LECTURE VILAW OF PROPERTY, LAW OF TRUSTS, COMMERCIAL LAW (COMPANY LAW/CORPORATION LAW)Course instructor: Roxana-Cristina Petcu, PhD

I. LAW OF PROPERTY

LAW OF PROPERTY IN ENGLAND

In any discussion of the Law of Property it is essential to deal with the land law separately, because land is “of all the elements, the most ponderous am immovable”. Land endures, all other property perishes, alters or is lost in the course of time. Thus, it follows that the rights and interests which can be enjoyed in land are necessarily more complex than others. Further more, history has set land aside as it was the essential part of feudal society and had special importance. At common law, land alone could be recovered against an intruder by means of a real action (real from the Latin res meaning thing), called real because it involved a poroperty claim for the return of the thing itself. This is why land is also called RealProperty or Real Estate. The legal opposite of land is goods, or chattels (from the Latin cattala, meaning cattle, that is the most common early form of goods). Chattels and all other property other than land were called Personal Property.

LAND LAW

Modern land law in England is largely founded upon certain statutes enacted in 1925 and called the Property Acts. The aim of these laws was to effect a number of far-reaching changes in the land law and in the metods of conveying land (transferring land), so, in a way, to update medieval law and practice.

THE MEANING OF LAND

The average person who purchases land probably sees himself as acquiring a visible portion of the surface of the earth. In fact, the law entitles him to more, because, in the eye of the law, land includes the surface of the land, the earth beneath it and certain rights in respect of the airspace above. In strict law, the term land includes all “hereditaments” (Latin heres = heir), that is everything which would at common law descnd to the heir at law upon intestacy. Such things include both corporeal and incorporeal hereditaments. Corporeal hereditaments are physical objects – the land itself, walls or houses adhering to it. Incorporeal hereditaments are non-physical and include, among other things, easements, rights of way or rent charges (sums of money charged upon lands).

Corporeal things attached to the land are also called fixtures. Anything permanently attached to the land or to something else which is itself attached to the land is a fixture, hence it is a part of the land and will pass automatically with the land upon a transfer. Yet, there are certain things which cannot be subject to private ownership and however much they may attached to the land they cannot pass to the purchaser. Examples are unmined gold and silver and (as a result 0f legislation) petroleum and coal.

REAL PROPERTY

Real property is the general term for land, tenements and hereditaments. Real property can be divided into freehold estates and leaseholds. Freehold estates are those estates whose duration is not determined. The duration of a leasehold is fixed or capable of being fixed.

FREEHOLD ESTATES

Essentially there are four types of freehold estates: (i) the fee simple, (ii) the fee tail, (iii) the life estate, (iv) the estate pur autre vie.

The fee simple

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It refers to a whole interest in a piece of real property and may pass through sale, inheritance or reversion. Reversion means that the owner dies, there is no person alive who has the right of inheritance so the property reverts to the State.

The fee tail

A fee tail is an inheritable estate granted only as long as the original grantee or any of his descendants live.

The life estate

A life estate is an estate granted only for the life of the grantee. When the life tenant dies, the remaindermen take possession or the land reverses.

The estate pur autre vie

An estate pur autre vie is similar to a life estate, except that the estate is granted for the life of someone other than the grantee.

LEASEHOLS

A leasehold is generally created through what is referred to as a lease, which is a contract of exclusive possession, generally for a term of years, usually for a specified rent or compensation.

EASEMENTS

A rights acquired for access to or use of another person’s land for a specific purpose.

ACQUISITION OF THE LAND

English law admits of two methods for the acquisition of land: by contract and by limitation.

Acquisition by contract

After the pre-contract negotiations have taken place, the parties to a contract of sale of land or their agents must exchange written documents, which shall define the land precisely and state the price agreed. For a contract of sale to be valid, its terms must be written and signed by the parties in one document, which must be final and not temporary. Before signing the final contract, the parties will sometimes sign an option to purchase, that is an irrevocable offer of sale signed by the vendor in favour of the purchaser. Then the vendor must bring proof that he holds a valid title which he can transfer , failing which the purchaser is entitled to terminate the contract. The final stage is the conveyance or transfer of the land from the vendor to the purchaser in consideration of the price agreed. Under the Law of Property Act 1989, the legal title to the land must be transferred by deed. This provision applies only to sales of land and leases over three years. For leases under three years, a deed is not compulsory.

In case land is sold, it is necessary to have a clear indication of the moment when the title to it passes from one person to another. This indication is the conveyance. There are two methods of conveying land. According to whether the land is registered or unregistered. Nowadays, 90% of the land of the population falls within the former category. In the case of conveying registered land, the title to the land is both officially examined and officially guaranteed. IN the case of conveying unregistered land, the parties to the conveyance are the ones that have to establish and ascertain the validity of the title to the land, which is a very time-consuming and complicated process. Nevertheless, this latter procedure is almost obsolete, so it shall not be discussed.

THE LAND REGISTRATION SYSTEM

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The Land Registration System is governed by the Land Registration Act, under the provisions of which, once the title to the relevant interest in the land in question has been subjected to official verification it is registered in Her Majesty’s land Registry in London or in a district registry. Registration constitutes title, and, if a proprietor wishes to dispose of his interest, he has to execute a short and simple deed of transfer in a prescribed form and have the transferee’s name substituted for his own on the register. Before that, he has to obtain a land certificate, which is evidence of his title, and then the certificate has to be endorsed to the transferee.

THE CONTRACT

Contracts for the sale of land have to be in writing and they are different from other contracts Contract for the sale of land fall into two classes, they are either open or formal. An open contract is a contract which does not set out the terms of the sale, consequently certain conditions

are implied by law. The most important is that the vendor is obliged to show a good title A formal contract is a contract which contains specific conditions. Usually, it consists of particulars,

special conditions and general conditions. The particulars describe the property. The special conditions contain stipulations peculiar to the sale in question. The general conditions are standardized and are usually incorporated into the contract by reference to one or another of a number of set forms. Such forma are put out by the Law Society.

