becomes sole owner of the property. Estates in Property Fee simple Owner has the right to possess property forever and may sell, lease, or dispose of the property. Life estate At the death of a life tenant, title passes as directed by the original owner.

 Other Interests in Real Property Easements - an interest in land for nonexclusive or intermittent use. License - right to do certain acts on land. One may acquire property by accretion by having property that is increased by the gradual deposit of solids by water. Adverse possession is acquiring title to land by occupying it for a fixed period.