|
|
Главная \ Методичні вказівки \ Lesson I LAW AND THE LEGAL SYSTEM
Lesson I LAW AND THE LEGAL SYSTEM« Назад
Lesson I LAW AND THE LEGAL SYSTEM 11.10.2016 08:19
Lesson I LAW AND THE LEGAL SYSTEMLaw Terms: While reading the text please pay attention to the following words (only to their meanings in the field of law) and think of their Ukrainian equivalents: Nouns:
Verbs:
Adjectives:
1.2. Text: LAW AND THE LEGAL SYSTEMThe nature of law is so complex that a precise definition is difficult to provide. In general, however, law is the set of values, institutions and concepts that permit civilization to exist and people to live orderly lives. Although legal principles and principles of morality and justice often have much in common, law, morality and justice are not synonymous terms. An immoral act is not necessarily illegal; moreover, a law may be unjust because it is harsh or unfair as applied. While there are dozens of ways to categorize law, its major dimensions are found in the following four-fold classification scheme: substantive, jurisdictional, governmental and structural. Substantive law deals with human conduct and includes the broad areas known as criminal law and civil law. Jurisdictional law deals with the power of political entities, both geographically and institutionally, to regulate conduct. Governmental law, as a classification, views law in terms of the branch of government —executive, legislative or judicial —that created it. Structural law classifies law by the person, group, or institution to which it is addressed. In the United States there are four major sources of law. Constitutional law is the supreme law of the land and regulates the different branches of government and puts limits on their powers. Statutes, the enactments of legislatures, are created on the federal, state and local levels, as are administrative regulations and judicial decisions. Administrative regulations are promulgated by government agencies pursuant to power delegated by the legislatures. The common law, or "unwritten law", is the body of law that emanates from courts through judicial decisions. In addition to structuring the government, the Constitution establishes several important limitations on the power of government, both federal and state, to interfere with individual liberty. The First Amendment rights, due process clause and equal protection clause provide courts with the basis to preserve individual liberties against governmental intrusion. By the process of judicial review, courts can invalidate statutes which conflict with the Constitution, thereby playing a large role in determining important questions of public policy. The federal government's power to regulate business activity, based on the Commerce Clause of Article I of the Constitution, is nominally confined to interstate commerce, the flow of commercial enterprise across state lines. During the last fifty years, however, the federal government has played an increasingly vigorous role in regulating business activity, even on the local level, because of a developing judicial theory that if a business action "affected" interstate commerce, Congress could regulate it. Today, in realistic terms, the power of the federal government to regulate economic activity is as broad as the desire to regulate. In the development of the common law, one of the most important principles to emerge was the doctrine of stare decisis. A source of stability and equality in the law, stare decisis embodied the concept of precedence—once a legal principle is enunciated by a court, it is the law and is not to be overturned. The principle is not inviolate, however, because a legal system that becomes inflexible leads to stagnation in the law. Although the process of judicial decision-making is by no means uniform, judges continue to look to precedent as a guiding principle of law.
1.3. Multiple Choice: 1. Law a) is the set of values, institutions and concepts that permit civilization to exist and people to live orderly lives; b) is the system which cannot be categorized at all; c) is a synonym of morality and justice. 2. Substantive Law a) deals with the power of political entities, both geographically and institutionally, to regulate conduct; b) deals with human conduct and includes the broad areas known as criminal law and civil law; c) deals with the problems of substance and matter. 3. Jurisdictional Law a) deals with the power of political entities, both geographically and institutionally, to regulate conduct; b) views law in terms of the branch of government — executive, legislative, or judicial — that created it; c) regulates the issues concerning the jurisdiction of the courts. 4. Governmental Law a) coordinates the day-to-day activity of the universities; b) deals with human conduct and includes the broad areas known as criminal law and civil law; c) as a classification, views law in terms of the branch of government — executive, legislative, or judicial — that created it. 5. Structural Law a) systematizes all the rules and regulations introduced by the executive branch of the government; b) directs the business activity, based on the Constitution; c) classifies law by the person, group, or institution to which it is addressed. 6. Constitutional Law a) is one of three major sources of law in the United States; b) is the supreme law of the land; c) puts no limits on the powers of the different branches of government. 7. Statutes [the enactments of legislature] are created on the federal, state, and local levels; are the same as administrative decisions; have nothing to do with law. 8. Administrative Regulations a) are promulgated by government agencies pursuant to power delegated by the legislatures; b) is the body of law that emanates from courts through judicial decisions; c) are the object of study of Constitutional law. 9. Common Law a) or "unwritten law", is the body of law that emanates from courts through judicial decisions; b) is the only source of law in the United States; c) is molded and implemented in the House of Commons. 10. The First Amendment rights a) together with due process clause and equal protection clause, provide courts with the basis to preserve individual liberties against government intrusion; b) are amended by courts; c) are the rights stated in the Constitution of Ukraine. 11. Stare Decisis a) is inviolate and, hence, leads to stagnation in the law; b) embodies the concept of precedence — once a legal principle is enunciated by a court, it is the law and is not to be overturned; c) is a decision by stare — the more intently you look, the better decision you make.
1.4. Key Terms — Matching: (a) due process of law (b) judicial review (c) equal protection (d) stare decisis (e) state action (f) commerce power (g) constitutional law, statutes, administrative law, judicial decisions (h) criminal law (i) civil law (j) common law
1. _________ Includes felonies and misdemeanors 2. _________ The authority of judges to invalidate a statute which they find to be in conflict with the constitution 3. _________ The body of court rulings that govern the legal relationship among people in the absence of explicit legislative enactment 4. _________ The four major sources of law 5. _________ Prohibits states from arbitrarily or invidiously classifying people in such a way that the different categories of people will be treated unequally 6. _________ All branches of law not included in criminal law 7. _________ Connotes general fairness and freedom from arbitrary official action 8. _________ Doctrine which states that before a court can invalidate a statute based on due process or equal protection violations, there must have been involvement by some branch of state government 9. _________ Constitutional power given to Congress to regulate commerce among the several states 10. _________ The doctrine of precedent
1.5. Translation practice: 1.5.1. Please translate the following sentences into Tnglish: 1. Єдиним джерелом права в Україні є український народ. 2. Державна влада в Україні поділяється на такі гілки: законодавча, виконавча та судова. 3. Конституція України регламентує діяльність різних гілок влади, а також визначає межі їх повноважень. 4. Розділ II Конституції України захищає права людини і громадянина в Україні від державного втручання. 5. Протягом останніх семи років почало зменшуватися втручання держави в економіку. 6. Роль судового прецеденту як джерела права в Україні є вкрай незначною. 7. Конституційний Суд має право переглядати нормативно-пра-вові акти різних гілок влади (виконавчої та законодавчої) і скасовувати ті з них, які суперечать положенням Конституції України.
1.5.2. Please translate the following sentences into Ukrainian: 1. The nature of government regulation of economics is difficult to define. 2. Although law, morality, and justice sometimes regulate the same social relations, they are hardly synonymous terms. 3. The application of law may be harsh and unfair. 4. The Constitution of Ukraine provides for the protection of individual rights and liberties. 5. In Ukraine there are three major sources of law. They are: constitutional law, enactments of legislature, and administrative regulations. 6. It is the major function of the Constitution of the newly-independent Ukraine to put limitations on the power of government, both central and local, to interfere with individual liberties and economic freedoms of individuals, groups, and institutions. 7. Law is complex phenomenon of the social life; while there exist many ways of defining it, there are no single concept which could possibly include every aspect of law.
NOTE:
1.5.3. Please give the English variants of the following Ukrainian terms by ear (the recommended rate of reply is up to 5 seconds): цивільне право, поведінка людини, гілка влади, поправка, рівний захист, економічна діяльність, комерційне підприємство, мораль, джерело права, цінність, стаття (закону), обмеження, надавати иірава), уособлювати, створювати, дозволяти, скасовувати, опублікувати (оголосити), класифікувати, суперечити, непорушний, (не)справедливий, (а)моральний, точний, незаконний, суворий, головний (визначальний), реалістичний.
1.6. Train Your Memory:
Please memorize the Preamble to the Constitution of the United States of America (see Appendix 1).
1.7. Build-up Your Vocabulary: Please add the following words describing the structure of state and major modern trends in world politics and law to your active vocabulary and make a two-minute presentation of the form of government in Ukraine: Nouns: Stateanarchy meritocracy Territorial structure:
Political Regime:
Form of Government:
Schools of Political Thought:
Legal Doctrines:
Verbs:
Adjectives:
1.8. Reading Practice: Please read the text below and answer the questions after the text:
PRESIDENTIAL POWER: INSIDE THE OVAL OFFICEMost observers believe Presidential power and executive office decision-making are best evaluated in terms of the person occupying the office. The personality of the President, his temperament, personal style and the people he appoints contribute significantly to how he approaches the job. Presidential authority is outlined in Article II of the Constitution, which states "The executive Power shall be vested in a President". In reality, the President's authority goes beyond the executive branch and has grown rapidly in the twentieth century. Dramatic changes in Presidential power have been most pronounced during national crises such as war and economic disaster. A President gains some judicial authority through appointments to the Supreme and Federal Courts. Through the veto and the ability to set the national political agenda (and the executive influence), the President can greatly affect the legislative branch as well. President Reagan was considered a master at using television appeals to corral a public outcry to influence Congress. President Bush, on the other hand, was more at ease to use Congressional contracts, political favors and power inherent to the Presidency. President Clinton's strategy is yet to be judged but his basic governing style is non-confrontational, courting and massaging legislators to his point of view (in the style of Lyndon Johnson). The President serves as the armed forces commander in chief, his political party head and chief administrator of the massive government bureaucracy. Through his ability to influence public sentiment, the President can utilize tremendous pressures unavailable to any other agent or branch of government. Historians note steady growth in Presidential power throughout the century but this power is not absolute. The Presidency is one-man show; his power cannot be delegated. When a President is idle, no one else is given the power and initiative is lost.
POWER IN FOREIGN AFFAIRSHistorically, Presidents have found greater latitude in foreign policy and national defense. Two factors contribute to this. First, world events can occur so quickly as to make it impossible to seek legislative approval. This was precisely Mr. Bush's claim regarding the Persian Gulf. Second, the President needs freedom in pursuing policies with other nations. Presidents can recognize or refuse to recognize foreign governments, substantially alter policy (the Monroe Doctrine, for example), make "political statements" through actions (as when Mr. Carter barred American participation in the Moscow Olympic Games) and carry out military operations (Panama in 1989 and the Persian Gulf in 1990). President Johnson once stated "... there are many, many who can recommend and advise and sometimes a few of them consent. But there is only one that has been chosen by the American people to decide." As the Vietnam War expanded, Americans grew concerned about the President's power to involve troops abroad. Congress passed in 1973, over Presidential-veto, the War Powers Act, limiting the President's authority to conduct an undeclared war for more than 60 days without congressional approval. It requires a full reporting to congressional leaders within 48 hours of any commitment of U.S. troops abroad, in advance when possible. This act has not curtailed the actions of any President since Mr. Nixon. Although there have been occasional calls to invoke the War Powers Act, no President has acknowledged its constitutionally. Prior to the Persian Gulf war, President Bush threatened to move with or without the lawmakers' approval. When the 102nd Congress convened in January 1991, it immediately took up the question of war and peace. The House by a vote of 250-183, and the Senate, 52-47, adopted resolutions authorizing military force against Iraq after January 15. Once again, a President avoided direct confrontation over his ability to wage war. Congress has at times challenged a President's lack of action as well, including President's Bush decision not to fully commit U.S. troops to defend Philippine President Corazon Aquino during the 1989 failed coup attempt President Clinton's foreign policy approach is similar to the Bush Administration's. However, certain changes clash with previous policy: a tougher line on China, a softer line with Israel, and possible troop withdrawal from South Korea.
WEAKNESS AT HOMERarely have Presidents been able to assert much independent power domestically. Franklin Roosevelt, with his New Deal policies, remains the exception, although Lyndon Johnson made significant domestic strides in his early years. Richard Nixon once said, "I've always thought this country could run itself domestically without a President. All you need is a competent Cabinet to run the country at home. You need a President to run foreign policy; no Secretary of State is really important. The President makes foreign policy." Even when facing serious domestic crises, American Presidents often push the bulk, charging the responsibility for problems lies with "an uncooperative Congress" or "unresponsive courts". Grover Cleveland, faced with the 1873 depression, claimed, "It is the duty of Congress to devise the method of correcting the evils... and not mine." American Presidents often react this way out of frustration, especially during the era of huge budget deficits. A President, wanting to cut a domestic program, is likely to conflict with Congress, which is far more willing to support legislation it sees as directly affecting members' districts. Saddled with congressional involvement, domestic policy moves slowly.
PRESIDENTIAL DECISION-MAKINGMost Americans assume the President, with tremendous powers to conduct foreign policy, knows what he is doing. After all, Presidents have access to the best minds, covert intelligence reports (although the value of such reports has been questioned) and other bits of secret information, in addition to volumes of special reports prepared to brief them on the national issues. Former Presidents dispute this image. They charge the press often has the same (or better) information on foreign activities and secret reports often contain as much erroneous and speculation as facts. Americans were surprised to discover, for example, that despite surveillance by high-tech satellites, Manuel Noriega was able to pull up to a Dairy Queen, phone the Vatican Embassy that he was on the way, and simply walk into the Embassy — without American knowledge or the interference of 26,000 U.S. troops searching for him. Additionally, Presidents have relied on many unlikely advisors during crises. A President often looks to close personal relationships rather than the most experienced or informed. John Kennedy relied greatly on his brother, Robert (whom JFK appointed Attorney General) and President Carter relied on his Georgia friends and political advisors (even during the Iran crisis, although they had little or no experience in foreign affairs). Presidents also create advisory "commissions" to encourage debate outside the political arena. Such commissions are often praised for their ability to incorporate the view of academic and fiscal experts but they are easily overlooked when their solutions are contrary to the administration's official policies or beliefs.
GROWTH OF THE OFFICEWhen elected, George Washington served a nation roughly three million people. Today, President Clinton manages a federal bureaucracy employing three million workers and additional two million military personnel, serving roughly 250 million Americans. The employment increase is a result of tremendous growth of federal programs as well as the President's political needs. President Hoover functioned with a 42-member staff. In 1992, the executive office of the President employed 1,898 people, including 93 permanent staffers. Annual White House operating cost has grown from $14,000 a hundred years ago to about $160 million today. Questions to the text: 1. Do Presidents have the power to improve the economy in a period of burgeoning budgetary deficits? 2. Have we vested too much power in hands of a single individual? 3. Do you believe in an activist government or is less government is better? 4. How should a President choose his closest advisors? His Cabinet? 5. Presidents get tremendous trappings: the White House (with 70 butlers), six jets, the Camp David resort, 16 helicopters, a pool, a bowling alley, a tennis court, a movie theater and a putting green. Former Presidents receive $63,000 annual pensions, staffs and nearly $500,000 in transitional expenses. Have we gone too far by providing such amenities or should the President be treated this way? Does such treatment influence our perception of the office? Given that some corporate executives are paid over $1 million annually, is the nation appropriately compensating the President? 6. If you were President, how involved would you be in the details of issues facing the nation? Would you delegate a great deal of your authority?
1.9. Practice Test:
1.9.1. Please mark each of the following sentences as True (T) or False (F). Be ready to support your opinion with references to the material of the chapter and with your own argumentation, for in some cases, just as in real life, there is no straightforward answer to a question: 1. Constitutional law, statutes, administrative regulations, contracts, and the common law are the five major sources of law in the United States ______. 2. There is a uniform definition of the concept of "law", commonly accepted by all scholars and practicing lawyers ______. 3. A law may not be unjust ______.. 4. The federal government's actual power to regulate business activity is not confined to interstate commerce alone ______. 5. According to the material provided in the chapter, structural law is one of the four major dimensions of the law as a whole ______. 6. Historically, Presidents of the United States have found greater latitude in foreign policy than in domestic affairs ______. 7. The United States President's authority is limited exclusively to the executive branch, which is the best exemplification of the principle of separation of powers ______. 8. High responsibility vested in the presidential office requires the President to be adequately impartial and open to the total spectrum of political opinions, which can be easily illustrated by numerous examples from the political history of the United States ______.
1.9.2. Please give written definitions of the following terms as you remember and understand them: substantive law due process clause judicial review equal protection clause stare decisis doctrine
1.9.3. Please translate the following Ukrainian sentences into English: 1. Поведінка людини в суспільстві визначається не лише юридичними, а й моральними, релігійними та іншими соціальними нормами, народними звичаями. 2. Я б хотів(ла), щоб судовий прецедент був визнаний як офіційне джерело права в Україні. Мені здається, що процес внесення поправок до чинних нормативних актів органами законодавчої влади забирає надто багато часу. 3. Життя засвідчило необхідність розподілу влади як єдино можливу форму організації діяльності владних стуктур. 4. З часу прийняття нової Конституції України Президент має чітко окреслене коло прав та обов'язків. У межах своєї компетенції він, зокрема, може, за поданням Прем'єр-міністра України, створювати, реорганізовувати та ліквідовувати міністерства та інші центральні органи виконавчої влади. 5. Конституційний Суд може визнати недійсним закон, якщо він містить положення, що суперечать Конституції. 6. Визначальним принципом цивільного права є юридична рівність сторін цивільного нравовідношення.
1.9.4. Please insert the pertinent articles and prepositions, as well as correct grammatical forms, into the sentences given below: 1. Throughout its long history the English common law (1: to bear) directly (2: ____) the raw facts of daily life in English society. 2. Gradually, as social changes have occurred, the law (3: to adapt) by judicial interpretation to meet new conditions. 3. As feudalism declined during the thirteenth century, property interests not clearly related (4: ____) feudalism (5: to give) protection. 4. The doctrine of stare decisis assumes that court decisions (6: to be) reasonable, that what (7: to be) reasonable in one century may (8: to be) reasonable in another — even though in the meantime the most revolutionary social and political changes (9: may, to occur). 5. When foundations of the common law (10: to establish), especially in the years between 1154 and 1307, obviously the royal courts (11: not, to guide) as clearly as they are now (12: ____) statutes and judicial precedents. 6. (13: A, the) writ was (14: an, the) order from the king under the Great Seal, addressed to the sheriff of the county in which the cause of action (15: to arise), commanding him to cause the party complained (16: ____) to appear in the king's court (17: ____) a certain day to answer the complaint. 7. If the modern layman is bewildered (18: ____) the language of the legal profession, he can blame William the Conqueror for his confusion, for the Norman Conquest (19: to make) French the language of the royal courts, which (20: to use) the conversational language of the people ever before that.
1.9.5. Please write a 500-word essay on any of the topics given below using new vocabulary: 1) Law: different approaches and definitions. 2) Principles of civil society and Ukrainian Constitution. 3) The role of President in the Ukrainian political system. 4) Presidential powers in Ukraine and in the United States.