It is usual to provide for the payment of a deposit by the purchaser (usually 10%), which he will forfeit if the sale falls through his default

The vendor, upon conclusion of the contract, becomes trustee of the land in favour of the purchaser. So, if he sells the land to a third party he is accountable to the purchaser for the proceeds. If the purchaser fails to pay, he vendor may apply to the court to sanction the sale of the land in order to recover his loss.

The risk of destruction by fire falls upon the purchaser from the time of the contract In contracts for the sale of land, unlike most other contracts, both parties have a right to specific

performance, not merely to damages.

BETWEEN CONTRACT AND CONVEYANCE

Between the time of the conclusion of the contract and the conveyance the vendor must satisfy the purchaser that he has a valid title to convey

All the operations related to the contract and the conveyance are not performed by the parties themselves, but by their solicitors

Under the registered system, proof of a valid title is easy to provide, as we have already said, because the entry in the register constitutes the title.

The vendor must provide the purchaser with copies, abstracts and evidence of any documents or plans that are entered into the register

The purchaser must peruse these documents and, if he finds it necessary, he may make inquiries (requisitions) to the vendor about the documents and about any defects he may observe

The purchaser must satisfy himself that the property described in the contract is identical to that described in the documents

He may also require evidence (for instance death certificated) of any events material to the establishment of the title

The purchaser must also examine the register or apply for an official search of the register He must also satisfy himself that there are no hidden charges attached to the property He must also ascertain from the local authorities that there is no development planned that may affect the

land or its value When all these steps have been completed to the satisfaction of the purchaser the final step will be the

completion of the conveyance.

COMPLETION

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It is effected by the simple process of execution by the vendor of a simple deed of transfer , followed by substitution of the name of the purchaser for that of the vendor on the register

The land certificate will also be endorsed by the purchaser The deed of transfer must be signed by the vendor in the presence of a witness The deed of transfer states the following:

1. state the consideration for the sale2. be an acknowledgment by the vendor of the receipt of the consideration3. give the file number of the title4. state that the transfer is made by the vendor “as beneficial owner”, which means that the (a) vendor has

a good right to convey the entire interest he has to convey; (b) that the purchaser shall hold his land free from all interference; (c) the land is free from imcumbrances; (d) the vendor shall do all that is possible to perefect the conveyance

Acquisition by possession or limitation

English law protects possession – a person who is in possession of land has a good to the to that land. If the owner of land is dispossessed of his land by a squatter, under English law the latter’s possession constitutes a good title after a certain lapse of time. The law places a limit on the time which the owner should take action to recover possession of his land. At present, the limitation period is 12 years. After that period, the owner loses his right to recover possession of the land, and he also loses title to the land. The squatter has a better title to the land than the original paper owner or than any other person whose interest on the land is inferior to his own. Where the land was in possession of a leaseholder before its occupation by a squatter, the tenant’s title shall be extinguished. The landlord’s title shall not be extinguished, but he shall not be entitled to take action to recover possession of the land until the lease expires.

Co-ownership

We have to distinguish between two types of co-ownership – joint tenancy and tenancy in common.

JOINT TENANCY

There is a joint tenancy when a property is transferred to two or more persons without words of severance. Words of severance are terms which give each party a pre-determined part or share of the property.

As soon as there are words of severance, a joint tenancy can no longer exist at common law and the parties are regarded as tenants in common

Joints tenants can occupy a land jointly

TENANCIES IN COMMON

Under a tenancy in common, each tenant’s share shall be either defined in the contract of sale of land, or shall be implied from the rules of equity

In particular, when a party (spouse, cohabitant, etc), who has no title to the land, has contributed to the purchase of the said land with the common intent that this financial contribution would give him an interest in the land, equity regards this party as a tenant in common

In this case, the legal title is held only by one person, but a trust for sale is imposed on the legal title holder who shall not be allowed to sell the land without the agreement of the other tenant in common or the court

The tenants in common are entitled to occupy the land jointly with the other tenants in common and to continue the occupation of the land as long as the object of the land remains effective

On the sale of the property, each tenant in common shall receive a share of the proceeds in proportion to his interests in the land

LAW OF PROPERTY IN THE USA

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Much of the American law of property is derived from English law. American law of property is a mixture of common law and statutory law. Most of real property is subject only to the laws of the state in which the property is physically located. The federal government exercises only limited control of real property; it interferes exclusively in bankruptcy cases, regulation of interstate commerce and when itself is the owner of the property. In all other cases (acquisition, transfer, inheritance, the incidents of real property), real property is governed by state law.

TRANSFER OF REAL PROPERTY

A consensual transfer is effected formally by a deed from the owner durin his life or by will after the owner’s death

Other transfers are effected by operation of the law and result from court orders or decrees of distribution for inheritance

The most common form of transfer of real property is a deed before a notary public. The deed names the trabsferee and describes the property precisely. To be effective, the deed must be delivered to the transferee

There are three main forms of deed in the US:1. warranty deed – the grantor warrants the following :

(i) that he has title to the land and the right to transfer it(ii) that the land in free from encumbrances (iii) that the grantee will have quiet enjoyment of the property without claims of title by

others2. grant deed – grants the grantee limited warranties3. quit claim deed – transfers only such interest or title as the transferor may have, without any

warranties or covenants (engagements) title or ownership may also be transferred by judicial sale or by trustee sale when a property owner fails to

pay a court judgment or his taxes or defaults in a mortgage title can also be transferred from one owner to another person, without the owner’s consent, by adverse

possession

II. LAW OF TRUSTS

LAW OF TRUSTS IN ENGLAND

A trust is a right of property, real or personal, held by one party for the benefit of another or others. In a trust, the original owner of the property (settlor places his property in confidence (trust) into the hands of another person, with a view that this person (trustee ) shall hold the property for the benefit of another (beneficiary – cestui qui trust).

