Organisational Design and Technology Case Study

Organisational Design and Technology - Case Study Example Then the current issues faced by the organization will follow with an internal as well as an external perspective. The research is based on primary as well as secondary data. But the process began with exploratory research to define the problem, descriptive research to better describe the aspects for further explanations, implementing the findings and then analyzing plus reporting the research findings. This research method was a survey of the organization. The major advantage is its flexibility. But it has limitations such as source reliability can be a problem since it is not necessary that the information obtained is correct and at times there is no way to check its reliability. British Petroleum or most commonly known to be as BP is one of the largest energy companies. They provide their customers with fuel for transportation, energy for heat and light, retail services and petrochemical products. This company produces an Annual report at the end of every year. It is a huge organization and has a formal structure. They are a public ltd company with their shares floated on the stock exchange. The company boasts of more than 97000 workers who have managed to produce a turnover of $266 billion in the yr 2006. They have 18 refineries and active exploration in 26 countries. The company has 6 core brands namely: Castrol, BP, ARCO, ARAL, am/pm, and Wild Bean Caf. About BP BP has transformed from a local oil company into a global organization working in 100 countries across six continents. The expedition to look for oil began in 1901 and the company was founded by Mr. William D'Arcy in 1908. The company boasts of a remarkable 103 year journey. Purpose: The purpose of the business is to find, produce and market energy resources that satisfy the basic needs of people around the world. They also aim for fuel progress that will lead to economic growth and to invest in a sustainable environment. Organizational Structure: The structure of BP is divided into 3 segments or departments to enable effective management and success of the organization. 1. Exploration and Production: This covers the oil and natural gas exploration. The management of crude oil and natural gas pipelines plus the processing and exportation in included. The company is currently exploring in 25 countries. 2. Refining and Marketing: This segment is responsible for the supply, refining, trading, marketing and transportation of crude oil and petroleum products to wholesalers and retailers. They market their products in more than 100 countries. The company owns 18 refineries out of which five are in USA, seven in Europe and the rest are situated in different countries around the globe. Marketing focuses on three business areas; retail, lubricants and business to business marketing and they market a range of refined oil around the world. 3. Gas, power and renewables: The gas and power business was introduced in 1999 and renewables were added in 2002. This segment has three key aims to follow: to increase the value of their natural gas products, to increase the value of their natural gas liquids (ethane, propane, butane and pentane) and to build a profitable business of renewables. They market the

Freedom of contract essay, types of contracts

Freedom of contract essay, types of contracts THE PRINCIPLE OF FREEDOM OF CONTRACT INDEX Summary †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦ 1 Introduction †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦ 3 Giving efficacy to a contract †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦. 5 The importance of good faith †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦ 5 Unconscionable bargains †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦ 6 Unreasonable conditions in the contract of insurance †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦ 7 ‘Subject to contract’ term †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦.. 8 Exemption clause †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦ 9 Contract of sale of goods †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦ 9 Consumer protection †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦ 10 Standard form contracts †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦ 11 Exclusion clause †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦ 11 Penalty clause †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦ 13 Contract of agency †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦ 16 Tenancy law †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦.. 17 Carriage of goods †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦.. 18 Freedom of contract for players †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦. 19 Conclusion †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦. 19 References †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦. 20 List of case laws †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦. 20 Summary The premise for the principle of freedom of contract is that the parties could make agreements on a wide variety of subjects and choose those terms that they agree as convenient for the fulfilment of the contract. Court normally refrain from questioning the substance of bargains and would ensure only that the parties have observed appropriate formalities. The principle of freedom of contract is similar to the civil law rule of pacta sund servanda that has regulated the domestic, international and transnational commercial agreements. While interpreting the contract, the courts have to be objective because in the process of interpretation the courts should not create new contracts. Courts would seek to ascertain either what the parties intended or if this is not forthcoming from the terms of the contract then apply the test of how the words would be understood by a reasonable person. Thus contract law is a series of abstractions formed by individual autonomy and judicial deference. But the principle is not unfettered. The legislations limit the scope of contract for protecting social welfare and consumer protection statutes. This gave the courts scope to develop exceptions which is discussed in detail in this paper. Courts began to police the fairness of agreements, developing new doctrines like unconscionability that allowed them to intervene to protect parties with unequal bargaining power. The fact that the principle of freedom of contract continues to share the stage with competing principles should not be surprising. Law always reflects a community’s values and the continuing conflict in our societies between individual freedom and public control[1]. The conflict is unavoidable in a liberal democracy and the best approach is to make reasonable compromise after a case by case analysis. The nature of such compromises will keep changing as the society’s interests evolve leading to the liberal or restricted application of the principle. In this paper the principle of freedom of contract is examined on basis of the hypothesis that the theory of freedom of contract leads the courts to passively enforce the intentions of the parties. In reality, however, the law of contract gives the courts scope to use discretion and do what is fair and reasonable between the parties. However the paper does not conclude that the principle has been watered down by interference from the court of law but has only assisted in exceptional circumstances when the bargaining power of the parties are not the same or when unreasonable and unconscionable contracts are formed. It would be anomalous to conclude that the principle of freedom of contract is far removed from practice. In fact where commercial agreements are entered into by equally competent parties the court do not read anything more to the contract than what was intended by the parties while entering into the contract. The paper examines the principle from general contract law perspective and also analyses special contracts such as the contract of sale, insurance, carriage of goods and agency. Introduction The general principle of the contract law gives prominence to the concept of intention of parties when entering into a contract. This assumption leads to the development of the thought that the parties are individuals with reasoning and are free to enter into any form of contract so long as there is consensus. The intention of the parties is significant in determining whether there is consensus ad idem among the parties entering into the contract. The emphasis on the intention of the parties is logical where a term is implied in fact. Under common law any person is entitled to exercise any lawful trade subject to restraint of trade for public policy reasons. This doctrine extends to contracts restricting the way in which a tradesman carries on business on a piece of land, and to restraints imposed by the rules or practices of professional or other bodies controlling particular activities. In Petrofina (Great Britain) Ltd v Martin[2], it was held that the agreement which restricts the supply of motor fuel only to one particular supplier was valid because it did not affect public policy and parties have voluntarily entered into the contract. The doctrine of restraint of trade whether partial or general restraint, will be good only if they are reasonable and is within the circumscribed limits of the interest of the public, the covenantee and the covenantor. Any restriction upon the freedom of contract to which the restraint of trade doctrine applies must be shown to be reasonably necessary for the purpose of the free dom of trade.