Lesson 2 COURTS LAWYERS AND THE LEGAL PROCESS2.1. Law Terms: While reading the text please pay attention to the following words (only to their meanings in the field of law) and think of their Ukrainian equivalents:
Courts and Judicial Procedure:
2.2. Text: COURTS, LAWYERS, AND THE LEGAL PROCESSIn its broadest sense, law is interpreted and understood through the courts. In the United States there are both federal and state court systems, which are not entirely separate. For example, federal statutes are interpreted in the state courts and vice versa; and each court is obligated to respect the final judgement of courts in other states. The doctrine known as "conflict of laws" deals with the issues involved in the interplay of various laws in the various courts. In all state court systems, there are two types of judicial functions: trials and appeals. A trial court has original jurisdiction; that is, the power to determine the facts of the case and apply the law to them. An appellate (or appeals) court hears appeals from the trial court and thus has appellate jurisdiction. While all states have a supreme court, an appellate court of last resort, the majority of states also have an intermediate court of appeals which handles most of the appeals from the trial courts. The federal system also consists of three levels —district courts (trial); intermediate court of appeals (circuit court of appeals); and Supreme Court (U.S. Supreme Court). The jurisdiction of federal courts is set out in the Constitution. Most cases now heard in federal court involved disputes where the federal government is a party or where the federal constitution or federal laws are involved. In all cases, the plaintiff, the party who initiates the lawsuit (or in a criminal case, the prosecution) has the burden of proving his case. The quantum of proof necessary depends on whether the case is criminal, civil, or administrative. To begin a lawsuit, the plaintiff files a complaint — a document stating the nature of his claim and the relief he is seeking — with the clerk of the court. The complaint and summons — a court document giving the defendant notice of the suit and directing him to answer the complaint — are served by the marshall (or sheriff in a state court system) on the defendant. If the defendant has claims against the plaintiff, he will include a counter-complaint in his answer. Once these initial lawsuit documents, known as pleadings, have been filed and served, the pretrial procedure known as discovery begins. Through discovery, each party finds out information in the possession of the other party. The devices used are (1) interrogatory — written request for answers to specific questions, (2) deposition — an interview session, and (3) inspection/production of documents. During discovery, the court will usually hold a pretrial conference to clarify the issues and to see if a settlement can be worked out. At the completion of discovery, the case moves to the trial stage. If the case is to be tried by a jury, the judge and lawyers will question prospective jurors to ensure an unbiased jury. After the selection is completed, the lawyers will make an opening statement and will then proceed to call their witnesses and present their evidence. After the direct testimony of each witness is concluded, the opposing lawyer may cross-examine the witness in an attempt to clarify issues or to impeach the witness's credibility. After all the witnesses have testified, each lawyer will present a closing statement after which the judge will instruct the jury on the law applicable to the case. After deliberating and reaching a decision, the jury will submit its verdict to the court. The loser in the case has the right to appeal the decision, citing grounds of legal error to the appellate court — "mistakes" in the factual findings are not generally grounds for an appeal. The appellate court, after hearing the oral arguments and considering the written briefs of the parties, will affirm the lower court's judgement, modify it, reverse it or remand it. Representing a client in a trial is only one of the many functions that lawyers today perform. They also act as negotiators, counselors, draftsmen and lobbyists. In these roles, the lawyer's duty is to zealously advocate his client's position while at the same time maintaining the code of ethics imposed upon the legal profession. To the business client, two important rules of ethics are (1) the lawyer is bound to respect the confidences of his client and (2) the lawyer may not engage in a conflict of interest. Many have criticized the costs and delays associated with litigation. As a result, alternative means of resolving disputes have come into vogue. Most states, by statute, allow litigants to refer a lawsuit to a private judge for resolution. This procedure is commonly known as "rent-a-judge." Additionally, disputes may be resolved out of court. In mediation, for example, a neutral party — the mediator — attempts to help the parties to negotiate a solution. Unlike a judge, however, the mediator has no power to impose a decision. Another formalized method of settlement negotiation is the mini-trial, which generally shortens the time for preparing for trial. Like mediation, the mini-trial is usually conducted before a neutral advisor who has no authority to impose a decision. Another cost-saving development is the management and prevention of disputes by corporations. These techniques involve responding to disputes when they first materialize and establishing programs to prevent disputes from arriving in the first place.
2.3. Multiple Choice: 1. There are two court systems in the US: a) federal and local; b) mainland and island; c) American and European. 2. "Conflict of Laws" a) is when two laws contradict each other; b) is the name of an Irish Pub in the center of New York; c) is the doctrine that deals with the issues involved in the interplay of various laws in the various courts. 3. In all state court systems, there are two types of judicial functions: a) trials and appeals; b) trials and sentences; c) nooks and crannies. 4. Original Jurisdiction a) the initial jurisdiction of the courts; b) the power to determinate the facts of the case and apply law to them; c) the power to single out specific cases exempt from the application of the law. 5. Appellate (Appeals) Court a) hears appeals from the trial court and thus has appellate jurisdiction; b) sends all the appeals to a supreme court; c) hears appeals and sends them back to the trial court for the final decision. 6. Supreme Court a) is the biggest court in the state/country; b) is an appellate court of last resort; c) is the only law-making body in the judicial system. 7. Intermediate Court of Appeals (Circuit Court of Appeals — on the federal level) a) handles most of the appeals from the trial courts; b) is situated in-between local courts of appeal and a supreme court; c) handles only the criminal cases. 8. Plaintiff a) is the party who initiates the lawsuit (in a criminal case, the prosecution); b) is the party who is held guilty; c) is the party who issues the counter-claim. 9. Pleadings a) are complaint, summons, and verdict; b) are initial lawsuit documents; c) are the oral statements made by each contending side in court. 10. Discovery a) is something discovered; b) is the uncovering of some documents crucial to the outcome of the case; c) is the pre-trial procedure. 11. Complaint a) is a document stating the nature of plaintiff's claim and the relief he is seeking; b) is a document describing the wrongs caused by the state; c) is an oral statement. 12. Marshall (Sheriff in a state court system) a) is the person who serves the complaint and summons; b) is a security officer in court; c) is an assistant to the judge.
2.4. Key Terms — Matching: a) jurisdiction and venue b) pleadings c) cross-examination d) standing to sue e) service of process (g) preponderance of the evidence (h) adjudication (i) certiorari (j) appellant and appellee
1. ____________ The process by which courts make decisions 2. ____________ The burden of proof in a civil case 3. ____________ The complaint, answer, and countercomplaint 4. ____________ The jury selection process 5. ____________ The party who files an appeal and the party against whom an appeal is filed 6. ____________ The proper type of court and the proper geographic location of court 7. ____________ Discretionary review of cases by the Supreme Court 8. ____________ Allows the attorney to ask probing questions in an attempt to impeach the credibility of the witness 9. ____________ Physically presenting the defendant with a copy of the summons and complaint
2.5. For Advanced Practice: Please find the pair of words that would best correspond the given one: 1. Plaintiff: Defendant a) hammer : anvil; b) claimant : respondent; c) respondent : co-respondent. 2. Grand Jury: Petty Jury a) 12 ;p 7; b) 23 : 12; c) 13 : 9. 3. Attorney-at-Law a) Solicitor; b) Lawyer; c) Prosecutor. 4. Witness : Stand a) lawyer : bar; b) judge : gavel; c) reporter : newspaper. 5. Jury: Verdict a) witness : testimony; b) judge : sentence; с) attorney : prosecution.
2.6. For those who are interested: Match the English phrases with their Ukrainian equivalents:
2.7. Translation practice: 2.7.1. Please translate the following sentences into English: 1. В Україні існує декілька типів судів: загальної юрисдикції, апеляційний, конституційний та верховний. 2. Апеляційні суди в Україні мають право розглядати скарги на рішення судів загальної юрисдикції. 3. Система судів загальної юрисдикції (загальних судів) (regular courts) складається з: районних (міських) судів (районних у містах Києві та Севастополі), обласних судів (міських у містах Києві та Севастополі) та Верховного Суду України і Верховного Суду Республіки Крим (За Законом України «Про судоустрій України»). 4. Більшість справ вперше слухаються районними міськими судами. 5. Судочинство здійснюється Конституційним Судом та судами загальної юрисдикції. 6. Конституційний Суд дає офіційне тлумачення Конституції та законів України. 7. На сьогоднішній день рішення загальних судів першої інстанції можна оскаржити в загальних судах вищої інстанції, оскільки система апеляційних судів ще не діє. 8. За Конституцією України від 28 червня 1996 року однією з гілок влади є судова влада.
2.7.2. Please translate the following sentences into Ukrainian: 1. The US Supreme Court is the court of last resort in that country. 2. It is one of the main functions of a lawyer to keep the secrets of his business clients. 3. Yesterday the 10th US Circuit Court of Appeals was reported to resolve the case of O.J. Simpson. 4. After a three-hours' deliberation the jury came back with a "Not guilty" verdict. 5. Last month Chicago saw the stormiest trial of the century with Al Capone as the defendant. 6. Some cases do not make it even to the pre-trial stage; they are settled out of court during the mediation. 7. The surest cost-saving litigation technique is not to have arguments at all. 8. It being foreseen in the Constitution, the court system form the third branch of government in the United States of America, which branch is even viewed by some legal scholars as the most prospective one.
2.7.3. Please give the English variants of the following Ukrainian terms by ear (the recommended rate of reply is up to 5 seconds): суд першої інстанції, верховний суд, апеляційний суд, судове рішення, присяжний, суддя, адвокат, позивач, відповідач, свідок, обвинувачення, вирішення (справи), позов, апеляція, вступна промова, свідчення, короткий письмовий виклад справи, змагальні напери, процедура, цивільна справа, зустрічний позов, юрисдикція, кримінальна справа, судова система, усний, початковий, економічний, альтернативний, тлумачити, захищати (відстоювати), обдумувати, скорочувати, виробити, цитувати, посилатись, повернути до суду першої інстанції, скасувати, змінити, підтвердити, зобов'язати, слухати (справу), давати свідчення, вручити (повістку), запобігти.
2.8. Train Your Memory: Please memorize the abstract from the Declaration of Independence of the United States of America (see Appendix II).
2.9. Build Up Your Vocabulary (Table 1): Please add the following words to your active vocabulary and made a two-minute oral sketch of the courtroom interior:
2.9. General Reference and Background Knowledge: Please review the following Table 1 and prepare a two-minute report on the Federal Court's Jurisdiction: Federal Courts' Jurisdiction Supreme Court of the United States1 court with 9 justices Original jurisdiction (cases begin in the Supreme Court) over controversies involving: 1. Two or more states 2. The United States and a state 3. Foreign ambassadors and other diplomats 4. A state and a citizen of a different state (if begun by the state)
Appellate jurisdiction (cases begin in another, lower court) hears appeals, at its discretion, from: 1. Lower federal courts 2. Highest state court
United States Courts of Appeals1 in each of 11 "circuits" or regions plus 1 in the District of Columbia Hear only appeals (no original jurisdiction) from: 1. Federal district courts 2. U.S. regulatory commissions 3. Certain other federal courts
United States District Courts1 in each of 94 districts Original jurisdiction (do not hear appeals) over cases involving: 1. Federal crimes 2. Civil suits under federal law 3. Civil suits between citizens of different states where the amount exceeds $50,000 4. Admiralty and maritime cases 5. Bankruptcy cases 6. Review of actions of certain federal administrative agencies 7. Other matters assigned to them by Congress
2.11. Reading Practice: Please read the text below and answer the questions after the text:
THE SUPREME COURT OF THE UNITED STATES OF AMERICA The founding fathers of the nation felt a greater need to insulate the Supreme Court from the whims of public opinion. Justices serve for life and never face voters or otherwise respond to political influences in their decision making. Also, a mystique now enshrouds the Court. Justices deliberate in secret and sit high in their marble chambers, seemingly untouchable. And they need not justify their arguments to anyone. Throughout the American history, only the Supreme Court and the lower federal courts would maintain freedom from electoral contests. Constitutional scholars believe this aspect of the federal judiciary is its greatest strength. Richard Nixon once said, "Presidents come and go, but the Supreme Court goes on forever". The Court is not totally insulated from the political climate, however. Justices are nominated by the President and must gain a majority of the Senate's support. This appointments often become political battles. When Ronald Reagan appointed Robert Bork to the Supreme Court, he was denied the seat on political and ideological grounds. The more moderate (at least in the Senators' minds) Anthony Kennedy was appointed. A President Bush nominee, David Souter, was easily confirmed in 1990. Souter's skilful, intellectual, low-key approach to legal and ideological queries raised little debate. The Senate approved his nomination 90-9. In 1991, President Bush nominated Clarence Thomas to replace the retiring Thurgood Marshall. After months of debate and examination, some of it very heated, Thomas was narrowly approved, 52-48. The intense questioning of Thomas and Anita Hill, a former colleague who accused him of sexual harassment, left the Senate, and most of the country, questioning the confirmation process. More than a year later, the effects of the hearings are still evident, influencing even the elections. The election of Bill Clinton signalled the end of a conservative era that was marked by years of Republican appointments to the federal bench. The Reagan-Bush appointees now make up 65% of the federal judiciary and a majority of the Supreme Court. Although President Clinton can start making appointments (over 100 are expected) immediately, it would take years for the court to swing back to a liberal majority. In spite of this partisan approach to judicial appointments, judges often do not make decisions along party lines. Presidents discover the appointees frequently make decisions contrary to their professed political philosophy. In addition to such political influences, federal judges can face impeachment by the House and Senate. Of the federal judges who have been impeached, seven were acquitted; four convicted and one resigned. This, however, has not lessened the Court's impact on Americans. The importance of the Supreme Court is based in part on its interpretation of the Constitution and its role as a symbol of confidence in the entire federal court system. Whether the Court decides to hear a case or not, its decision sets a legal precedent that becomes part of a judicial history dating back to the Bill of Rights.
GROWTH OF THE FEDERAL COURTSThe federal court system has grown in size and stature since it's first term. In 1790, for example, there were no litigants, no docket and no decisions. Lawyers selected as justices often declined. The ultimate insult came when the government moved to Washington in 1800 and no one remembered to assign space for a courtroom. Since then, the Court has grown impressively and has added specialized federal courts to adjudicate its staggering load of cases. Beside the nine appointed Justices, 12 judicial Circuit Courts of Appeals are divided geographically across the country. These were created to relieve the Supreme Court from considering appeals cases originating in federal Wai courts. They have assumed jurisdiction over district court decisions, and enforcement and review of many governmental administrative functions. One federal circuit Court of Appeals has nation-wide jurisdiction over special cases. Decisions made by all U.S. Courts of appeals are final, except by discretionary review of the Supreme Court. In addition to these courts, the federal judicial system has grown to include the Court of Claims, the Court of International Trade, the Tax Court and the Court of Military Appeals.
THE COURT'S CHANGING ROLEOne of the most dramatic changes to Supreme Court power came in 1803 when the Court interpreted the Constitution to allow itself the right to judicial review, i.e. reviewing legislative acts for their constitutionality. This process protects against an all-powerful legislative branch. The Supreme Court has significantly changed its role over the years. One such turn for the Court came when Earl Warren served as chief Justice (1953 — 1969). The took an active role in defending the near-absolute position of the Bill of Rights against frequent challenges and defended the rights of minorities in the face of great public opposition. After Warren's departure, Court rulings were less supportive of personal rights, invoking the needs of society. Such changes demonstrate how the Court reacts to the personalities of those seated and to changes in American society. Conservative jurists feel the courts should not resolve questions better left to the legislative branch. During the recent term, the Supreme Court agreed to hear 107 cases. Only three years ago, it heard 170. Some of this reduction is due to recent rulings in lower courts: 68% of current federal judges are Reagan or Bush appointees. They are often in agreement with the upper court. Also, liberal organizations like the Legal Defence Fund and the American Civil Liberties Union are turning to state courts; they want to avoid defeat in the federal courts. Liberals can also turn to Capitol Hill. Congress can overrule the Justices through legislation, if the vote can survive a Presidential veto. Liberals also look for Justices to shift views during their tenure. Blackmun moved to the left from his first days on the Court. O'Connor has drifted to the center. Souter, who voted with O'Connor on several cases, may yet do the same. But with one liberal champion retired (Marshall) and the other the oldest member of the Court (Blackmun at age 84), conservatives are expected to dominate the Court well into the next century. It is common for court rulings to be challenged and reversed by later Courts. Recent abortion rulings demonstrate how the general articles of the Constitution and the Bill of Rights can be interpreted in draw matically different ways. Consider the history of some significant civil right rulings:
These cases demonstrate the Court's changeable nature, with conflicting decisions based on interpretation of existing constitutional provisions. Most constitutional scholars believe the Courts have entered a conservative period of strict constitutionalism. As such, the Court interprets the Constitution liberally. Loose constitutionalists of the Warren Court often interpreted the Constitution liberally, stretching provisions to cover ideas, topics and activities not specifically mentioned 200 years ago. Signals suggest the current Rehnquist Court (by tradition, courts are named after the Presiding Chief Justice) will revisit some of the decisions of past Courts. Supreme Court observers are questioning how far the current Court will go in reversing previous decisions about individual liberties, abortion and criminal defendants' rights. The current Court has moved aggressively to take advantage of its conservative majority. It even went so far as to rule on issues not formally raised. In a recent case, coerced confessions were allowed as trial evidence in some circumstances, though the case in question did not directly present the question. New attempts to restore school prayer are likely as well as new laws approving the use of government funds for parochial schools.
Questions to the text: 1. Do you think that the Supreme Court Justices should serve for life? Please substantiate your answer. 2. Do you believe that the appointment of a Supreme Court Justices should be as politically charged as it is in the USA right now? 3. What is the importance of the Supreme Court of the United States based on? 4. The Ukrainian judiciary is based on other principles than those underlying the American system. Do you think that we do not need two separate entities, the Supreme Court and the Constitutional Court, or not? 5. Why did the "founding fathers" of our country (the authors of the Constitution of Ukraine) stress the need for a separate branch of the national judiciary, courts of appeal? 6. In your answer to the question please find a place for the comparison with the existing US system of appellate courts. 7. Please give the pros and cons behind the judicial precedent. Should it be lent more importance in the legal system of our country? 8. The judiciary must be independent of all the outer influences, must it not? Why do you think so?
2.12. Practice Test: 2.12.1. Please indicate whether each of the following statements is true or false, in your opinion. Where appropriate, support or explain your position with a brief argumentation (up to 3 sentences, usually 1 is enough) based on the material of the chapter and other evidence: 1. According to the chapter, the two types of judicial functions in all state court systems are discoveries and trials _______. 2. State supreme court is the only state judiciary with the power to hear appeals from trial courts _______. 3. The federal court system consists of three levels _______. 4. Initial lawsuit documents, known as pleadings, consist of the complaint and summons _______. 5. The devices used in the discovery are interrogatory, findings, and deposition _______. 6. A mini-trial is usually conducted before a private judge, and the whole procedure is commonly referred to as "rent-a-judge" _______. 7. As a rule, judges make decisions along party lines, so usually it is easy to predict the outcome of the majority of hearings _______. 8. Historically, the 12 judicial Circuit Courts of Appeals were created to relieve the Supreme Court from considering appeals cases originating in federal trial courts _______. 9. The same clause in the Constitution can be interpreted by the Supreme Court quite differently as time passes _______. 10. Most constitutional scholars believe that new attempts to restore school prayer have become increasingly unlikely as the Democratic government of Bill Clinton controls many of the new court appointments _______.