The law of trusts dates back to the Middle Ages, it derives from the medieval use (uzufruct), invented to soften the hardship of the common law rules that prevented land from being left by will and to alleviate the burdens imposed on the freehold tenants. On a freeholder’s death, his heirs had to pay the feudal lord very high dues. Through the use, by means of which the freeholder remitted the land to one or several of his friends, these friends became the legal owners of the land in the eyes of the common law, and they gave the tenant (who was now only the beneficiary of the use) the revenue of the land.

On the tenant’s death, his heir did not have to pay any feudal dues, because the land still belonged officially to the friends and who now gave the new beneficiary the revenue of the land

APPLICATIONS OF TRUSTS

Trusts are used for various purposes:

1. to protect minors or other persons who are incapable at law (who cannot hold land) to benefit from the revenues of land

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2. to allow settlements, namely to allow the ability to dispose of property so that it can benefit several persons in succession

3. to allow two or more persons to own land4. to establish charitable foundations5. to avoid or minimize liability to taxation

The main characteristic of a trust is that it creates dual ownership – the trustee is the legal owner and the beneficiary is the equitable owner, which means that equity compels the trustee to respect his obligations under the trust and to serve the profits of the property to the beneficiary

There are two types of trusts – private trusts and public (charitable) trusts.

Private trusts

Private trusts can be divided into three categories: (i)express trusts; (ii)implied trusts; (iii) constructive trusts.

EXPRESS TRUSTS Trusts expressly created by the settler during his life or by will, for the benefit of one or several persons or

of a group of persons. They are written by deed or by will, but they can also be created orally A private trust cannot normally last longer than a life plus 21 years There 3 conditions deemed necessary for the creation of a trust:

(i) certainty of intention – when the settler expresses a positive command that things be done to create a trust,

(ii) (ii) certainty of subject-matter – the property to which the trust is to apply and the interests that the beneficiaries are to receive that the beneficiaries are to receive must be defined precisely, and

(iii) (iii) certainty of objects - the persons who are to benefit from the trust must be specified. Once a trust is fully constituted, equity will assist the beneficiary under the trust to enforce his rights

IMPLIED TRUSTS Based upon the presumed intention of the settler Most implied trusts are resulting trusts, that is a person purchases property but has it conveyed into the

name of another. If there is no proof that the purchaser of the property wanted to make a gift to the other person, equity treats

the other person as a trustee of the property for the benefit of the purchaser

CONSTRUCTIVE TRUSTS They are imposed by equity regardless of the intention of the parties The most common type is when a trustee, in breach of trust, conveys the trust property to a third party, who

knows the property is under a trust but nevertheless accepts it The third person shall not become the legal owner of the property, but shall be regarded as a “constructive

trustee” and is compelled to hold the property in trust for the beneficiaries

Public or charitable trusts

To be regarded as charitable a trust must:(i) be charitable in the legal sense, namely must be created with a view to relieve poverty or to advance

education, or religion, or for other purposes beneficial to the community as a whole, for instance to provide public works (museums, bridges) or to create a distress fund

(ii) benefit a large section of the community or the whole community and not just specific individuals(iii) be exclusively charitable, namely the benefits of the property cannot be applied to non-charitable

purposes

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Charitable trusts are wholly or partially exempt from taxes can be perpetual are enforced by the Attorney General in the name of the Crown

TRUSTEES

A person of full age and sound mind who is capable at law can be a trustee under an express trust Trustees are normally appointed by the settler at the time of the creation of the trust A new trustee can be appointed if one of the trustees dies or retires or refuses to act or is unfit or incapable

of acting A trustee must take the same care of the trust property as an ordinary prudent man of business would take

of his own property If a trustee is careless or commits a breach of trust, he is personally liable for the resulting losses Trustees must not make profits from the trust They must keep accounts and produce them to the beneficiaries A trustee is not normally entitled to charge for his services, but he may do so if the trust empowers him to

do so, or if the beneficiaries are all capable and all agree, or after a court has decided that he may

LAW OF TRUSTS IN THE USA

The system of trusts has been very successful in the USA. American law gives the same definition of the trust as English law. American law makes the same distinction as English law between express trusts and implied trusts, and among the latter distinguishes between constructive trusts and resulting trusts. It also makes the same distinction between private trusts and public (charitable) trusts.

The essential elements of a trust under Americam law are the following:(i) designated beneficiary and trustee(ii) fund sufficiently identified to enable the title to pass to the trustee(iii) actual delivery ot the title to the trustee

Trust cases are never judged by a jury.

BUSINESS TRUSTS

they are an extension of the business trust system set up by John D. Rockefeller in 1881. Rockefeller created the first business trust when he put the stock of the Standard Oil Company and of all its affiliated companies in the hands of a trustee. He used the trust to gather a near monopoly in the oil refining and distribution business

a business trust is an association or organization of persons or corporations having the intention and power to create a monopoly, control production, interfere with the free course of trade, or to fix and regulate the supply and price of commodities

initially the aim of business trusts was to eliminate destructive competition it involved the creation of a central committee or board usually composed of the presidents or general

managers of the different corporations it also involved transferring to them the majority of the stock in each of the corporations, to be held “in

trust” for the stockholders so assigning their holdings the stockholders received “trust certificates” showing that they were entitled to receive the dividents

generated by their stock the voting power assigned to the respective stock passed to the trustees who could so elect all the directors

of all the corporations and through them exercise an absolute controlling influence over the policy and operations of each constituent company

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nowadays, the term trust is no longer used in this sense, but it designates almost any combination of a monopolistic character or tendency

III. COMMERCIAL LAW COMMERCIAL LAW IN ENGLAND

Commercial law deals with the rights and duties created by the supply of goods and services, namely with commercial transactions. It arose from the need to protect the purchaser and maintain trade. Institutions are regulated by company law in the UK and the law of corporations in the USA.

