内容提要

“商法”讲述企业的法律环境，是商务管理乃至会计

类专业的必修课程，本书是美国最有影响的“商法”标准

教材，它的主要优点是：

全面把握企业经营所面临的法律背景；

扼要概括商法的实质精神；

为企业依法经营提供一个观念和实务指南；

精心设计篇章结构，并附大量丰富案例，便于教学；

超脱于特定法律的细节规定，注重从整体和实质上

讲述和介绍，因而适用于所有法制化的市场经济社会。

CONTENTS IN BRIEF

UNIT ONE

The Legal Environment of Business

1 Introduction to Law and Legal Reasoning

2 Business Ethics

3 Courts and Alternative Dispute Resolution

4 Court Procedures

5 Constitutional Authority to Regulate Business

6 Torts and Strict Liability

7 Basic Business Torts

8 Product Liability

9 Intellectual Property and Cyberlaw

10 Criminal Law and Procedures

11 Comparative Law

FOCUS ON ETHICS: Ethics and the Legal Environment

of Business

UNIT TWO

Contracts

12 Nature and Terminology

15 Agreement

14 Consideration

15 Capacity

16 GenuinenessofAssent

17 Legality and the Statute of Frauds

18 Third Party Rights

19 Performance and Discharge

20 Breach of Contract and Remedies

Focus ON ETHICS: Contract Law and the Application

of Ethics

UNIT THREE

Domestic and Intemational Sales and

Lease Contracts

21 The Formation of Sales and Lease Contracts

22 Title, Risk, and Insurable Interest

23 Performance of Sales and Lease Contracts

24 Remedies for Breach of Sales and Lease Contracts

25 Sales and Lease Warranties

FOCUS ON ETHICS: Domestic and International Sales

and Lease Contracts

UNIT FOUR

Negotiable Instmments

26 Basic Concepts, Negotiability, and Transferability

27 Holder in Due Course and Defenses

28 Liability and Discharge

29 Checks and Electronic Fund Transfers

FOCUS ON ETHICS: Negotiable Instruments

UNIT FIVE

Creditors' Rights and Bankruptcy

30 Secured Transactions

31 Other Creditors'Remedies and Suretyship

32 Bankruptcy and Reorganization

FocuS ON ETHICS: Creditors' Rights and

Bankruptcy

UNIT SIX

Agency

33 Agency Formation and Duties

34 Liability to Third Parties and Termination

EOCUS ON EllIICS: Agency

UNIT SEVEN

Employment and Labor Relations

35 Employment and Labor Law

36 Employment Discrimination

Eocus ON ETHICS: Employment and Labor

Relations

UNIT EIGHT

Business Organizations

37 Forms of Business Organizations and Private Franchises

38 PARTNERSHIPS-Nature, Formation, and Operation

39 PARTNERSHIPS-Termination.Limited

Partnerships, and Limited Liability

Partnerships

40 CORPORATIONS-Formation and Financing

41 CORPORATIONS-Directors, Officers and Shareholders

42 CORPORATIONS-Merger, Consolidation, and Termination

43 CORPORATIONS-Securities Regulation and Investor Protection

Focus ON ETHICS: Business Organizations

UNIT NINE

Govemment Regulation

44 Administrative Law

45 Consumer Law

46 Environmental Law

47 Antitrust Law

FOCU'S ON El HICS: Government Regulation

UNIT TEN

Property

48 Personal Property

49 Bailments

50 Real Property

51 Landlord-Tenant Relationships

FOCI'S ON ETHICS: Property

UNIT ELEVEN

Special Topics

52 Insurance

53 Wills, Trusts, and Estates

54 LiabilityofAccountantsandOther Professionals

55 The Intemational Legal Environment

56 Law for Entrepreneurs

FOCUS ON ETHICS: Special Topics

Guide to Personal Law

Appendices

A How to Brief a Case and Selected Cases

B The Constitution of the United States

C The Unifonn Commercial Code

D The United Nations Convention on Contracts

for the Intemational Sale of Goods

(Excerpts)

E The Uniform Partnership Act

F The Revised Unifonn Partnership Act

(Excerpts)

G The Revised Uniform Limited Partnership

Act

H The Revised Model Business Corporation Act

(Excerpts)

I The Uniform Limited Liability Company Act

(Excerpts)

J The Securities Act of 1933 (Excerpts)

K The Securities Exchange Act of 1934

(Excerpts)

L Title VII of the Civil Rights Act of 1964

(Excerpts)

M The Americans with Disabilities Act of 1990

(Excerpts)

N The Civil Rights Act of 1991 (Excerpts)

O The Administrative Procedure Act of 1946

(Excerpts)

P The General Agreement on Tariffs and Trade of

1994 (Excerpts)

Q The North American Free Trade Agreement of

1993 (Excerpts)

R Spanish Equivalents for Important Legal Terms

in English

Glossary

Table of Cases

ndex

UNlT ONE

The Legal Environment of Business

Chapter l Introduction to Law and Legal

Reasoning

What is Law?

The Common Law Tradition

Sources ofAmerican Law

Civil Law versus Criminal Law

How to Find Primary Sources of Law

How to Read and Understand Case Law

Terms and Concepts to Review

Questions and Case Problems

Accessing the Internet

Chapter 2 Business Ethics

What Is Ethics?

The Nature of Business Ethic

Ethical Decision Making

CASE 2. l Valdak Corp. v. Occupcttional Safety and

Health Review Commission

Ethicical Issues in Business

CASE 2.2 Varity Corp. v. Howe

CASE 2.3 Mazda Motor ofAmerica, Inc. v. Rogowski

The Ever-Changing Ethical Landscape

Terms and Concepts to Review

Questions and Case Problems

Accessing the internet

Chapter 3

Resolution

The Judiciary's Role in American Government

Basic Judicial Requirements

CASE 3.1 A. Vberti and Co. v. Leonardo

CASE 3.2 Friends ofthe Earth, Inc. v. Crown Central

Petroleum Corp.