2.12.2. Please give written definitions of the following terms as you remember and understand them: 1) conflict of laws 2) preponderance of the evidence 3) standing to sue 4) deposition 5) trial
2.12.3. Please translate the following Ukrainian sentences into English: 1. Програвши справу в окружному суі, зацікавлена особа може звернутись до апеляційного суду з проханням neperлянути справу та вивірити правильність дій судді першої інстaнції. 2. Завдання адвоката — подати судді та присяжним ті факти, які висвітлюють дії клієнта найсприятливішим чином, але користуючись при цьому законними юридичиими засобами. 3. Одне з правил, що стосується наведения доказів, забороняє цитувати чиїсь слова, тобто посилатись на свідчення третьої особи. 4. Іноді, скасувавши вирок окружного суду, суд вищої інстанції не змінює його сам, а повертає справу на перегляд, хоча в більшості винадків апеляційні суди не скасовують, а затверджують постанови окружних судів. 5. Судовий перегляд — це повноваження суду, розв'язуючи певну справу, заявити, що закон, виданий законодавчим органом, або та чи інша дія виконавчої влади неправочинні, оскільки суперечать Конституції.
2.12.4. Please insert the pertinent articles and prepositions, as well as correct grammatical forms, into the sentences given below: 1. Crime prevention policy and non-custodial treatment (1: _______) offenders is similar throughout Britain. 2. One of the main sources of law in England and Wales and in Northern Ireland is common law, which (2: to evolve) over centuries from judges' decisions rather than jurists' writings; it forms the basis of the law except when (3: to supersede) by legislation. 3. If a court reaches a decision which is contrary to the intentions of Parliament, Parliament must (4: _______) (5: to accept, to pass) the decision or (6: to accept, to pass) amending legislation. 4. European Community law, deriving from Britain's membership (7: _______) the European Union (EU), is confined mainly (8: _______) economic and social matters and, in certain circumstances, takes precedence (9: _______) domestic law. 5. In September 1994 British government announced that reports prepared on offenders before sentencing (10: to include) a section about the effects of the crime (11: _______ ) the victim. 6. There are separate statutory arrangements for compensation (12: _______) of criminal injuries, and (13: _______) malicious damage (14: _______) property, including any resulting loss of property. 7. Britain is a party (15:_______) a European Convention under which mutual arrangements for compensation apply to citizens of those countries in which the Convention is in force. 8. Important measures to strengthen the criminal justice system (16: to take) in recent years. 9. Certain special powers are available to assist (17: to prevent and to investigate) terrorist crime.
10. Certain police services (19: to provide) centrally either by the Government or (19: _______) co-operation between forces. 11. Scottish criminal records are held (20:_______) computer at the Scottish Criminal Record Office. 12. Questions relating to an offence may not normally be put to a person after he or she (21: to charge) with that offence.
2.12.5. Please write a 500-word essay on any of the topics given below using new vocabulary: 1) Court system in the United States. 2) Trial procedure. 3) People in the courtroom: who they are and what they do. 4) Supreme Court of the United States.
Lesson 3 CRIMINAL LAW3.1. Law Terms: While reading the text please pay attention to the following words (only to their meanings in the field of law) and think of their Ukrainian equivalents:
3.2. Text: CRIMINAL LAWA crime is an act that a legislature has defined as socially harmful. To be found criminally responsible, a person must commit a criminal act and also intend to commit the act. Classifications of crime may depend on the seriousness of the act as determined by the duration of punishment or by the type of social harm the statute intends to prevent or deter. The former classification thus categorizes crimes as felonies and misdemeanors while the latter classification categorizes crimes as offenses against the person and offenses against property. To be found guilty of a criminal offense, it is not necessary to commit the intended crime. An attempt to commit the crime is punishable as well. However, a person cannot be convicted of an attempt to commit a crime unless he could have been convicted of the crime itself had his attempt been successful. It is also a criminal offense to work with others toward the commission of a crime. Thus, when two or more people combine to carry out an unlawful purpose, they may be found guilty of conspiracy. Just as the guilt of one party may be imputed to the participants in a conspiracy, the criminal act of an agent may be imputed to his principal, if the principal shares the agent's intent. When a corporation is involved, the guilt of individual employees may in some circumstances be imputed to the corporation. Before criminal responsibility can attach, the accused must have intended in some way the criminal consequences of his act. This criminal intent requirement, known as mens rea, is in some instances dispensed with. Many regulatory codes dealing with public health and safety, for example, prescribe that failure to adhere is a criminal violation, irrespective of the violator's intent. There are, however, no precise lines or comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not. The criminal law recognizes certain excuses that may limit or overcome criminal responsibility. In rare instances, mistake of law may serve as an excuse; more common is ignorance or mistake of fact. The defense of entrapment may also be used to escape criminal responsibility. While the police may employ undercover agents or decoys, they are permitted to use such techniques only to detect criminal activity, not to instigate it. Lack of mental capacity can also operate as a defense to criminal prosecution. Thus, infancy, insanity and intoxication may in some cases serve as an excuse for the commission of a crime. A criminal prosecution begins when there is probable cause to believe that the accused committed the crime. The accused is then arrested — either with or without a warrant, depending upon the circumstances — and is brought before the magistrate for a preliminary hearing to determine whether there are sufficient grounds to hold the accused for trial. Subsequent to this hearing, the prosecutor must either file an information stating the charge or ask the grand jury for an indictment, a formal declaration of charges. Thereafter, the defendant is arraigned, brought before a judge to enter his plea. If he pleads not guilty, the case goes to trial; if he pleads guilty, the judge will impose a sentence. The defendant in a criminal case is entitled to certain protections spelled out in the Constitution. These include the right to be free from unreasonable searches and seizures; the prohibition on government against prosecuting a person twice for the same offense (double jeopardy); the right against self-incrimination; the right to a speedy trial; the right to cross-examine; the right to counsel; and the prohibition against cruel and unusual punishment.
3.3. Multiple Choice: 1. Crime a) is an act that a legislature has defined as socially harmful; b) is something your Daddy tells you not to do; c) is the official interpretation of a socially unacceptable activity. 2. Felonies and misdemeanors a) are the classification of crime by the type of social harm the statute intends to prevent; b) are the classification of crime by the time when it was committed; c) are the classification of crime by the seriousness of the act. 3. To conspire a) is to combine with other people to carry out an unlawful purpose; b) is to talk to other people about the possibility of committing an unlawful purpose; c) is to egg on other students to miss the lecture. 4. Mens rea a) is the wrong way of writing the plural of "men"; b) is the premeditation by the accused, in some way, of the criminal consequences of his act; c) is the harmful action or failure to carry out one which endangers the safety of other people. 5. The Defense of Entrapment a) is the concept that police may not instigate the crime; b) is the plea of being framed up by one's own friends (accomplices); c) is the act of counterentrapment, used by criminals to frame up police officers. 6. Insanity a) is the state of being not-particularly sane; b) is the state when the person does not fully comprehend what he/she is doing; c) is the one of the pleas based on the lack of mental capacity. 7. Intoxication a) is the state of being drunk; b) is the state of being toxic; c) is the state of being poisoned by soft drinks. 8. Infancy a) childhood; b) immaturity; c) incapacity. 9. Indictment a) is a formal declaration of charges; b) is a formal authorization needed for the arrest of the accused; c) is a formal statement of purpose filed by the accused at the pretrial stage. 10. Warrant a) is a formal authorization needed for the arrest of the accused; b) is a partial justification of the actions undertaken by the police; c) is a pardon granted by the grand jury to the accused on the grounds of his/her mental incapacity.
3.4. Key Terms — Matching: (a) entrapment (b) nolo contendere (c)exclusionary rule (d) indictment (e) probable cause (f) mens rea (g) white collar crime (h) misdemeanor (i) felony (j) crime
1. __________ Fraud-related acts carried out in a nonviolent way, usually connected with business 2. __________ Defense used when police have induced a person to commit a crime not contemplated by him 3. __________ Grand jury's formal declaration of charges on which the accused will be tried 4. __________ Crimes punishable by imprisonment of more than one year or by death 5. __________ A plea in which the defendant neither affirms nor denies his guilt 6. __________ Prohibits "fruits" of an unlawful search or seizure from being used at trial 7. __________ Criminal intent 8. __________ Any social harm defined and made punishable by law 9. __________ Crimes punishable by less than one year in prison 10. __________ Reasonable grounds to believe the accused committed the crime
3.5. For Advanced Practice: Cross out the protections that are not granted by the Constitution of the USA to the tried persons: a) the right to be free from unreasonable searches and seizures; b) the right to stay indoors when the police are out; c) the prohibition on government against prosecuting a person twice for the same offense (double jeopardy); d) the right against self-incrimination; e) the right against unreasonable charges; f) the right to a speedy trial; g) the right to cross-examination; h) the right to counsel; i) the prohibition against cruel and unusual punishment.
3.6. For those who are interested: Match the following English words and phrases with their Ukrainian equivalents:
3.7. Translation Practice: 3.7.1. Please translate the following sentences into English: 1. В Україні злочином визнається суспільне небезпечне діяння. 2. На відміну від Сполучених Штатів Америки в Україні всі кримінальні справи розглядаються судами загальної юрисдикції. 3. Для різних злочинів передбачено різний ступінь і міру (с1е§-гее) покарання залежно від їх небезпечності (серйозності). 4. Караними є не тільки злочинні діяння, а також і намір вчинити їх. 5. Кримінальне право опікується захистом багатьох прав людини, гарантованих Конституцією України. 6. Процедура розгляду кримінальної справи дещо відрізняється від інших судових процедур: тут «позивачем» виступає держава. 7. У нашій країні, па жаль, інститут присяжних засідателів ще не діє: його не існувало за радянських часів і створення доводиться починати з нуля. 8. За Конституцією України кожному її громадянинові гарантовані право на життя та особисту недоторканність. 9. За українським законодавством єдиним органом, уповноваженим виносити рішення у кримінальних справах, є суд.
3.7.2. Please translate the following sentences into Ukrainian: 1. The Constitution of the USA spells out certain protections for the defendant in a criminal case, not to be violated by the governmental agencies. 2. The parties in a criminal case are represented by the prosecutors and lawyers for the defense, respectively. 3. Each and every individual indictment, a former declaration of charges, is issued by Grand Jury only. 4. During the arraignment the defendant is free to enter either of the following pleas: (a) guilty; (b) not guilty; (c) insanity; (d) double jeopardy; (e) no contest. 5. The Supreme Court has already created a number of groundwork precedents (the so-called landmark cases) to be obeyed by courts in all the similar cases. 6. The Constitution leaves it to juries to decide the amount of guilt of each criminal brought to trial. Their decision is called verdict. 7. A criminal prosecution begins when the accused is found, or there is probable cause to believe that the accused committed the crime. 8. If the jury at a criminal trial is unimpressed by or does not believe the defense of the accused it turns out an unfavorable verdict. 9. The intent to commit a crime is a crime by itself and is prosecuted respectively.
3.7.3. Please give the English variants of the following Ukrainian terms by ear (the recommended rate of reply is up to 5 seconds): вердикт, злочин, покарання, прокурор, злочини проти особи, злочини проти власності, кримінальна відповідальність, винність, судове розслідування, позивач, відповідач, малолітство, неосудність, звільнення (від відповідальності), обвинувачений, підтвердити, зобов'язати, слухати, обставини справи (встановлені під час судового розслідування); попереднє слухання (справи), конфіскація, обшук, доктрина, лобіст, посередник, законодавча влада, виконавча влада, вирок, суддя, арешт, захист, помилка у факті, юридична помилка (помилка в праві), зговір, наслідки, тривалість, намір, замах.
3.8. Train Your Memory: Please review and memorize the list of common cliches used in contract writing (see Appendix III). 3.9. Build up Your Vocabulary: Please study the following words describing a penitentiary and prepare a three-minute report about the prison system in the USA, using these words:
3.10. Reading Practice: Please read the text below and answer the questions after the text: THE FBI's ROLE IN THE AMERICAN JUSTICE SYSTEMThe organization known as the Federal Bureau of Investigation was created in 1908 during President Theodore Roosevelt's term. First called the Bureau of Investigation, on July 1, 1935, the name was officially changed to the Federal Bureau of Investigation. Since its inception, much more than the name has changed. The FBI, like American justice system, has evolved to meet the needs of a constantly changing society. The FBI is the principal investigative arm of the U.S. Department of Justice, a part of the Executive Branch. The FBI's responsibility covers more than 270 violations of federal law in the criminal, civil and intelligence fields. Information from FBI investigations is presented to the appropriate U.S. Attorney or Department of Justice official who decides if prosecution, or another action, is warranted. To more efficiently carry out its mission, the FBI prioritizes its investigative responsibilities. This allows the FBI to focus its limited resources on the great threats to Americans. Today, the FBI has six major priorities: foreign counterintelligence, counterterrorism, white-collar crime, organized crime, drugs, and violent crime. FOREIGN COUNTERINTELLIGENCEForeign counterintelligence (FCI) mission is to identify and neutralize the threat posed by hostile intelligence services and their agents in the U.S. The FBI's defined role within the intelligence community is to coordinate investigative operations with other U.S. agencies and cooperating foreign police and security services. Even though the FBI has experienced increasing success in FCI investigations, it must continually adapt to meet new counterintelligence challenges and a changing world order. The nature of the intelligence gathering in the U.S. is changing. U.S. military, political and intelligence community secrets are continuing targets, but intelligence on industrial technologies and other proprietary information is increasingly sought after as well. The loss of sensitive proprietary information and technologies could adversely impact our global economic position. COUNTER TERRORISM In 1982, the FBI was designated the lead federal law enforcement agency for the investigation of terrorist crimes in the U.S. The enactment of the Comprehensive Crime Control Act of 1984 and the Omnibus Diplomatic Security and Anti-Terrorism Act of 1986 further increased the FBI responsibilities. These acts made the taking of a U.S. citizen hostage (here or abroad) and the assault or murder of a U.S. person overseas federal offenses, when such activity is the result of a terrorist act. When either of these acts is committed, the FBI may initiate an investigation abroad; however, we must have the approval of the government of the country where the incident occurred. In coordination and cooperation with law enforcement agencies around the world, the FBI has had significant success against terrorist organizations. The reduction of terrorist activity in this country is evidence of this success. In 1982, when the FBI became the lead federal agency charged with countering terrorism, there were 51 terrorist attacks; last year there were seven. WHITE-COLLAR CRIMEWhite-collars crimes investigated by the FBI fall into four general areas: financial institution fraud, economic crime, governmental fraud, and public corruption. These crimes are responsible for the loss of billions of dollars annually to government, business and citizens nationwide. They threaten the very financial infrastructure in this country. Trends suggest the 1990s may well be known as the decade of economic crime. The savings and loan crises we are currently facing is an example of the destructive force of economic crime. The Department of Justice estimates at least 30 percent of failed financial institutions involve instances of financial fraud. The response to environmental crime, which falls under the umbrella of white-collar crime, is another example of how our justice system and the FBI have adapted to meet the changing needs of society. When the American public began to see the dangers hazardous waste disposal and other abuses of the environment pose, Congress reacted by passing new laws with tough criminal sanctions. These new laws provide a powerful weapon to use against environmental crime. A 1982 "Memorandum of Understanding" between the Environmental Protection Agency and the FBI allows us to participate in enforcing environmental statutes. Our justice system, from the beginning, has endeavored to protect our right to compete in a fair marketplace. The FBI's goal in white-collar investigations is to hold criminals, who gain an unfair economic advantage, accountable for their actions. ORGANIZED CRIMEFBI's investigative programs target organized crime groups using undercover agents, court-authorized wiretaps, and electronic surveillance to identify and indict entire crime families, to seize their assets, and put organized crime groups out of operation. Organized crime undermines even the American civic, judicial, legislative, and law enforcement bodies. Racketeers pour money from illicit enterprises into legitimate industry and use these untaxed funds to undercut legitimate operations. The tax base itself is eroded when organized crime groups siphon money from the economy and don't pay their share of local, state, and federal taxes. The cut organized crime takes out of American economy adds substantially to the prices consumers pay for their merchandise. Recent convictions of high-level members have severely impacted organized crime groups: many have been put out of business. The agency is continually working, building on its success, and finding effective ways to neutralize the threat posed not only by traditional groups but also by emerging organized crime groups. DRUGSIn formulating the FBI's national drug strategy, it drew heavily on the strategy which has been so effective in its battle against organized crime. The FBI's national drug strategy, which was implemented in 1986, is the cornerstone of the Bureau's investigative drug program. The agency focuses its efforts on conducting long-term investigations, targeting major drug trafficking networks. In 1988, the FBI's Drug Demand Reduction Program aimed at augmenting its enforcement efforts was established. The FBI now has a special agent in each of its 56 field offices nationwide whose job is to assist communities in reducing the demand of drugs. These agents work m the schools, communities and workplace to fight drug abuse at the grass-roots level. VIOLENT CRIMEMany of the crime problems FBI's priority programs focus on are interrelated. Violent crime is an excellent example. Evidence links the recent escalation of violent crime to increased drug abuse. The crimes of murder, forcible rape, robbery, and aggravated assault increased ten percent during 1990. And this trend is expected to continue. Although most of the violent crimes which occur in the US come under the jurisdiction of state and local law enforcement agencies, there is much the FBI can do to help. Among the ways in which the FBI can offer assistance are the apprehension of fugitives; fingerprint identification, laboratory services, such as deoxyribonucleic acid (DNA) and firearms analysis; and the sharing of information available from the computerized Nation Crime Information Center and other automated criminal databases, such as the FBI's National Center of the Analysis of Violent Crime. The FBI has many resources which help it accomplish its mission. In addition to special agents in the field, there is a vast support network at FBI Headquarters in Washington, D.C. Throughout its existence, the FBI has remained innovative, eagerly incorporating advances in technology. Many recent technological advances have given it new tools that aid successful investigations and further the cause of justice. Its is particularly interesting to note that the first time DNA profiling, a recent technological advance, was used by law enforcement, it cleared an innocent man. Technology often helps the staff of the agency quickly focus their efforts and meet the most important objectives of justice, that is to protect the innocent and hold the guilty accountable. New technology is an important tool. However, FBI's most important resource is its people. The five entry programs are:
To qualify for training as an FBI agent, a candidate must be a U.S. citizen between the age of 23 and 37 and must also meet certain physical requirements. All special agent candidates must hold at least a four-year degree from an accredited college or university and successfully pass a background investigation prior to selection for 16 weeks of training. Support positions include job titles such as budget/account analyst, language specialist, intelligence research specialist, electronic technician, computer programmer, engineering technician, laboratory technician, paralegal, administrative assistant, artist, secretary, typist, clerk, electrician and carpenter. The requirements for these support positions vary accordingly. The FBI is an exciting place to work. It is continually looking for better tools and innovative ways to reduce the serious crime problems which are the focus of the six priority programs. Questions to the text: 1. In view of the text you have just read what do you think of the role of the National Bureau of Investigation of Ukraine? Please substantiate your answer. 2. Please take one of the major priorities of the FBI and describe it. Is Ukraine confronted with the same problems? 3. Who do you think should be in charge of combating foreign counterintel 1 igence ? 4. How do you understand the statement that FBI's most important resource is its people? 5. What is the FBI's Drug Demand Reduction Program all about? Try to guess in order to answer the question. 6. What can be done, in your opinion, to fight organized crime in Ukraine?
