BUSINESS MANAGEMENT AFTER LAW

BUSINESS MANAGEMENT AFTER LAW

A graduate of a good law school takes away skills that are applicable in almost any walk of life. Skills such as good communication, problem solving, risk identification, and dispute resolution are priceless in the world of business. If you dig business management then there is a road ahead! There are three broad routes you could think of - one is gunning for a business management job immediately after law school; the second is making the shift from a legal job to a business management job; and the third is to go do an MBA. There are pros and cons with each choice. Let me list them out for your reading convenience:

a) Applying for a business management job straight after law school:

This is an accepted route to take at the finer law schools in the developed countries. However, in countries such as ours, the process is not so straightforward. Corporates looking for managers in non-legal positions tend to steer clear of law schools on the mistaken basis that law schools can only produce lawyers. They bleep over the fact that first and foremost, law schools produce smart people! The fact that these smart people are equipped with legal skills and knowledge is an additional value-add. Also at fault are law schools and law students themselves - students are usually hesitant to confront a dominant interest in business. 'What's wrong with me? I'm at law school! How can I think business management?' - is probably an accurate guess at the pattern of thinking. The result of this type of thinking is that student or college recruitment committees end up applying only to 'law organisations', thereby ignoring other organisations that may have been interested, had they understood the profiles of students.

The answer lies in facing up to your interests and positioning yourself as a smart, dynamic, creative guy with the added benefit of legal skills and knowledge. Your resume must reflect this approach. Look around for the same kind of recruiters who visit the top B-schools, and show them how you can add value.

b) The shift - from a law job to a business management job

The second option is the SHIFT. Typically, you are in a law firm or the legal department of a company when it hits you that enjoy the 'business side' of business more than the 'law side' or that you want to be more 'involved' in the business. Making this shift is hugely challenging, because firstly, it's likely that you will be perceived as being wired (oriented) to think like a lawyer, and not a business manager, and secondly, you will be leaving a position of tremendous security for a relatively alien situation. You must think through this decision very carefully - follow your passion, but plan the departure carefully with a largish safety net or fallback option. Talk to loads of people before you do it while trusting your passion and instinct. Remember, only fools rush in.

To sum up - to choose the right opportunity and take a sensible decision you must look at the following:

(i) What part of business do you like?
(ii) Is there any industry that you are particularly fond of?
(iii) How will you position yourself to the company - how will you convince them that you can add value?
(iv) Are you willing to take salary cuts?

It's advisable to then go through a recruitment firm or manager.

c) The MBA

You have the option to do an MBA immediately after law school or after putting in a few years of work-ex. The decision really turns on how convinced you are. It's advisable to put in a couple of years of work to add value to your resume. You can then leverage your experience in the corporate world as an asset. A foreign MBA, especially a US MBA will require 3-4 years of work experience and you will have to give the GMAT. An Indian MBA can be taken without work-ex and you will have to give CAT and the other management entrance tests. The foreign MBAs are usually more flexible so you can even work around your discomfort in certain areas like Math. An Indian MBA, however, would put you to the test in those areas. Lawyers often find it challenging to come back to the quantitative approach, but challenging does not mean impossible. The law - MBA combination is excellent and recognised the world over as one of the best combinations for any form of business and management.

MBA after LAW..!!!

MBA course basically a fast-track business course where the students got the business course for about 1-1.5yrs that usually given to undergraduate students for 3 yrs. MBA course is also a place where those managers exchanges ideas and experiences in real-life case studies. If you are a lawyer and want to pursue a career in a non-legal field, an MBA with the appropriate specialisation is a good way to qualify for that. An MBA provides you with the opportunity to expand your skills beyond law. MBA offers an opportunity to learn the theory behind some different skills than those taught in the average law degree, and also to be involved in case studies and see the results of alternate methods of running businesses.
With your 5yr law degree you'll be better off doing MBA in administration which will encompass general administration, industrial relations/law,complying with company laws/corporate laws,environment laws, labour laws, conflict management, etc.with MBA HR, your full potential of law degree will not be used although.
It is a good combination,in fact it is the field which is booming these days. Many HR people want to pursue some diploma in law as to increase there market value. The reason why law+HR is good is that INDUSTRIAL RELATIONS is a field where law+MBA is required. In industrial relations you study the company law,ESI act,,PF Act,Labour Laws,Factories Act,Workman compensation Act,Bonus Act etc.these acts must be familiar to you and in big companies they hire HR Professionals with specialisation in law(Industrial relations). 
As it is all companies are required to adhere to statutory compliance's and also deal with labour related legal issues involving labour law.. MBA (HR) will surely make you understand various Human Resource practises of the company, Various statutory requirements and even companies Act to a certain extent, so an HR with law is a fantastic combination which can increase your market value and likely chances of getting very good salaries. 