The State and Feaerai Court Systems

Alternative Dispute Resolution

CASE 3.3 Cilmerv. Interstate/Johnson Lane Corp

Terms and Concepts to Review

Questions and Case Problems

Accessing the Internet

The Basis ofTort Law

Intentional Torts against Persons

Chapter 4 Court Procedures

Procedural Rules

Consulting with an Attorney

Pretrial Procedures

CASE 4.1 Wohl v. Spectrum Manufacturing, Inc

The Trial

CASE 4.2 Ohio v. Lessin

Posttrial Motions

CASE4.3 Powellv Allstate Insurance Co

The Appeal

Enforcing the Judgment

Terms and Concepts to Review

Questions and Case Problems

Accessing the Internet

Chapter 5 Constitutional Authority to

Regulate Business

The Constitutional Powers ofGovernment

CASE 5.1 Oregon Waste Systems, inc. v. Department of

Environmental Quality ofthe State ofOregon

Business and the Bill of Rights

CASE 5.2 Mclntyre v. Ohio Elections Commission

CASE 5.3 Rubin v. Coors Brewing Co.

Other Constitutional Protections

Constitutional Law in Cyberspace

CASE 5.4 Bemsteinv. U.S. Department ofState

Terms and Concepts to Review

Questions and Case Problems

Accessing the Internet

Courts and Altemative Dispute

Chapter 6 Torts and Strict Liability

CASE 6.1 Food Lion, Inc. v. Melton

intentional Torts against Property

Negligence

CASE 6.2 Bray v. Kate

CASE 6.3 BMW ofNorth America Inc. v. Gore

CASE 6.4 Palsgrafv. Long Island Railroad Co.

Strict Liability

Terms and Concepts to Review

Questions and Case Problems

Accessing the Internet

Chapter 7 Basic Business Torts

Wrongful Interference

CASE 7.1 Wal-Mart Stores, Inc v. American Dmgs, Jnc

Appropriation

CASE 7.2 National Basketball Association v. Mototola

Inc.

Disparagement of Property

Business Defamation in Cyberspace

RICO

CASE 7.3 Tabas v. Tabas

Terms and Concepts to Review

Questions and Case Problems

Chapter 8 Product Liability

Negligence

Misrepresentation

Strict Liability

CASE8.I Embs v. Pepsi-Cola Bottling Co oflexington

Kentucky, Inc.

CASE 8.2 Lutz v. National Crane Corp

Defenses to Product Liability

CASE 8.3 Travelers Insurance Co. v. Federal Pacific Electric

Co.

Terms and Concepts to Review

Questions and Case Problems

Chapter 9 Intellectual Property and

Cyberlaw

Trademarks and Related Property

CASE 9.1 The Coca-Cola Co. v. The Koke Co of

America

CASE 9.2 Pebble Beach Co v. Tour 18 1, Ltd

Patents

Copyrights

CASE 9.3 ABKCO Music, Inc. v. Stellar Records, Inc. 148

CASE 9.4 Princeton Vnivemty Press v. Michigan Document

Services, Inc.

Trade Secrets

Cyberlaw: Protecting Intellectual Property in

Cyberspace

CASE9.5 Panavision Intemational, L.P. v. Toeppen

International Protection for Intellectual Property

Terms and Concepts to Review

Questions and Case Problems

Accessing the Intemet

Chapter 10 Criminal Law and

Procedures

Classifications of Crimes

The Essentials of Criminal Liability

Criminal Procedures

CASE 10.1 Miranda v. Anzona

Crimes Affecting Business

Defenses to Criminal Liability

CASE 10.2 Montana v. Egelhoff

CASE 10.3 Katco v. Briney

Terms and Concepts to Review

Questions and Case Problems

Accessing the Internet

Chapter 11 Comparative Law

Doing Business Abroad

Comparative Legal Systems

National Laws Compared

CASE 11.1 Re Product Liability (Case VI ZR 103/89)

CASE11.2Fong Fung-ying and Attomey Ceneral

The European Union

CASE 11.3 Alsatel-Societe Alsacienne et Lorraine de

Telecommunications et d'Electronique v. S.A. Novasam

Expanding Business Opportunities Abroad

Terms and Concepts to Review

Questions and Case Problems

Accessing the Internet

FOCUS ON ETHICS: Ethics and the Legal Environment

of Business

UNIT TWO

Contracts

Chapter 12 Nature and Terminology

The Function of Contract Law

Freedom of Contract and Freedom from Contract

The Basic Requirements ofa Contract

The Objective Theory ofContracts

Types of Contracts

CASE 12.1 Servicemaster ofSt. Cloudv. CabBusiness

Services, Jnc.

CASE 12.2 Industrial Lift Truck Service Corp. v. Mitsubishi

Intemational Corp.

Interpretation of Contracts

CASE 12.3 Jones, Waldo, Holbmok & McDonough v

Dawson

Terms and Concepts to Review

Questions and Case Problems

Accessing the Internet

Chapter 13 Agreement

Requirements of the Offer

CASE 13.1 Lefkowitz v. Great Mmneapolis Surplns Store

Inc.

CASE 13.2 Ruudv. Great Plains Suppty, Inc

Termination of the Offer

Acceptance

Contract Formation in the Electronic Age

CASE 13.3 Clow Water Systems Co., Dmsion ofMcWane,

Inc. v. National Labor Relatwns Board

Terms and Concepts to Review

Questions and Case Problems

Accessing the Intemet

Chapter l4 Consideration

Legal Sufficiency of Consideration

CASE 14.l Hamerv. Sidway

Adequacy ofConsideration

Contracts that Lack Consideration

Problem Areas Conceming Consideration

CASE l4.2 E. S. Herrick Co. v. Maine Wild Blueberry

Co.

CASE 14.3 Bennett v. Shmoda Floral. Inc.