3.11. Practice Test: 3.11.1. Please indicate and explain any incorrect statements you may find in the following sentences: 1. One of the prerequisites for a person to be found criminally responsible is to intend to commit a criminal act, but it is also always necessary to commit the intended crime. 2. It is the magistrate who decides at a preliminary hearing whether there are sufficient grounds to hold the accused for trial. 3. The Federal Bureau of Investigation is a part of the Judicial Branch. 4. U.S. military, political, and intelligence community secrets continue to define nearly exclusively the scope of activities of FBI. 5. The savings and loan crises the U.S. is currently facing have been caused mostly by purely economic reasons, but it is still very important to keep down the rate of economic crime.
3.11.2. Please explain in English the meaning of the following terms: 1) mistake of law 2) mistake of fact 3) defense of entrapment 4) lack of mental capacity
What do all these concepts have in common?
3.11.3. Please list: 1) the protections granted to the defendant in a criminal case by the U.S. Constitution, which you remember; 2) the major priorities FBI has today, which you remember.
3.11.4. Please translate the following Ukrainian sentencesinto English: 1. Кримінальний кодекс України передбачає сувору відповідальність за злочини проти особи, проти власності та проти держави. 2. Лише прокурор може надати дозвіл на проведення обшуку приміщення чи арешт осіб, підозрюваних у скоєнні злочину. 3. У випадках, передбачених законом, малолітство може бути підставою для звільнення від кримінальної відповідальності. 4. Вердикт, винесений у результаті судового розслідування, може бути затверджений або скасований судом вищої інстанції під час розгляду апеляції. 5. Суддя не може заборонити адвокату підсудного брати участь у судовому засіданні, оскільки це було б порушенням права особи на захист.
3.11.5. Please insert the pertinent articles and prepositions, as well as correct grammatical forms, into the sentences given below: 1. "Gradually the function of the Supreme Court", Taft and later chief justices affirmed, (1: to become) "not the remedy (2:_______) a particular litigant's wrong, but the consideration of cases whose decision involves principles, the application of which are of wide public or governmental interest, and which should be authoritatively declared by the final court". 2. The basic requirement for a case to be decided standing to sue is that an individual show injury (3: _______) a legally protected interest or right and demonstrate that other opportunities (4: to defend) that claim ((5: _______) an administrative tribunal or a lower court) (6: to be exhausted). 3. Traditionally, plaintiffs (7: to suffer) some "pocketbook" or monetary injury. In the last twenty years, however, individuals (8: to seek) standing in order to represent nonmonetary injuries and "the public interest". 4. A case is usually rejected as not ripe if the injury claimed (9: not, to occur) yet or if other avenues of appeal (10: not, to be) yet exhausted. The requirement of ripeness permits the Court (11: to avoid) or (to delay) (12: to decide) certain issuer. In Tileston v. Ullman (1943) a doctor sued, charging that the statute of Connecticut 5. A case may also be dismissed if pertinent facts or law change so that there is no longer real adverseness or an actual case of controversy. In this case the issue becomes moot. After the trial judge's ruling in his favor, a student (18: to be admitted) into law school, but by the time his case (19: to reach) the Supreme Court he (20: to complete) his final year and assured (21: _______ ) graduation, so the majority held that the case was moot.
3.11.6. Please write a 500-word essay on any of the topics given below using new vocabulary: 1) Steps of criminal procedure. 2) Types of crimes under Ukrainian legislation. 3) Can all criminal acts be explained by the erosion of morality? 4) Is it possible to build a society without crimes?
Lesson 4 TORTS 4.1. Law Terms: While reading the text please pay attention to the following words (only to their meanings in the field of law) and think of their Ukrainian equivalents:
4.2. Text: TORTS In contrast to criminal law, which regulates conduct harmful to society, tort law deals with wrongs committed within the context of private relations among individuals. A tort is thus a civil wrong. The remedy for this wrong is a lawsuit seeking money damages (or less frequently, an injunction), the purpose of which is to compensate the victim for harm done. Traditionally, tort liability has been based on fault — the one committing the tort either intentionally injured another or his negligence (or carelessness) resulted in damage to another. However, tort liability has also been based on strict liability, where the defendant may have observed all possible precautions yet is still held liable. In addition to the fault dimension, tort liability may be viewed in terms of the type of injury caused or in terms of justifications which might excuse the commission of an apparent wrong. With respect to injury, a tort may result in physical harm, mental suffering, property damage, harm to reputation, invasion of privacy or interference with economic interests. To compensate him for his injuries, tort law allows the victim to sue for compensatory money damages and in some cases punitive damages, which are assessed as punishment for the defendant's actions. With respect to excuses for the commission of a tort, assumption of risk, contributory negligence and consent have operated to excuse a defendant from liability. Several trends in tort law are worth noting. In recent years, courts have increasingly recognized the "new tort" of intentional infliction of severe emotional distress, receding from the traditional view that there could be no recovery for acts, even though intentionally undertaken, that caused purely mental or emotional distress. In addition, the theory of privity, which restricted a manufacturer's or retailer's duty of care only to immediate purchasers has been abandoned so that today many more people are held to be within the zone of injury than was once the case. Abandonment of the privity requirement has occurred in the product liability area as well. Negligence law has also changed with the advent of the doctrine of comparative negligence, which rejects the harsh result of contributory negligence and replaces it with the concept of apportioning damages according to the defendant's degree of culpability. Two other areas that have been undergoing rapid change are the law of defamation and the law of invasion of privacy. A series of Supreme Court decisions dealing with First Amendment privileges to defamation have changed the law as it relates to public officials and public figures. Moreover, legal formulations of the right to privacy, which did not even receive judicial recognition until the twentieth century, are still evolving. Relatively recent developments in the area of torts concerning business revolve around unfair competition. The dramatic increase in tort litigation in the last 10 years — especially medical malpractice and product liability suits — has led many state legislatures to enact tort reform laws. The key provisions of these laws provide for restrictions on damage awards and changes in rules governing joint and several liability.
4.3. Multiple Choice: 1. Tort Law 1. regulates conduct harmful to society; 2. deals with wrongs committed within the context of private relations among individuals; 3. stipulates the conditions under which an otherwise harmless act is considered to be a crime. 2. Tort a) is a civil wrong; b) is a criminal wrong; c) is an economic mismanagement. 3. Fault a) is some wrongdoing or mistake for which the individual is responsible; b) is the boon done for another individual with a series of humane acts; c) is damage to another individual which resulted from one's negligence or carelessness. 4. "New a) is the intentional infliction of severe emotional distress; b) is the unjustifiable commission of exceedingly violent wrong doing; c) is the new authorized addition to the state statute of crimes against humanity. 5. Unfair Competition: a) is competing beyond the enterprise's capacity; b) is unfair, untrue, or misleading advertising; c) is one firm competing against another firm. 6. Punitive Damages [Exemplary Damages]: a) are compensation in excess of actual damages; b) are compensation equal to actual damages; c) are compensation for intended damages. 7. Actual Damages [Compensatory Damages]: a) are those damages directly referable to the breach or tortuous act; b) are the damages awarded by court in a tort case; c) are the reported damages of the third party in a case. 8. Defamation: a) is the whitewashing of one's name or reputation; b) is the publication of anything injurious to the good name or reputation of another; c) is criticism of one's activity, acts, or works. 9. The word "harm" forms legal terms with the following two words: a) physical and reputation; b) physical and cerebral; c) somatic and reputation. 10. Medical Malpractice: a) is lack of medical practice; b) is a doctor's improper or immoral conduct in the performance of duties, done either intentionally or through carelessness or ignorance; c) is a faulty practice in the hospital, the direct result of which d) is inconvenience to the patients and a tarnished name of the medical establishment.
4.4. Key Terms — Matching: (a) contributory negligence, comparative negligence and assumption of risk (b) reasonable man standard (c) interference with contractual relations (d) force majeure (e) sovereign immunity (f) intentional torts, negligence and strict liability (g) proximate cause (h) defamation (i) malicious prosecution (j) tort 1. ___________ Theories or types of tort liability. 2. ___________ Defenses available in a negligence lawsuit. 3. ___________ A wrong for which the law will provide redress, most often in the form of more damages but sometimes in the form of an injunction. 4. ___________ Intentionally inducing another party to breach a contract. 5. ___________ The tort of causing someone to be prosecuted for a criminal act, knowing that there was no probable cause to believe that the plaintiff had committed the crime. 6. ___________ Libel and slander. 7. ___________ Formula involving a fictitious person "of ordinary prudence". 8. ___________ Legal phrase for the connection between the act complained of and the resulting injury. 9. ___________ Act of God 10. ___________ Doctrine stating that government is immune from suit
4.5. Translation practice: 4.5.1. Please translate the following sentences into English: 1. Деліктне право займається порушеннями, вчиненими у контексті приватних стосунків між особами. Таким чином, цивільний делікт — цивільне правопорушення, яке вирішується за допомогою позову щодо грошової компенсації. 2. На сьогоднішній день існують різні підходи до розуміння явища цивільного делікту. 3. Важливим також є законодавче регулювання дефамації та порушення особистих прав людини. 4. В українському цивільному праві важливе місце займає вина без вини. (Коли особа повинна була передбачити можливість порушення закону. Це стосується, наприклад, власників легкових автомобілів (саг-о\#п.ег$)). 5. В Україні ніхто не має права відмовити особі у праві на захист чи позбавити її цього права. Однак у певних передбачених законом випадках особі може бути відмовлено у законодавчому захисті. Таке рішення має право виносити виключно суд. 6. Цивільний кодекс України регулює майнові та особисті немай-але пов'язані з майновими відносини.
4.5.2. Please translate the following sentences into Ukrainian: 1. When speaking of torts the first thing that comes to one's mind is that tort law deals with wrongs committed within the context of private relations among individuals. 2. There are many various excuses from tort liability. 3. A dramatic increase in tort litigation was observed in the last 10 years. 4. The federal government provides for the enactment and execution of national legislation. 5. The on-site monitoring of the actual legal relations between the parties is conducted on the two levels — state and federal. 6. Under the Declaration of Independence of the United States (1776) the inhabitants of the North American colonies had the right to establish a new, just government. 7 . The concept of the inalienable rights sprang from the School of Natural Law. 8. A witness for the defense was called to the stand, and Mr. N took the stand. 9. In the countries with undemocratic regimes a lawyer may very often find himself beside his former client, if he chances to have represented the "wrong" side. 10. In criminal law the accused is the person who has committed or planned to commit a crime, i.e. the intention is conspicuous.
4.5.3. Please give the English variants of the following Ukrainian terms by ear (the recommended rate of reply is up to 5 seconds): цивільний делікт, виробник, роздрібний продавець, дефамація, деліктоздатність, пошкодження майна, завдання (заподіяння) (шкоди, ушкоджень), грошова компенсація (за збитки), навмисний, покарання, моральні страждання, позивач, відповідач, визнавати, розвиватися, привілеї, державний службовець, жертва, дія, визначати, вимога, позов, порушення абсолютних особистих немайнових прав (вторгнення у приватне життя особи), керувати, ґрунтуватись на, обмежувати, вживати (заходів), відмовлятись, компенсувати, несумлінна практика, караний, емоційний, медичний, суворий.
4.6. Grammar Exercises: 4.6.1. Please translate the following sentences from Ukrainian into English: 1. Пропонується включити пункт 7.1 до цього закону. 2. Під час судового засідання суддя зажадала, щоб позивач надав всі необхідні документи у справі на розгляд суду. 3. Всі так хотіли, щоб він нарешті взявся за розум. 4. От якби було прийнято цей законопроект. 5. Він є надзвичайно освіченою людиною. 6. Він це зробив для того, щоб вам більше ніхто не погрожував. 7. У мене і на думці такого не було, (гаг) 8. Нехай вам щастить у цій справі. 9. Діловий сніданок, на який нас було запрошено, виявився дуже результативним. 10. У вас така цікава доля — просто Монте-Крісто. 11. Мені сказали, що засідання суду вже почалося. 12. Не встигли вони вийти з машини, як спрацював детонатор, і розкішний лімузин злетів у повітря. 13. Всі бачили, як грабіжники вибігли з банку. 14. Свідок бачив, як ця молода особа вийшла з ресторану, підійшла до машини і щось передала водієві.
4.6.2. Please insert the pertinent prepositions and correct grammatical forms into the sentences given below: 1. (__________) respect (__________) your letter we want to communicate (__________) you the following. 2. (__________) view (__________) the fact that the agreement predated the corresponding law, we pronounce it valid. 3. (__________) compliance (__________) Ukrainian legislation (__________) force the goods shall be shipped GIF. 4. With his feet (to tie), the culprit could make a step. 5. It was suggested that the lawyer (to be) on time during every court session. 6. (__________) the one hand, he is not the person to blame for what has happened, but (__________) the other, he should have done something to prevent it. 7. He stopped (to smoke) a cigarette and (to chat) with his colleague. 8. What do they impute (__________) him. 9. What concept do associate (__________) with the term "civil society". 10. Do you do that (__________) behalf of the company or (__________) your own name.
4.7. Practice Test: 4.7.1. Please explain briefly any incorrect statements you may find in the following sentences (base your answers on the text you have read in the chapter): 1. Both criminal law and tort law regulate conduct harmful to society. The distinction between the two has historical roots, and now these branches of law gradually converge. 2. Tort liability is based on fault — the one committing the tort either intentionally injured another or his negligence (or carelessness) resulted in damage to another. Traditionally, it has been considered too harsh and unfair to use strict liability criterion in tort law. 3. Tort liability can be classified not only by the type of fault involved, but also by the type of injury caused or by the type of justification which might excuse the commission of an apparent wrong. Each of the latter two classifications has six subcategories. 4. Tort law has always recognized the possibility of recovery for both physical damages and purely mental or emotional distress. It was not until the last decades of this century, however, that people became fully aware of the usefulness of the second type of remedies and routinely started to file lawsuits seeking the redress of mental or 5. The law of defamation and the law of invasion of privacy are the examples of rapidly developing branches of tort law in the last years. 6. The stagnation in tort litigation in the last 10 years — especially unusually low number of medical malpractice suits — has led many state legislatures to enact tort reform laws (Could you please also indicate the two main provisions of these laws?)
4.7.2. Please explain in English the meaning of the following terms: 1) a tort; 2) strict liability; 3) comparative negligence doctrine; 4) privity requirement. 5) Indicate the role of the last three concepts in the context of modern tort law.
4.7.3. Please list: 1) the types of injury usually distinguished in tort law, which you remember; 2) the types of excuses for the commission of a tort usually distinguished in tort law, which you remember. 3) Explain briefly each type of excuses that you have indicated in section 2.
4.7.4. Please mark the concept(s) which did not receive judicial recognition until the twentieth century: 1) negligence 2) physical harm 3) property rights 4) the right to privacy 5) unfair competition
4.7.5. Please translate the following Ukrainian sentences into English: У Франції у разі відсутності відповідних міжнародних угод іноземці можуть подавати позови тільки до відповідачів-французів, а не до іноземців. Виняток становлять справи щодо спорів між іноземцями з приводу нерухомого майна, що знаходиться у Франції; виконання у Франції іноземного судового рішення, торгових угод, спадкоємства, яке відкрилося у Франції, допущених у Франції правопорушень і т. ін. Від іноземців вимагається надання забезпечення на сплату відповідачеві зазнаних ним судових витрат і відшкодування шкоди в разі, коли позивачеві-іноземцю буде відмовлено в позові.
4.7.6. Please insert the pertinent articles and prepositions, as well as correct grammatical forms, into the sentences of the humorous stories given below: 1. A successful old lawyer tells the following story about the beginning of his professional career: "I (1: just to install) myself in my office", he said, (2: to put in) a phone and (3: to preen) myself for my first client who might come (4: _______) when, through the glass of my door I (5: to see) a shadow. Yes, it was doubtless some one to see me. Picture me, then, (6: to grab) the nice, shiny receiver of my new phone and (7: to plunge) imaginary conversation. I ran something like this: 'Yes, Mr. S.,' I (8: to say) as the stranger (9: to enter) the office, I'll attend (10:_______) that corporation matter for you. Mr. J. had me on the phone this morning and wanted me to settle a damage suit, but I (11: to have) to put him (12: _______), (13: _______) I was too busy with other cases. But I'll manage (to sandwich) your case in between the others somehow. Yes. Yes. All right. Goodbye.' (14: To be sure), then, that I (15: to duly impress) my prospective client, I hung (16:_______) the receiver and turned to him. '"Excuse me, sir,' the man said, but I am from the telephone company. I (17: to come) (18: to connect) your instrument'." 2. A farmer who was a witness (19: _______) a hog-stealing case seemed to be stretching a point or two (20: favor, accused). "Do you know the nature of (21: an, the) oath?" (22: a, the) prosecuting attorney roared. "Sure". "Do you know you (23: not, to bear) (24: a, the) false witness (25: _______) your neighbor?" "I (26: not, to bear) (_______) false witness (_______) him. I (to bear) (________) false witness for him. 3. In western Georgia a jury convened to inquire (27: _______) a case of suicide. After (28:_______) the evidence, the twelve men retired, and, (29: to deliberate), returned with the following verdict: "The Jury (30: to be) all of one mind — temporarily insane."
4.7.7. Please write a 500-word essay on any of the topics given below using new vocabulary: 1. Criminal Law vs. Tort Law. 2. New developments in tort law: do you believe they will improve the existing system? 3. The right of privacy: is it given due legal treatment in Ukraine? 4. The role of legal system in ensuring fair competition in Ukrainian economy.