The Concept of the Contempt of Court

Definition
Anything that curtails or impairs the freedom of limits of the judicial proceedings must of necessity result in hampering of the administration of Law and in interfering with the due course of justice. This necessarily constitutes contempt of court. Oswald defines contempt to be constituted by any conduct that tends to bring the authority and administration of Law into disrespect or disregard or to interfere with or prejudice parties or their witnesses during litigation. Halsbury defines contempt as consisting of words spoken or written which obstruct or tend to obstruct the administration of justice. Black Odgers enunciates that it is contempt of court to publish words which tend to bring the administration of Justice into contempt, to prejudice the fair trial of any cause or matter which is the subject of Civil or Criminal proceeding or in anyway to obstruct the cause of Justice.

In case of India, under Section 2(a) of the Contempt of Courts Act of 1971 defines contempt of court as civil contempt or criminal contempt, it is generally felt that the existing law relating to contempt of courts is somewhat uncertain, undefined and unsatisfactory. The jurisdiction to punish for contempt touches upon two important fundamental rights of the citizens, namely, the right to personal liberty and the right to freedom of expression. It was, therefore, considered advisable to have the entire law on the subject scrutinized by a special committee.

In pursuance of this, a committee was set up in 1961 under the chairmanship of the late H N Sanyal, the then additional solicitor general. The committee made a comprehensive examination of the law and problems relating to contempt of court in the light of the position obtaining in our own country and various foreign countries. The recommendations, which the committee made, took note of the importance given to freedom of speech in the Constitution and of the need for safeguarding the status and dignity of courts and interests of administration of justice.

The recommendations of the committee have been generally accepted by the government after considering the view expressed on those recommendations by the state governments, union territory administrations, the Supreme Court, the high courts and the judicial commissioners.

A case of contempt is C.K. Daphtary v. O.P. Gupta (1971 1 SCC 626), the respondent published and circulated a booklet in public purporting to ascribe bias and dishonesty to Justice Shah while acting in his judicial capacity. Mr C.K. Daphtary, along with others, filed a petition alleging that the booklet has scandalised the judges who participated in the decision and brought into contempt the authority of the highest court of the land and thus weakened the confidence of the people in it. The Supreme Court, in examining the scope of the contempt of court, laid down that the test in each case is whether the impugned publication is a mere defamatory attack on the judge or whether it will interfere with the due course of justice or the proper administration of law by the court.

Law Point
For the concept of Contempt of Court, the Contempt of Court Act, 1971 was passed which dealt with such a concept. Article 129 and 215 of the Constitution of India empowers the Supreme Court and High Court respectively to punish people for their respective contempt. Section 10 of The Contempt of Courts Act of 1971 defines the power of the High Court to punish contempts of its subordinate courts. Power to punish for contempt of court under Articles 129 and 215 is not subject to Article 19(1)(a).

Essentials
The elements generally needed to establish a contempt are:
1. the making of a valid court order,
2. knowledge of the order by respondent,
3. ability of the respondent to render compliance, and
4. wilful disobedience of the order.

Types
According to Lord Hardwick, there is a three-fold classification of Contempt:
1. Scandalizing the court itself.
2. Abusing parties who are concerned in the cause, in the presence of court.
3. Prejudicing the public before the cause is heard.

However in India contempt of court is of two types:
1. Civil Contempt
Under Section 2(b) of the Contempt of Courts Act of 1971, civil contempt has been defined as wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.