CASE l4.4 Percy J. Mdtheme Contractor, Inc. v. Crinnell

Fire Protection Systems Co.

Tenns and Concepts to Review

Questions and Case Problems

Accessing the Intemet

Chapter 15 Capacity

Minors

CASE 15.1 Dodson v. Shrader

CASE 15.2 Haydocy Pontiac, Inc. v. Lee

CASE15.3Fletcherv.Marshall

Intoxicated Persons

CASE 15.4A Lucyv. Zehmer

Mentally Incompetent Persons

Aliens

Tenns and Concepts to Review

Questions and Case Problems

Accessing the Intemet

Chapter l6 Genuineness ofAssent

Mistakes

CASE l6.l Rafflesv. Wichelhaus

CASE 16.2 Wilkinv. istSourceBank

Fraudulent Misrepresentation

CASE 16.3 Vokes v. Arthw Murray, inc.

CASE l6.4 Clement-Rowe v. Michigfin Health Care

Corp.

Nonfraudulent Misrepresentation

Undueinfluence

Duress

Adhesion Contracts and Unconscionability

Terms and Concepts to Review

Questions and Case Problems .

Chapter l7 Legality and the Statute of

Frauds

Legality

CASE 17.1 Metropolitan Creditors Service ofSacramento v

Sadri

CASE 17.2 Benjamm v. Koeppel

CASE l7.3 Superior Consulting Corp v. Walling .

StatuteofFrauds

The Parol Evidence Rule

ASE HA Stanfieldv. Cmve

erms and Concepts to Review

luestions and Case Problems

Accessing the [ntemet

Chapter 18 Third Party Rights

Assignments and Delegations

CASE 18.l Reynolds and Reynolds Co. v. Hardee

Third Party Beneficiaries

CASE 18.2 Holsapplev. McGrath

CASE 18.3 Caswell v. Zoya Intemationcil, Inc

Terms and Concepts to Review

Questions and Case Problems

Chapter l9 Perfonnance and

Discharge

Conditions

CASE 19.1 Cal Wadsworth Construction v. City of

St. Ceorge

Discharge by Perfbnnance

CASE l9.2 Jacobs & Young, Inc v. Kent

Oischarge by Agreement

CASE l9.3 Ellenbogfln & Coldstein, P.C v. Brandes

Discharge by Operation ofLaw

CASE l9.4 Syrovy v. Alpine Resources, inc

Tenns and Concepts to Review

Questions and Case Problems

Chapter 20

Remedies

Breach of Contract and

Damages

CASE20.l Hadley v. Bcwendale

CASE 20.2 Parkerv. Twentieth Century-Fox Film Corp

CASE 20.3 AFLAC, Jnc, v. Wiffiams

Rescission and Restitution

CASE 20.4 Racicky v. Simon

Specific Performance

Refonnation

Recovery Based on Quasi Contract

Election of Remedies

Waiver of Breach

Contract Provisions Limiting Remedies

Tenns and Concepts to Review

Questions and Case Problems

Accessing the intemet

FOCUS ON ETHlCS: Contract Lav and the Application

of Ethics

UNIT THREE

Domestic and Intemational Sales and

Lease Contracts

Chapter 21 The Fonnation of Sales and

Lease Contracts

The Unifonn Commercial Code

The Scope ofArticle 2-The Sale ofGoods

CASE 21.1 Bryant v. Tri-County Electric Membership

Corp.

The Scope ofArticle 2A--Leases

The Fonnation of Sales and Lease Contracts

CASE 21.2 Wilson Fertilizer & Crain, Inc. v. ADM Milling

Co. 351

CASE21.3 Heggblade-Marguleas-Tenneco, Inc v. Sunshine

Biswit, Inc.

CASE 21.4 Jones v. Star Credit Corp.

Contracts for the Intemational Sale ofGoods

Tenns and Concepts to Review

Questions and Case Problems

Accessing the Intemet

Chapter 22 Title, Risk, and Insurable

Interest

Identification

When Title Passes

CASE22.1 Synergistic Technologies, Inc v.IDBMobile

Commumcatiom, Inc

CASE 22.2 Lane v. Honeycutt

RiskofLoss

CASE22.3 InreThomas

CASE 22.4 Houghton Wood Products, Inc v. Badger Wood

Products, Inc.

Insurable Interest

Bulk Transfers

Tenns and Concepts to Review

Questions and Case Problems

Accessing the Intemet

Chapter 23 Performance of Sales and

Lease Contracts

The Good Faith Requirement

Obligations ofthe Seller or Lessor

CASE 23.1 Maple Fanns, Inc. v. City School District of

Elmira

Obligations of the Buyer or Lessee

CASE 23.2 Industria de Calcados Martini Ltda v. Maxwell

Shoe Co.

Anticipatory Repudiation

CASE 23.3 Neptune Research & Development, Inc

Teknics Industrial Systems, fnc.

Dealing with Intemational Contracts-The Letter of

Credit

Terms and Concepts to Review

Questions and Case Problems

Accessing the Internet

Chapter 24 Remedies for Breach of Sales

and Lease Contracts

Remedies ofthe Seller or Lessor

CASE 24.1 Royal Jones & Associates, Inc v. First Thermal

Systems, Inc.

Remedies ofthe Buyer or Lessee

CASE 24.2 KGM Harvesting Co. v. Fresh Network

CASE 24.3 McCalif Crower Supplies, Inc. v. Reed

Contractual Provisions Affecting Remedies

CASE 24.4 Transport Corp. ofAmerica, Inc. v. Intemational

Business Machines Corp.

Lemon Laws

Remedies for Breach of Intemational Sales Contracts

Tenns and Concepts to Review

Questions and Case Problems

Chapter 25 ales and Lease

Warranties

WarrantyofTitle

Express Warranties

CASE 25.1 Ham's v. Ford Motor Co.

CASE 25.2 Martin Rispens & Som v. Hall Fanns, Inc

Implied Wairanties

CASE 25.3 Keaton v. A.B.C. Dmg Co.