English commercial law is based upon common law rules, statutory provisions and case law. Most commercial transations are carried out by agents, who go by the name of brokers, representatives, factors, etc. They act on behalf of their principals to establish a contractual relationship between the latter and a third party. Thus, a contract of agency is created, which is the corner stone of major commercial transactions.

A negotiable instrument is a document is a document to title to money. It enables a person to make a transfer of the ownership to another. The two main types of negotiable instruments are:(i) bills of exchange– very rarely used in home trade, but extremely common in foreign trade. Foreign and domestic bills of exchange involve three persons – the drawer, the drawee and the payee. The drawee endorses the bill of exchange and agrees to pay at a certain fixed date a sum to the payee on behalf of the drawer.(ii) cheques.

There are other instruments, such as:(i) promissory notes– widely used in the US; involve two persons, the maker and the payee.(ii) bankers’ drafts (iii) travellers’ cheques (iv) investment securities (bonds, debentures certificates of deposits)

Other payment mechanisms include:(i) standing orders (ii) credit transfers(iii) direct debits (iv) point-of-sale electronic funds transfer systems

COMMERCIAL LAW IN THE USA

American commercial law represents the body of substantive law related to commerce, trade and mercantile activities.

The UCC (Uniform Commercial Code) is based on the underlying principle of freedom of contract and covers all aspects of commercial transactions:

- sales of goods- coomercial papers- bank deposits and collections- letters of credit- bulk transfers - warehouse receipts - bills of lading - investment securities- secured transactions

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The Code deals with all the phases which arise in the handling of a commercial transaction:- selling of goods- paying for goods with commercial papers- shipping and storing goods covered by documents of title- financing the sale of goods (i.e. secured transactions)- the letter of credit which initiates the commercial transaction

The principle of freedom of contract is limited by the obligations of good faith, diligence, reasonableness and care.

As far as the construction (interpretation) of contracts is concerned, the Code provides that the contract shall be interpreted in the following order of priority:

- express terms- course of performance - course of dealing - usage of trade

The Code recognizes four property interests in goods – (i) title, (ii) special property, (iii) insurable interst and (iv) security interest. - A sale is defined as the passing of title from the seller to the buyer for a price.

- A buyer obtains special property in goods by identification of existing goods as goods which the contract refers to.

- An insurable interst is the relation between the insured and the event insured against such that the occurrence of the event will cause substantial loss or injury of some kind to the insured

- A security interest means an interest in personal property or fixtures which secures payment or performance of an obligation

Every contract within the Code imposes an obligation of good faith in its performance.

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LEGAL ENGLISH WORKSHOP VI (Applied Modern Languages MA Programme)Course instructor: Roxana-Cristina Petcu, PhD

I. Match the terms below with their correct definition:1. descent; 2. grantor; 3. landlord; 4. heir; 5. grantee; 6. tenant; 7. real property; 8. land; 9. estate pur un autre vie; 10. reversion; 11. tenements; 12. leasehold; 13. fee simple; 14. hereditaments; 15. personal property; 16. remaindermen

A. all property that does not comprise land or incorporeal hereditaments; B.a person who transfers property ; C. any real property capable of being passed to an heir; D. a person (usually the owner) who gives another person a lease usually in return for rent; ; E. ownership that is not liable to end upon the person’s death, with the expiration of time or on failure of a particular line of heirs; F. a person who is entitled to inherit property; G. held for a period of fixed minimum duration; H. a person to whom a lease is given in return for rent; H. passing of property by inheritance; I. property which is the subject of tenure, that is a mode of occupying the land whereby possession is held by a tenant, but absolute ownership lies in another person; J. a person to whom a grant of property is made; K. person who is entitled to what is left of an estate after the tenant dies and the parts of the estate that are handed down in his will are taken out; L. return of the real property to the State; M. a person who is granted a tenancy; N. estate granted only for the life of a third party (other than the grantee); N. land, including anything attached to it; O. the surface of the land, the earth beneath it and certain rights in respect of the airspace above.

II. Complete the sentences below using the correct words from the list. In some sentences several words can be used.

Distinguish, divide, category, group, fall under the heading of, categorize, include, be a general term for, refer to, type, classify, class, encompass

1. English-speaking jurisdictions generally ________ between real property and personal property. 2. Real property ________ land, tenaments and hereditaments which, upon the death of the owner, pass to his heirs. 3. Personal property ________ everything which does not _______ real property. 4. Real property can be _______ into freehold estates and leaseholds. 5. Essentially, there are four ________ of freehold estates. 6. Real property law ________ such things as easements, mortgages and other financing measures.

III. Complete the clauses below from a tenancy agreement using the words below:

Deem; harmless; herein; liable; Lessee; Premises; quietly; reasonable; rules; thereon

1. INSPECTION OF PREMISES. Lessor and Lessor’s agents shall have the right to all _____ times during the term of this agreement to enter the ________ for the purpose of inspecting all the building and improvements _____ and also for the purposes of making any repairs, additions and alterations as may be ________ appropriate by lessor for the preservation of the building.2. INDEMNIFICATION. Lessor shall not be ______ for any damage or injury of or to the Lessee, lessee’s family, guests, agents and employees or to any person entering the building, and _____ hereby agrees to indemnify, defend and hold Lessor _______ from any and all claims.2. QUIET ENJOYMENT. Lessee, upon payment of all sums referred to _____ as being payable by Lessee contained herein and observance of all _______ and regulations, shall and may peacefully ______ have, hold and enjoy said Premises for the term hereof.

IV. Match the nouns below with the verbs with which they commonly collocate. Some nouns collocate with more than one verb. Provide Romanian translations, then use these phrases to complete the sentences below.

NOUNS: contract, lease, premises; regulation; requirement; site; statute; tenancyVERBS: abandon; comply with; terminate1. The fact that the tenants _____ will not normally relieve them from the duty to pay rent. 2. The security deposit will be refunded if you ________ . 3. The agreement conatins a provision allowing the landlord to ________ within

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six months of the beginning of the tenancy. 4. In the case of the non-payment of rent by the tenant, the landlord had the power to _______ . 5. A lease which does not _____ aforementioned ________ is wholly void.