[3] A restraint reasonably necessary for the protection of the covenantee must prevail, unless some specific ground of public policy can be clearly established against it. In Russell v Amalgamated Society of Carpenters and Joiners[4] where the area from which the employers, not parties to the agreement, could obtain workmen was held unreasonably restricted. The principle of freedom of contract and the enforcement of contractual promises against the promisor arises out of the economic necessity of compelling observance of bargains and the moral justification that promise was freely given. The evolution of this principle can be traced back to the Slade’s case[5] where the action of assumpsit (where the essence of the undertaking was considered while interpreting commercial contracts) was applied. The action of assumpsit was abolished in the 19th century and left behind the principle of the freedom of contract which evolved over the years with some carve outs and exceptions. The courts still consider the principle of the freedom of contract vital but certain assumptions need to be fulfilled such as equality of bargaining power and legality of the contract. Also to some extent, the law has interfered with[6] or excused a party from literal performance of his promise. This is especially true when we consider the doctrine of frustratio n[7]. Nevertheless it remains generally true that the law of contract does not lay down rights and duties, but rather imposes a number of restrictions subject to which the parties may create by their contract such rights and duties as they wish. Much of the litigation is for determining the construction of the contract to determine what the promisor promised. The earliest case law on the freedom and sanctity of contract was in 1795 in Cutter v Powell where a seaman who was to be paid his wages after the end of a voyage died just a few days away from port. His widow was not able to recover any of his wages because he had not completed performance of his contractual obligation.[8] The civil law principle of pacta sund servanda means the promises and prior commitments must be fulfilled and is similar to the principle of freedom of contract. Pacts and clauses are law between the parties and imply that the non fulfillment of respective obligations is a breach of the pact. The role of the courts is minimal to balance the principle of freedom of contract and protect the weak contracting parties. Giving efficacy to a contract While giving efficacy to contracts, the courts have construed the intention of parties but the courts do not cross the line and create new contracts thereby giving any one of the contracting party a new advantage. A term is implied where it is necessary in the business sense to give efficacy to the contract. The well known tests for construing the contract are: the intention of the parties; or the test of a reasonable person. The intention of parties test bolsters the principle of freedom of contract as the courts would be enforcing obligations on parties as envisaged at the time of entering into the contract. However the second test i.e.: the reasonable person test somehow stands antithetical to the principle of freedom of contract. The test may find use under certain peculiar circumstances, reflecting implications in law. An implied warranty or a covenant in law, as distinguished from an express contract or warranty is really founded on the presumed intention of the parties, and upon reason. The implication which the law draws from what must obviously have been the intention of the parties is drawn with the object of giving efficacy to the transaction. The importance of good faith During the 19th century the English courts had a much more relaxed attitude towards the good faith and other elements of the contract, holding the freedom of contract principle as the sine qua non for parties to deal with the promises made. The courts now strike down agreements on the grounds of illegality, incapacity, mistake, duress, misrepresentation, implied terms, frustration and unfairness. Using the principles of equity, the courts have diminished the severity of the common law principle. The courts look beyond the form of the contract and look at the intention of the parties to construe a contract. According to Professor Summers[9], the American Restatement[10] bestows a general and residual duty of good faith contractual performance which may be enforced in the absence of any more specifically exigible contractual provision or statutory superimposition. But this argument is not without criticism. Without the backing of the good faith principle the principle of freedom of con tract would seem unfettered where the parties are free to write their own contracts and that the law does not have a role to import any terms or conditions other than those expressly agreed or necessarily implied by the parties. Unconscionable bargains The courts have time and again interfered with the terms of the contract even in the absence of duress or undue influence if the terms of the contract are harsh or unconscionable. It not just sufficient to establish that one party has a better bargaining power. It has been held in Burmah Oil Co v Bank of England[11] that equity will not intervene merely because one party has superior bargaining power. There should be some form of economic duress or unilateral mistake as to the terms of the contract. Under English law, relief is given to one, who without independent advice, enters into a contract on terms that are very unfair or transfers property for a consideration which is grossly inadequate, when his bargaining power is grievously impaired by reason of his own needs or brought to bear on him by or for the benefit of the other.[12] There were views based on the thesis that in order to interfere with the principle of freedom of contract on the grounds of unconscionable bargain, ther e should be statutory basis such in the case of unfair consumer trade practices, extortionate credit bargains, swinging exclusion clauses and unfair terms. But subsequent case law decided by the Court of Appeal suggests that the exception to the principle of freedom of contract to protect weaker contracting party (inequality of bargaining power) has survived.[13] The remedies available in respect of unconscionable bargains are subject to the same rules as applicable under undue influence that was laid down in Allcard v Skinner[14]. A party will not be granted relief against an agreement on the basis of unconscionable bargain unless he can show impropriety by the other party in the manner in which the agreement was reached and the terms of the agreement.[15] In Boustany v Pigott[16], the Privy Council laid down the following principle. It is not sufficient to attract the jurisdiction of equity to prove that the bargain is hard, unreasonable or foolish. The party claiming unconscionable bargain has to prove that the contract is unconscionable in the sense that one of the parties has imposed an objectionable term in a morally reprehensible manner that is to say in a manner which affects his conscience. Therefore unconscionable does not just reflect the terms of the bargain but looks at the behavior of the stronger party which may be tainted by moral culpability or impropriety. Unequal bargaining power or objectively unreasonable terms does not provide a basis for equitable interference in the absence of unconscientious or extortionate abuse of power. As a matter of fairness the strong should not be allowed to push the weak to the wall. Thus a contract cannot be set aside as an unconscionable bargain against a party who is not guilty of act ual or constructive fraud. Even if the terms of the contract are unfair in the sense that the contract favors one party more than the other party, equity will not provide any relief unless the beneficiary is guilty of unconscionable conduct. The party seeking the relief must establish unconscionable conduct viz. that unconscientious advantage has been taken resulting in a disabling condition or circumstance. Unreasonable conditions in the contract of insurance A stipulation in a policy may be capricious or unreasonable leading to non enforceability of a fundamental term of the contract. This view does not reconcile with the principle of freedom of contract under English law. This exception is however relevant when the contract terms concluded between an insurer and a consumer is unfair. A condition in an insurance policy which is contrary to public policy is unenforceable, for example a condition by which the insurers impliedly undertake to pay the insured’s personal representatives if the insured under a life policy kills himself while not mentally disordered.