Lesson 5 ADMINISTRATIVE LAW 5.1. Law Terms: While reading the text please pay attention to the following words (only to their meanings in the field of law) and think of their Ukrainian equivalents:
5.2. Text: ADMINISTRATIVE LAW Businesses must deal with an ever increasing number of administrative rules and decisions on both the state and federal level. Administrative agencies have been referred to as the fourth branch of government because they are policy-making bodies which incorporate facets of the three branches of government: the legislative, executive, and judicial. Administrative agencies act like the executive branch of government in that they carry out the law. They also may take on the function of courts by adjudicating matters within their area of regulation. The need for administrative agencies results from our society becoming increasingly complex. Specialized bodies possessing expertise can deal with problems which general legislative branches are not equipped to handle. Administrative agencies act like legislatures when they properly promulgate rules which must be followed. For example, the Securities and Exchange Commission is an administrative agency established by Congress in 1934. It promulgated rule 10b-5 which prohibits the use of insider information. Rules have the force and effect of law. Because agencies are not elected, but rather the heads are appointed (independent agency heads for fixed terms and executive branch agencies at the pleasure of the executive) their actions must be subject to review. Legislatures can sunset agencies, that is provide that they terminate after a set term, or pass laws overriding agency actions. The executive may control the agencies through appointments, and indirectly through the budget process. The courts are charged with reviewing agency action. If an agency exceeds the authority delegated to it by the legislature it is said to have acted ultra vires and the action will be set aside. The reviewing court will also set aside agency actions that are arbitrary or capricious or not supported by substantial evidence. The delegation of power doctrine requires the legislature to give an agency intelligible standards to follow when carrying out their functions. Theoretically a statute which places too much discretion in an administrative agency is unconstitutional; however, the Supreme Court has not overturned a grant of legislative power on grounds of a lack of standards in many years. Nevertheless, the doctrine remains valid in many states and is applied to state statutes to hold them unconstitutional. Administrative agencies on the federal level are governed by the Administrative Procedure Act (АРА). Many states have similar laws (APAs) outlining how state agencies are to function when they are deciding cases or issuing regulations. The APAs generally prohibit ex parte communications and provide for an impartial hearing officer or administrative law judge who hears the case and makes findings of fact and legal conclusions. Rule-making procedures generally require notice so that interested parties may participate. The regulations must be published to be effective. In recent years government agencies and personnel have become more vulnerable to lawsuits. The doctrine of sovereign immunity, which historically shielded government agencies from liability, has been eliminated for numerous federal and state activities and continues to erode.
5.3. Multiple Choice: 1. Which are the three branches of government: a) legislative, executive, and judicial; b) legislative, executive, and commercial; c) commercial, industrial, and legal. 2. To adjudicate means: a) to add; b) to pass the final judgment in the case; c) to add to the determination of a controversy or pronouncement of judgment based on the evidence presented. 3. To sunset means: a) to watch the sun set; b) to see to it that the administrative agencies terminate after a set term; с) to make a decision of administrative agencies still more complicated ("darker" for comprehension). 4. Ultra Vires: a) is an agency action beyond the scope of its authority; b) is a law allowing a legally enforceable right of access to government documents; c) is a legislative approach to controlling an agency by limiting its life expectancy. 5. Administrative Law: a) is the law of the land that is responsible for the regulation of all the affairs existing in the state; b) is the law of state administration; c) is the body of law created by administrative agencies in the form of rules, regulations, etc. to carry out regulatory powers and duties of such agencies. 6. What do you do with an act: a) draft it, pass it, and enforce it; b) draw it up, adopt it, and sink it; c) make it, stake it, and lose it. 7. Administrative Agency: a) is something like a criminal one; b) is an agency run by government; c) is a loose formation managed by elected officials. 8. What does President issue: a) decrees; b) enactments; c) orders. 9. Judicial Review: a) is power of courts to review decisions of another department or level of government; b) is the authority vested in courts and judges as distinguished from the responsibility of the law enforcement agencies; c) is the review of all the judicial acts passed over the last five years. 10. Judiciary: a) is a subdivision of legislative branch; b) is that branch of government invested with the judicial power; c) is a component of the Presidential Administration.
5.4. Key Terms — Matching: (a) president (b) administration (c) Administrative Law (d) executive branch (e) delegation of power doctrine (f) ex parte (g) Standing Commission
1. ____________The body of law created by administrative agencies to carry out regulatory powers and duties of such agencies. 2. ____________ Nation's chief executive (in the USA). 3. ____________ By or for one party only. 4. ____________ The whole class of public functionaries. 5. ____________ The department charged with the detail of carrying the laws into effect and securing their due observance. 6. ____________ Transfer of authority by one branch of government in which such authority is vested to some other branch or administrative agency. 7. ____________ A subdivision of the highest legislative body that has a permanent structure and deals with a narrowly defined set of issues.
5.5. Translation practice: 5.5.1. Please translate the following sentences into English: 1. Адміністративне право є однією з найголовніших галузей права в Україні. 2. Державний механізм нашої держави складається з державних органів, підприємств (state-run enterprise) та організацій. 3. Основи організації державної влади закладено в Конституції України. 4. Адміністративне законодавство нині піддається черговій кодифікації. 5. Главою виконавчої влади в Україні є Прем'єр-міністр, який призначається Президентом України за згодою Верховної Ради України. 6. Одним із найсерйозніших злочинів у виконавчій гілці влади вважається корупція, у зв'язку з цим нещодавно було прийнято Закон України «Про корупцію». 7. Будь-хто з осіб, які постраждали внаслідок неправомірних дій владних органів, може звернутися для захисту власних прав та відшкодування збитків до судів України та, після вичерпання всіх можливостей удома, до Європейського суду з прав людини.
5.5.2. Please translate the following sentences into Ukrainian: 1. Business must deal with an ever increasing number of administrative rules and decisions on both the state and federal levels. 2. Administrative agencies are policy-making bodies which have the features characteristic of the three main branches of power: legislative, executive, and judicial. 3. Certain actions of administrative agencies that are not supported by substantial evidence and have been passed in breach of the respective authority delegated to them are called arbitrary or capricious. 4. Special federal laws and regulations govern administrative agencies on the federal level, and certain federal bodies directly supervise daily work of the administrative. 5. The authority of the administrative is not unlimited; its each and every component is envisaged by special norms. 6. Any aggrieved individual can nowadays sue the administrative agency in fault and, if court finds his claims just, will receive due compensation. 7. In the US, the highest administrative office is the presidential one.
5.5.3. Please give the English variants of the following Ukrainian terms by ear (the recommended rate of reply is up to 5 seconds): орган, орган державної влади, обмін, конгрес, риси, комісія, Інформація, строк (термін), питання (для вирішення, обговорення), гілка влади, органи законодавчої влади, чинність (законна), бюджетний процес, процедура, імунітет, позов, свідчення, делегування (повноважень), закон, слухання, включати, посилатися на, виносити (судове рішення у справі), охороняти, переглядати, закінчувати, вимагати, окреслювати (визначати), брати участь, підтримувати, адміністративний, постійний, складний, неконституційний, численний, неупереджений, вразливий, внутрішній.
5.6. Train Your Memory: Please memorize the following list of Ukrainian state agencies and their English names:
5.7. Reading Practice: Please read the text below and answer the questions after the text: THE DEPARTMENT OF JUSTICE AND THE ENVIRONMENT The Exxon Valder oil spill in Prince William Sound in 1989 heihtened national focus on the environment, As seen in 1992 presidential debates and congressional races, the public has challenged American leaders with еруыу important issues. The spring of 1992 was marked by a monumental event: the UK Earth Summit in Brazil World leaders met to discuss many multi- faceted environmental issues. As a result of the diligent efforts of Environmental Protection Agency (EPA) Administrator, William Reilly, President Bush signed a treaty requiring all signatory nations to attempt to limit greenhouse gas emissions. This pledge by President Bush and Congress reinforced the country's growing commitment to the resolution of the environmental problems. Recently, the federal government has demonstrated its environmental commitment by passing various laws designed to alleviate many environmental troubles. For instance, after the Exxon Valdez oil spill, the Oil Pollution Act of 1990 was enacted, the first law to deal directly with oil spills in U.S. waters. That same year, the government enacted comprehensive amendments to the Clean Air Act, creating tougher standards to reduce polluting gases like ozone sulfur dioxide and nitrogen oxides. This past congressional term, a comprehensive energy bill was passed giving needed direction to national energy policy. As a member of the executive branch, the Department of Justice's environmental role is to represent the U.S. in legal matters concerning the protection, use and development of natural resources and public lands, and wildlife protection. About half of the attorneys in the Environment and Natural Resources Division are assigned to the enforcement of environmental laws. Typically, an agency such as the EPA will refer cases to the Department for litigation. Cases range from the prosecution of violators of environmental criminal laws to the defense of an EPA regulation, such as the Clean Air Act. The topics vary, but the attorneys work hard to protect the environment by enforcing federal laws. For the past four years, the Division has set records in every category of environmental enforcement. Over $5.5 billion have been won through environmental enforcement between 1989 and 1992. Of all criminal penalties imposed in the history of the environmental criminal enforcement program, 94 percent were levied in that period. Furthermore, 69% of all jail time served was handed out in the last four years. For the first time, cases were filed to enforce prohibitions against ozone-depleting chlorofluorocarbons (CFCs) and a criminal conviction was obtained for the legal export of hazardous waste to a foreign country. The Division continues to focus on key initiative, reducing lead exposure. While the Department's commitment to the environment and success in environmental enforcement continues, progress can only be achieved through cooperation between the public and the government. Individual commitment complements and strengthens government mandates to protect the environment. Here are a few ways every American citizen can nowadays help:
The combined efforts of the public and the government go along way to insure success in resolving our environmental concerns.
Questions to the text: 1. Do you think the successes achieved in the US could have been possible without the involvement of a government agency? 2. What is the role of the state in the environmental issues? Can you illustrate the positive role a state can play in the sensitive issues of the nation (social security, environmental protection, antitrust control)? 3. Why do you think there are certain areas that simply have to be state-controlled? 4. Do you believe that any state activity should be regulated and precisely outlined in laws or not? 5. The state is a powerful machinery of state bureaucracy divided into special task forces, is it not? What implications for the law would it hold? 6. What is the future of public-state cooperation? What are, in your opinion the fundamental principles of public administration? 7. Can you please describe the role of legal regulation in public administration.
5.8. Practice Test: 5.8.1. Please write a sentence or two to support or refute the following statements. Use the content of the chapter as a source of arguments. 1. Increasing number of administrative agencies in our society is undesirable trend because they tend to take over the functions of courts and thus spawn unnecessary bureaucracy. 2. The actions of administrative agencies in the sphere of regulation must be subject to review, because their staff is usually less legally qualified than that of legislative agencies. 3. The delegation of power doctrine principles are important to abide by to achieve efficient cooperation between legislative and administrative agencies. 4. The doctrine of sovereign immunity is now the most effective tool for protecting government agencies and personnel from liability to lawsuits. 5. Recycling programs are designed by special government agencies for environmental protection and cannot be applied without centralized budget transfers and strict administrative control.
5.8.2. Please give written definitions to the following terms as you remember and understand them: 1) action ultra vires 2) ex parte judicial proceeding 3) discretion 4) to promulgate 5) arbitrary
5.8.3. Please translate the following Ukrainian sentences into English: 1. Делегування повноважень органів законодавчої влади центральним та місцевим виконавчим органам відбувається, як правило, на певний строк. 2. Орган, що делегував повноваження, зберігає можливість перегляду постанов виконавчої гілки влади з метою усунення їх можливих недоліків. 3. Внесена до Верховної Ради пропозиція передбачає проведення екологічної чи інших видів експертизи як одного з обов'язкових етапів законотворчої процедури. 4. Акти органів влади різних рівнів відрізняються за своєю юридичною силою. 5. Лише складна процедура попереднього розгляду питання може забезпечити прийняття неупередженого рішення, яке 6 ураховувало інтереси всіх сторін.
5.8.4. Please insert the pertinent prepositions and correct grammatical forms into the text given below, and then translate it into Ukrainian: In its determination to be fair, America (1: to introduce) law into every corner of life: the lone consumer can get even with the biggest corporation, the lone citizen can humiliate the mighty government (2: _________) court. And yet, time and again, America (3: to nag) (4: _________ ) a sense that the law (5: to make) life less fair, not more so: the rich know the loopholes that protect their riches, the powerful work the rules so as to amass more power. And this nagging pessimism gives rise to a lament that (6: to gain) currency recently. Perhaps America should rely less (7: _________) legal codes, and more (_________) common-sense morality. Perhaps the whole attempt to make America fair and decent (8: _________ ) amassing written rules of conduct needs (9: to rethink). But let us think more carefully about this issue. Law is a flawed tool for measuring scandal, just as it is often a clumsy tool for righting wrongs. Americans (10: constantly, to worry) that law (11: not, to serve) justice: think of the controversy (12: _________) whether the accused Oklahoma bomber can have a fair trial. And yet, in the end, such worries are both inevitable and pointless. Law cannot
5.8.5. Please write a 500-word essay on any of the topics given below using new vocabulary: 1. Structure of the Executive Branch according to Ukrainian Constitution; 2. Main functions of Ukrainian administrative agencies; 3. Environmental protection in Ukraine; 4. What I (my family, school etc.) do to protect environment.
Lesson 6 CONTRACT LAW 6.1. Law Terms: While reading the text please pay attention to the following words (only to their meanings in the field of law) and think of their Ukrainian equivalents:
6.2. Text: INTRODUCTION TO CONTRACT LAWThe Restatement (Second) of Contracts defines a contract as "a promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty." In other words, a contract is an agreement that the law will hold the parties to. This preceding definition can be considered a common law definition. Common law contract principles apply to contracts involving real estate and services. Contracts for the sales of goods are governed by the Uniform Commercial Code (UCC), which has modified the common law. The UCC defines a contract as "the total legal obligation which results from the parties' agreement as affected by this Act and by other applicable rules of law." Goods are defined by the UCC as movable personal property. The UCC is more liberal than the common law in upholding the existence of a contract. This is to facilitate commercial transactions. Additionally, the UCC applies special rules to merchants, who are persons who have special knowledge and skill in dealing with the goods involved in a transaction. Contracts are classified in different ways. Formal contracts are governed by special rules and are divided into four types: (1) recognizances, (2) negotiable instruments and documents, (3) letters of credit, and (4) contracts under seal. A contract under seal can result from an impression from a ring, but this procedure has generally been waived and a wax impression is generally not necessary. The word seal or letters "LS" have been recognized as sufficient to constitute a sealed contract. Generally contracts require mutual promises; however, if the contract is under seal in a state which recognizes such contracts, a party seeking to enforce a contract can do so even though he has made no promise in return. In other words, a sealed document is enforceable without consideration. The effect of the seal has lost much of its legal force. Twenty-five states do not recognize the seal. In some states, even if contracts under seal are recognized, lack of consideration is a defense to a suit to enforce the contract. Under the UCC, a seal on a contract for the sale of goods is ineffective. Informal contracts are those contracts not subject to special statutory rules governing formal contracts. This term does not refer to a writing, however, as an informal contract can be written. Most contracts are informal. Contracts may also be classified as express and implied. An express contract is one in which the terms are spelled out directly. An implied contract is one that is inferred from the actions of the parties. Common law marriages are recognized in one-third of the states and they arise when a couple live together with the intent to be married regardless of their failure to obtain a license or go through a ceremony. Living together by itself is not sufficient and intent is crucial to the existence of a common law marriage. Quasi-contracts (implied in law) are in reality not contracts at all, but rather contractual obligations imposed by law in order to avoid unjust enrichment. Bilateral contracts are those in which there is a mutual exchange of promises. Each party is both a promisor and a promisee, as each party promises to do something and each party receives a promise. In a unilateral contract only one party makes a promise. The unilateral contract is accepted by the promisee performing. Thus, if I promise you $500 if you promise to paint my house and you promise to paint my house we have a bilateral contract, assuming the other necessary ele- ments are present. However, if I offer $500 to you to paint my house and your acceptance is to be through performance it is a unilateral contract when you perform. Contracts are also categorized as void, voidable, and unenforceable. A void contract is one lacking a necessary element and is not a contract at all. For example, a contract to commit murder would be void. A voidable contract is one that is unenforceable by one party but enforceable by the other. Contracts with minors are voidable at the option of the minor but not the other party. When a minor reaches majority and intends to be bound by the contract this is said to be a ratification of the contract. Unenforceable contracts are contracts which were valid when made but for some reason are now unenforceable. For example, Statutes of Limitations require actions to be instituted within certain time frames. If one party to a contract waits too long to institute a proceeding to recover for breach of contract, his action may be barred and the contract would be unenforceable. Executed contracts are those which have been fully performed by both parties to the contract. If one party has performed his promise but the other has not, the contract is called partially executed. If neither party has yet carried out his promise the contract is executory. While the UCC is intended to make commercial transactions uniform, it has no effect unless it has been adopted by a particular state. Also, states adopting the UCC may change particular provisions. Thus the UCC is not uniform among all the states. The UCC deals with nine separate areas.
6.3. Multiple Choice: 1. Contract: 1) is an agreement that the law will hold the parties to; 2) is an agreement that is looked down upon by the state; 3) is an agreement between two individuals benefiting one of them. 2. Obligation: 1) is some kind of moral agreement; 2) is something a person undertakes to do for a handsome gratification on the part of the person profiting from his/her action; 3) is the binding power of a vow, promise, oath, or contract, or of law, or of moral, independent of promise. 3. Goods [Chattel]: a) is movable personal property; b) is immovable personal property; c) is movable and immovable personal property. 4. Merchants: a) are persons who have special knowledge and skill in dealing with the goods involved in a transaction; b) are persons trading overseas; c) are persons who earn money by exchanging goods among themselves on good faith basis. 5. Recognizance: a) is some recognized legal instrument that is entered into in presence of two witnesses; b) is some unrecognized legal instrument; c) is the obligation to do something act required by law which is specified therein. 6. Informal Contracts: a) are those contracts not subject to special statutory rules go verning formal contracts; b) are the contracts that are neither written nor voiced; c) are the legal instruments concluded by the parties to a transaction which do not provide for any special supervision. 7. Express Contract: a) is one in which terms are spelled out directly; b) is one that is inferred from the action of the parties; c) is one that is quickly executed and carried out. 8. The Parties to a Contract are called: a) promisor and promisee; b) claimant and respondent; c) giver and givee. 9. Void Contract: a) is a contract with a void; b) is a contract lacking a necessary element; c) is a contract that is unenforceable by one party, but enforceable by the other. 10. Unenforceable Contract: a) is a contract that was valid when made but for some reason is now unenforceable; b) is a contract that was unenforceable from the very beginning; c) is a contract that is enforceable only in a certain place and at a certain time.
6.4. Key Terms — Matching: (a) voidable (b) quasi-contract (c) implied contract (d) express contract (e) statute of limitations (f) formal (g) executed (h) unilateral contract (i) bilateral contract (j) contract
1. ____________ A promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. 2. ____________ A contract under seal. 3. ____________ May render contract enforceable. 4. ____________ Only one party makes a promise. 5. ____________ A contract is inferred from the actions of the parties. 6. ____________ A contract imposed by law. 7. ____________ A promise for a promise. 8. ____________ A contract enforceable by one party but not the other. 9. ____________ A contract that has been fully performed by both parties. 10. ____________ A contract where terms are spelled out directly.
