Neway- Beyene__Business law-from HU.pptx

From hawasssa university by Neway beyene Business law

1. Business Law Chapter one: General Introduction to Law

2. . 1.1 Definition of law and business law No universally recognized and accepted definition of Law. ( i.e - there is no common definition of law, which could be acceptable by all). Different jurists have tried to provide their own definition of law from different perspectives.

3. Eg , For Aristotle , law is a rule of conduct or behavior, Plato takes law as form of social control. John Austin , from the positive school of thought, describes law as the command of the sovereign backed by sanction . He defines law as any rule of action prescribed by the government and includes any standard which ought to be in conformity (irrespective of its morality or immorality)

4. black’s law Dictionary, “Law is a body of rules of action or conduct prescribed by controlling authority and having binding legal force.” Certain points can be noted from the above definitions :- Law is a generic term consisting of different rules and principles of some supreme, but other subordinate; some substantive and others procedural, etc

5. Law is a norm or standard of behavior of person(s ). It prescribes either to do or abstain from doing something. Law is a rule which emanates from determinate and competent public authority . This gives it formal validity & binding force For the purpose of common understanding, the term law can be defined as follows:-

6. Law is a set of normative rules and principles made by a competent organ of the state and of binding nature /legal force/. Law has binding force- means they must be obeyed and followed by subjects (citizens). And if they are violated, sanctions will follow. Sanction or other legal consequence may help the law to be abided by citizens.

7. More specifically and clearly the term law can be defined as “law is a bundle of rules (constitution, Proclamation, Regulations or directives) enacted by the state -made by the legislature (HOPR) implemented/enforced by the executive (the Council of Ministers) and interpreted by the judiciary (Courts) to govern the behaviors of its members”.

8. What is Business law? The term business law may be defined as that branch of law which comprises laws concerning trade, industry and commerce . Its covers every issue as to how to conduct business in a legal context. It is the law which defines the rights, duties and liabilities of business persons

9. Hence business law is a collection or sets of different rules and principles governing the conducts and relationships of business persons (traders and business organizations ). It is generally understood to include laws relating to persons, contracts, sales, agency, partnerships and companies, insurance, negotiable instruments, insolvency, etc.

10. 1.2 Basic Features of Law Analyzing the features and natures common to all laws would help us to understand the concept of law. Essential features common to all law including business law are the ff : a)Obligatory: law is obligatory – It means law creates a duty to obey and hence can’t be escaped easily. To be governed by law is not left to the individual discretion /choice/

11. b) Generality : law is a general rule of conduct Law has a general application in the society or within a given society or group – legal rule is not concerned about every individual behaviours. It does not specify the names of specific persons or behaviours it governs . . Rather it is fixed generally to apply for any future potential conducts and persons- Ex : the term of office of the presidents shall be six years. [art.70 (4) of FDRE Constitution)

12. c ) Normatively - a nother basic feature of law is its normative aspect: law does not simply describe or explain the human conduct it is made to control . -it is enacted with the intention to create some norms in the society . - Law creates norms by permitting, directing/ordering or prohibiting the social behaviors. Example a law prohibiting criminal acts, a law ordering to pay tax, etc Based on the above manner, law aimed at establishing norms of certain behaviours in the society

13. d)Law is made by public authority In every states there is authorized law making body. e.g. in our case HOPR So, law is made by this competent public authority and it is the source of the validity and binding nature of the law

14. e) Sanction The other main feature of the law is it is backed by sanction. Failure to comply with the law results in the infliction of sanction. Each and every member of a society is required to follow/respect the law. Where there is violation of the law, sanction would follow. Sanction may be criminal or civil in nature depending on the fault committed/nature of liability . Criminal sanction is a sanction attached to criminal liability/criminal fault. And civil sanction for civil liability.

15. 1.3 Function of Law Why do we need law? What functions does law have in your localities? What purposes it serve to society? The following are taken as important functions of law: i) Maintaining peace, order, security and stability in the society –

16. In the absence of law : people may not conduct activities of their daily life in a descent and peaceful manner or people will not be in a position to regularly and properly perform their daily activities . Hence, law is there to ensure peaceful, orderly and stable existence of the state and its inhabitants

17. This ultimately guarantees the protection of citizen’s core right- the right to life, the right to liberty and the right to property ii) Means of Regulating social interaction – It serves as means of controlling social behavior by forbidding or commanding the doing of certain acts. (pay tax, prohibit crimes) .

18. Law clearly specifies rules and norms that are essential for the society and punishes deviant behaviors. The fear of penalties imposed by law will avoid or mitigate unwanted or unapproved behaviors of persons.

19. iii) Means of dispute resolution – Disputes are unavoidable in the life of society with multiple interests and it is the role of the law to settle disputes. Thus, disagreements that are justiciable will be resolved by law in court or out of court using alternative dispute settlement mechanisms

20. iv ) Protecting citizens from excessive and abuse of government powers – Law defines the powers of government, and government is required by the law to act within its power So, law can serve a s a check to the governmental power not to violate the right of its citizens . Constitutions in most countries set out basic rights and freedoms of citizens and also put limitations on government powers.

21. Eg . rule of law, due process of law, accountability , v ) Promoting developmental activities Legal rules can serve as important mechanisms for the growth and change of a nation state and its citizens. Conductive environments and new technologies can be created and introduced through the enactment of laws. Eg ; investment law, transfer of technology law, tax law, etc

22. Finally, law is an instrument of securing justice. It is a body of principles recognized and applied by the state in the administration of justice. The ultimate aim of law is to attain justice in its various fields of application . 2.4 Classification of Laws For the sake of simple understanding and easy accessibility (for various concerned bodies: legislature, executive, judges, researchers, legal scholars, etc.), laws are classified into various categories.

