Escolar Documentos
Profissional Documentos
Cultura Documentos
Chapter
2 1
Business Law
Edition (3)
S.S. Gulshan
Excel Books
Business Law
Edition (3)
S.S. Gulshan
Excel Books
Law and Morality. It was stated earlier that one of the characteristics of law is that it is for the guidance or conduct of persons. This is so in the case of morality also as there is a close relationship between the two. Ignorance of Law is No Excuse. This is the literal translation of maxim ignorantia juris non excusat. Every member of the society is expected that his actions conform to a set pattern or standard as reflected in legal rules. Tthe maxim ignorantia juris non excusat places a burden on every member of the society with the knowledge of law. In other words, Ignorance of law is not a good excuse.
2 3
Business Law
Edition (3)
S.S. Gulshan
Excel Books
Classification of Law
Public Law and Private Law. The public law is that branch of law which
determines and regulates the organisation and functioning of states (countries). Also it regulates the relation of the state (country) with its subjects. Public law includes, (i) Constitutional Law, (ii) Administrative Law, (iii) Criminal Law, (iv) Municipal Law, (v) International Law. Criminal law is enforced on behalf of or in the name of the State. private law is that branch of the law which regulates those of the relations of the
2 4
Business Law
Edition (3)
S.S. Gulshan
Excel Books
Criminal Law and Civil Law. Criminal law is a part of public law, as the society or the people are directly involved. Generally, it is the police, as public servants, whose duty is the (i) prevention and detection of crime and (ii) prosecution of offences before the court of law. As the maintenance of law and order in a society is the primary function of the state it is inevitable that prosecution is the exclusive right of the state. Civil Law is primarily concerned with the rights and duties of individuals towards each other. Some examples of civil law are: Law of contract, law of tort, law of property, succession and family law. The Indian Legal System handles cases in two separate ways: civil and criminal.
Cont.
Copyright 2001, S.S. Gulshan
2 5
Business Law
Edition (3)
S.S. Gulshan
Excel Books
Substantive Law and Procedural Law. Substantive law defines, in regard to a specific subject, the legal rights, obligations and relationships of people with
other people or as between them and the state. Procedural law deals with the methods and means by which substantive law is made and administered.
International Law and Municipal Law. International Law is a set of generally accepted rules and regulations controlling the conduct of nations, international
organisations and individuals. Municipal Law deals with the relationship between the individuals and their organisations within a state.
Public International Law and Private International Law. Public international law (or the law of nations) is a body of customary or conventional rules.
Private international law (or the conflict of laws) may be defined as the rules voluntarily chosen by a given state for the decision of cases which have a foreign element or complexion.
Copyright 2001, S.S. Gulshan
2 6
Business Law
Edition (3)
S.S. Gulshan
Excel Books
Business Law
Edition (3)
S.S. Gulshan
Excel Books
Meaning of Obiter Dicta. The phrase obiter dicta refers to a diction of a judge on a point not directly relevant to the case before him and therefore, need not be followed by courts in other like cases. The literal meaning of the phrase obiter dicta is said by the way.
Statute An Important Source of Law. The statutes or the statutory law or the legislation is the main source of law. This law is created by legislation such as Parliament.
Personal Law. The courts are required to apply the personal law of the parties. Thus in certain matters, we follow the personal laws of Hindus, Mohammedans and Christians. Secondary Sources of Indian Law. The secondary sources of Indian Law are English Law and Justice, Equity and Good Conscience.
Copyright 2001, S.S. Gulshan
2 8
Business Law
Edition (3)
S.S. Gulshan
Excel Books
Business Law
Edition (3)
S.S. Gulshan
Excel Books
Objectives. From the description of the nature and meaning of business law, it can be inferred that the subject has many objectives to achieve. Sources of Indian Business Law. The sources of Indian business law are: i. Statutes
ii.
Common law
iii. Custom and usages iv. Precedents v. Justice, equity and good conscience
2 10
Business Law
Edition (3)
S.S. Gulshan
Excel Books
right must relate to a subject matter, namely the objects. (iv) The nature of a right may be to get something done from another or to refrain him to do something. (v) Every right can be traced to a source which may be a contract, a custom, a natural law, etc.
Cont.
Copyright 2001, S.S. Gulshan
2 11
Business Law
Edition (3)
S.S. Gulshan
Excel Books
Different types of rights. Rights may be (i) Personal or proprietary; (ii) in personam or in rem. Concept of Property. There could be no such thing as business law, or even business, if there were no such thing as property. Thus the concept of property is very important in business law. Different types of property. Property may be classified as (i) Tangible or intangible; (ii) Real or personal; and (iii) Public or private. Concept of Ownership i. Ownership is an intimate relationship between a person and object. ii. Law does not permit any vacuum in ownership. iii. There are certain rights which are generally included in ownership. iv. Ownership cannot exist without law. v. The ownership of property is exclusive. Concept of Possession. It is said that law attaches great importance to mere possession even without ownership. Even a wrongful possession is protected.
Copyright 2001, S.S. Gulshan
2 12
Business Law
Edition (3)
S.S. Gulshan
Excel Books
Essentials of Law
There are certain essentials which must be present in law in order to make it
effective. These are: (i) Predictability, (ii) Flexibility and (iii) Reasonable application and coverage. Law must be such that one is enabled to predict with some accuracy the legal consequences of an action. For example, business people enter into contracts on the premise that if the other party fails to keep its promise, they would have certain remedies under the law.
2 13
Business Law
Edition (3)
S.S. Gulshan
Excel Books