[17] But a condition that prevents the policy holder from joining military services is not against public policy i.e.: it cannot be considered that exclusion of cover to a person joining military services cannot be deterrence from performing national duty.[18] Where the conditions are such that it is impossible to perform the conditions from the outset then such conditions are simply disregarded as they are a nullity. ‘Subject to contract’ term ‘Subject to contract’ is a phrase which points to a prima facie evidence for declaring that a concluded contract does not exist. The circumstance in which the parties may enter into such agreement arises when all the terms have not yet been negotiated and agreed. This allows a huge scope for thorough negotiation among contracting parties. However when analyzing some of the case laws one gets an impression that the courts have at times entered into the realm of contracts and added new dimensions to the agreements. In Boyle v Lee[19], Finlay CJ (Hederman J concurring) and O’Flaherty J held that there was no concluded contract because the parties did not agree everything they thought essential. In Embourg case[20] it was held by a unanimous judgment that a contract stated in the documentation such as the estate agent’s and the solicitor’s letters as subject to contracts until the contract is exchanged between the parties and meant that no binding contra ct came into existence because no exchange was made. This was the view the court took despite the fact that both the parties had signed the copies of the formal contract drawn up by the vendor’s solicitors. However a more liberal view was taken in Moran v Oakley Park Developments Ltd[21] where it was held that contract will be enforceable under the doctrine of part performance if the court is satisfied that a concluded oral agreement has been reached between the parties to the contract. Therefore the phrase ‘subject to contract’ purports to deny the existence of the concluded contract and protects the parties in negotiations. The Law Reform Commission also considered the possibility of enforcing such agreements.[22] After examining the implications on the freedom of contract principle the Commission felt that if an agreement were to be enforced as soon as the price were agreed, there would have to be some mechanism for settling other terms. The Commission noted that the Working Group on Land Law and Conveyancing Law had failed to come up with a statutory set of conditions and that a court or arbitrator would be able to settle terms in simple cases only. Generally such phrases like ‘subject to contract’ are seen in contracts of sale. Exemption clause The contract of sale allows for contracting out of the implied terms by express provisions and this is recognized as valid under the Sale of Goods Act 1979. Most of the implied terms deal with the quality of the goods. Under the Sale of Goods Act there are implied terms relating to the title to the goods for the vendor, terms regarding quality and fitness, sale by description implies that the goods match the description and in cases of sale by sample the goods are to match with the sample examined by the purchaser. Under the Supply of Goods and Services Act 1982 there is implied terms relating to care and skill, time of performance and consideration. The habit of ousting the implied terms by express contractual provision had become a widely practiced technique at all levels of commerce, and had received a steadily growing impetus from the ubiquitous appearance of standard contracts on the economic scene. In fact restrictions preventing the use of exemption clause for contracting out of implied terms in a contract of sale can be seen only in cases of consumer sales. However attempts to contract out of the implied term with respect to the title of the property were held to be void in all contracts of sale. Thus a term excluding or restricting the seller’s liability for breach of any of the implied terms would not be enforceable to the extent that it is shown that it would not be fair or reasonable in the circumstance of the case to allow reliance on such terms. Contract of sale of goods The sale of goods is an important branch of the contract law which deals with the sale and purchase of movable assets and relies heavily on the principle of freedom of contract. The seller and buyer normally enter into a contract, oral or written for performing their respective obligations for the purpose of concluding the transaction of sale. The principle of freedom of contract was preserved by the Sale of Goods Act 1893 where it is expressly provided that any right, duty or liability arose under the contract of sale by implication of law could be negatived or varied by express agreement or by the course of dealing between the parties or by usage, if such usage can bind both the parties to the contract. This provision was retained in the subsequent Sale of Goods Act 1979. But the 1979 Act further limited the application of the principle of freedom of contract by subjecting it to the Unfair Contract Terms Act 1977 which limits the extent to which the parties to a contract may negati ve or vary the rights, duties and liabilities arising there from. This principle also finds place in the Supply of Goods and Services Act 1982. Consumer protection The concept of consumer protection gives a different twist to the principle of freedom of contract. Laws that attempted to enforce fair trading was formulated to protect an honest trader from other unfair competing traders. In a consumer level transaction there is significant difference in the bargaining positions of the buyer and the seller. There is no statutory definition for the term ‘consumer’ and in the European Union law the term ‘consumer’ is usually limited to any natural person[23], under English law the term ‘consumer’ is not limited to individuals under the Unfair Contract Terms Act 1977. Even the Consumer Protection Act 1987 contains no statutory definition of the term ‘consumer’. By virtue of the Unfair Terms in Consumer Contracts Regulation 1999, ‘consumer’ means any natural person who is acting for purposes which are outside his trade, business or profession. Standard form contracts The commercial organizations may normally have standard form contracts where the terms are already laid down and it is expected that the party contracting with the commercial organization has to enter into the standard form contract. In such a circumstance there is no scope for any form of negotiation and the principle of freedom of contract is has no application except to the extent that the party may exercise discretion to refuse to enter into the standard form contract. In many cases the standard form is formulated by the trade association or as laid down in the statute. These standard terms may further be circumscribed by the concept of public policy. To an extent the standard form of contract helps to save time and allocate risk appropriately in commercial transactions. Such contracts commonly have certain boiler plate provisions such as the clauses relating to arbitration, consideration, choice of laws, definitions, exclusions, force majeure etc. Since this arrangement affects free negotiability of the terms of the contract, standard forms are subject to the test of reasonableness and some exclusion clauses limited or abrogated. Exclusion clause The exclusion clause is found in a contract where the parties wish to exclude statutory provisions under certain circumstance. Even if the statute does not deal with the status of the exclusion clause, there is no general rule that the courts can interfere to prevent giving effect to the exclusion clause if there is nothing unreasonable or unconscionable. But such exclusion clauses cannot protect a person from his own frauds. Even though the courts do not have a general power to strike out exclusion clauses, the following are some of the situations where the courts of law felt that it was appropriate to interfere with the principle of freedom of contract. A contracting party seeking to rely on an exclusion clause to save himself from liability in contract or tort to the other contracting party must show that it was incorporated as a term of the contract, which usually involves the taking of reasonable steps to bring it to the notice of the other party.[24] Similar principles of incorporation of the terms of the contract apply to the exclusion by non-contractual disclaimer of tort liability.[25] An exclusion clause is to be construed strictly against the party who introduced it and seeks to rely on it[26] (the contra proferentum rule); Whether a clause amounts to an exclusion clause is a matter of substance and effect, so that a similar attitude is taken to indemnity clauses inserted for the same purpose.[27] There is no objection to the public policy grounds to excluding rights of set-off.[28] If an equitable remedy is sought, the discretion of the court cannot be fettered by a contractual provision.