23. However, it is difficult to put a certain section of the law in a definite category without having an overlap . The classification is not mutually exclusive. i.e one category cannot be completely excluded from the other category . In spite of this, the law is divided based on different frame of references. The following major classifications of the law are conventionally adopted throughout the legal systems in the world:

24. Public law Vs. Private law Substantive law Vs. Procedural law, Criminal law Vs. Civil law, International vs. National Law,

25. Public law Vs. Private law – Based on the relationship it regulates or the subject matter it governs, law is classified in to public vs. private law . Public law , as its name indicates, principally governs the relationship between public organs /government/ and its subjects .

26. It defines powers of the governments and rights of citizens and it also regulates their possible relationships For eg . constitutional law: It establishes state organs and defines their powers and functions. It also guarantees fundamental rights and freedoms of peoples.

27. Other examples of public laws are administrative law, criminal law, financial /tax/ law, etc . In general, it regulates the acts of persons who act in the general public interest Private law includes the whole branch of civil laws - which governs the relations between private persons /individuals . Private law regulates the acts, which individuals do in their own names (capacity) for their own individual interest .

28. It is all about the regulation of private conducts and resolution of private affairs. This category includes laws such as law of persons, family law, succession law, property law, contract law, business law, etc II. Substantive law Vs. Procedural law – Mainly based on its content /substance /, law is classified in to substantive vs. procedural law.

29. Substantive law sets out the rights and duties of the people. It defines what rights, privileges and liabilities a person and government itself has. This category forms a greater portion of both public and private laws such as constitutional law, criminal law, contract law, family law, extra contractual liability law, etc

30. Procedural law , on the other hand, establishes the rules under which substantive laws are enforced . It is the means by which rights, privileges and duties determined in the substantive law get enforced. It provides enforcement procedures such as how court cases are instituted, trial conducted, how judgment rendered and executed, etc. E.g. Civil procedure, criminal procedure, etc.

31. III. Criminal law Vs. Civil law – This classification is essentially on the basis of the relations and affairs regulated . Criminal law is one of public law domain dealing with crimes committed against an individual person, the public or the state Criminal law deals with crimes -It sets out punishable offences and its corresponding penalties and measures:- (crimes that are committed against an individual person, the public or the state).

32. It Protects public interests , b/c violation of criminal law affects the interest of the victims , and the public at large Civil law , on the other hand, is the ordinary private law , concerned with the rights and duties of individual person /s/ towards one another; there remedies are sought in private capacity even when the government is party to it. It protects private interests,

33. iv) International vs. National Law Law may be classified into international and local (domestic/national) law. International law consists of rules which regulate relations between States inter se . Example –International treaties/conventions, CIL, National law is the law that pertains to a particular nation. It is a law of a nation, eg , the law od USA, France, or Ethiopia.

34. Such law is applicable all over a country in question . It is effective in a country and applicable to its members. The law may be statutory, i.e. enacted law, administrative or case law . 1.5 Source of Law The source of law can be defined in three ways as follow: i)Material sources of law - it may mean that which supplies the matter or content of the law.

35. Custom, religion, agreement, opinion of text –writers, statute, precedent or judge made law, all come under this category. All these may supply the material or the content or the substance for law. ii)Formal sources of law - this confers binding authority on a draft law/a rule and converts the draft law /rule into law.

36. The state therefore is the formal source of law and for every law this type of source is the same, the will of the state . No rule can have authority as law unless it has received the express or tacit acceptance of the state. iii)The literary source :- this source of law may mean the place where a person can obtain information about the law

37. The place where a person can get information about the law is naturally the literature on the subject/law from which actual knowledge of the law may be gained. These are: (i) statutes; (ii) reports of decided cases; and (iii) text/ books. These are the authorities from which a person can obtain information about the law.

38. In general source of law may means the formal source, material source and the place from where we obtain actual k/g about the law. It may also relate to the question from where the judges get / obtain the rules by which to decide cases? In this sense, sources of law will be statutes; judicial precedents; custom; the opinion of experts; morality; and equity.

39. 1.6 Hierarchy of Laws What do we mean by hierarchy of laws? It is about the superior and subordinate kind of relationship that exists between laws. Hierarchy of laws is “a chain of subordination” between laws. Hierarchy of laws is a system in which all the laws of a certain country are put at various levels or ranks according to their order of importance .

40. It is believed that laws derive their validity and importance from the authority its respective makers possess . In other words, the order of importance of laws is very much related to the order of importance of state organs that make laws .( -a state organ that has highest authority is the most important than its subordinate organs)

41. Hence, if the law is made by state organ that has highest authority, then that law is placed above all other laws that are made by other subordinate state organs So the laws that are enacted by highest/ superior organ are superiors in hierarchy than the law made by subordinates organs.eg-the 1994 FDRE Constitution, the constitution is the supreme law of the land. Hence it is at the top of the hierarchy of other laws.

42. And proclamations made by the House of Peoples‟ Representatives are second to the Constitution. Other laws enacted by subordinate bodies of the Federal State (such as regulations by councils of minister and then directives by each ministry ) are inferior to the proclamations, except decrees enacted by the Council of Ministers in case of emergency

43. A point should be taken that decrees c ome on the upper ladder compared with regulations in the regions Ethiopian laws at Federal level can be stated in the following way in order of their hierarchy i. the FDRE constitution ii. Primary legislations (Proclamations) and emergency decrees iii. Regulations iv. Directive