2. Criminal Contempt
Under Section 2(c) of the Contempt of Courts Act of 1971, criminal contempt has been defined as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:
(i) Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court, or
(ii) Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or
(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. 
(a) 'High Court' means the high court for a state or a union territory and includes the court of the judicial commissioner in any union territory.

Object
There can be no doubt that the purpose of contempt jurisdiction is to uphold the majesty and dignity of law courts and their image in the minds of the public is no way whittled down. If by contumacious words or writings the common man is led to lose his respect for the judge acting in the discharge of his judicial duties, then the confidence reposed in the courts is rudely shaken and the offender needs to be punished. In essence of law of contempt is the protector of the seat of justice more than the person sitting of the judge sitting in that seat.

Third Party
A third party to the proceeding may be guilty of contempt of court if they have a part to play in the offence. In LED Builders Pty Ltd v Eagles Homes Pty Ltd ([1999] FCA 1213) Lindgren J stated:
"It is not necessary to show that a person who has aided and abetted a contempt of court was served with the order breached. It is necessary to show only that the person sought to be made liable knew of the order."

Limitation
The Limitation period for actions of contempt has been discussed under Section 20 of the Contempt of Courts Act of 1971 and is a period of one year from the date on which the contempt is alleged to have been committed.

Law Education in India

Law / Legal Education is the education gained by individuals to become legal professionals or practitioners. The degree obtained by an individual in this stream can also be useful in some other fields like in business, academic or in politics also.

Unlike other forms of professional education such as Medicine and Engineering, Law Education is both professional as well as liberal. It aims at the acquisition of professional skills, if taken as a professional education. But it can aim at value-oriented, socio-cultural education if it is considered as a liberal education. 

 The main difference between Law and other social science subjects is that legal studies are multi-disciplinary in character. In many law subjects, a scientific background is not only necessary, but is essential. Similarly, in many legal subjects, knowledge of finance and accounts has become essential. Law is concerned with governance and therefore, legal education must be developed upon a sound basis of multi-disciplinary education.

 India, owing to its rapid development in professional education, has also provided Law as a hot career option to its aspirants. The various Law schools and universities in India offer several academic programs in Law. The course may be of 5 years, 3 years or of 2 years of duration. One can also pursue 1 year or even 6 months Diploma courses to gain specialized knowledge in the field.

CLAT 2011 - Common Law Admission Test

CLAT 2011 provides the students the ease of filling up a single application form to get admission to any of the participating institutes. According to the MoU, the Common Law Admission Test would be conducted by each of the National Law Schools on rotation as per the criterion of seniority. It is expected that the National Law Schools (i.e., the Law Schools established by State enactments) would join the existing eleven Law Schools in due course. Meanwhile, the results of admission test would be made available to them on request.

CLICK HERE for details about CLAT 2012

Other Law Entrance Exams 2011

Apart from CLAT, there are several other entrance exams which are conducted by institutes individually. Some of the most important Law Entrance Exams in India are listed below:

• SSLC, Pune - Symbiosis Society's Law College
• Faculty of Law, Delhi University
• QLTT - Qualified Lawyers Transfer Test
• Amity Law School
• ILS, Pune
• GLC, Mumbai
• TNDALU, Chennai - Tamil Nadu Dr. Ambedkar Law University
• AIBE

The Bar Council of India (BCI)

The Bar Council of India (BCI) is a statutory body, constituted by Government of India under Advocates Act 1961 with the main objective of controlling and governing the working of all immediate subsidiary state-level bar councils besides laying down the standards of professional conduct and etiquette. Though it comes under the purview of Ministry of Law and Justice, Government of India, it is a corporate body having perpetual succession and a common seal, with power to acquire and hold property, both movable and immovable, and to contract, and may by the name by which it is known sue and be sued.

Law Careers - What Careers to opt for?

The Legal profession has today become one of the fastest growing professions all over the world. Besides being lucrative, it is an adventurous and exciting career. Lawyers are held in high esteem in every society. There is a growing demand for Law Professionals everywhere due to the changing economic and social scenario all over the world.