CASE 25.4 Webster v. Blue Ship Tea Room, Inc

Overlapping Warranties

Warranties and Third Parties

Warranty Disclaimers

Statute of Limitations

Magnuson-Moss Warranty Act

Warranties under the CISG

Terms and Concepb to Review

Questions and Case Problems

VOCVS ON ElHICS: Domestic and International Sales

and Lease Contracts

UNIT FOUR

Negotiable Instruments

Chapter 26 Basic Concepts, Negotiability

and Transferability

Article 3 and Its Revision

The Punction of Instruments

Types of Negotiable Instruments

Requirements for Negotiability

CASE 26.1 Federal Deposit inswance Corp. v. F.S.S.S

CASE 26.2 Northem Bank v. Peffewni Pizza Co.

Factors Not Affecting Negotiability

Transfer by Assignment or Negotiation

Indorsements

Miscellaneous Indorsement Problems

CASE 26.3 General Motors Accefitance Corp v Abington

Casualty Insurance Co.

Terms and Concepts to Review

Questions and Case Problems

Accessing the Intemet

Chapter 27 l Holder in Due Course and

Defenses

Holder versus Holder in Due Course

Requirements for HDC Status

CASE 27.1 Adamar ofNew Jersey, Inc v. Chase Lincoln

First Bank, NA

Holder through an HDC

Defenses

CASE 27.2 Federal Deposit insurance Corp. v. Culver

CASE 27.3 Kedzie and 103rd Street Cunency Exchcinge, Inc

v. Hodge

Federal Limitations on HDC Rights

Terms and Concepts to Review

Questions and Case Problems

Accessing the Intemet

Chapter 28 Liability and Discharge

Signature Liability

CASE 28.1 Quality Wash Croup V, Ltd v. Shawkat

Hallak

CASE 28.2 Dominion Bank. NA v. Household Bank

F.S.B.

CASE 28.3 Coldon Years Nursing Home (No. 2), Inc. v

Cabbard

Warranty Liability

Discharge

CASE 28.4 Cardnerv. McClusky

Terms and Concepts to Review

Questions and Case Problems

Chapter 29 Checks and Electronic Fund

Transfers

Checks

CASE 29.1 First Raifroad Community Fedeml Credit Vnion

v. Columbia County Bank

The Bank-Customer Relationship

Honoring Checks

CASE 29.2 Kendall Yacht Corp v. Vnited Califomia

Bank

CASE 29.3 First American Bank and Trust v. Rishoi

CASE 29.4 Atlantic Mutual insumnce Co. v. The Prmident

Bank

Accepting Deposits

Electronic Fund Transfers

Terms and Concepts to Review

Questions and Case Problems

Accessing the Internet

FOCUS ON ETHlCS: Negotiable Instruments

UNIT FlVE

Creditors' Rights and Bankruptcy

Chapter 30 Secured Transactions

The Terminology of Secured Transactions

Creating Security interests

CASE 30.l InreZiluck

Purchase-Money Security Interest

Perfecting a Security Interest

The Scope of a Security Interest

Resolving Priority Disputes

CASE 30.2 Big Knob Volunteer Fire Co v. Lowe & Moyer

Garage, inc.

Other Rights and Duties under Article 9

Default

CASE 30.3 Chrysler Credit Corp. v. Koontz

CASE 30.4 Firef Westside Bank v. For-Med, inc.

Terms and Concepb to Review

Questions and Case Problems

Accessing the Intemet

Chapter 3 l Other Creditors' Remedies

and Suretyship

Laws Assissting Creditors

CASE 31.1 Herpel, Inc. v. Straub CapitalCorp.

CASE 31.2 ChryslerCredit Corp. v. Keeling

CASE 31. 3 United States v. Smith

Suretyship and Guaranty

CASE31.4 General Motors Acceptame Corp v.Daniels

Protection for Debtors

Terms and Concepts to Review

Questions and Case Problems

Accessing the Internet

Chapter 32 Bankruptcy and

Reorganization

Types of Bankruptcy Relief

Liquidation Proceedings

CASE32.1 MatterofBlair

CASE 32.2 In reAndrews

CASE 32.3 In re Baker

Reorganizations

CASE 32.4 In re Johns-Manville Corp.

Additional Forms of Bankruptcy Relief

Terms and Concepts to Review

Questions and Case Problems

Accessing the Internet

EOCUS ON El'HICS: Creditors' Rights and

Bankruptcy

UNIT SIX

Agency

Chapter 33 Agency Formation

and Duties

Agency Relationships

CASE 33. 1 Scott v. Massachusetts Mutual Life Insurance

Co.

Formation ofthe Agency Relationship

CASE 33.2 Williams v. Invemess Corp.

Duties ofAgents and Principals

Remedies and Rights ofAgents and Principals

CASE 33.3 Ramsey v. Cordon

Terms and Concepts to Review

Questions and Case Problems

Chapter 34 Liability to Third Parties and

Termination

Scope ofAgent's Authority

CASE 34.1 Gravens v. Auto-Owners Inswance Co.

CASE 34.2 Cargill, Inc. v. Mountain Cement Co.

Liabilty for Contracts

CASE 34.3 Fairchild Publications Division ofCapital Cities

Media, Inc. v. Rosston, Kremer & Slawter, Inc.

Liability for Agent's Torts

CASE 34.4 Joel v. Morison

Liability for Independent Contractor's Tort

CASE 34.5 MBank ofEl Paso v. Sanchez

Liability for Agent's Crimes

Liability for Subagent's Acts

Terrnination of an Agency

Terms and Concepts to Review

Questions and Case Problems

Accessing the Internet

FOCUS ON ETHICS: Agency

UNIT SEVEN

Employment and Labor Relations

Chapter 3 5 Employment and Labor

Law

Wage-Hour Laws

Labor Unions

CASE 35.1 National Labor Relations Board v. Town &

Country Electric, Inc.