6.5. For Advanced Placement: 1. Child: Adult a) king: queen; b) minor: major; c) junior: senior. 2. Contract: Notary a) sign: legalize; b) specify: signify; c) prepare: finish.
6.6. Translation practice: 6.6.1. Please translate the following sentences into English: 1. Правочиии (договори) є найбільш розповсюдженим видом юридичних актів (legal acts) у цивільному праві України. 2. Багато взаємовідносин між суб'єктами певних цивільних правовідносин регулюються договорами, укладеними між ними. На можливість такого регулювання (згідно з домовленістю між сторонами) вказують т. зв. диспозитивні норми законодавчих актів (optional provisions). Так, наприклад, майно селянського (фермерського) господарства належить його власникам на праві спільної сумісної власності (joint ownership), якщо інше не передбачено угодою між ними. 3. В Україні існує багато критеріїв, за якими класифікують угоди. Наприклад, за кількістю учасників вони поділяються на: одно-, дво- і багатосторонні. Бувають також правомірні і неправомірні угоди, останні поділяються на нікчемні та заперечні. 4. Під час укладення договору завжди слід пам'ятати про відповідні положення Цивільного кодексу України. Так, наприклад, угоди, які потребують нотаріального засвідчення, але укладені без нього, визнаються недійсними.
6.6.2. Please translate the following sentences into Ukrainian: 1. In certain spheres of your life you have to constantly enter into a multitude of contracts, each of which regulates your rights and obligations towards the other party(ies) to it. These contracts may be either written or oral; some of them would even require official notarization. Only after all the steps, foreseen in the pertinent legislation, have been carried out, your contract will become legally binding, and, thus, enforceable. 2. In Ukraine all the unlawful contracts can be divided into void and voidable. Those void are illegal from the very beginning and, hence, do not create any rights or obligations for the parties involved. Voidable contracts run counter to the pertinent statutory rules, however, they will be pronounced void only if the authorized persons voice the disagreement with them. 3. Unenforceable contracts are contracts which were valid when made but for some reason are now unenforceable. 4. When one party proposes something to the other, and the latter indicates its acceptance of the proposal by certain actions, the contract between them would be called an implied one.
6.6.3. Please give the English variants of the following Ukrainian terms by ear (the recommended rate of reply is up to 5 seconds): комерційний, недійсний, двосторонній, багатосторонній, письмовий, безпосередньо обумовлений (чітко виражений), викопаний, нікчемний, заперечний, скріплений печаткою, договір з виконанням у майбутньому, вплинути, підтримати, полегшити, відмовитись (від права), уникати, обмінювати, визнавати, припускати (презумува-ти), виконувати, робити висновки, робити (дію), встановлювати (вводити), нерухомість, дії, послуги, обіцянка, ліцензія, збагачення, відтиск (відбиток), неповнолітній, повнолітній, вбивство, торговець, порушення, перегляд, намір.
6.7.Translation Practice 6.7.1. Please translate from English into Ukrainian the Distributor Agreement (Appendix IV), pay attention to the set phrases and formulas used in the agreement and find their Ukrainian equivalents.
6.8. Practice Test 6.8.1. Please give written definitions of the concept of "contract' according to two different approaches you have studied in this chapter, as you remember and under stand them.
6.8.2. Please explain in English the meaning of the following terms: 1) recognizances 2) negotiable instruments and documents 3) letters of credits 4) contracts under seal
What do all these concepts have in common?6.8.3. Please describe in English the following types of contracts: 1) Informal contracts. 2) Express and implied contracts. 3) Bilateral and unilateral contracts. 4) Void, voidable, and unenforceable contracts.
6.8.4. Please translate the following Ukrainian sentences into English: 1. Для того, щоб угода мала належну юридичну силу, вона повинна задовольняти ряд умов. 2. Неправильне сприйняття стороною суб'єкта угоди, предмета або інших істотних умов угоди, що вплинуло на її волевиявлення, прийнято називати помилкою. 3. Найчастіше удавана угода укладається з метою приховання протизаконної. 4. Якщо сторони не вчиняють ніяких дій з метою здійснення мнимої угоди, суд виносить рішення тільки про визнання таких угод недійсними без застосування будь-яких наслідків. 5. Практиці відомі випадки, коли між чоловіком і дружиною укладається угода, за якою дружина зобов'язується не вступати до вищого навчального закладу. Така угода є недійсною, оскільки обмежує правоздатність дружини.
6.8.5. Please insert, where necessary, the pertinent prepositions and correct grammatical forms into the sentences given below: 1. According to the decisions of the European Court it is only possible to refrain (1: to make) a reference to it [the article] if the question which arises is not relevant to the decision or (2: already, to be subject) (3) an interpretation _____ the Court, or if the correct application of Community law is so obvious (4) to leave no room for reasonable doubt. 2. "Stare decisis is usually the wise policy", a Supreme Court justice Bradeis remarked, "because in most matters it is more important that the applicable rule of law (5: to settle) than that it (to settle) right". However, even the conservative justice George Sutherland recognized that members of the Court "are not infallible, and when convinced that a prior decision (6: not, to be based) originally on, or that conditions (7: to change) so as to render the decision no longer in accordance with, sound reason, they should not hesitate to say so. 3. The justices also took the unusual step (8) _____ noting in the opinion that three of them were not on the Court when the ruling was handed down but that they (9: to join) the unanimous decision if they (10: to be). 4. Oral argument in the Supreme Court usually takes place about four months after a case (11: to accept). The major exception is in cases granted after February. By then, the Court's calendar typically (12: to fill, already), so the case is put over to the beginning of the next term. 5. In the last forty years there (13: to occur) a dramatic increase in the total number of opinions issuer by the justices for the Supreme Court each term. 6. In the first seventy-five years of the nineteenth century, law schools as we know them (14: not, to exist), and up until World War I the majority of the legal profession (15: to learn) law through apprenticeship. In the last century, 36 percent of the justices (16: to have) no prior judicial experience, and even more (44 percent) (17: to have) none this century. 7. Religion, race, and gender (18: to be) historically barriers to rather then bases for appointments to the Court. Political pressure for the appointment of a woman (19: to build) for decades and (20: to intensify) in the 1970s with the battle over the adoption of the Equal Rights Amendment to the Constitution.
6.8.6. Please write a 500-word essay on any of the topics given below using new vocabulary: 1) Contract law as a part of Ukrainian legislation; 2) Historical development of the contract law; 3) Parties to a lawsuit and their rights in litigation; 4) Current trends in the development of the Ukrainian judicial system.
Lesson 7 THE AGREEMENT 7.1. Law Terms: While reading the text please pay attention to the following words (only to their meanings in the field of law) and think of their Ukrainian equivalents:
7.2. Text: THE AGREEMENT The validity of a contract depends upon inclusion of the necessary elements. One necessary element is the agreement. The parties must manifest a mutual assent to contract. Agreements are usually structured in terms of an offer and an acceptance and the courts use an objective standard in determining the existence of the agreement. An offer is defined by the Restatement as "the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it." Advertisements are generally considered invitations to make an offer rather than being considered offers. If a store does not have advertised items in sufficient quantity the store may be engaging in unfair or deceptive practices. Federal Trade Commission rules apply to stores that deal in interstate commerce and require that goods advertised as specials must be available at the price advertised; if an item is unavailable for a reason beyond the store's control, the store is required to provide the customer with a rain check. Additionally, local statutes may provide for similar requirements. Offers must be communicated and a party cannot accept an offer which has not been communicated to him. Thus a person who finds a lost item and returns it to the owner cannot claim any reward unless he was aware of the reward. However, if a governmental entity provides a standing reward, communication is usually not required. Thus, people are encouraged to act in certain ways in the expectation they will earn unknown rewards. Additionally while the completed act called for by an unknown private offer does not give rise to a contract, partial performance usually does. Definiteness requires the offer to contain the essential proposed terms. This is because courts do not make contracts; rather, the parties do. Price, time of performance, and work to be done, should be included. Reference to a standard whereby essential terms can be ascertained is sufficiently definite. Also, offers that state alternatives are definite if each alternative is definite. A preliminary "agreement in principle" may be definite enough to create a contract even though some typical contract terms are lacking. Under the UCC, which is more liberal than the comrnon law, a contract for the sale of goods is formed even though one or more of the terms are left open, if the parties have intended to make the contract and there is a reasonably certain basis for giving an appropriate remedy. Offers do not remain open forever and can terminate jn various ways. An offeree can reject an offer, and the rejection is effective when the offerer receives it. Once he rejects, an offeree cannot change his mind and revive the offer. However, since the rejection is not effective until received by the offerer, an offeree who mails a rejection and then telephones an acceptance will have accepted. Counteroffers are responses that vary the offer's terms and are considered rejections. However, if the offeree makes it clear that he is not rejecting the offer but merely making further inquiry it would not constitute a counteroffer. The common law imposes the mirror image rule; that is, the acceptance must match the offer in all its particulars or the offer is rejected. However, if an acceptance that requests a change or addition to the offer does not require the offerer's assent, the acceptance is valid. Under the UCC an acceptance that states additional ternas or conditions operates as an acceptance unless the offeree expressly requires the offeror to consent to the new or different terms. The new terms are construed as offers. However, if the contract is between merchants, the terms are automatically incorporated in a contract for the sale of goods unless (1) the offer expressly limits acceptance to the terms Of the offer (2) they materially alter it, or (3) notification of objection to them has already been given or is given within a reasonable time after notice of them is received. This UCC provision is necessary because of the use of pre-printed forms, which is known as "the battle of the forms." An offer may specify a specific time limitation after which it will lapse, for example, ten days. If no such time is specified the common law rule is that the offer expires at the end of a reasonable time. What constitutes a reasonable time depends upon the particular factual situation. Items to be considered are the nature of the service or the property being contracted for, the manner in which the offer is made, and the means by which the acceptance is expected to be made. If the item involves a speculative transaction, that is, one in which the value is fluctuating rapidly, the risk to the seller is greater and thus a shorter time period would apply. The common law and the UCC require that an offeree must notify the offeror that he has begun performance of a unilateral contract. Without notification the offeror щау) after a reasonable time, treat the offer as having lapsed. The death or insanity of the offeror prior to acceptance terminates the offer, as does destruction of something essential to the contract. If an offer is legal when made but subsequently becomes illegal, the offer is terminated. The common law and the UCC provide that an offeror may revoke his offer any time prior to acceptance even if the offer states it would remain open for a specified period of time. Thus, if Jones states that an offer will remain open for ten days, he can revoke it after two days even though he said he would keep it open, as long as it has not been accepted. Offers made to the public through the newspaper may be revoked by notifying the public by the same means used to communicate the offer; this constitutes an exception to the rule. Revocation must be communicated, directly or indirectly. If the offeree gives consideration to keep the offer open, this creates an option contract which cannot be revoked. Partial performance of a unilateral contract would create an option. However, the offeree must complete performance according to the terms of the offer or it may be revoked. The UCC modifies the common law of revocability under Section 2-205 which provides that a signed offer by a merchant to buy or sell goods is irrevocable if the offer states it will be held open. Additionally, bids of contractors to public agencies may not be revoked and other public policy considerations may require offers to be irrevocable. Offers may be accepted by making a mutual promise or by performance or partial performance. The UCC provides that an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable under the circumstances unless the offer requires a certain mode of acceptance. Offers, revocations and rejections are not effective until the other party actually receives them. However, the acceptance may be effective upon dispatch. If the offerer specifies the mode of acceptance and the offeree uses the specified mode the acceptance is deemed effective when sent even though the offerer has no knowledge of it. If the offerer specifies no particular means of acceptance, acceptance is effected when transmitted as long as the offerer uses a reasonable means of acceptance — for example, the same means used by the offerer or a means of communication customary to the industry. Since the use of the mail is customary today, the so-called mailbox rule provides that acceptances are considered effective when mailed regardless of the method used to transmit the offer. If the offerer fails to specify the mode of acceptance and the offeree uses a mode that is not reasonable, acceptance is effective only when received. Additionally, if the offeree sent a rejection before transmitting a superseding acceptance the acceptance is not effective until received. Electronic communications have increased in recent years. The American Bar Association model agreement requires trading partners to specify which electronic messages require acceptance and the type of "Acceptance Document" that must be used in making acceptances. (Acceptance Documents could be computer-generated responses or might require human evaluation.) The acceptance is effective only when received by the person who sent the original electronic message. Ordinarily the offeree must make a positive manifestation of consent to the offerer; thus, there is usually not acceptance by silence. However, if the offeree avails himself of services proffered by the offerer and had reason to know that the offerer offered them expecting compensation, he may be bound. If the offer states the offeree may accept without responding and the offeree, remaining silent, intends to accept or if because of previous dealings it is reasonable to expect the offeree accepts unless he indicates an intention not to accept, there can be acceptance by silence. However, in order to prevent sellers from sending unsolicited goods to buyers and expecting payment, Congress and the legislatures of many states have enacted special laws under which consumers who receive unordered merchandise may treat it as a gift. Postal regulations may also provide for the same.
7.3. Multiple Choice: 1. Offer: a) is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it; b) is the manifest mutual agreement to do a transaction by way of the contract; c) is the enumeration of the merits of a certain product with an explicit statement of the seller's intentions. 2. Employer: Employee: Offerer a) Receiver; b) Offeree; c) Agreeree. 3. Unfair [Deceptive] Practices: 1) are the usual practices resorted to when an agreement cannot be concluded; 2) are any activities which are illegal under the current law; 3) are practices considered illegal but in reality merely disagreeing with the common ethics. 4. Agreement: a) is something you want to do; b) is a covenant between the interested parties, by which they oblige each other to abide by the rules of conduct stated in the law; c) is a compact between parties who are thereby subjected to the obligation or to whom the contemplated right is thereby secured. 5. Cross out what you may not do to an offer: a) accept; b) reject; c) revive; d) replenish. 6. The Mirror Image Rule: a) states that the acceptance must be communicated in the same b) way as the offer was transmitted; c) states that the acceptance paper must enumerate all the terms and conditions of the offer in the backwards; d) states that the acceptance must match the offer in all its particulars, otherwise the latter is rejected. 7. Standing: a) permanent; b) that which stands; c) stationary. 8. Agreement in Principle: a) is an agreement based on a certain principle; b) is an agreement which has not been committed to paper; c) is an agreement which has some typical contract terms lacking. 9. Term (meaning that is pertinent to the topic discussed): a) is word, phrase, or condition in a contract; b) is space of time during which the court holds a session; c) is ground for the state-authorized prosecution.
7.4. Key Terms — Matching: (a) mailbox rule (b) option (c) rejection (d) death (e) counteroffer (f) advertisements (g) quantity and time of delivery (h) conflict of interests (i) agreement (j) aleatory
1. ____________ Are generally considered invitations to make an offer rather than offers. 2. ____________ Varies the terms of the offer and is a rejection. 3. ____________ The offeree refuses the offer. 4. ____________ When the promisor agrees, for consideration, to limit his right to revoke. 5. ____________ Revokes the offer automatically. 6. ____________ Makes acceptance effective upon dispatch. 7. ____________ May be obtained by reference to a standard. 8. ____________ A situation in which regard for one duty leads to disregard of another. 9. ____________ A manifestation of mutual assent between two or more legally competent persons which ordinarily leads to a contract. 10. ____________ Uncertain, risky, involving an element of chance.
7.5. Translation Practice: 7.5.1. Please translate the following sentences from Ukrainian into English: 1. Чинність договору залежить від того, чи було до нього включено необхідні елементи. 2. Необхідними елементами у процесі укладання договору є оферта та акцепт. При цьому для визначення наявності згоди сторін суди використовують об'єктивні критерії. 3. Оферта визначається як «виявлення бажання укласти угоду, здійснене у такий спосіб, щоб дати другій стороні зрозуміти, що її згода вітається і буде розцінюватися як фактичне укладання угоди». 4. Реклама загалом розцінюється як запрошення зробити оферту, а не як сама оферта. 5. Друга сторона повинна бути поінформована про оферту — вона не може прийняти оферту, про яку не була повідомлена. Таким чином, особа, яка знайшла загублену річ і повернула власникові, не може вимагати будь-якої винагороди, якщо її про неї не було повідомлено. 6. Задля дійсності оферта повинна містити певні обов'язкові умови, наприклад, щодо ціни, кількості, оплати і т. ін. 7. Оферта не є постійною і незмінною — існують випадки її зміни чи відміни.
7.5.2. Please translate the following sentences from English into Ukrainian: 1. The death or insanity of the offerer prior to acceptance terminates the offer, as does destruction of something essential to the contract. 2. An offer may specify a specific time limitation after which it will lapse, for example, ten days. 3. The acceptance that brings forth additional or altered terms to those in the offer may be viewed as counteroffer rather than acceptance proper. 4. The common law treatment of acceptance is best reflected in the mirror image concept. 5. The offer is considered revoked if and when:
7.5.3. Please give the English variants of the following Ukrainian terms by ear (the recommended rate of reply is up to 5 seconds): чинність, включення, державна організація, фізична особа, юридична особа, чіткість (прецизність), згода, оферта, акцент, товари, форма, відправлення, підрядник, анулювання, державна політика, принципова згода, згода, спливати (термін), запросити, повідомити, коливатись, укласти (угоду), застосовувати, відміняти (заміняти собою), включати, закінчувати, припиняти (дію), визначати, проявляти, постійний, повний, ефективний, точний, розумний, поштовий, спекулятивний, попередній, істотний, типовий, частковий.
7.6. Build-up Your Vocabulary: Please memorize the following Latin terms, words, and phrases that are extensively used in English and their Ukrainian equivalents:
to be continued... 7.7. Reading and Translation Practice: 7.7.1. Please read the following agreement and translate it in writing, pay attention to the cliches used in the text: Office of Independent Counsel AGREEMENT This is an agreement ("Agreement") between Monica S. Lewinsky and the United States, represented by the Office of Independent Counsel ("QIC"). The terms of the Agreement are as follows: 1. Ms. Lewinsky agrees to cooperate fully with the QIC, including special agents of the Federal Bureau of Investigation ("FBI") and any other law enforcement agencies that the OIC may require. This cooperation will include the following:
2. If Ms. Lewinsky fully complies with the terms and understan dings set forth in this Agreement, the OIC: 1) will not prosecute her for any crimes committed prior to the date of the Agreement arising out of the investigations within the jurisdiction of the OIC; 2) will grant her derivative use immunity within the meaning and subject to the limitations of 18 United States Code, Section 6002, and will not use, in any criminal prosecution against Ms. Lewinsky, testimony or other information provided by her during the course of her debriefing, testimony, or other cooperation pursuant to this Agreement or any information derived directly or indirectly from such debriefing, testimony, information, or other cooperation; and 3) will not prosecute her mother, Marsha Lewinsky, or her father, Bernard Lewinsky, for any offenses which may have been committed by them prior to this Agreement arising out of the facts summarized above, provided that Ms. Lewinsky and Mr. Lewinsky cooperate with the QIC's investigation and provide complete and truthful information regarding those facts. 3. If the QIC determines that Ms. Lewinsky has intentionally given false, incomplete, or misleading information or testimony, or has otherwise violated any provisions of this Agreement, the OIC may move the United States District Court for the District of Columbia which supervised the grand jury investigating this matter for a finding that Ms. Lewinsky has breached this Agreement, and, upon such a finding by the Court, Ms. Lewinsky shall be subject to prosecution for any federal criminal violation of which the OIC has knowledge, including but not limited to perjury, obstruction of justice, and making false statements to government agencies. In such a prosecution, the OIC may use information provided by Ms. Lewinsky during the course of her cooperation, and such information, including her statements, will be admissible against her in any grand jury, court, or other official proceedings. 4. Pending a final resolution of this matter, the OIC will not make any statements about this Agreement to representatives of the news media. 5. This is the entire Agreement between the parties. There are no other agreements, promises or inducements. If the foregoing terms are acceptable, please sign, and have your client sign in spaces indicated below.