[29] Where there is a contract between A and B containing an exclusion clause, a third party, X, will not be allowed to shelter behind the clause in the absence of clear evidence that he is a party to the contract and that the clause was intended to protect him. Similarly the burden of an exclusion clause in such a contract will not generally be imposed on him. The courts may either seek to establish the effect of the contract as a whole, taking into account the exclusion clause in defining the obligations of the parties or the exclusion clause may be regarded as a defence, in which case the court might establish the prima facie ambit of the contractual obligation without the exclusion clause and then consider the effect of the exclusion clause on that prima facie liability.[30] The exclusion clause should be clear to give effect to and to deprive one of the contracting parties of all contractual force with respect to the stipulations in the contract.[31] The task of the courts has been to look at the event and the consequent breach in order to ascertain from the words and conduct of the parties which created the contract between them what their presumed intention was and what should be their legal rights and liabilities whether they should be either original or substituted upon the occurrence of an event of that kind. The basis for the interference to the principle of the freedom of contract is only to the extent of deriving the intention of the parties and determines what was actually excluded and what were retained. Penalty clause Under the law of equity, the contracting party is relieved from the penalty clause where the intention of the penalty is to secure the payment of a sum of money or the attainment of some other object, and when the event based on which the penalty is made payable can be adequately compensated by payment of interest or otherwise. The true ground of relief against penalties arises from the original intention of the parties in the case.[32] In Photo Production Ltd v Securicor Transport Ltd[33] it was held that an agreement must not impose upon the breaker of a primary obligation a general secondary obligation to pay to the other party a sum of money that is manifestly intended to be in excess of the amount which would fully compensate the other party for the loss sustained by him in consequence of the breach of the primary obligation. In Jones v Society of Lloyds[34], Lloyds devised a reconstruction and renewal settlement offer to provide financial assistance to Lloyd’s names in m eeting their accrued liabilities to Lloyds. The settlement included a ‘finality amount’ which was a sum, less than the amount owed by the name, that was required to be paid in order to discharge their liability to Lloyds and a clause in the agreement provided that if an accepting name failed to pay his finality payment then the settlement credits would be lost and he would, therefore, be required to pay the entirety of his liability. It was held that the mechanism was a reverse of the penalty clause and that it was a conditional benefit. Penalty clauses do not find favor before a court of law where it related to penalty in a money bond, payment of money by installments such as hire purchase agreements or for doing or omitting to do a particular act. There should be sufficient reasons for the court to interfere with the freedom of contract and will not generally, merely because a person has made an improvident contract, relieve him from its consequences[35]. The relief is granted only where compensation can be made for the breach. The power to strike down a penalty clause in a contract does not reconcile with the principle of freedom of contract and is designed for the sole purpose of providing relief against oppression for the party having to pay the stipulated sum. It has no application in the cases where there is no oppression.[36] Equity and common law allows interference where the contract is unconscionable or oppressive. Such circumstances arise as a result of : the degree of disproportion between the stipulated sum and the loss likely to be suffered by the plaintiff. This factor is relevant for determining the oppressiveness of the terms of the defendant. the nature of the relationship between the contracting parties. This factor is relevant for determining the unconscionability of the plaintiff’s conduct in seeking to enforce the penalty clause. Before such relief is granted, the courts have to ascertain whether the sum specified in the contract as payable in the event of breach of contract is a penalty or liquidated damages, that is whether at the time of entering into the contract the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for the breach of contract.[37] In Nutting v Baldwin[38]

Phobias Essay -- essays research papers

Phobias Phobias are a very common disorder in the United States these days. The definition for phobia is "an abnormal or morbid fear or aversion" ("Oxford" 655). To be considered a phobia, a fear must cause great distress or interfere with a person’s life in a major way. The word phobia is Greek, therefore, any word that proceeds it should be Greek too. To coin a new phobia name, it is proper and only accepted to follow this rule. The rule has been broken many times in the past, especially by the medical profession. The medical profession is steeped in Latin and many times when forming a name for phobia, they use Latin. There are three kinds of phobias: simple phobia, social phobia, and panic attacks. Simple phobias, also called specific phobias, are fears of a specific thing, such as spiders or being in a closed place. Most simple phobias develop during childhood and eventually disappear. Specific phobia is a marked fear of a specific object or situation. It is a category for any phobias other than agoraphobia and social phobia. The categories of specific phobias are 1. situational phobias such as: fear of elevators, airplanes, enclosed places, public transportation, tunnels, or bridges; 2. fear of the natural environment such as: storms, water, or heights; 3. animal phobias such as: fear of dogs, snakes, insects, or mice; 4. blood-injection-injury phobia such as: fear of seeing blood or an injury, or of receiving an injection. (Wood 520). Social phobias are fears of being in situations where your activities can be watched and judged by others. People with social phobias try to avoid social functions at all costs and find excuses not to go to parties or out on dates. This avoidance is the difference between having a social phobia and simply just being shy. Panic attacks are the third kind of phobia. They can change the quality of a person’s life. Someone with a phobia this bad may be shopping at the supermarket and suddenly experience dizziness and a feeling of being out of control. At that moment, the person experiences a fear of dying, with no safe place to go. When this happens more than once, the person might think they are going crazy. Someone with panic attacks soon won’t leave the house because of fear of a panic attack happening outside the house. Soon, depression s... ...6. Generalization from the original phobic stimulus to stimuli of a similar nature will occur; 7. Noxious experiences which occur under conditions of excessive confinement are more likely to produce phobic reactions; 8. Neutral stimuli which are associated with a noxious experience, may develop motivating properties. This acquired drive is termed the fear drive; 9. Responses (such as avoidance) which reduce the fear drive are reinforced; 10. Phobic reactions can be acquired vicariously (Rachman 31). These theories are used to identify how people obtain phobias and other situations that may occur with phobias. In conclusion, phobias are a big part of many people’s lives these days and a growing medical condition. People do not realize how badly phobias can affect their lives so they don’t receive medical attention. There are no cures for phobias but there are treatments which will help the phobic get over their fear. I personally believe that if people care enough about their lives, they will treat their phobias. Phobias can totally alter your life so if you have any of the symptoms I have listed above, please go and get treatment.

Coyote Blue Chapter 3~5