Worker Health and Safety

Income Security

COBRA

Family and Medical Leave

Employee Privacy Rights

CASE 35.2 Smyth v. Pillsbury Co.

Employment-Related Immigration Law

Wrongful Discharge

CASE 35.3 Scott v. Pacific Gas and Electric Co.

CASE 35.4 Gardnerv. Loomis Annored, Inc.

Statutory Protection for Whistleblowers

Terms and Concepts to Review

Qiiestions and Case Problems

Accessing the Internet

Chapter 36 Employment

Discrimination

Title VII ofthe Civil Rights Act of 1964

CASE 36.1 Fickling v. New York State Department ofdvil

Service

CASE 36.2 Fullerv. City of Oakland, Califomia

Equal PayAct of 1963

Discrimination Based on Age

CASE 36.3 Rhodes v. Guiberson Oil Tools

Discrimination Based on Disability

CASE 36.4 Mauro v. Borgess Medical Center

Defenses to Employment Discrimination

Affirmative Action

CASE 36.5 Taxman v. Board ofEducation ofthe Township

of Piscataway

State Antidiscriminatien Laws

Terms and Concepts to Review

Questions and Case Problems

FOCUS ON ETHICS: Employment and Labor

Relations

UNIT EIGHT

Business Organizations

Chapter 37 Forms of Business

Organizations and Private Franchises

Sole Proprietorships

Partnerships

Limited Partnership

Corporations

Limited Liability Compames

Limited Liability Partnerships

Major Business Forms Compared

Other Organizational Forms

CASE 37.1 Fentress v. Triple Mining, Inc

Private Franchises

CASE 37.2 Vylene Enterprises, Inc. v. Naugles, Inc.

CASE 37.3 Bennett Enterprises, Inc. v. Domino's Pizza

fnc.

Terms and Concepts to Review

Questions and Case Problems

Accessing the Internet

Chapter 38 PARTNERSHlPS-Nature

Formation, and Operation

Definition of Partnership

The Nature of Partnerships

Partnership Formation

CASE 38.1 Atlas Tack Corp. . DiMasi

Partnership Operation

CASE 38.2 Lawson v. Rogers

CASE 38.3 Starrv. Fordham

CASE 38.4 Citizens Bank of Massachusettes v. Parham-

Woodman Medical Associates

Terms and Concepts to Review

Questions and Case Problems

Chapter 39 PARTNERSHlPS-

Termination, Limited Partnerships, and

Limited Liability Partnerships

Partnership Termination

CASE 39. l Felton Investment Croup v. Taurman

CASE 39.2 Schrempp and Salemo v. Cross

Limited Partnerships

CASE 39.3 Dmcker v. Mige Associates ll

Limited Liability Partnerships

Limited Liability Limited Partnerships

Terms and Concepts to Review

Questions and Case Problems

Chapter40 CORPORATlONS-

Formation and Financing

The Nature of the Corporation

CASE 40.1 Charles A. Torrence Co. v. Clary

Corporate Powers

CASE 40.2 Oakley v. Longview Owners, Inc

Classification of Corporations

Corporate Formation

Improper Incorporation

Disregarding the Corporate Entity

CASE 40.3 J-Mart Jewelry Outlets, Inc . Standard

Design

Corporate Financing

Terms and Concepts to Review

Questions and Case Problems

Accessing the Internet

Chapter 4 l CORPORATlONS -

Directors, Officers, and Shareholders

Role of Directors

Rolc ofCorporate Officer and Executive

Duties of Directors and Officers

CASE 4.1 Veco Corp. v. Babcock

Liability of Directors and Officers

The Role of Shareholders

Rights of Shareholders

CASE4l.2 Shaw v. Agri-Mark, inc

CASE 41. 3 Black v. Craham

Liability of Shareholders

Duties of Majority Shareholders

Terms and Concepts to Review

Questions and Case Problems

Chapter42 CORPORATlONS-Merger

Consolidation, and Temnination

Merger and Consolidation

CASE 42. l Chokel v. First National Supermarkets, fnc

Purchase ofAssets

CASE 42.2 Sedbrook v. Zimmerman Design Crovp, Ltd

Purchase of Stock

Termination

CASE42.3 Balvik v. Sylvester

Terms and Concepts to Review

Questions and Case Problems

Chapter43 CORPORATlONS-

Securities Regulation and Investor

Protection

The Securities and Exchange Commission

TheSecuritiesAct of 1933

The Securities Exchange Act of 1934

CASE43.l Diamond v. Oreamuno

CASE43.2 SEC v. Texas GulfSulphw Co

CASE 43.3 Vnited States v. O'Hagan

CASE 43.4 Tristar Corp. v. Freitas

Regulation of Investment Companies

State Securities Laws

Technology and Securities Law

Terms and Concepts to Review

Questions and Case Problems

Accessing the Internet

FOCUS ON ETHlcs: Bnsincs. Organization.

UM T MNE

Govemment Regulation

Chapter 44 Administrative Law

Agency Creation and Powers

Administrative Process

CASE 44. l American Dental Association v. Martin

CASE 44.2 Federal Deposit Onsurance Corfi. v Wentz

CASF. 44.3 Buck Creek Coal, Inc. v. Federal Mine Safety

and Health Administration

Limitations on Agency Powers

CASE 44,4 Sierru Club v. Thomas

Public Accountability

State Administrative Agencies

Terms and Concepts to Review

Questions and Case Problems

Accessing the Internet

Chapter 45 Consumer Law

Deceptive Advertising

CASE 45.1 Federal Trade Commission v. Pantron I

Corp.

Labeling and Packaging Laws

Sales

Credit Protection

CASE 45.2 Purtle v. Eldndge Auto Sales, inc.