I have read this entire Agreement and I have discussed it with my attorneys, freely and voluntarily enter into this Agreement. I understand that if I violate any provisions of this Agreement, the Agreement will be null and void, and I will be subject to federal prosecution as outlined in the Agreement.
7.7.2. Please fill out the table provided below with the suitable words and expressions from the text or their Ukrainian translations:
7.7.3. Please answer the following question based upon the text: 1. Whom was the Agreement entered into by? 2. What does the phrase "to agree to cooperate fully with smb. mean"? What consequences for the cooperating person would it have if the other party to the agreement is a state agency? Please refer to the relevant sections of the Agreement. 3. Who is usually authorized to conduct a debriefing of a witness, accomplice, etc.? 4. Please reconstruct the chronology of the Lewinsky-Clinton Affair. 5. Please find in the US Constitution the Articles regulating the impeachment procedure. 6. What do you think such term as high crime and misdemeanor may mean? 7. Do you think that adultery is high crime/misdemeanor or not? Please substantiate.
7.8. Practice Test:
7.8.1. Please explain briefly any incorrect statements you may find in the following sentences (base your answers on the text you have read in the chapter): 1. Agreements usually do not have any standardized structure in terms of an offer and an acceptance, so the courts cannot rely on some objective rule in determining the existence of the agreement and mostly act ad hoc in each specific case. 2. Advertisements are generally considered as offers. 3. Offers must be communicated and a party cannot accept an offer which has not been communicated to him or her. Thus, as a general rule, a person who finds a lost item and returns it to the owner cannot claim any reward unless he or she was aware of the reward. 4. Offers that state alternatives cannot be definite because it is impossible to know in advance which alternative will be chosen. 5. An offeree can reject an offer, and the rejection is effective when the offerer dispatches it using specified in advance or customary to the industry means of communication. Once he sends the rejection, an offeree cannot change his mind and revive the offer. 6. The common law and the UCC provide that an offerer may revoke his offer any time prior to acceptance even if the offer states it would remain open for a specified period of time. 7. Offers may be accepted by making a mutual promise or by performance, but not by partial performance.
7.8.2. Please give the definition or explain in English the following terms: an offer; counteroffer; re-called mailbox rule; agreement in principle.
7.8.3. Please show in several sentences what you remember on the following topics (base your answers on the tex from the chapter): 1. Termination of offers; 2. Acceptance by silence.
7.8.4. Please write down 20 Latin terms or phrases with their Ukrainian equivalents (of your choice), which you learned in this chapter.
7.8.5. Please translate the following sentences from Ukrainian into English: 1. Чинність договору залежить від того, чи було до нього включено необхідні елементи. 2. Необхідними елементами у процесі укладання договору є оферта та акцент. При цьому для визначення наявності згоди сторін суди використовують об'єктивні критерії. 3. Задля дійсності оферта повинна містити певні обов'язкові умови, наприклад, щодо ціни, кількості, оплати і т. ін. 4. Якщо на оферту прийшла відповідь з доповненнями, обмеженнями або змінами, то її слід розглядати як пропозицію зустрічної оферти. 5. Мовчання або бездіяльність з боку акцептанта не слід розглядати як акцепт.
Lesson 8 REMEDIES 8.1. Law Terms: While reading the text please pay attention to the following words (only to their meanings in the field of law) and think of their Ukrainian equivalents:
8.2. Text: REMEDIES The non-breaching party in a contract is entitled to a remedy to protect three interests. His interest may be an expectation interest (the benefit bargained for), a reliance interest (loss suffered by relying on a contract), or a restitution interest (the benefits conferred on the other party). Money damages, which are recoverable in an action at law, are most frequently sought for breach of contracts. The purpose is to place the injured party in as good a position as if there had been no breach. If performance was to be of a service, the injured party's loss would be the cost of substitute performance by someone else. The injured party is entitled to incidental losses which are expenditures incurred attempting to minimize the loss. The breaching party is also liable for foreseeable damages that a reasonable person would have foreseen at the time the contract was entered into. Because contract law encourages an injured party to avoid loss wherever possible, the injured party is under a duty to mitigate damages. While the injured party is not required to undertake undue risks, he nevertheless must make reasonable efforts to reduce his losses, such as stopping production or obtaining substitute performance. Nominal damages may be awarded in a situation where there is in fact a breach but the injured party has not suffered an actual loss. Liquidated damages are agreed to in advance by the parties and contained in the contract. If the sum of the liquidated damages is deemed unreasonable in light of the expected or actual harm, the courts will not enforce the liquidated damages provision because it would violate public policy and constitute a penalty. The purpose of civil litigation is, generally, to compensate an aggrieved party, rather than to punish a wrongdoer. However, punitive damages are awarded in civil proceedings for the purpose of punishing a defendant. They are awarded in cases where a defendant has acted willfully and maliciously and are used to deter others from engaging in similar activities. Punitive damages are generally not awarded in contract situations; however, if the breach of contract is also a tort for which punitive damages may be recovered such damages may be awarded. In instances where legal remedies are not adequate, equitable remedies may be ordered by the court. Specific performance is an equitable remedy wherein a court issues a decree ordering a breaching party to perform the contract which he obligated himself to perform. An injunction is an equitable remedy whereby a judicial order is issued ordering a party not to act in a specified manner. In determining whether there is an adequate legal remedy, three factors are generally considered: (1) the difficulty of proving damages, (2) the difficulty in buying substitute performance with money awarded as damages and (3) the difficulty in collecting any damages awarded. In real property transactions the remedy of specific performance is available because any other remedy would be inadequate. The remedy of specific performance is not available for breach of an employment contract or a contract for personal services. However, a court in some circumstances would grant an injunction against the party in breach of such contracts. The injunction would enjoin the breaching party from engaging in services for a competitor. The court would not enjoin the breaching party from engaging in services with a non-competitor. Restitution is the restoring to one party of what he gave to the other. The injured party is able to receive a return of the consideration he gave to the other party. Restitution is a proper remedy in situations involving voidable contracts where one party is attempting to avoid the contract. The party seeking avoidance must return the consideration he has received. In the case of minors some states require the return of the consideration only if the minor is able to do so. Restitution would apply to contracts which are unenforceable because of the Statute of Frauds; a party should be entitled to a return of the consideration he had given, even though the contract is unenforceable. Generally, as long as remedies are not inconsistent, a party may pursue more than one remedy. Thus, a person may seek specific performance and also be entitled to other damages. Under the UCC a party is not required to make an "election of remedies" and may pursue more than one remedy. A breach of the contract may also constitute a tort. Thus, a lawsuit may be based upon contract or tort. In deciding whether to sue in tort or in contract, four considerations are generally reviewed: (1) the statute of limitations, (2) allowable damages, (3) expert testimony, and (4) insurance coverage. Please compose the ten multiple-choice word tests as provided after the seven previous texts in each of the seven lessons (try to think of funny and misleading meaning of the notions used in the text).
8.4. Build-up Your Vocabulary: Please memorize the following Latin terms, words, and phrases that are extensively used in English and their Ukrainian equivalents:
8.5. Translation Practice: 8.5.1. Please translate the following text of the agreement from English into Ukrainian, pay attention to the cliches and set expressions,
BAREBONES SUBLICENSE AGREEMENT dated as of __________ , by and among ("Owner"), ("Licensor") and ("Licensee") Owner and Licensor have entered into an Agreement dated as of __________ (the "License Agreement") wherein Owner has granted Licensor an exclusive license (with the right to grant sublicenses) to use the trade name " __________" (the "Licensed Name") and the trademark'; " __________" and such other marks as Owner presently is using or may; adopt in the future (the "Licensed Marks"), and Licensee desires to use the Licensed Marks and Licensed Name to manufacture, sell, advertise, promote and identify (the "Articles") in (the "Territory"). Therefore, the parties agree as follows: Grant. Licenser hereby grants to Licensee upon the terms and conditions of this Agreement an exclusive license to use the Licensed Name and Licensed Marks only on and in connection with the Articles in the Territory. 2. Quality Standards. Licensee will maintain such quality stan dards as may be prescribed by Owner or Licenser in the conduct of the business operations with which the Licensed Name is used and for the goods on which the Licensed Marks are used. 3. Markings. Licensee will display the Licensed Name and the Licensed Marks only in such form or manner as may be specifically approved by Owner or Licenser. Licensee also will cause to appear on all materials on or in connection with which the Licensed Name or Licensed Marks are used, such legends, markings and notices as Owner or Licenser may request in order to give appropriate notice of any trademark, trade name or other rights. 4. Quality inspection. Owner and Licenser will have the right to inspect Licensee's business operations conducted under the Licensed Name, and to receive free samples of and otherwise test and inspect at reasonable intervals the goods on which the Licensed Marks are used in order to assure Owner and Licenser that the provisions of this Agree ment are being observed. 5. Ownership. Licensee confirms Owner's ownership of the Licensed Name and the Licensed marks. All use by Licensee of the Licensed Name and the Licensed Marks will inure to Owner's benefit. All rights in the Licensed Name and the Licensed Marks other than those specifically granted herein are reserved by Licenser and Owner for their own use and benefit. Upon the termination of this Agreement for any reason whatsoever, all rights in the Licensed Name and the Licensed Marks will automatically revert to Licenser and Owner. Licensee will at any time execute any documents reasonably required by Licenser or Owner to confer Owner's ownership of all such rights. 6. Infringements. If Licensee learns of any use by any person, firm or corporation of a trademark or trade name similar to the Licensed Marks or Licensed Name, Licensee will promptly notify Licenser and, if requested by Licenser, will join with Licenser, at Licenser's expense, in such action as Licenser in its reasonable discretion may deem advisable. Licensee will have no right to take any action with respect to the Licensed Mark or Licensed Name without Licenser's prior written approval. 7. Termination. This Agreement supersedes all prior agreements between the parties relating to its subject matter, will commence as of its date and will remain in effect until terminated as provided herein. If Licensee violates or fails to perform any of its obligations hereunder, Licenser or Owner will have the right to give written notice of the default to Licensee, the Licenser or Owner will have the right to terminate this Agreement by giving Licensee written notice of termination at any time commencing thirty (30) days after the giving of the notice of default unless Licensee has completely remedied the default before the giving of the notice of termination. In addition, promptly upon any termination of this Agreement, Licensee will change its corporate name so as to eliminate the Licensed Name therefrom, and will cease all use of the Licensed Name and Licensed Marks. 8. Assignments and Sublicenses. The license granted herein is strictly personal to Licensee. Neither this Agreement nor any of the rights or obligations of Licensee hereunder may be assigned, delegated or sublicensed by Licensee, by operation of law or otherwise, to any person, firm or corporation, and in the event of any such attempted assignment, delegation or sublicense, either Licenser or Owner may at the option of either immediately terminate this Agreement by giving Licensee written notice to that effect. If Owner should at any time cease to own, directly or indirectly, at least fifty percent (50%) of Licenser's outstanding capital stock, this Agreement will be deemed automatically assigned by Licenser to Owner. 9. General. This Agreement may not be changed or terminated orally. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion will not be construed a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. All waivers must be in writing. If any provision of this Agreement is invalid or unenforceable, the balance of this Agreement will remain in effect, and if any provision is inapplicable to any circumstance, it will nevertheless remain applicable to all other circumstances. Neither party will be considered as, or hold itself out to be, an agent of the other party, and neither party may act for or bind the other party in any dealings with a third party. The headings in this Agreement are solely for convenience of reference and will not affect its interpretation. This Agreement will be governed by and construed in accordance with the internal substantive laws of the State of New York. 10. Notices. All notices and communications in this Agreement will be in writing will be considered given when personally delivered or mailed by prepaid certified or registered mail, return receipt requested, to the parties at the respective addresses stated at the beginning of this Agreement (or at such other address as a party may specify by notice given to the other).
By _________________________ By _________________________ "Owner" By _________________________ 8.5.2. It is interesting to know: Please write out the definitions of the following official papers and their Ukrainian equivalents: agreement (expert, legal) analysis articles of association articles of incorporation brief certificate (birth, registration, adulthood) charter compact contract covenant ID (identification) (negotiable) instrument instrument of payment (sick-)leave leave of absence letter of application letter of credit letter of intent letter of invitation letter of reference license (driver's, import/export etc.) memorandum minutes (promissory) note order power of attorney proclamation register statement subpoena ticket (speeding) treaty warrant (arrest, bench) writ
8.6. Practice Test: 8.6.1. Please explain briefly any incorrect statements you may find in the following sentences (base your answers on the text you have read in the chapter): 1. The non-breaching party in a contract is entitled to a remedy to protect three interests. His interests may be an expectation interest (the benefit bargained for), an actual interest (loss suffered by relying on a contract), or a transferred interest (the benefits conferred on the other party). 2. Nominal damages are awarded in a situation where there is in fact a breach as a result of which the injured party has suffered an actualloss. 3. The purpose of civil litigation is to compensate an aggrieved party, rather than to punish a wrongdoer. That is why punitive damages are never awarded m civil proceedings. 4. In instances where legal remedies are not adequate, equitable remedies may be ordered by the court. 5. The remedy of specific performance is not available for breach of an employment contract, a contract for personal services, and in real property transactions. 6. A breach of the contract may also constitute a tort. Thus, a lawsuit may be based upon contract or tort. 7. Generally, as long as remedies are not inconsistent, a party may pursue more than one remedy. However, under the UCC a party is required to make an "election of remedies" and may pursue only one remedy.
8.6.2. What is the English for: договір, засіб правового захисту, контракт, свідчення експерта, ордер на арешт, компенсація, накладна, штрафні збитки, довіреність (доручення), судова повістка, присуджувати, реєстр, номінальні збитки, зазнати (збитків), потерпіла сторона, квитанція за перевищення швидкості, що не має позовної сили, шкода, збитки, адекватний, порушувати, становити, погоджуватись, укладати, передбачати, свідомий, відповідальний, зменшувати, заперечний, стримувати, виконання, уникнення, судова заборона, Зведений комерційний кодекс
8.6.3. Please match the terms with their respective meanings, A hint: there is one definition too many in the right column.
8.6.4. Translate from Ukrainian into English: 1. Найчастіше за порушення умов договору вимагають грошової компенсації збитків, яку можна отримати у позовному порядку. 2. Оскільки зобов'язальне право заохочує потерпілу сторону уникати втрат, де тільки можливо, потерпіла сторона зобов'язана зменшити збитки. 3. У той час як потерпіла сторона не зобов'язана вдаватися до (неналежного, зайвого) невиправданого ризику, вона, тим не менше, повинна докласти розумних зусиль, щоб зменшити свої втрати, таких як зупинка виробництва чи отримання виконання від третьої сторони (замість порушника). 4. Номінальні збитки присуджуються тоді, коли є факт порушення, та потерпіла сторона насправді не зазнала втрат. 5. Про ліквідні збитки сторони домовляються заздалегідь і зазначають їх у контракті. 6. Метою цивільного процесу є загалом відшкодування збитків потерпілої сторони, а не покарання порушника. 7. Реституція — це повернення одній стороні того, що вона дала іншій стороні. 8. Реституція — це належний засіб судового захисту у випадку заперечного контракту, коли сторона намагається анулювати договір.
8.6.5. Please fill out the blanks with suitable words or phrases: Memorandum of ___________ (Founding ___________ ) of ___________
(___________ May_______, 20___) 1. The name of the Company _____ Agro-Industrial Limited. 2. The ___________ for which the Company is established are: (a) To carry on outside the Republic of Germany the business and businesses of a service custom market research agency operating nationally and ___________; the business of qualitative, quantitative, research services evaluating new products advertising, including pricing and distributive services for national and multinational ___________ ; <...> (b) To carry on all of the said businesses or any one or more of them as a distinct or separate business or as the principal business of the Company, to carry on any other business manufacturing or otherwise which may seem to the Company capable of being conveniently carried on in connection with the above or any of the above or calculated directly or indirectly to enhance the; value of or render more profitable any of the Company's property or rights. (c To procure the Company to be registered and recognized in any foreign ___________ .. (d) To sell, improve, manage, develop, exchange, lease, hire, mortgage, dispose of, turn to account or otherwise deal with all or any part of the undertaking, property and rights of the Company. 3. The liability of the members is ___________ . 4. The share ___________ of the Company is $200,000.00 (two hundred thousand) divided into 200,000 ordinary shares of ___________ each. MIDTERM TEST: M l. Please translate the following text and sentences from Ukrainian into English: 1. Основним законом України є її Конституція, яку було прийнято 28 червня 1996 року Верховною Радою України. У Конституції знайшли своє відображення такі засадничі теорії державництва, як теорія розподілу влад і захисту прав та свобод людини. Так, в Україні влада поділяється на законодавчу, виконавчу та судову. Главою Української Держави є Президент України. Вищим законодавчим органом — Верховна Рада України. 2. В Україні діють суди загальної юрисдикції, які відповідно вирішують як кримінальні, так і цивільні справи. 3. Сторонами у цивільній справі є позивач та адвокати, які його представляють, і відповідач та адвокати, які його представляють. 4. Значну роль під час вирішення суперечок відіграє досудове врегулювання, під час якого сторони можуть самостійно вирішити справу до втручання суду.
М 2. Please translate the following text and sentences from English into Ukrainian: 1. The criminal procedure is very complicated. It consists of the identification of the accused, their detention, preliminary hearings, indictment, arraignment, and trial. The Parties to the criminal procedure are the accused and his legal counselors and the state prosecutor. When on trial, the case is decided by court. 2. Abandonment of the privity requirement has occurred in the product liability area as well. 3. The case is reported to have successfully been solved by the New York police, Police Station # 5. 4. Everybody in the small town of Nashville is looking forward to the trial of the century. 5. The Blacks were caught stealing cucumbers from the federal vegetable garden. 6. The white prowl (police) car stopped and police officers searched the suspects.
