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BUSINESS
Business Law
Dictionary
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Business Law Dictionary
act of God
An unusual and unexpected natural event (e.g., hurricane,
earthquake, sudden death), which may be a defense against
liability
for
injuries or
damages
, or for not fulfilling a
contract
. Under the law of contracts,
an act of God often serves as a valid excuse if one of the
parties
to the
contract is unable to fulfill his or her duties, such as completing a construction
project on time.
act of nature
see
Act of God
.
ADA
see
Americans with Disabilities Act
.
ADEA
see
Age Discrimination in Employment Act
.
abandonment
In
trademark
law, a situation in which the
owner
of a
trademark or
service mark
does not use the mark for a long time or does
not object to the unauthorized use of the mark by others. An owner who
abandons a trademark loses his or her exclusive rights to it.
acceptance
In
contracts
, agreeing verbally or in writing to the terms. This
is one of the requirements for making a valid contract (i.e., an
offer
, an
acceptance of that offer, and a
consideration
). A written offer can be accepted
only in writing.
accord and satisfaction
An agreement
to accept less than is legally due
in order to conclude a dispute. The new agreement (i.e., the accord) and the
payment (i.e., the satisfaction, when made) replace the original obligation.
See
novation
.
account stated
A statement between a
creditor
and a
debtor
that a stated
amount is owed as of a stated date. The statement may be a bill, invoice or
summary of invoices that the debtor may agree to pay either in whole or in
part.
accounts payable
The bills or invoices that are owed by a business.
accounts receivable
The bills or amounts that are due or owed to a
business by customers. In general, this term refers to the total amount owed
and is used in calculating the value of a business or the likelihood of the
business being able to pay its own debts. Calculating receivables involves
evaluating each customer’s payment history and the age of the debt.
accrue
Growing or adding to, such as accumulating
interest
on a debt. Also,
the circumstances that allow the bringing of a lawsuit. For example, the right
to sue on a
contract
accrues only if the other party
breaches
or repudiates it.
adhesion contract
A contract (often a signed preprinted form) that
is so much in one party’s favor that there is every appearance of its not
having been bargained freely. Also called a contract of adhesion. See
unconscionability
.
ADR
see
American Depository Receipt
.
advance
A prepayment made in anticipation of services, such as a shipment
being made or a book written. An advance is normally set against a final bill,
a sales
commission
or an author’s
royalty
.
affirmative action
In employment or admission to programs: a business,
institution or governmental agency giving preference in hiring or advancement
to ethnic minorities to make up for past
discrimination
. Affirmative action has
been at the center of several lawsuits arguing reverse discrimination, but it
has usually been upheld.
age discrimination
Unfair treatment, especially in the hiring or laying off
of current or potential employees aged 40 to 70 years, which is illegal under
the
Age Discrimination Employment Act (ADEA)
. The main challenge by the
claimant is to prove age discrimination. See
wrongful termination
.
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Age Discrimination in Employment Act (ADEA)
A federal law
prohibiting discrimination against workers older than 40 years of age in
employment decisions, especially those regarding which workers should be
laid off. Under the law, no worker can be forced to retire. See
Older Workers
Benefit Protection Act
.
agent
A person who, by mutual consent, is authorized to act for the benefit
of and under the direction of another person when dealing with third parties.
The person who appoints the agent is the
principal
. The agent is in a
fiduciary
relationship with the principal, can enter into binding agreements on behalf of
the principal, and could potentially create
liability
for her or him. See
apparent
authority
;
ostensible agent
.
agent for acceptance of service
In
corporations
, a named individual
who is authorized to accept service of lawsuits or claims against the
corporation. The person is usually named in the
articles of incorporation
or
similar documents filed with each state’s Secretary of State, and is often a
professional agent representing many corporations.
Americans with Disabilities Act (ADA)
A federal law prohibiting
discrimination
against people with physical or mental
disabilities
in
employment, public services, and places accommodating the public (e.g.,
restaurants, hotels, theaters).
annual meeting
In
corporations
, a general meeting of
shareholders
or
directors
.