CASE 45.3 Federal Deposit insurance Corp. v. Medmark

Inc. 816

CASE 45.4 Guimond v. Trans Union Credit Information

Co. 818

CASE 45.5 Heintz v. jenkins

Consumer Health and Safety

State Consumer Protection Laws

Terms and Concepts to Review

Questions and Case Problems

Accessing the Internet

Chapter 46 Environmental Law

Common Law Actions

CASE 46.1 Maddocks v. Ciles

Federal Regulation

Air Pollution

Water Pollution

CASE 46.2 Hoffman Homes, Inc. v. Administrato , United

States Envimnmental Protection Agency

Noise Pollution

Toxic Chemicals

CASE 46.3 B. F. Coodrich Co v. Betkoski

Radiation

State and Local Regulation

Terms and Concepts to Review

Questions and Case Problems

Accessing the internet

Chapter 47 Antitrust Law

The Sherman Antitrust Act

Section l ofthe Sherman Act

CASE 47.1 Contmental T.V., Inc. v. CTE Sylvania, in

CASE 47.2 Khan v. State Oil Co.

Section 2 ofthe Sherman Act

The Clayton Act

CASE 47.3 Datagate, Inc. v. Hewlett-Packard Co

The P'ederal Trade Commission Act

Enforcement ofAntitrust Laws

Exemptions from Antitrust Laws

Terms and Concepts to Review

Questions and Case Problems

Accessing the Internet

FOCUOSETHlCS: Go emment Regulatioi

UNlT TEN

Property

Chapter 48 Personal Property

Personal Property and Real Property

Fixtures

CASE 48. l New England Telephone and Telegraph Co

City ofFranklin

Property Ownership

Acquiring Ownership of Personal Property

CASE 48.2 In re Estate ofPiper

CASE48.3 Smartv.Woo

Mislaid, Lost, or Abandoned Property

C.ASE 48.4 United States v. Shivers

Terms and Concepts to Review

Questions and Case Problems

Chapter 49 Bailments

Elements ofa Bailment

C.ASE 49. l Liddle v. Salem School District No. 600

CASE 49.2 fack Boles Services, Inc. v. Stavely

Ordinary Bailments

Rights and Duties of the Bailee

CASE 49.3 Brockwell v. Lake Caston Sales and Service

Rights and Duties ofthe Bailor

Termination of Bailments

Special Features of Specific Bailments

CASE 49.4 Missouri Pacific Railway Co. v. Elmore &

Stahl

Terms and Concepts to Review

Questions and Case Problems

Chapter 50 Real Property

The Nature of Real Property

Ownership Interests in Real Property

Transfer of Ownership

CASE 50.1 Smith v. Levine

CASE 50.2 Klos v. Molenda

Limitations on the Rights of Property Owners

CASE, 50.3 Del Monte Dunes at Monterer, Ltd. v. City of

MoTtterey

Terms and Concepts to Review

Questions and Case Problems

Accessing the Internet

Chapter 5 l Landlord-Tenant

Relationships

Creation of the Landlord-Tenant Relationship

CASE 5 l. l Osbom v. Kellogg

Parties' Rights and Duties

CASE 51.2 Weingftrden v. Eagle Ridge Condommiums

Liability for Injuries on the Premises

CASE 51. 3 Johnson County Sheriffs Posse, Inc v

Endsley

Transferring Rights to Leased Property

Termination or Renewal ofthe Lease

Terms and Concepts to Review

Questions and Case Problems

FOCUS OS E.THlCS: Property

UNlT ELEVEN

Special Topics

Chapter 52 Insurance

Insurance Terminology and Concepts

CASE 52.1 Motorists Mutual Insurance Co v

Richmond

The insurance Contract

CASE 52.2 Life Inswance Co of North America v

Cichowlas

CASE 52.3 Clybum v. Allstate Insurance Co.

CASE 52.4 Paul Revere Life Inswance Co. v. Fima

Types of Insurance

Terms and Concepts to Review

Questions and Case Problems

Chapter 53 Wills, Trusts, and Estates

Wills 948

CASE 53.1 Estate ofCancik

CASE 53.2 Bolan v. Bolan

Intestacy Laws

Trusts

CASE 53.3 Zeiglerv. Cardona

Estate Administration

CASE 53.4 Hallv. Schoenwette

Planning for Disability

Terms and Concepts to Review

Questions and Case Problems

Access'ng the intemet

Chapter 54 Liability of Accountants and

Other Professionals

Common Law Liability to Clients

CASE 54. l Conklin v. Hannoch Weisman

CASE 54.2 Barger v. McCoy Hillard & Parks

Auditors' Liability to Third Parties

CASE 54.3 Boykin v. Arthur Andersen & Co

Liability ofAttorneys to Third Parties

CASE 54.4 Mehaffy, Rider. Windholz & Wilson . Central

Bank Denver, NA.

Liability ofAccountants under Securities Laws

CASE54,5 SECv.Fehn

Potential Criminal Liability ofAccountants

Working Papers

Confidentiality and Privilege

Limiting Professionals' Liability

Terms and Concepts to Review

Questions and Case Problems

Chapter 55 The International Legal

Environment

The Nature and Sources of International Law

Legal Principles and Doctrines

CASE 55.1 Holden v. Canadian Consulate

Doing Business Internationally

The Regulation of Specific Business Activities

U.S. Laws in a Global Context

CASE 55.2 Vnited States v. Nippon Pape

Industries Co.

CASE 55.3 Fortino v. Quasar Co., A Division ofMatsushita

Electric Corp. ofAmerica

Resolving International Contract Dispute

The Bribery of Foreign Officials

Terms and Concepts to Review

Questions and Case Problems

Accessing the Internet

Chapter 56 Law for Entrepreneurs

The Importance of Legal Counsel

Selecting an Appropriate Business Form

Creating the Business Entity

Intellectual Property

CASE 56.1 Cardservice Intemational, inc . McGee

Raising Financial Capital

Buy-Sell Agreements and Key-Person Insurance

Contract Law and the Entrepreneur

CASE 56.2 Carelli v. Hall

Credit and Payment

Employment Issues

CASE 56.3 Minskoffv. American Express Travel Related

Services Co.