V. Fill in the blanks in the text below using the words in the list:completion date; conveyancing; planning permissions; deed of transfer; bidder; ownership; title; sold by private treaty; passed to; caveat emptor; warranties; purchaser; sale memorandum; property particulars; contract to purchase; seller; completion; buyer; sold by auction; title to the property; terms; bidding for; legal pack; searches; prospective

Let us say a few words about _____, namely the transfer of the _____ of property in the UK. In the UK the transfer of property is governed by the principle of _____ (Lat. Let the buyer beware). Contract provisions reinforce this principle by acknowledging that the ______ has had an opportunity to make full investigations of the ____, that is the rights of ownership, and to check the property. Generally, a commercial agent will market a commercial property. The ______ will specify the ____ on which the property is to be sold. The details show whether it is to be _____ (sold to the highest ____) or _____ (the ____ and _____ reach an agreement). If the sale is to be by auction, a ____, prepared by the seller’s solicitor, will be available to ______ purchasers. It will contain the special conditions relating to the sale as well as copies of appropriate _____ (documents which prove inspection of records, for instance about land use and restrictions on its use). It will also include _____, ______ and other documents relevant to the property and to the transfer of ownership, such as legal evidence of the seller’s _____. The prospective purchasers must be satisfied with the seller’s title and other information. If necessary, they may raise further inquiries in advance of the ______ the property. The signing of the ______ by the purchaser or their agent at the auction constitutes the ______. Sale, known as _____, when payment is made and the _____ is _____ the purchaser, usually takes place at a _____ specified in the special conditions.

VI. Supply the correct adjective derived from the nous below. Provide their Romanian equivalents. Use them in sentences of your own. Statute, reason, negligence, capability, inheritance, prospect; necessity, safety.

VII. The main objective of the Law of Property, Natural Resources and the Environment is to ensure that the environment is protected against both public and private actions that fail to take account of costs and harms inflcicted to the eco-system. Match a word in List A with a word in List B to form 13 phrases related to the law of property. Provide their Romanian translation.

LIST A: atomic, clean, clean, endangered, energy, natural, navigable, noise, ocean, oil, pesticide, tropical, waste

LIST B: waters, water, species, sources, resources, pollution; pollution; forests, energy, dumping; disposal, control, air

VIII. Below are seven agency relationships. Match the principals with the agents and then match each principal and each agent with the correct definition.

PRINCIPALS: attorney, executor, trustee, master, guardian, corporate director, employer

AGENTS: beneficiary, client, employee, heir, servant, stockholder, ward

PRINCIPALS’ DEFINITIONS.

1. one that hires others to perform a service or angage in an activity in exchange for compensation; 2. an officer appointed by the shareholders to represent their interests; 3. an individual who, by legal appointment of by the effect of a written law, is given custody of both the property and the person of one who is unable to manage his one affairs; 4. an individual or an entity having control or authority over another; 5. a person specifically appointed bu a testator to administer the will ensuring that final wishes are respected; 6. a person authorized to act on another’s behalf as a lawyer; 7. a natural or legal person to whom property is committed to be administered for the benefit of a beneficiary

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AGENTS’ DEFINITIONS

1. a person entitled to receive under the terms of a will; 2. a person who by reason of incapacity is under control of another; 3. a person who serves others; 4. a person hired by another to perform a service especially for wages or salary and who is under the other’s control; 5. a person or entity named or otherwise entitled to receive the principal or income or both from a trust; 6. a person who buys the services of another, in this case legal services; 7. an owner of corporate stock.

IX. Below are the main areas of commercial law. Match each branch to the contents ir covers.

1. banking; 2. bankruptcy; 3. consumer credit; 4. commercial law; 5. debtor and creditor; 6.contracts; 7. mortgage; 8. landlord and tenant; 9. real este transactions; 10. negotiable instruments; 11.secured transactions; 12. sales.

A. this law provides for the development of a plan that allows the debtor, who is unable to pay his creditors, to resolve his debts through the division of his assets among his creditors; B. these regulations establish which institutions may offer credit and debit facilities; C. This branch of law governs the broad areas of business, commerce and consumer transactions; D. this law regulates how consumers may finance transactions without having to pay the full cost of the merchandise at the time of the transaction; E. the law covers promises that the law will enforce.It provides remedies if a promise is breached; F. this law governs situations where one party is unable to pay a monetary debt to another; G. this law governs the rental of commercial and residential property. The basis of the legal relationship between the parties is grounded in both contract and property law. H. This transaction involves the transfer of an interest in land as s security for a loan or other obligations; I. these are ‘unconditioned writings’ that promise or order the payment of a fixed amount of money. Drafts and notes are two main categories. J. The agreement to sell between the buyer and seller is governed by the general principles of contract law. It is normally required that these types of contract be in writing. K. This branch of law regulates every phase of a transaction for the sale of goods and provides remedies for problems that mauy arise. It provides for implied warranties of merchantability and fitness. L. this interest arises when in exchange for a type of loan a borrower wgrees, in a security agreement, that a lender may take specified collateral owned by the borrower if he should default on the loan.

X. Look at the sentences below and choose the alternative which best fills the blank spaces:

1. A promissory note is a __________which contains an ________to pay a certain amount of money to the ________of the document. It is signed by the _______. A. 1. payment order; 2. negotiated instrument; 3. negotiable instrumentB. 1. conditioned promise; 2. unconditional promise; 3. promiseC. 1. bearer; 2. holder; 3. ownerD. 1. signatory party; 2. maker; 3. party

2.A promissory note can also be payable _____, which means that the sum of money is payable to a certain person and not to the holder of the instrument. 1. to the bearer; 2. to a third party; 3. to the order

3.If a ________is eventually held by someone who is ________ with the _________, but who holds the note in ________ and knows of no problem with the instrument, that person can become a ________ . A.1. note; 2. promissory note; 3. draftB. 1. irrelevant; 2. immaterial; unconnected;C. 1. underlying transaction; 2. current transaction; 3. future transactionD. 1. bad faith; 2. no faith; 3. good faithE. 1. dishonest buyer; 2. disinterested buyer; 3. honest buyer

XI. These parties are all involved in the use of negoatiable instruments. Match their names with the correct definition. Provide Romanian tranaslations and use these terms in sentences of your own.