Shareholders’ meetings
are held to elect directors or to vote on
major changes to the corporation, such as amendments to the
articles of
incorporation
or the merging of the business with another. A meeting of
directors might consider raising funds by borrowing and other financial
decisions, buying property, and hiring or replacing key staff.
anticipation
In
patent
law, a situation in which an invention is too similar
to an existing invention to be considered
novel
—it has been anticipated.
Novelty is one of the requirements for a patent, so anticipated inventions
cannot be patented. See
prior art
.
anticipatory breach
The repudiation of obligations by one
party
to a
contract
before the obligations have been fully performed. This releases
the other party from his or her contractual obligations; one party cannot
simultaneously repudiate obligations and demand that the other party
perform. See
breach of contract
.
agreement
An understanding between two or more
parties
about a
particular issue, covering their obligations, duties and rights. The term can
also mean
contract
(i.e., a legally binding agreement), but it has a broader
application and extends to understandings that are not legally binding.
alter ego
An entity set up as a legal shield for the person actually
controlling the operation. Proving that such an entity is an alter ego involves
having to prove complete control by an individual. See
piercing the veil
.
American Depository Receipt
(ADR)
A receipt issued by U.S. banks to
U.S. citizens as a substitute for the outright ownership of foreign shares. ADRs
can be readily traded on American stock exchanges, avoiding the need to
trade the actual foreign shares.
antitrust laws
Acts of Congress (starting with the Sherman Antitrust Act
of 1890) that forbid or restrict business practices that are deemed to be
monopolistic, that restrain
interstate commerce
, or that are anticompetitive.
See
price fixing
;
restraint of trade
.
apparent authority
Appearing to be the
agent
of another (i.e., the
employer
or
principal
) with the power to act for her or him. Under the law
of agency, the principal is liable for the acts (e.g., damage caused,
contracts
signed) of her or his employee (i.e., agent), and this applies to someone who
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only appears (to a customer, supplier or other member of the public) to have
been given authority. Providing someone who is not a proper agent with,
for example, stationery, forms, a company truck or an office desk could be
considered granting them apparent authority, leaving the employer liable. See
ostensible agent
.
appraisal
An estimate of the fair
market value
of something (e.g.,
real
estate
, valuables,
shares
). A professional
appraiser
(a neutral expert) makes
an estimate by studying the property and comparing the initial purchase price
with recent sales of similar property. Appraisals are often ordered by courts in
probate,
bankruptcy
and other proceedings in which market values need to
be established. Banks and mortgage companies use appraisals before making
loans, and insurance companies use damage appraisals before settling claims.
appraiser
A professional expert who is hired to determine the current
market value
or full cash value of
real estate
or other property.
appreciation
An increase in value, particularly of property that has risen in
value since it was acquired.
arm’s length
The nature of an
agreement
when it has been made by two
parties freely and independently of each other. If the parties are relatives
or have a prior
contract
that puts one under the control of the other, the
new agreement may not have been made at arm’s length and may not be
enforceable.
arrears
Money owed and due, but not yet paid; often the total of a series of
unpaid amounts.
articles of incorporation
The basic (and usually founding) charter of a
corporation
, setting out the name, type of business,
directors
, and amount and
types of
shares
that may be issued. Each state has its own approval system
and requirements for registering names and issuing shares, as well as its
own criteria for registering
nonprofit corporations
. Articles of incorporation
are usually filed for approval with a state’s Secretary of State or Corporations
Commissioner.
as is
Provision in a sales
contract
by which the buyer waives the right to
complain if the property being sold is faulty: the buyer takes it “as is.” The
buyer must have the right to inspect the purchase and spot deficiencies. If the
seller intentionally conceals defects, the contract can be cancelled. See
caveat
emptor
;
latent defect
.