CASE 56.4 Badih v. Myers

Terms and Concepts to Review

Questions and Case Problems

Accessing the Internet

FOCUS ON ETHICS: Special Topics

Guide to Personal Law P-l

Appendices

A How to Briefa Case and Selected Cases

B The Constitution ofthe United States

C The Uniform Commercial Code ,

D The United Nations Convention on Contract

for the International Sale ofGoods

(Excerpts)

E The Uniform Partnership Act

F The Revised Uniform Partnership Act

(Excerpts)

G The Revised Uniform Limited Partnership

Act

H The Revised Model Busines CorporatioI Act

(Excerpts)

l The Uniform Limited Liability Company Act

(Excerpts)

J The Securities Act of 1933 (Fxcerpts)

K The Securities Exchange Act of 1934

(Excerpts)

L Title Vll ofthe Civil Right Act of 1964

(Excerpts)

M The Americans vvith Disabilitie Act of 1990

(Excerpts)

N The Civil Rights Act of 1991 (Excerpts)

O 'l'he Administrative Pro dure Act of 1946

(Excerpts)

P The Ceneral Agreemcnt on Tariff; and Trad of

1994 (Excerpts)

Q The North American Eree Trade Agreement of

1993 (Excerpts)

R Spanish Equivalents for Important Legal Term.

in English

Glossary

Table of Cases

Index

CONCEPT SUMMARIES LlST

1.1 The Common Law Tradition

1.2 Sources ofAmerican Law

3.1 Jurisdiction

3.2 Types of Courts

3.3 Alternative Dispute Resolution (ADR)

4.1 Pretrial Procedures

4.2 Trial Procedures

4.3 Posttrial Options

6.1 Intentional Torts

6.2 Negligence

10.1 Crimes Affecting Busines,

12.1 Types of Contracts

13.1 Methods by Which an Offer Can Be

Terminated

13.2 Effective Time ofAcceptance

14.1 Consideration

15.1 Legal Effect of Incapacity

16.1 Genuineness ofAssent

17.1 Legality

17.2 The Statute of Frauds

19.1 Discharge ofContracts

20.1 Damages

20.2 Equitable Remedies

21.1 The Formation of Sales and Lease Contracts

22.1 Passage of Title and Risk of Loss Absent

Agreement

23.1 Performance ofSales and Lease Contracts

24.1 Remedies for Breach ofContract

25.1 Warranties under the UCC

26.1 Requirements for Negotiability

26.2 Types of Indorsements and Their

Consequences

27.1 Rules and Requirements for HDC Status

27.2 Valid Defenses against Holders of Negotiable

Instruments

28.1 Signature Liability

28.2 Transfer Warranty Liability for Transferors

Who Receive Consideration

29.1 Honoring Checks

30.1 Perfecting a Security Interest

30.2 Priority ofClaims to a Debtor's Collateral

30.3 Remedies ofthe Secured Party upon the

Debtor's Default

31.1 Remedies Available to Creditors

32.1 Forms of Bankruptcy Relief Compared

33.1 Formation of Principal-Agent Relationship

34.1 Requirements for Ratification

34.2 Authority ofAgent to Bind Principal and

Third Party

34.3 Termination ofan Agency

40.1 Classification of Corporations

41.1 Role of Directors and Officers

41.2 Role of Shareholders

48.1 Personal Property

49.1 Rights and Duties ofthe Bailee and the

Bailor

53.1 Wills

53.2 Trusts

EXHIBITS LlST

1-1 Equitable Maxims

1-2 Procedural Differences between an Action

at Law and an Action in Equity

1-3 Civil and Criminal Law Compared

1-4 National Reporter System-Regional/Federal

1-5 How to Read Case Citations

1-6 A Sample Court Case

3-1 Exclusive and Concurrent Jurisdiction

3-2 Federal Courts and State Court System

3-3 LJ.S. Courts ofAppeals and U.S. District

Courts

4-1 Stages in a Typical Lawsuit

4-2 A T'ypical Complaint

4-3 A Typical Summons

5-1 Protections C.uaranteed 1 tl e Bill of Right

6-1 Tort Lawsuit and Criminal Prosecutioi

for the Same Act

10-1 Major Steps in Processing a Criminal Case

10-2 Responsibility of Infants for

Criminal Acts under the Common Law

11-1 Excerpts from the Code Napoleon

11-2 The Legal Systems of Nations

11-3 Civil Code Tort Definitions

11-4 Hourly Labor Costs in Manufacturing in

Selected Conntries (in U.S. Dollars)

17-1 The One-Year Rule

17-2 Collateral Promises

18-1 Assignment Relationship

18-2 Delegation Relationships

18-3 Third Party Rights in Contract

20-1 Measurement of Damages- Breach of

Construction Contracts

21-1 Law Governing Contracts

21-2 An Example of a Purchase Order (Front

and Back)