CHAPTER 3 The Machines of Irony Bring Memory Santa Barbara After Sam's secretary gave him the address of his appointment he hung up the cellular phone and punched the address into the navigation system he'd had installed in the Mercedes so he would always know where he was. Wherever Sam was, he was in touch. In addition to the cellular phone he wore a satellite beeper that could reach him anywhere in the world. He had fax machines and computers in his office and his home, as well as a notebook-sized computer with a modem that linked him with data bases that could provide him with everything from demographic studies to news clippings about his clients. Three televisions with cable kept his home alive with news, weather, and sports and provided insipid entertainments to fill his idle hours and keep him abreast of what was hot and what was not, as well as any information he might need to construct a face to meet a face: to change his personality to dovetail with that of any prospective client. The by-gone salesman out riding on a shoeshine and a smile had been replaced by a shape-shifting shark stalking the sale, and Sam, having buried long ago who he really was, was an excellent salesman. Even as some of Sam's devices connected him to the world, others protected him from its harshness. Alarm systems in his car and condo kept criminals at bay, while climate control kept the air comfortable and compact discs soothed away distracting noise. A monstrous multi-armed black machine he kept in his spare bedroom simulated the motions of running, cross-country skiing, stair climbing, and swimming, while monitoring his blood pressure and heart rate and making simulated ocean sounds that stimulated alpha waves in the brain. And all this without the risk of the shin splints, broken legs, drowning, or confusion that he might have experienced by actually going somewhere and doing something. Air bags and belts protected him when he was in the car and condoms when he was in women. (And there were women, for the same protean guile that served him as a salesman served him also as a seducer.) When the women left, protesting that he was charming but something was missing, there was a numb er that he could call where someone would be nice to him for $4.95 a minute. Sometimes, while he was getting his hair cut, sitting in the chair with his protections and personalities down, the hairdresser would run her hands down his neck, and that small human contact sent a lonesome shudder rumbling through him like a heartbreak. â€Å"I'm here to see Mr. Cable,† he said to the secretary, an attractive woman in her forties. â€Å"Sam Hunter, Aaron Assurance Associates. I have an appointment.† â€Å"Jim's expecting you,† she said. Sam liked that she used her boss's first name; it confirmed the personality profile he had projected. Sam's machines had told him that James Cable was one of the two main partners who owned Motion Marine, Inc., an enormously successful company that manufactured helmets and equipment for industrial deep-sea diving. Cable had been an underwater welder on the rigs off Santa Barbara before he and his partner, an engineer named Frank Cochran, had invented a new fiberglass scuba helmet that allowed divers to stay in radio contact while regulating the high-pressure miasma of gases that they breathed. The two became millionaires within a year and now, ten years later, they were thinking of taking the company public. Cochran wanted to be sure that at least one of the partners could retain controlling interest in the company in the event that the other died. Sam was trying to write a multi-million-dollar policy that would provide buy-out capital for the remaining partner. It was a simple partnership deal, the sort that Sam had done a hundred times, and Cochran, the engineer, with his mathematical way of thinking, his need for precision and order, his need to have all the loose ends tied up, had been an easy sale. With an engineer Sam simply presented facts, carefully laid out in an equationlike manner that led to the desired answer, which was: â€Å"Where do I sign?† Engineers were predictable, consistent, and easy. But Cable, the diver, was going to be a pain in the ass. Cable was a risk taker, a gambler. Any man who had spent ten years of his life working hundreds of feet underwater, breathing helium and working with explosive gas, had to have come to terms with fear, and fear was what Sam traded in. In most cases the fear was easy to identify. It was not the fear of death that motivated Sam's clients to buy; it was the fear of dying unprepared. If he did his job right, the clients would feel that by turning down a policy they were somehow tempting fate to cause them to die untimely. (Sam had yet to hear of a death considered â€Å"timely.†) In their minds they created a new superstition, and like all superstitions it was based on the fear of irony. So, the only lottery ticket you lose will be the winning one, the one time you leave your driver's license at home is the time you will be stopped for speeding, and when someone offers you an insurance policy that only pays you if you're dead, you better damn well buy it. Irony. It was a tacit message, but one that Sam delivered with every sales pitch. He walked into Jim Cable's office with the unusual feeling of being totally unprepared. Maybe it was just the girl who had thrown him, or the Indian. Cable was standing behind a long desk that had been fashioned from an old dinghy. He was tall, with the thin, athletic build of a runner, and completely bald. He extended his hand to Sam. â€Å"Jim Cable. Frank told me you'd be coming, but I'm not sure I like this whole thing.† â€Å"Sam Hunter.† Sam released his hand. â€Å"May I sit? This shouldn't take long.† This was not a good start. Cable gestured for Sam to sit across from him and sat down. Sam remained standing. He didn't want the desk to act as a barrier between them; it was too easy for Cable to defend. â€Å"Do you mind if I move this chair over to your side of the desk? I have some materials I'd like you to see and I need to be beside you.† â€Å"You can just leave the materials, I'll look them over.† Technology had helped Sam over this barrier. â€Å"Well, actually it's not printed matter. I have it in my computer and I have to be on the same side of the screen as you.† â€Å"Okay, I guess that's fine, then.† Cable rolled his chair to the side to allow Sam room on the same side of the desk. That's one, Sam thought. He moved his chair, sat down beside Cable, and opened the notebook computer. â€Å"Well, Mr. Cable, it looks like we can set this whole thing up without any more than a physical for you and Frank.† â€Å"Whoa!† Cable brought his hands up in protest. â€Å"We haven't agreed on this yet.† â€Å"Oh,† Sam said. â€Å"Frank gave me the impression that the decision had been made – that this was just a meeting to confirm the tax status and pension benefits of the policy.† â€Å"I didn't know there were pension benefits.† â€Å"That's why I'm here,† Sam said. It wasn't why he was there at all. â€Å"To explain them to you.† â€Å"Well, Frank and I haven't gotten down to any specifics on this. I'm not sure it's a good idea at all.† Sam needed misdirection. He launched into the presentation like a pit bull/Willy Loman crossbreed. As he spoke, the computer screen supported his statements with charts, graphs, and projections. Every five seconds a message flashed across the screen faster than the eye could see, but not so fast that it could not nibble on the lobes of the subconscious like a teasing lover. The message was: BE SMART, BUY THIS. Sam had designed the program himself. The BE SMART part of the message could be modified for each client. The options were: BE SEXY, BE YOUNG, BE BEAUTIFUL, BE THIN, BE TALL, and Sam's personal favorite, BE GOD. He'd come up with the idea one night while watching a commercial in which six heavily muscled guys got to run around on the beach impressing beautiful women presumably because they drank light beer. BE A STUD, DRINK LIGHT. Sam finished his presentation and stopped talking abruptly, feeling that he had somehow forgotten something. He waited, letting the silence become uncomfortable, letting the conversation lay on the desk before them like a dead cat, letting the diver come to the correct conclusion. The first one to speak loses. Sam knew it. He sensed that Cable knew it. Finally, Jim Cable said, â€Å"This is a great little computer you have. Would you consider selling it?† Sam was thrown. â€Å"But what about the policy?† â€Å"I don't think it's a good idea,† Cable said. â€Å"But I really like this computer. I think it would be smart to buy it.† â€Å"Smart?† Sam said. â€Å"Yeah, I just think it would be a smart thing to do.† So much for subliminal advertising. Sam made a mental note to change his message to: BE SMART, BUY THE POLICY. â€Å"Look, Jim, you can get a computer like this in a dozen stores in town, but this partnership policy is set up for right now. You are never going to be younger, you'll never be in better health, the premium will never be lower or the tax advantage better.† â€Å"But I don't need it. My family is taken care of and I don't care who takes control of the company after I'm dead. If Frank wants to take a policy out on me I'll take the physical, but I'm not betting against myself on this.† There it was. Cable was not afraid and Sam knew no way to instill the fear he needed. He had read that Cable had survived several diving accidents and even a helicopter crash while being shuttled to one of the offshore rigs. If he hadn't glimpsed his mortality before, then nothing Sam could say would put the Reaper in his shaving mirror. It was time to walk away and salvage half of the deal with Cable's partner. Sam stood and closed the screen on the computer. â€Å"Well, Jim, I'll talk to Frank about the specifics of the policy and set up the appointment for the physical.