assets
In business, items of property that have monetary value and are
shown in the company
balance sheets
. Such items include current assets (e.g.,
accounts receivable
), fixed assets (e.g., equipment, supplies), and business
goodwill
and
copyrights
.
assignment
Transferring an interest in a property,
contract
or other right
from one person or company to another. In
copyright
law, the unconditional
transfer of all rights in a copyright from the owner to another person or entity.
assignment for benefit of creditors
A method of scheduling debt
repayment by which a trustee receives directly a portion of a debtor’s income
and uses it to pay the debtor’s bills. Compare
garnishment
.
audit
An examination by a trained accountant of the financial records of
a person or business, including notation of improper or careless practices,
recommendations for improvements in keeping proper records, and a
balancing of the books. An “internal audit” is done by an employee, whereas
an “independent audit” is done by an outside accountant. Auditors who have
not been able to examine all the supporting documents will note that the
audit was based on limited information and will not guarantee the accuracy
of the information provided.
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author
In terms of
copyright
protection, a person who creates a work; a
person or business that pays another to create a work as part of her or his
employment; or a person or business that commissions a work under a
work
made for hire
contract. For example, a technical writer may produce a manual,
but if she or he is employed by a company to do so, the company is the
author of the manual for copyright purposes.
bad debt
A debt that is considered uncollectible because of
bankruptcy
or
the passage of time.
bad faith
An intentional dishonest act involving the nonfulfillment of
contractual obligations, misleading of another, or entrance into an agreement
without the intention or means to fulfill it.
bankruptcy
Proceedings under federal law whereby a
debtor
can
discharge
(i.e., wipe out) his or her debts or have protection from
creditors
while trying
to repay them. Liquidation bankruptcy (
Chapter 7
) involves discharging debts
by the surrender of assets. Reorganization bankruptcy (
Chapter 13
) involves
providing the court with a plan for repaying the debts. Reorganization
bankruptcy for businesses and for consumers with very large debts is called
Chapter 11
.
bankruptcy court
The specialized federal court that deals with bankruptcy
matters as detailed in the Federal Bankruptcy Act. Each state also has a
number of such courts, usually covering several counties.
bankruptcy trustee
A court-appointed individual who oversees the case of
a person or business that has filed for bankruptcy. In a consumer
Chapter 7
case, the trustee gathers the debtor’s
nonexempt property
,
liquidates
it, and
distributes it proportionally to the creditors. In a
Chapter 13
case, the trustee
receives the debtor’s monthly payments and distributes them proportionally to
the creditors.
bait and switch
A dishonest sales practice in which a business attracts
customers by advertising a bargain price for an item and then claims that the
advertised item is no longer available, attempting to switch the prospective
customer to a more expensive product. Such tactics often apply to retail items
(e.g., stereos, televisions), but there are also loan interest rates and other
financial products that turn out to be available for very specific circumstances
only. Such practices can make a business a target for a
class action
.
balance due
The amount of a debt still owed on an account or the
principal
owed on a
promissory note
. With a promissory note, the balance due is not
the sum of the remaining installments, because that amount includes
interest
payments, but may be the principal due without further interest.
bearer
Someone who holds a
negotiable instrument
, such as a
check
,
promissory note
, bank
draft
or
bond
. If the document states that it is “payable
to bearer,” the bearer can receive the funds due on it.
beneficial interest
An individual’s right to some profit, distribution or
benefit from a
contract
or trust. Such an interest is different from the rights of
a trustee, who has responsibility for certain assets, but who does not directly
share in the benefits.
benefit
In
contracts
, any profit or acquired right. In
workers’ compensation
,
“benefit” is the insurance payment for a fatal accident on the job
(“compensation” is for nonfatal injuries). “Fringe benefits” may be part of
employment
compensation
other than salary or wages (e.g., health insurance).
balance sheet
A statement that shows the financial position of a company
in terms of its
assets
and
liabilities
at particular times (current and past); an
indicator of the overall condition of the business. This differs from a
profit and
loss statement
, which is concerned with the current operational activity of the
business.
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