M3. Please insert the pertinent prepositions and correct grammatical forms into the sentences given below: 1. In view (______) the fact that the contractors ordered that the goods (to ship) immediately, we, the Z Corporation, Ltd. (hereinafter referred (______) as the Party (______) the Contract) conclude the following Contract with the LXZ Company. 2. The unique quality of public recognition is usually associated (______) the power of state. 3. The crime was imputed (______) the suspect (______) the grounds of the unambiguous testimony of the witnesses. 4. The court stopped (to consider) the case. 5. With his hands (to manacle), the accused faced the judge at the arraignment. 6. In compliance (______) the legislation (______) force the court issued its final decision. 7. We, the undersigned, (______) behalf of the Q Bottling Company, Ltd., Arizona, enter (______) the following Contract (______) the supplier of the bottle glass and the end-producer of the bottles. 8. (______) the one hand, the accused was in the state of into xication when committing the crime, (______) the other hand, he has an unassailable alibi. 9. The people of Ukraine wish the Parliament (to improve) the standard of life in the country. 10. It is required under the Constitution that the Supreme Court (to be) the court of last resort in the USA.
M 4. Please translate the following Ukrainian sentences into English: 1. Українське законодавство захищає права дітей та передбачає покарання за їх порушення. 2. Родина Петрових стала жертвою чергового злочину. 3. Це дуже (тозі) цікава історія, майже «Слідство ведуть знавці». 4. Як повідомляють, К. пішов (їаг) далі, ніж його поплічники (ассотріісез), і вбив господаря автомашини. 5. Свідки бачили, як вій виходив з автомашини. 6. Помітили, як він вийшов з будинку, перейшов на інший бік вулиці і попрямував до вокзалу. 7. Як би мені хотілося, щоб він міг уникнути судового розгляду. 8. Якби ти вчора прийшов вчасно, ми б не сиділи за ґратами. 9. Як би я хотів, щоб організатор цього злочину (тазїегтіші) не уникнув покарання (адже слідство лише починається). 10. Він був першим, хто встромив ножа у спину жертви.
M5. Please write two 300-word essays on any of the topics given below: 1) Criminal Law in the US or in Ukraine 2) Courts, Lawyers, and the Legal Process 3) The Constitution of the US or of Ukraine 4) Torts
M6. Please describe the courtroom using the words provided in the corresponding chapter (make no more than 6 sentences).
M7. Please give the English variants of the following Ukrainian terms by ear (the recommended rate of reply is up to 5 seconds): законодавчий, виконавчий, судовий, гілка влади, конституція, суд, прокурор, присяжний (засідатель), Велике Жюрі, суддя, адвокат, посередник, поліція, поліцейська машина, поліцейський жетон, наручники, комерційне підприємство, права та свободи людини, обмеження, класифікувати, робити (визнавати) недійсним, належний (справедливий) судовий розгляд, суд загальної юрисдикції, апеляційний суд, верховний суд, надання свідчень, судовий розгляд, етапи судового розгляду, короткий письмовий виклад справи, свідки, позивач, відповідач, надійність (свідчень, свідків), лобіст, досу-довий, усний, альтернативний, дотичний, фактичний, нейтральний, приведений у відповідність до офіційних вимог (формалізований), економічний, приватний, неунереджений, суд першої інстанції, зустрічний позов, характер справи, повістка, клерк, вступна промова, заключна промова, свідчення, критерій, обставини (справи), випадок, тривалість, кодекс, ордер (на арешт), шкода, вирок, пенітенціарний заклад, приманка, конфіскація, обшук, заборона, замах, неосудність, представник, цивільний делікт, шкода: фізична, моральна, прихід (пришестя), засіб судового захисту (захисту права), визнання, винуватість.
FINAL TEST:
Fl. Please translate the following text and sentences from Ukrainian into English: 1. Зазвичай право прийняття нових законів та інших нормативних актів належить законодавчому органові влади, проте в певних випадках ці повноваження можуть бути делеговані виконавчій гілці влади — урядові чи президентові. 2. Процес укладання угод в усіх країнах включає дві стадії: пропозицію укласти угоду (оферта) та згоду на укладання угоди (акцепт). Звичайно укладання господарських угод супроводжується попередніми переговорами. Вони можуть закінчитися укладанням угоди, але можуть і не мати юридичних наслідків. У зв'язку з цим набуває великого значення й питання про те, яка пропозиція може вважатися офертою. 3. Опис товарів у каталогах, запрошення до участі в торгах на будівництво (тендерах), рекламні оголошення, як правило, не вважаються офертою та кваліфікуються лише як запит або пропозиція оферти. 4. Прийняття пропозиції акцептантом повинно бути беззастережним і не супроводжуватися ніякими новими умовами. У протилежному випадку вони будуть відмовою від початкової оферти та розглядатимуться як нова оферта, а сторони міняються місцями. 5. Договір вважається укладеним у момент, коли акцепт оферти набирає чинності. 6. Метою цивільного позову є, як правило, компенсувати збитки потерпілій стороні, а не покарати сторону, яка порушила договір. Проте у випадках, коли відповідач діяв умисно з наміром заподіяти шкоду позивачеві, суд може застосувати штрафну відповідальність, щоб відвернути інших від подібних дій.
F2. Please translate the following text and sentences from English into Ukrainian: 1.Administrative agencies have been referred to as the fourth branch of government because they are policy-making bodies which incorporate facets of three branches of government: the legislative, executive, and judicial. 2. Generally contracts require mutual promises; however, if the contract is under seal in a state which recognises such contracts, a party seeking to enforce a contract can do so even though he has made no promise in return. In other words, a sealed document is enforceable without consideration. 3. Offers, revocations and rejections are not effective until the other party actually receives them. However, the acceptance may be effective upon dispatch. If the offerer specifies the mode of acceptance and the offeree uses the specified mode the acceptance is deemed effective when sent even though the offerer has no knowledge of it. 4. The non-breaching party in a contract is entitled to a remedy to protect three interests. His interests may be an expectation interest (the benefit bargained for), a reliance interest (loss suffered by relying on a contract), or a restitution interest (the benefits conferred on the other party).
F3. Please insert the pertinent prepositions and correct grammatical forms into the sentences given below: 1.. There is a statistical foundation (1: ) the perception held by many physicians and other professionals that there is, or recently (2: to be), a medical liability crisis in Canada. 2. In Canada, there has been little legislative intervention. Damages for pain and suffering (3: to cap), and limitation periods (4: to extend). 4. Canadian health professionals' perceptions formed in the mid-1980s that they (5: to face) a legal liability crisis (6: to be) probably reflections of identical views that arose in the United States regarding the local medico-legal environment, although the crisis there may (7: to be) more in the insurance industry than in medical care. 4. (8: ______________ common) condemnation (9: __________ ) positive and negative defensive medicine fails to distinguish desirable from undesirable responses to fear of legal liability. Undesirable responses include invasive diagnostic or "therapeutic" procedures that incur expense and risk to patients with no real prospect of service to their interests. In contrast, undertaking necessary tests and precautions, making appropriate referrals to relevant specialists and using improved technologies (10: to be) desirable, and to be encouraged. 5. Can a suit be brought, eight years after the alleged negligence occurred, against the original attending physician? It may surprise many health professionals to learn that (11: _______________) court can still entertain such a suit, despite the passage of (12: __________ ) considerable time. Even though no fraud may have been present, (13: ) court could take the view that the limitation period will not have begun to run until all the relevant facts were known to the plaintiff. 6. Many patients will not be capable (14: to start) the lawsuit within a restricted time period. 7. There has been an important development in European social policy in that the Council of the European Communities recently (15: to pass) a Directive for (16 ______) protection of pregnant women. 8. Since the new reproductive technologies (17: to advance) significantly in the past two decades without corresponding developments in the laws governing them, it is unquestionable that new legislation is in order. 9. Since its first use in England in 1986, DNA fingerprinting (18: to gain) widespread acceptance. 10. The FBI (19: to receive) more than 6000 samples for DNA fingerprinting from state and local police as of February 1990, and the bureau anticipates it eventually (20: be able) to process 10000 DNA samples annually.
F4. Please give Ukrainian translations to the following Latin terms:
F5. Please give written definitions in English to the following terms as you remember and understand them: 1) to adjudicate; 2) administrative law; 3) aleatory contract; 4) incidental losses; 5) liquidated damages; 6) mail-box rule; 7) quasi-contract; 8) voidable contract.
F6. Please write two 300-word essays on any of the topics given below: 1. You have read the text about administrative agencies in the United States. Please write an essay about the similar Ukrainian institutions. Describe their role and principles of operation and compare them to those of administrative agencies in the U.S. 2. Write an essay describing the fundamentals of contract law in any country of your choice (you can take Ukraine, the United States, or any other country). 3. Please write about the steps that need to be undertaken by parties to reach an agreement under Ukrainian legislation. 4. Types of remedies under Ukrainian legislation.
ANSWER KEYS
LESSON 1: 1.9.1: 1. F; 2. F; 3. F; 4. T; 5. T; 6. T; 7. F; 8. F (because the second part of the statement is incorrect). 1.9.4: 1. has been bearing; 2. upon; 3. has been adapted; 4. to; 5. were given; 6. to be; 7. was; 8. be; 9. may have occurred; 10. were established; 11. were not guided; 12. by; 13. A; 14. a; 15. had arisen; 16. of; 17. on; 18. with; 19. has made; 20. had been using
LESSON 2: 2.12.1: 1. F; 2. F; 3. T; 4. T; 5. F; 6. F; 7. F; 8. T; 9. T; 10. F. 2.12.4: 1. for; 2. has evolved; 3. superseded; 4. either; 5. accept; 6. pass; 7. of; 8. to; 9. over; 10. would include; 11. on; 12. for; 13. to; 14. to; 15. have been taken; 16. in preventing and investigating; 17. are provided; 18. through; 19. on; 20. has been charged.
LESSON 3: 3.11.1: 1. In certain circumstances it may be enough to intend to commit a crime to be prosecuted; 2. Correct; 3. FBI is a part of the Executive Branch; 4. There is a much larger scope of FBI's activities; 5. Political reasons has been also playing substantial role. 3.11.5: 1. had become; 2. of; 3. to; 4. for defending; 5. before; 6. have been exhausted; 7. had suffered; 8. have sought; 9. has not yet occurred; 10. have not yet been exhausted; 11. to avoid; 12. deciding; 13. from giving; 14. had; 15. had not been arrested; 16. to be arrested; 17. on; 18. was admitted; 19. reached; 20. was completing; 21. of.
LESSON 4: 4.7.6: 1. had just instaled; 2. had put in; 3. had preened; 4. along; 5. saw; 6. grabbing; 7. plunging into an; 8. was saying; 9. entered; 10. to; 11. had; 12. off; 13. as; 14. being sure; 15. had duly impressed; 16. up; 17. have come; 18. to connect; 19. in; 20. favor of the accused; 21. an; 22. the; 23. are not to bear; 24. false witness; 25. against; 26. am not bearing; 27. into; 28. through; 29. after deliberating; 30. are.
LESSON 5: 5.8.4: 1. has introduced; 2. in; 3. is nagged; 4. by; 5. has made; 6. has gained; 7. upon; 8. by; 9. to be rethought; 10. have been constantly worrying; 11. does not serve; 12. of; 13. of.
LESSON 6: 6.8.5: 1. from making; 2. has been already subjected; 3. to; 4. as; 5. to be settled; 6. was not originally based; 7. have so changed; 8. of; 9. would have joined; 10. had been; 11. has been accepted; 12. has already been filled; 13. has occurred; 14. did not exist; 15. learned; 16. had; 17. have had; 18. have historically been; 19. had been building; 20. intensified.
FINAL: F3: 1. to; 2. has been; 3. have been capped; 4. have been extended; 5. were facing; 6. were; 7. have been; 8. the; 9. of; 10. are; 11. the; 12. 0; 13. a; 14. of starting; 15. passed; 16. the; 17. have advanced; 18.. has gained; 19. had received; 20. will be able
Appendix I THE CONSTITUTION OF THE UNITED STATES OF AMERICA (1787) We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, prove for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Appendix II THE DECLARATION OF INDEPENDENCE (JULY 4, 1776) IN CONGRESS, JULY 4, 1776The unanimous Declaration of the thirteen United States of America WHEN IN THE COURSE OF HUMAN EVENTS, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the Powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute a new Government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. —Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them. He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only. He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures. He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people. He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within. He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws of Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands. He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary Powers. He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries. He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance. He has kept among us, in times of peace, Standing Armies without the Consent of our legislature. He has affected to render the Military independent of and superior to the Civil Power. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their acts of pretended legislation: For quartering large bodies of armed troops among us: For protecting them, by a mock Trial, from Punishment for any Murders which they should commit on the Inhabitants of these States: For cutting off our trade with all parts of the world: For imposing Taxes on us without our Consent: For depriving us in many cases, of the benefits of Trial by Jury: For transporting us beyond Seas to be tried for pretended offences: For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies: For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments: For suspending our own Legislature, and declaring themselves invested with Power to legislate for us in all cases whatsoever. He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people. He is at this time transporting large armies of foreign mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation. He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a Free people. Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends. WE, THEREFORE, the Representatives of the UNITED STATES OF AMERICA, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be free and independent states; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as free and independent states, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do And for the support of this Declaration, with a firm reliance on the Protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor. Appendix III LATIN-ENGLISH GLOSSARY OF LEGAL LATIN
Appendix IV SAMPLE DISTRIBUTION CONTRACTThe sample contract shown below should be considered as illustrative only. It would not simply be copied as is. Each supplier and distributor must carefully consider their needs and the needs of the industry in drafting specific contract visions. Legal counsel should be sought in preparing the distribution agreement. AGREEMENT Agreement made this ___________________ day of _____________ 20____, by and between Supplier, a **** corporation with its principal place of business at 17 High Street, Gold Mill, Mississippi, and Distributor, a **** corporation, with its principal place of business at 1000 Millie Street, Dallas, Texas. Whereas, Supplier has developed a product for the removal of nostril hair which is unique; and Whereas, Distributor, desires to sell the product developed by Supplier; Now therefore, it is agreed that in consideration of the mutual promises contained herein. Supplier agrees to sell its product to Distributor for sale in the territory described in this agreement, and Distributor agrees to buy Supplier's product for resale within the sales territory described herein.
For each successive year of this agreement the performance standard shall be adjusted to reflect population trends within the sales territory. Such adjustment shall reflect the product saturation level reflected in the performance standard for the third year of this agreement. Distributor agrees that these performance standards are fair and reasonable and are essential to fulfillment of Distributor's obligations in this agreement. Distributor agrees that its failure to meet these performance standards is a default under this agreement which is not susceptible to cure and is therefore a material breach of this agreement and shall constitute good cause for termination or nonrenewal of this agreement.
Distributor represents that at the time of entering into this agreement its only substantial shareholders are: Name Percentage of Stock Owned ________________________________ _______________________________ ________________________________ _______________________________ ________________________________ _______________________________
a. On the expiration of the term of this agreement without renewal. b. Either party may terminate this agreement without cause on 30 days written notice or such longer period as may be required by applicable law. Such notice period shall apply to the initial term and any renewal term of this agreement. c. This agreement shall terminate automatically and without no tice on the happening of the following: insolvency, bankruptcy, assignment for the benefit of creditors, application for the appointment of a receiver, or appointment of a receiver for the Distributor Provided, however, that Supplier may waive such termination in writing within five business days of being informed of any such event. d. Either party may terminate this agreement by giving 30 days written notice of election to terminate for default for the events stated below; provided, however, that the defaulting party shall have 20 days from receipt of such notice to cure the default:
than the performance standards ii. For failure of either party to pay any sums due under the terms of this agreement within five days following the date on which sum is due and payable iii. For becoming insolvent or unable to pay debts as they become due, or having a negative net worth, e. This agreement shall terminate immediately on written notice of either party to the defaulting party given at any time after the occurrence of any of the following events:
ii. Failure of the defaulting party to comply with any federal, state, or local law or regulation relating to the purposes of this agreement, or which in the opinion of qualified legal counsel advising the terminating party is deemed to be an illegal or unfair trade practice under any federal, state or local law iii. The defaulting party voluntarily grants a lien, other than in the ordinary course of business, or inventory iv. Filing false data or reports required by this agreement v. The defaulting party fails to act in good faith or in a commercially acceptable manner in fulfilling its obligations under this agreement vi. The loss for a period of 15 days or more of any license or permit required by law for a party to carry out its obligations under this agreement or to maintain its status as a corporation whether such loss or suspension be the result of inadvertent or negligent failure to renew or because of action by state authorities to suspend, cancel or revoke the permit or license f. Supplier may terminate this agreement immediately on notice to the Distributor for the following reasons: i. Abandonment of the distributorship ii. Failure of Distributor to meet the performance standards established pursuant to agreement at any time within 90 days after the conclusion of any performance period iii. Any change in control of the Distributor iv. Any change in the active management of the Distributor which the Supplier believes will have a material effect on the ability of the Distributor to sell and promote products aggressively. The parties acknowledge that this agreement is in the nature of a personal service agreement and its value to Supplier lies in continuation of Distributor under the same management that it had at the signing of this agreement. Changes in management include the incapacity for a period of 30 days or the death of a principal officer, partner, or manager. v. The breach of any warranty or representation made in this agreement by the Distributor. Parties acknowledge and agree that the terms of this agreement pertaining to termination arc fair and reasonable and that these termination provisions are essential to protect the interests of both parties. The parties further agree that the occurrence of any events permitting termination under this agreement shall be deemed "good cause" and shall be "just and sufficient cause" within the meaning of any applicable law or regulation governing the parties' right to terminate this agreement.
Red Flag: Some states have statutes which specifically govern the release of unknown claims (see, for example, California Civil Code Section 1542).
In witness whereof, the parties have executed this agreement on the ______________ day of ________________ 20 ______ . . Supplier Distrubitor by _______________________________________________________________ Key Point; The foregoing sample distribution agreement is intended to suggest some of the common agreement terms. Some distribution arranges will require more detailed provisions, others less. Each contact should be to fit the unique situation it will govern. Moreover, some industries have trade modes of doing business end terms of art which must be considered in negotiation and drafting agreements. Appendix V LATIN-UKRAINIAN GLOSSARY OF LEGAL LATINА
B
C
D
E
F
G
H
I
J
L
M
N
O
P
Q
R
S
T
U
V
Appendix VI ENGLISH-UKRAINIAN GLOSSARY OF LEGAL TERMINOLOGY A
B
C
D
E
F
G
H
I
J
L
M
N
O
P
Q
R
S
T
U
V
W
Z
Appendix VII UKRAINIAN-ENGLISH GLOSSARY OF LEGAL TERMINOLOGY А
Б
В
Г
Д
Е
Ж
З
І
К
Л
М
Н
О
П
Р
С
Т
У
Ф
Х
Ц
Ч
Ш
Ю
КомментарииКомментариев пока нет Пожалуйста, авторизуйтесь, чтобы оставить комментарий. |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||