† They shook hands and Sam left the office trying to analyze what had gone wrong. Again and again the fear factor came up. Why couldn't he find and touch that place in Jim Cable? Granted, his concentration had been shot by the morning's events. Really, he'd done a canned presentation to cover himself. But to cover what? This was a clean deal, cut and dried. When he climbed back into the Mercedes there was a red feather lying on the seat. He brushed it out onto the street and slammed the door. He drove back to his office with the air conditioner on high. Still, when he arrived ten minutes later, his shirt was soaked with sweat. CHAPTER 4 Moments Are Our Mentors Santa Barbara There are those days, those moments in life, when for no particular reason the senses are heightened and the commonplace becomes sublime. It was one of those days for Samuel Hunter. The appearance of the girl, the wanting she had awakened in him, had started it. Then the Indian's presence had so confused him that he was fumbling through the day marveling at things that before had never merited a second look. Walking back into his outer office he spied his secretary, Gabriella Snow, and was awed for a moment by just how tremendously, how incredibly, how child-frighteningly ugly she was. There are those who, deprived of physical beauty, develop a sincerity and beauty of spirit that seems to eclipse their appearance. They marry for love, stay married, and raise happy children who are quick to laugh and slow to judge. Gabriella was not one of those people. In fact, if not for her gruesome appearance, an unpleasant personality would have been her dominant feature. She was good on the phone, however, and Sam's clients were sometimes so relieved to be out of her office and into his that they bought policies out of gratitude, so he kept her on. He'd hired her three years ago from the resume she had mailed in. She was wildly overqualified for the position and Sam remembered wondering why she was applying for it in the first place. For three years Sam had breezed by her desk without really looking at her, but today, in his unbalanced state, her homeliness inspired him to poetry. But what rhymed with Gabriella? She said, â€Å"Mr. Aaron is very anxious to talk to you, Mr. Hunter. He requested that you go right into his office as soon as you arrived.† â€Å"Gabriella, you've been here three years. You can call me Sam.† Sam was still thinking about poetry. Salmonella? â€Å"Thank you, Mr. Hunter, but I prefer to keep things businesslike. Mr. Aaron was quite adamant about seeing you immediately.† Gabriella paused and checked a notepad on her desk, then read, â€Å"‘Tell him to get his ass in my office as soon as he hits the door or I'll have him rat-fucked with a tire iron. â€Å" â€Å"What does that mean?† Sam asked. â€Å"I would assume that he would like to see you right away, sir.† â€Å"I guessed that.† Sam said. â€Å"I'm a little vague on the rat-fucked part. What do you think, Gabriella?† Gabriella, Gabriella, As fair as salmonella. â€Å"I'm sure I don't know. You might ask him.† â€Å"Right,† Sam said. He walked down the hall to Aaron Aaron's outer office, composing the next line of his poem along the way. It wouldn't surprise me in the least If you were mistaken for a beast. Aaron Aaron wasn't Aaron's real name: he had changed it so his insurance firm would be the first listed in the yellow pages. Sam didn't know Aaron's real name and he had never asked. Who was he to judge? Samuel Hunter wasn't his real name either, and it was certainly less desirable alphabetically. Aaron's secretary, Julia, a willowy actress/model/dancer who typed, answered phones, and referred to hairdressers as geniuses, greeted Sam with a smile that evinced thousands in orthodontia and bonding. â€Å"Hi, Sam, he's really pissed. What did you do?† â€Å"Do?† â€Å"Yeah, on that Motion Marine deal. They called a few minutes ago and Aaron went off.† â€Å"I didn't do anything,† Sam said. He started into Aaron's office, then turned to Julia. â€Å"Julia, do you know what rat-fuck means?† â€Å"No, Aaron just said that he was going to do it to you for sucking the joy out of his new head.† â€Å"He got a new head? What's this one?† â€Å"A wild boar he shot last year. The taxidermist delivered it this morning.† â€Å"Thanks Julia, I'll be sure to notice it.† â€Å"Good luck.† Julia smiled, then held the smile while she checked herself in the makeup mirror on her desk. Walking into Aaron's office was like stepping into a nineteenth-century British hunt club: walnut paneling adorned with the stuffed heads of a score of game animals, numbered prints of ducks on the wing, leather wing-back chairs, a cherry-wood desk clear of anything that might indicate that a business was being conducted. Sam immediately spotted the boar's head. â€Å"Aaron, it's beautiful.† Sam stood in front of the head with his arms outstretched. â€Å"It's a masterpiece.† He considered genuflecting to appeal to the latent Irish Catholic in Aaron, but decided that the insincerity would be spotted. Aaron, short, fifty, balding, face shot with veins from drink, swiveled in his high-backed leather chair and put down the Vogue magazine he had been leafing through. Aaron had no interest in fashion; it was the models that interested him. Sam had spent many an afternoon listening to Aaron's forlorn daydreams of having a showpiece wife. â€Å"How was I to know that Katie would get fat and I would get successful? I was only twenty when we got married. I thought the idea of getting laid steadily was worth it. I need a woman that goes with my Jag. Not Katie. She's pure Rambler.† Here he would point to an ad in Vogue. â€Å"Now, if I could only have a woman like that on my arm†¦Ã¢â‚¬  â€Å"She'd have you surgically removed,† Sam would say. â€Å"Sure, be that way, Sam. You don't know what it's like to think that getting a little strange could cost you half of what you own. You single guys have it all.† â€Å"Stop romanticizing, Aaron. Haven't you heard? Sex kills.† â€Å"Sure, suck the joy out of my fantasies. You know, I used to look forward to sex because it was fifteen minutes when I didn't have to think about death and taxes.† â€Å"If you do think about death and taxes it lasts half an hour.† â€Å"That's what I mean, I can't even get distracted with Katie anymore. Do you know what someone with my income has to pay in taxes?† The question came up in every one of their conversations. They had worked together for almost twenty years and Aaron always treated Sam as if he were still fifteen years old. â€Å"I know exactly what someone with your income is supposed to pay in taxes, about ten times what you actually pay.† â€Å"And you don't think that that weighs on me? The IRS could take all this.† Sam rather liked the vision of a team of IRS agents loading large dead animal heads into Aaron's Jag and driving off with antlers out every window while Katie stood by shouting, â€Å"Hey, half of those are mine!† No matter how much Aaron attained, he would never let go of his fear of losing it long enough to enjoy it. In his mind's eye, Sam imagined Aaron mournfully watching as they carried the wild boar head out by the tusks. â€Å"This thing is gorgeous,† Sam said. â€Å"I think I'm getting a woody just looking at it.† â€Å"I named it Gabriella,† Aaron said proudly, forgetting for a moment that he was supposed to be angry. Then he remembered. â€Å"What the fuck did you just pull over at Motion Marine? Frank Cochran is talking lawsuit.† â€Å"Over a little subliminal advertising? I don't think so.† â€Å"Subliminal advertising! Jim Cable fainted after that stunt you pulled. They don't even know what happened yet. It could be a heart attack. Are you out of your fucking mind? I could lose the agency over this.† Sam could see Aaron's blood pressure rising red on his scalp. â€Å"You thought it was a great idea last week when I showed it to you.† â€Å"Don't drag me into this, Sam, you're on your own with this one. I've pulled some shit in my time to push the fear factor, but I never had a client attacked by an Indian, for Christ's sake.† â€Å"Indian?† Sam almost choked. He lowered himself very gently into one of the leather wing-backs. â€Å"What Indian?† â€Å"Don't bullshit me, Sam. I taught you everything you know about bullshitting. Right after you left his office Jim Cable walked out of the Motion Marine building and was attacked by a guy dressed up as an Indian. With a tomahawk. If they catch the guy and he tells that you hired him, it's over for both of us.† Sam tried to speak but could find no breath to drive his voice. Aaron had been his teacher, and in a twisted, competitive way, Aaron was his friend and confidant, but he had never trusted Aaron with his fears. He had two: Indians and cops. Indians because he was one, and if anyone found out it it would lead to policemen, one of whom he had killed. Here they were, after twenty years, paralyzing him. Aaron came around the desk and took Sam by the shoulders. â€Å"You're smarter than this, kid,† he said, softening at Sam's obvious confusion. â€Å"I know this was a big deal, but you know better than to do something desperate like that. You can't let them see that you're hungry. That's the first rule I taught you, isn't it?