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1. bearer; 2. drawer; 3. drawee; 4. endorsee; 5. holder in due course; 6. maker; 7. payee

A. a party who signs a note, cheque or other negotiable instrument and who promises to pay an obligation when due; B. party who has acquired possession of a negotiable instrument through proper negoriation for value, in good faith, and without notice of any defences to it; C. party who is in possession of a negotiable instrument payable to bearer or endorsed in blank; D. party who issues or signs a bill of exchange or draft as a party ordering payment; E. party to whom a cheque, draft or note is payable; The payee’s name follows the words: “pay the order to”. F. party on whom a bill of echange or draft is drawn, and thus who is required to make payment; G. party to whom a negotiable instrument is transferred by the act of endorsement.

XII. Legal Latin. Match the legal Latin terms below with their English translation. Provide their Romanian translations and use them in sentences of tour own.

1.ad hoc; 2. affidavit; 3.bona fide; 4. caveat; 5. de facto; 6. de jure; 7. et caetera; 8. exempli gratia; 9. ex parte; 10. id est; 11. in camera; 12. in curia; 13. in situ; 14. inter alia; 15. ipso facto; 16. per pro; 17. per se; 18. prima facie; 19. pro rata; 20. quasi; 21. sub judice; 22. ultra vires; 23. videlicet;

A. namely; B. for this purpose; C. beyond the power; D. witnessed, signed statement; E. in the course of the trail; F. in good faith; G. as if it were; H. warning; I. in proportion; J. in fact; K. at fist sight; L. by right; M. by itself; N. an so on; O. on behalf of another; P. for example; Q. by the fact; R. by a party without notice; S. among other things; T. that is; U. in its original situation; V. hearing a case in private; W. in open court

XIII. Translate into Romanian:

A. A slice of Danish . An ancient Scandinavian model may help modern mortgage markets

COPENHAGEN’S winding streets and curved waterways are not obvious places to find the answers to one of finance’s most pressing questions. Yet some argue that it was here, amid the devastation of the city’s great fire of 1795, that a mortgage-lending model was developed that may offer a way to thaw today’s mortgage markets in America and Europe.Denmark has not escaped the credit crunch entirely. Its economy is contracting, house prices are falling and several of its smaller banks have been bailed out after making risky commercial loans. Nevertheless, the country’s mortgage banks are continuing to sell bonds and issue mortgages at a pace similar to that before the credit crisis. “We have been issuing bonds every day, even in the worst days,” says Henrik Hjortshoj-Nielsen of Nykredit, Denmark’s biggest mortgage lender. “We haven’t seen lower volumes.” When a Danish mortgage bank grants a mortgage it is obliged to sell an equivalent bond with a maturity and cashflow that matches those of the underlying loan almost perfectly. This may not seem very different from the “originate-to-distribute” securitisation models that flourished in America and parts of Europe in recent years. But the Danish system has two characteristics that change it almost completely. The first is that the issuers of mortgage bonds remain responsible for making payments on them. This avoids a flaw that was so painfully exposed in America’s mortgage market: lax lending is encouraged when the link is broken between those who sell mortgages and those who bear the risk of default. The second feature of the Danish system is that mortgage-holders can also buy the bonds in the market and use them to redeem their mortgages. This is useful if a rise in interest rates (or a fall in house prices) causes mortgage-backed bonds to trade at a discount. Redeeming their bonds allows homeowners to reduce the amount they owe. In America, for instance, mortgage-backed securities have fallen far below their fundamental value in thinly traded markets, partly because the people who would benefit most from buying them have no mechanism to do so. “Everybody can buy that bond at a discount except that one guy who is most involved with the loan, the homeowner,” says Alan Boyce, a mortgage expert who has worked with George Soros, an investor and philanthropist, on promoting the Danish model in emerging markets. In Denmark, by contrast, a fall in the value of mortgage bonds usually encourages homeowners to snap them up to redeem their own mortgages, as is happening now.Although this might seem to make such bonds less attractive to investors, in practice it seems to have done the opposite. Ted Lord of Barclays Capital, an investment bank, says that Danish investors see their country’s mortgage bonds as no more risky than their government’s debt. Regulations limit the amount that can be loaned to homeowners to no more than 80% of the value of the home. Denmark’s legal system also makes it easy for banks to seize the homes of defaulters.It is not clear that the Danish model would work as well in countries where property

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markets are less homogenous. But its admirers are gaining ground. “If you need systemic change, as I believe you do, you may as well go for something that is vastly superior,” says Mr Soros.