21-3 Major Differences between Contract Law

and Sales Law

21-4 Sarnple International Purchase Order Form

22-1 A Sample Negotiable Bill of Lading

22-2 A Sample Nonnegotiable Warehouse

Receipt

22-3 Void and Voidable Title

22-4 ContractTerms-Definitions

25-1 A Letter-of-Credit Transaction

26-1 Basic Types of Instruments

26-2 A Typical Time Draft-A Bill of Exchange

26-3 A Typical Trade Acceptance

26-4 A Typical Promissory Note

26-5 ATypicalSmallCD

26-6 Converting an Order Instrument to a

Bearer Instrument and Vice Versa

26-7 A Blank Indorsement

26-8 A Special Indorsement

26-9 A Qualified Indorsement

26-10 For Deposit/For Collection Indorsement

26-11 Trust Indorsements

27-1 Taking for Value

29-1 A Cashier's Check

29-2 A Traveler's Check

29-3 A Certified Check

29-4 A Stop-Payment Order

29-5 A Poorly Filled-Out Check

29-6 The Check-Collection Process

29-7 How a Check Is Cleared

50-1 Secured Transactions-Concept and

Terminology

50-2 A Sample Financing Statement

30-3 Types of Collateral and Methods of

Perfection

30-4 The Floating-Lien Concept

31-1 Suretyship and Guaranty Parties

32-1 Collection and Distribution of Property in

Most Voluntary Bankruptcies

34-1 Sample General Power of Attorney

37-1 Tax Aspects of Partnerships and

Corporations

37-2 Major Business Forms Compared

38-1 Sample Partnership Agreement

39-1 A Basic Comparison ofTypes of

Partnerships

40-1 Articles of Incorporation

40-2 Types of Corporate Bonds

40-3 How Do Stocks and Bonds Differ

40-4 Types of Stocks

40-5 Cumulative Con 'ertible Preferred-Stock

Certificate

41-1 Results ofCumuIative Voting

42-1 Merger

42-2 Consolidation

42-5 The Terminology ofTakeover Defenses

43-1 Exemptions under the 1933 Act for

Securities Offerings by Businesses

43-2 A Sample Restricted Stock Certificate

43-3 Comparison ofCoverage, Application, and

Liability under SEC Rule lOb-5 and

Section 16(b)

44-1 Organization of the Federal Trade

Commission

44-2 Executive Departments and Important

Subagencies

44-3 Selected Independent Regulatory Agencies

44-4 A Page from the Federal Register

44-5 The Process of Formal Administrative

Adjudication

44-6 Sample Letter Requesting Information from

an Executive Department or Agency

46-1 Federal Environmental Statutes

49-1 Degree ofCare Required ofa Bailee

49-2 A Sample Notice to Hotel Guests

50-1 A Sample Warranty Deed

50-2 Steps Involved in the Sale of Real Estate

52-1 Insurance Classifications

52-2 Typical Fire Insurance Policies

53-1 A Sample Will

53-2 Per Stirpes Distribution

53-3 Per Capita Distribution

53-4 Trust Arrangement

55-1 Multilateral International Organizations in

Which the United States Participates

56-1 Tradernark Application Form

EMERGlNG TRENDS IN BuSlNESS LAW

Chapter 3-Jurisdictional Issues in Cyberspace

Chapter 6-The Enhanced-lnjury Theory

Chapter 9-Online Copyright Infringement

Chapter 2l-Electronic Sale. Contracts

Chapter 34-The Use of"lntelligent Agents"

Chapter 36-Accommodating Workers with Disabilities

Chapter 37-Limited Liability Companie

Chapter 45-Consumer Protection on the Internet

Chapter 53-Elder Lav

Chapter 54-Aoiding Ethical Violations on Attorneys' Web Sites

TORTS AND

STRICT LlABILITY

PART OF DOING BUSINESS TODAY-and, indeed, part ofeveryday life-is the risk ofbeing

involved in a lawsuit. A normal and ever-increasing business operating cost is that of

liability insurance to protect against lawsuits. The list of circumstances in which

businesspersons can be sued is long and varied. An employee injured on the job may attempt to sue

the employer because of an unsafe working environment. A consumer who is injured while using a

product may attempt to sue the manufacturer because of a defect in the product. At issue in these

examples is alleged wrongful conduct by one person that causes injury to another. Such wrongful

conduct is covered by the law oftorts (the word tort is French for "wrong").

Tort law covers a wide variety of injuries. Society recognizes an interest in personal physical safety,

and tort law provides remedies for acts that cause physical injury or that interfere with physical security

and freedom of movement. Society recognizes an interest in protecting personal property, and tort law

provides remedies for acb that cause destruction or damage to property. Society also recognizes an

interest in protecting certain intangible interests, such as personal privacy, family relations, reputation,

and dignity, and tort law provides remedies for invasion of these protected interests.

Certain torts normally occur only in the business context. The important area ofbusiness torts will

be treated in Chapters 7 through 9. In this chapter, we discuss torts that can occur in any context,

including the business environment. In fact, as you will see in later chapters ofthis book, many ofthe

lawsuits brought by or against business firms are based on the tort theories discussed in this chapter.

SECTlON l

THE BASlS OF TORT LAW



Two notions serve as the basis ofall torts: wrongs and

compensation. Tort law recognizes that some acts are

wrong because they cause injuries to others. Of

course, a tort is not the only type ofwrong that exists

in the law. Crimes also involve wrongs, as do

breachesofcontract.

TORTS AND CRlMES COMPARED

Asdiscussed in Chapter l, a crime is an act so repre-

hensible that it is considered a wrong against the state

oragainst society as a whole, as well as against the indi-

vidual victim. Therefore, the state prosecutes a person

accused ofcommitting a criminal act. In contrast, a tort

action is a civil action in which one person brings a per-

sonal suit against another to obtain compensation

(money damages) or other relieffor the harm suffered.

Some torts, such as assault and battery (to be dis-

cussed shortly), provide a basis for a criminal prose-

cution as well as a tort action. For example, Jonas is

walking down the street, minding his own business,

when suddenly a person attacks him. In the ensuing

struggle, the attacker stabs Jonas several times, seri-

ously injuring him. A police officer restrains and

arrests the wrongdoer. In this situation, the attacker

may be subject both to criminal prosecution by the

state and to a tort lawsuit brought by Jonas. Exhibit

6-1 illustrates how the same wrongful act can result

in both a civil (tort) action and a criminal action

against the wrongdoer.

TORTS AND BREACHES

OE CONTRACT COMPARED



If a party breaches a contract, the other party may

suffer harmful consequences from the breach.

Contract actions differ from tort actions, however,

作者简介

肯尼斯·W.克拉克森，缅因大学。

罗杰·里罗伊·米勒，大学研究会。

盖罗德·A·詹斯，得克萨斯大学。

弗兰克·B·克罗斯，得克萨斯大学。