† Sam didn't answer. He was looking at the mule deer head mounted over Aaron's desk, but he was seeing the Indian sitting in the cafe grinning at him. Aaron shook him. â€Å"Look, we're not totally screwed here. We can draw up an agreement signing all your interest in the agency over to me and backdate it to last week. Then you would be working as an independent contractor like the other guys. I could give you, say, thirty cents on the dollar for your shares under the table. You'd have enough to fight the good fight in court, and if they let you keep your license you'll always have a job to come back to. What do you say?† Sam stared at the deer head, hearing Aaron's voice only as a distant murmur. Sam was twenty-six years and twelve hundred miles away on a hill outside of Crow Agency, Montana. The voice he was hearing was that of his first teacher, his mentor, his father's brother, his clan uncle: a single-toothed, self-proclaimed shaman named Pokey Medicine Wing. CHAPTER 5 The Gift of a Dream Crow Country – 1967 Sam, then called Samson Hunts Alone, stood over the carcass of the mule deer he had just shot, cradling the heavy Winchester.30?C30 in his arms. â€Å"Did you thank the deer for giving its life up for you?† Pokey asked. As Samson's clan uncle, it was Pokey's job to teach the boy the ways of the Crow. â€Å"I thanked him, Pokey.† â€Å"You know it is the Crow way to give your first deer away. Do you know who you will give it to?† Pokey grinned around the Salem he held between his lips. â€Å"No, I didn't know. Who should I give it to?† â€Å"It is a good gift for a clan uncle who has said many prayers for your success in finding a spirit helper on your vision quest.† â€Å"I should give it to you, then?† â€Å"It is up to you, but a carton of cigarettes is a good gift too, if you have the money.† â€Å"I don't have any money. I will give you the deer.† Samson Hunts Alone sat down on the ground by the deer carcass and hung his head. He sniffed to fight back tears. Pokey kneeled beside him. â€Å"Are you sad for killing the deer?† â€Å"No, I don't see why I have to give it away. Why can't I take it home and let Grandma cook it for all of us?† Pokey took the rifle from the boy, levered a cartridge into the chamber, then let out a war whoop and fired it into the air. Samson stared at him as if he'd lost his mind. â€Å"You are a hunter now!† Pokey cried. â€Å"Samson Hunts Alone has killed his first deer!† he shouted to the sky. â€Å"Soon he will be a man!† Pokey crouched down to the boy again. â€Å"You should be happy to give the deer away. You are Crow and it is the Crow way.† Sam looked up, his golden eyes shot with red and brimming with tears. â€Å"One of the boys at school says that the Crow are no more than thieves and scavengers. He said that the Crow are cowards because we never fought the white man.† â€Å"This boy is Cheyenne?† Pokey said. â€Å"Yes.† â€Å"Then he is jealous because he is not Crow. The Crow gave the Cheyenne and the Lakota and the Blackfoot a reason to get up in the morning. They outnumbered us ten to one and we held our land against them for two hundred years before the white man came. Tell this boy that his people should thank the Crow for being such good enemies. Then kick his ass.† â€Å"But he is bigger than me.† â€Å"If your medicine is strong you will beat him. When you go on your fast next week, pray for warrior medicine.† Samson didn't know what to say. He would go to the Wolf Mountains next week for his first vision quest. He would fast and pray and hope to find a spirit helper to give him medicine, but he wasn't sure he believed, and he didn't know how to tell Pokey. â€Å"Pokey,† the boy said finally, very quietly, his voice barely audible over the hot breeze whistling through the prairie grass, â€Å"a lot of people say that you don't have no medicine at all, that you are just a crazy drunk.† Pokey put his face so close to Samson's that the boy could smell the cigarette-and-liquor smell coming off him. Then, softly, in a gentle, musical rasp he said, â€Å"They're right, I am a crazy drunk. The others are afraid of me 'cause I'm so crazy. You know why?† Sam sniffed, â€Å"Nope.† Pokey reached into his pocket and pulled out a small buckskin bundle tied with a thong. He untied the thong and unfolded the buckskin on the ground before the boy. In it lay an array of sharp teeth, claws, a tuft of tan fur, some loose tobacco, sweet grass, and sage. The largest object was a wooden carving of a coyote about two inches tall. â€Å"Do you know what this is, Samson?† Pokey asked. â€Å"Looks like a medicine bundle. Ain't you supposed to sing a song when you open it?† â€Å"Don't have to with this one. Nobody ever had medicine like this. I ain't never showed it to anyone before.† â€Å"What are those teeth?† â€Å"Coyote teeth. Coyote claws, coyote fur. I don't tell people about it anymore because they all say I'm crazy, but my spirit helper is Old Man Coyote.† â€Å"He's just in stories,† Sam said. â€Å"There isn't any Old Man Coyote.† â€Å"That's what you think,† Pokey said. â€Å"He came to me on my first fast, when I was about your age. I didn't know it was him. I thought it would be a bear, or an otter, because I was praying for war medicine. But on the fourth day of my fast I looked up and there was this young brave standing there dressed in black buckskins with red woodpecker feathers down his leggings and sleeves. He was wearing a coyote skin as a headdress.† â€Å"How did you know it wasn't just somebody from the res?† â€Å"I didn't. I told him to go away and he said that he had been away long enough. He said that when he gave the Crows so many enemies he promised that he would always be with them so they could steal many horses and be fierce warriors. He said it was almost time to come back.† â€Å"But where is he?† Samson asked. â€Å"That was a long time ago and no one has seen him. If he was here they wouldn't say you were crazy.† â€Å"Old Man Coyote is the trickster. I think he gave me this medicine to make me crazy and make me want to drink. Pretty Eagle, who was a powerful medicine man then, told me how to make this bundle and he told me that if I was smart I would give it to someone else or throw it in the river, but I didn't do it.† â€Å"But if it is bad medicine, if he is your spirit helper and doesn't help you†¦Ã¢â‚¬  â€Å"Does the sun rise just for you, Samson Hunts Alone?† â€Å"No, it rises all over the world.† â€Å"But it passes you and makes you part of its circle, doesn't it?† â€Å"Yeah, I guess so.† â€Å"Well maybe this medicine is bigger than me. Maybe I am just part of the circle. If it makes me unhappy then at least I know why I am unhappy. Do you know why you are unhappy?† â€Å"My deer†¦Ã¢â‚¬  â€Å"There will be other deer. You have your family, you are good in school, you have food to eat, you have water to drink. You can even speak Crow. When I was a boy they sent me off to a BIA school where they beat us if we spoke Crow. Next week, if your heart is pure, you will get a spirit helper and have strong medicine. You can be a great warrior, a chief.† â€Å"There aren't any chiefs anymore.† â€Å"It will be a long time before you are old enough to be a chief. You are too little to be unhappy about the future.† â€Å"But I am. I don't want to be Crow. I don't want to be like you.† â€Å"Then be like you.† Pokey turned away from the boy and lit another cigarette. â€Å"You make me angry. Give me your knife and I will show you how to dress this deer. We will throw the entrails in the river as a gift to the Earth and the water monsters.† Pokey looked at Samson, as if waiting for the boy to doubt him. â€Å"I'm sorry, Pokey.† The boy unsnapped the sheath on his belt and drew a wickedly curved skinning knife. He held it out to the man, who took the knife and began to field-dress the deer. As he drew the blade down the deer's stomach he said, â€Å"I am going to give you a dream, Samson.† Samson looked away from the deer into Pokey's face. There were always gifts among the Crow – gifts for names, Sun Dance ceremony gifts, powwow gifts at Crow Fair, naming ceremony gifts, gifts for medicine, gifts to clan uncles and aunts, gifts for prayers: tobacco and sweet grass and shirts and blankets, horses and trucks – so many gifts that no one could ever really be poor and no one ever really got rich. But the gift of a dream was very pure, very special, and could never be repaid. Samson had never heard anyone give a dream before. â€Å"I dreamed that Old Man Coyote came to me and he said, ‘Pokey, when everything is right with you, but you are so afraid that something might go wrong that it ruins your balance, then you are Coyote Blue. At these times I will bring you back into balance. This dream that I dreamed I give to you, Samson.† â€Å"What does that mean, Uncle Pokey?† â€Å"I don't know, but it is a very important dream.† Pokey wiped the knife on his pants and handed it to Samson, then hoisted the deer up on his shoulders. â€Å"Now, who are you going to give this deer to?†

Various Forms of Organizations