B. Bavarian baksheesh. The stench of bribery at Siemens signals a wider rot in Europe

WHEN Siemens, Europe’s biggest engineering firm, adopted the slogan “Be inspired” in the mid-1990s, bribery was not what it had in mind. But no one can accuse its managers of lacking inspiration in devising ways to pass generous backhanders to corrupt officials and politicians around the world. On December 15th Siemens pleaded guilty to charges of bribery and corruption and agreed to pay fines of $800m in America and €395m ($540m) in Germany, on top of an earlier €201m.There is something almost touching about the candour and trust with which Siemens went about a very dirty business. Take the three “cash desks” it set up in its offices, to which employees could bring empty suitcases to be filled with cash. As much as €1m could be withdrawn at a time to win contracts for Siemens’s telecoms-equipment division, according to America’s Department of Justice (DoJ).Surprisingly, considering their crooked purpose, the cash desks seem to have operated on an honour system. Few questions were asked, no documents were required and managers who asked for money were allowed to approve their own requests. Until 1999 Siemens openly claimed tax deductions for bribes, many of which were listed in its accounts as “useful expenditure”. Between 2001 and 2004 some $67m was merrily carted off in suitcases. “There was no complex financial structuring such as you would find among drug smugglers or money launderers,” says Mark Pieth, chairman of the working group on bribery at the OECD. “People felt confident that they were doing nothing wrong.”Even when they knew they were doing wrong, they could not break the habit. Illicit payments continued for years after Germany outlawed the bribery of foreign officials in 1999 and after Siemens listed its shares on the New York Stock Exchange in 2001, which made it subject to America’s tough anti-bribery laws. Instead of counting money in the office, the firm put cash in special accounts, kept off its books, from which nefarious payments could be made. Much of the dirty work was farmed out. As Siemens half-heartedly clamped down on corruption, managers took ever more eccentric steps to avoid getting caught. When authorising payments, many of them signed on removable sticky notes.The sums are staggering. About $805m was paid to foreign officials to help Siemens win contracts over about six years after the firm’s American listing, according to the DoJ. And the brazenness of the firm’s bribe-paying points to a rotten corporate culture pervasive across Germany at the time. “The great majority of companies operating in the international market were well aware that German law—and the law of most OECD countries—allowed foreign bribery and even subsidised this,” says Peter Eigen, the founder of Transparency International, an anti-corruption group. That, at least, has changed. Mr Pieth thinks about half of the 30 biggest German and French firms are being investigated or prosecuted for bribing foreign officials. And Germany has steadily improved its rank in Transparency’s “Bribe Payers Index”, moving from ninth-least corrupt in 1999 to fifth in 2008. Yet the Siemens affair also shows how far Europe still lags behind America in prosecuting bribery. Few close to the case think it would have progressed nearly as far had Siemens not invited in Debevoise & Plimpton, a New York law firm, in the hope of winning leniency from American prosecutors. The lawyers pored over its books and interviewed staff in the largest private inquiry of its kind (and, at €204m, probably the costliest too).Ellen Podgor, an expert in white-collar crime at Stetson University in St Petersburg, Florida, reckons that Siemens confessed all not to minimise the fine it had to pay but to avoid being barred from business with the American government. “The amount of money being paid is not the crucial factor,” she says. “The crucial factor is not being doomed.” If only European prosecutors could inspire such dread.

XIV. Translate into English:

A. DNA a descoperit un nou tun: Fosti sefi ai Spitalului Clinic de Adulti Cluj au primit spaga trei case

Doi fosti sefi de serviciu din cadrul Spitalului Clinic de Adulti Cluj au fost trimisi în judecata de procurorii clujeni ai Departamentului National Anticoruptie pentru comiterea unor abuzuri legate de organizarea unor licitatii, receptionarea unor lucrari de reparatii si întretinere, precum si plata acestor lucrari. Potrivit anchetatorilor, prejudiciul adus spitalului de Emilia Roman, fost director administrativ al unitatii, si Gheorghe Pop, fost sef al serviciului tehnic al spitalului este de peste 430 mii de lei noi. În acelasi dosar va mai fi judecat administratorul unei firme care a fost implicat direct în matrapalzâcurile puse la cale de Roman si Pop. Acestia din urma au mai fost deja condamnati definitiv într-un alt dosar instrumentat de DNA pentru aceleasi tipuri de fapte.Emilia Roman este acuzata de abuz în serviciu în forma calificata si continuata,

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luare de mita, fals material în înscrisuri oficiale, în forma continuata, uz de fals, în forma continuata, fals în înscrisuri sub semnatura privata, în forma continuata. Aceleasi acuzatii îi sunt aduse si lui Gheorghe Pop, fost membru în comisia de evaluare a selectiilor de oferte si, respectiv, de receptie a lucrarilor din cadrul Spitalului Clinic de Adulti Cluj-Napoca. Anchetatorii arata ca, între anii 2002 si 2004, Emilia Roman, în calitate de director financiar-contabil, iar ulterior de director administrativ la Spitalul Clinic de Adulti Cluj-Napoca si membru al comisiei de evaluare a ofertelor, împreuna cu inculpatul Gheorghe Pop, membru în comisia de evaluare si, respectiv, de receptie a lucrarilor, a atribuit firmelor «Relian Prod Impex» SRL Cluj-Napoca, «Goodwill Eximp» SRL Cluj-Napoca, controlate de Anica Câmpan, mai multe lucrari de reparatii la sectiile acestei institutii sanitare. Procurorii sustin ca lucrarile au fost oferite cu nerespectarea dispozitiilor legale privind achizitiile publice. «Prin nesocotirea normelor privind receptionarea lucrarilor si a celor din domeniul finantelor publice a decontat si achitat lucrari neexecutate ori lucrari al caror pret a fost majorat în mod artificial. În acest scop, inculpatii Roman Emilia si Pop Gheorghe, cu ajutorul inculpatei Anica Câmpan, au falsificat mai multe înscrisuri oficiale sau sub semnatura privatal pe care le-au folosit pentru a justifica atribuirea lucrarilor si decontarea cheltuielilor”, se arata în rechizitoriul întocmit de DNA. Anchetatorii mai sustin cal pentru a favoriza firmele Anicai Câmpan, în anul 2004, Emilia Roman a pretins de la Câmpan construirea unei case în Cluj-Napoca în valoare de peste 1.886.000.000 ROL, iar Gheorghe Pop “a optat” pentru doua case in Cluj-Napoca în valoare de peste 1.422.000.000 ROL. Casele au fost ridicate de Anica Câmpan prin firma sa, SC “Relian Prod Impex” SRL Cluj-Napoca. DNA sustine ca prin aceste fapte s-a creat un prejudiciu Spitalului Clinic de Adulti Cluj de aproximativ 438.000 de lei noi. Pentru recuperarea acestui prejudiciu, cele trei case construite de Câmpan au fost puse sub sechestru.Instanta a stabilit ca Pop a pretins si primit, în mai multe rânduri, sume de bani sau procente din valoarea contractelor încheiate de spital cu diverse societati comerciale pentru achizitionarea de mobilier sau atribuirea unor contracte având ca obiect efectuarea unor lucrari de reparatii la centralele termice si la câteva cladiri ale unitatii. În schimbul banilor, Pop mijlocea atribuirea fara selectie de oferta a contractelor, cât si decontarea, în regim de urgenta si fara respectarea normelor legale, a lucrarilor efectuate total sau partial. Emilia Roman, în calitate de director financiar-contabil, a dispus plata unor facturi fiscale, fara a exista situatii de lucrari întocmite si procese-verbale de receptie a acestora, cu scopul vadit ca agentul economic privat sa beneficieze de suma respectiva.

B. Proprietarii de apartamente nu vor in ruptul capului sa lase la pret

Desi toti expertii in imobiliare anunta de aproape un an scaderea preturilor la apartamentele vechi, o analiza efectuata pe anunturile publicate la mica publicitate strict de catre proprietari arata ca acestia nici nu concep sa lase la pret. Este vorba despre oamenii de rand, pentru care apartamentul in care locuiesc reprezinta poate singura lor avere. Cu speranta unui noroc neasteptat, acestia isi scot la vanzare casele la aceleasi preturi la care au vandut fostii lor vecini acum mai bine de un an. Piata imobiliara este insa blocata aproape complet, iar de vandut vand numai cei disperati, care au ramas fara servicii si cu rate de platit. De nevoie, dar si indemnati de agentii imobiliari, atunci cand au un cumparator interesat, acestia scad drastic pretul.Analistii imobiliari care anunta regulat scaderea preturilor la apartamentele din blocurile vechi sunt contrazisi de ceea ce se vede simplu in anunturile de la mica publicitate ale particularilor care ar vrea sa vanda o locuinta. Conform acestora, pentru o garsoniera din Rahova, la etajul 1, cu o suprafata de 40 de metri patrati, renovata si cu ceva imbunatatiri (daca gresia, faianta, termopanul si parchetul mai pot fi considerate astfel) costa 68.000 de euro. Aproape tot atat se cere si pentru o garsoniera din Berceni, intr-un bloc construit inainte de 1977, la etajul 2 din 9, de 30 de metri patrati: 63.000 de euro. Si asta in zonele cele mai ieftine ale Capitalei. In zona Turda, o garsoniera ca si cea din Rahova costa insa 100.000 de euro, iar in zona Lacul Tei, in bloc din 1985, 75.000 de euro. La un calcul sumar, reiese ca metrul patrat ar costa undeva intre 2.500 si 2.000 de euro. Asta la garsoniere.Aproximativ aceeasi situatie se vede si la preturile solicitate de proprietari pentru apartamentele de doua camere. “Baneasa, vânzare apartament 2 camere, in bloc, parter/4, ideal birou/firma, pret 175.000 euro”, suna unul dintre anunturile publicate de un particular la rubrica de mica publicitate intr-un ziar de ieri. “Panduri-13 Septembrie, vanzare apartament 2 camere, in bloc, confort I, decomandat, parter/8, suprafata 53mp, ideal birou/firma, constr.1993, pret 125.000 euro”, solicita un altul, la aceeasi rubrica, in acelasi ziar de ieri. Cel mai ieftin pare a fi un apartament de doua camere, confort II, situat la etajul 6 din 10 in zona Lujerului-Militari: 46 de metri patrati=80.000 de euro negociabil. Un alt proprietar are de vanzare un apartament  ultracentral, asa ca cere un pret pe masura:”Unirii-Fantani, vânzare apartament 3 camere, in bloc, mobilat, etaj 3, suprafata 80mp, renovat recent, pret 290.000 euro”. Tot la capitolul 3 camere, o casa “pe pamant”, cum se spune, este de vanzare, tot direct de la proprietar, in urmatoarele conditii:” Andronache-Escalei, vanzare casa, 3 camere, utilitati, teren 200 mp, suprafata

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100mp, parchet, termopan, constr. 2008, pret 215.000 euro, negociabil.” Recordul pare sa il atinga proprietarul unui apartament de 3 camere din cartierul Aviatiei: „Strada  Borsa 30-32, Pipera, Bl.3G, Sc.2, vanzare apartament 3 camere, in bloc, confort I, decomandat, etaj 2/4, 1 balcoane, 2 gr.san, suprafata 75mp, gresie, parchet, termopan, renovat recent, garaj, pret 240.000 euro.” Doar pentru ca in Aviatiei bate din cand in cand vantul dinspre Pipera, pretul cerut de proprietar este de 3.200 de euro per metrul patrat.Cei care vor cu adevarat sa isi vanda locuintele lasa drastic la pret si merg pe mana agentilor imobiliari. Nici nu ar avea cum altfel. Paginile de mica publicitate si internetul sunt imbacsite de anunturi-capcana, publicate de agentii ca sa agate potentiali cumparatori. Sunt putini proprietari care consimt sa lase la jumatate din pretul la care a vandut un fost vecin de-al lui in urma cu un an. Cei care au case de vanzare nu au de gand sa lase la pret si par a astepta trecerea crizei. Intre timp, dezvoltatorii imobiliari dau din colt in colt si ar face orice ca sa mai incheie ceva contracte. Pana una-alta, apartamentele noi mai mult se inchiriaza decat se vand, asta si in conditiile in care bancile mai mult cauta sa atraga banii in depozite decat sa mai dea imprumuturi ipotecare. Numai timpul va arata cine are dreptate: romanul care s-a obisnuit sa ceara preturi uriase pentru apartamentul cumparat in anii ‘90 pe nimic de la stat sau analistii imobiliari care tot anunta scaderi de 30 la suta la preturile locuintelor.

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