YOU DECIDE PAPER 2 Part I:   Discuss the various forms of organization that are available to Penelope, Mark and John The various forms of organization available to Penelope, Mark and John are: GENERAL PARTNERSHIPS: A general partnership is a business organization formed when 2 or more individuals or entities form a business for profit. All partners share in the management and in the profits and decide on matters of ordinary business operations by majority of the partners or by percentage ownership of each partner. Each partner is liable for all business debts and bears responsibility for the actions of the other partners.Each partner reports partnership income on their individual tax return. A partnership dissolves on the death or withdrawal of a partner unless the partnership agreement provides otherwise. Partnerships are relatively easy and inexpensive to form and require few ongoing formalities. LIMITED LIABILITY COMPANY: A limited liability company is a new and flexible busines s organization of one or more owners that offers the advantages of liability protection with the simplicity of a partnership, i. e. partners are not liable for business debts.Each partner reports business income on their individual tax return. LLCs may dissolve on the death or withdrawal of an owner depending on state law. An LLC is not appropriate for businesses seeking to become public or raise capital. LLCs require few ongoing formalities but usually require periodic filings with the state and also require annual fees. LLCs are more expensive to form than partnerships. CORPORATIONS: A corporation is a legal entity that has most of the rights and duties of a natural person but with perpetual life and limited liability.Shareholders of a corporation appoint a board of directors and the board of directors appoints the officers for the corporation, who have the authority to manage the day-to-day operations of the corporation. Shareholders are generally liable for the amount of their i nvestment in corporate stock. A corporation pays its own taxes and shareholders pay tax on their dividends. However, in a subchapter S corporation, shareholders report their share of corporate profit or loss in their individual tax return. The corporation is its own legal entity and can survive the death of owners, partners and shareholders.A corporation is the best entity for eventual public companies. Corporations can raise capital through the sale of securities and can transfer ownership through the transfer of securities. Corporations require annual meetings and require owners and directors to observe certain formalities. Corporations are more expensive to form than partnerships and sole proprietorships. Corporations require periodic filings with the state and also require annual fees. (COMMON FORMS OF BUSINESS ORGANIZATION  Ã¢â‚¬â€œ http://www. tulsascore. org/organization. tml) PARTNERSHIPS: Partnerships are unincorporated businesses. Like corporations, partnerships are sepa rate entities from the shareholders. Unlike corporations, partnerships must have at least one General Partner who assumes unlimited liability for the business. Partnerships must have at least two shareholders. Partnerships distribute all profits and losses to their shareholders without regard for any profits retained by the business for cash flow purposes. (LLCs are taxed as partnerships, unless they choose to be taxed as corporations. of   organization you believe will be best and be sure to explain the reasoning for your choice. In my opinion, a Limited Liability Company would be the best choice for them to form as it provides easy management and â€Å"pass-through† taxation (profits and losses are added to the owner(s) personal tax returns) like a Sole Proprietorship/Partnership, with the liability protection of a Corporation. Like a corporation, it is a separate legal entity; unlike a corporation, there is no stock and there are fewer formalities.The owners of an LLC ar e called â€Å"Members† instead of â€Å"Shareholders†. So in essence, it’s a like a corporation, with less complicated taxation and stock formalities. The heart of a Limited Liability Company is known as the â€Å"Operating Agreement†. This document sets the rules for operating the company and can be modified as the business grows and changes. Operating an LLC is less formal than a corporation, usually only requiring an Annual Members’ Meeting and Members’ agreeing to changes of the Operating Agreement and other major company decisions.Provides the liability protection of a corporation without the corporate formalities (Board meetings, Shareholder meetings, minutes, etc. ) and extra levels of management (Shareholders, Directors, Officers). Taxed the same as a sole proprietorship (1 Member LLC) or partnership (2 or more Members). (Which Type of Business Entity to Choose? http://www. mynewcompany. com/entity. htm) Part III:   Discuss the ta x consequences of contributing cash, property and/or services to the new entity. Contributions of appreciated property to an LLC, however, are generally tax free and there is no ownership or control requirement.There are ordinarily no federal income tax consequences when a person contributes property or services to an LLC, but there are some exceptions to this rule that you should keep in mind when planning for contributions by new or existing members of LLCs. Under IRC  §721(a), a contribution of property to an LLC is generally tax free to both the contributor and the LLC. There is no 80 percent control requirement to obtain tax-free treatment for a contribution to an entity taxed as a partnership as there is for a contribution to a corporation under IRC  §351.Therefore, a contribution of property to an LLC will be tax free even if the contributor obtains only a relatively small interest in the LLC in exchange. Part IV:   Discuss, in detail, how this entity is taxed (if at al l) and what filing requirements it has with the IRS Limited liability companies that are subject to the partnership tax rules are not responsible for actually paying the tax on business earnings, but are responsible for preparing annual partnership tax returns on IRS Form 1065.This return is for informational purposes only; all income, deductions and credits are reported by each individual owner. The LLC reports each owner's share of these amounts on a Schedule K-1 at the end of the year. In this situation, if Penelope, Mark and John earn $120,000 and have $60,000 of deductible business expenses, then each of them will receive a Schedule K-1 with $40,000 of earnings and $20,000 of deductions. Each of them must then report these figures on their personal income tax returns.Essentially, the business will increase their personal taxable income by $20,000. (LLC Tax Filing Rules – Tax Basis in LLC Interest: In general, the initial tax basis of a member who acquires an LLC interest from the LLC will be equal to the amount of money and the tax basis of any property that the member contributes to the LLC in exchange for such interest. The tax basis thus determined will be increased by such member's share of the LLC's liabilities, by its share of the LLC's income, and by any subsequent capital contributions.The member's tax basis will be reduced (but not below zero) by the member's share of LLC distributions and losses and also by any decrease in such member's share of the LLC's liabilities. IRC  § 752 embodies the statutory rules for sharing LLC liabilities. That Section provides that any increase in a partner's share of a partnership's liabilities, or any increase in a partner's individual liabilities by reason of assuming a partnership's liabilities, will be considered a contribution of money by such partner to the partnership.Conversely, any decrease in a partner's share of a partnership's liabilities, or any decrease in a partner's individual liabilities by reason of a partnership assuming such liabilities, will be considered a distribution of money to the partner by the partnership. Unfortunately, the statute does not provide for the manner in which a partner's share of liabilities will be determined. Instead, one must look to the Regulations. (Federal Income Taxation of LLC Members – http://www. mmmlaw. com/media-room/publications/articles/federal-income-taxation-of-llc-members)This last exception is the most important. In some circumstances, a court might say that the LLC doesn’t really exist and find that its owners are really doing business as individuals, who are personally liable for their acts (LLC Business Basics – http://articles. bplans. com/small-business-legal-issues/llc-basics/186) Cited Sources: COMMON FORMS OF BUSINESS ORGANIZATION  Ã¢â‚¬â€œ http://www. tulsascore. org/organization. html Types of Business  Organizations: 6 Forms of Business for IRS  Purposes http://taxes. about. com/od/taxp lanning/a/incorporating_2. tm Which Type of Business Entity to Choose? http://www. mynewcompany. com/entity. htm Contributions to LLCs – http://www. alberty. com/newsletter_summer01. html How LLC Members Are Taxed – http://www. nolo. com/legal-encyclopedia/how-llcs-are-taxed-29675. html Tax Implications: LLC Versus S Corporations – http://www. hutchlaw. com/library/tax-implications-llc-versus-s-corporations LLC & Asset Protection – http://www. ehow. com/about_6563015_llc-asset-protection. html LLC Business Basics – http://articles. bplans. com/small-business-legal-issues/llc-basics/186