Some of the fields in which a Lawyer can apply to are as follows:

- Advocate

- Advocate General

- Attorney General

- Author

- Company Secretary

- District Attorney

- Legal Advisors

- Legal Process Outsourcing (LPO)

- Magistrate

- Notary / Oath Commissioner

- Public Prosecutors

- Solicitor

- Teacher

Law Courses In India

Law courses in India are increasingly gaining popularity among students both at the undergraduate and at the postgraduate level. Law programs are now among the top ten programs in India. You can either enroll for a five-year B.A.LL.B course straight after your 10+2 or join a three year LLB course after graduation.

TRADEMARK YOUR BUSINESS NAME OR LOGO

A trademark is used to identify the source of goods or services. Some of the most recognisable consumer or business brands in the world are also the world’s most valuable trademarks. According to a recent survey, the world’s most valuable brands are, in order, Google, Microsoft, Wal-Mart, IBM and Vodafone. All of these brand names, and their accompanying logos, resonate with the public and create a clear image in the consumer’s mind of what goods and services those companies offer.

A registered trademark can increase the value of a brand, especially for companies providing consumer goods and services, those that are in knowledge-based industries and businesses that may be looking to franchise. Trademarks can also be vital to businesses that are providing services and goods over the Internet or in more than one state. In contrast, there is usually little value in trademarking the name of a local business that serves a very localised clientele. As knowledge-based businesses become more important to the economy, a valuable brand name and accompanying trademark can help you stand out from the crowd when much of the business’s value is in your head.

Most importantly, obtaining a federal trademark registration makes good business sense before investing substantial effort and resources in building brand awareness and equity. Do you really want to spend years and thousands or millions of dollars to promote a brand name only to find out either that you cannot protect it or that it impermissibly conflicts with a deep-pocketed competitor’s trademark?

Federal trademark registration can allow the mark owner to recover attorney’s fees from those who infringe the mark. In addition to providing exclusive benefits to the mark owner who wants to use the mark on a national or regional basis, obtaining a federally registered trademark can enhance the trademark owner’s ability to gain control over some of the most valuable real estate on the web – domain names related to or containing that trademark.

Contract law- An Overview

Contract law lies at the heart of our system of laws and serves as the foundation of our entire society. This is not an exaggeration. It is a simple observation - one that too often goes un-observed.

We enter into contracts so many times in a day that ‘contract’ has become an indispensable part of our life. When you purchase a pack of milk or a newspaper in the morning or go to movie in the evening, you are entering into a contract.

Contracts  makes  any agreements enforceable by law, which usually means that it allows one party to a contract to obtain money damages from the other party upon showing that the latter stands in breach.

A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money.

In this article, I will briefly explain the different types of contracts that can be made, paying special attention to the common problems that arise in their formulation. I will also discuss how contracts are enforced or avoided, and how a wronged party to a contract can obtain recompense and other relief from the wrongdoing party. I will explain the principle of good faith, which in California is known as the "covenant of good faith and fair dealing", and which has been too often overlooked by commentators and practitioners alike.

Contract law is based on the principle expressed in the Latin phrase pacta sunt servanda, which is usually translated "agreements must be kept" but more literally means "pacts must be kept". Contract law can be classified, as is habitual in civil law systems, as part of a general law of obligations, along with tort, unjust enrichment, and restitution.

As a means of economic ordering, contract relies on the notion of consensual exchange and has been extensively discussed in broader economic, sociological, and anthropological terms (see "Contractual theory" below). In American English, the term extends beyond the legal meaning to encompass a broader category of agreements.

Essential Ingredients of a contract - As per Contract Act, an agreement enforceable by law is a contract.

PROPOSAL : When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal.  Thus, a ‘proposal’ can be to do a positive act or abstinence from act

PROMISE : When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A pro­posal, when accepted, becomes a promise. Thus, when a proposal (offer) is accepted, it becomes a ‘promise’.

PROMISOR AND PROMISEE - The person making the proposal is called the “promisor”, and the person accepting the proposal is called the “promisee”.

RECIPROCAL PROMISES - Promises which form the consideration or part of the consideration for each other are called reciprocal promises.

Consideration for promise – The definition of ‘agreement’ itself states that the mutual promises should form consideration of each other. Thus, ‘consideration’ is essential for an agreement. A promise without consideration is not ‘agreement’ and hence naturally, it is not a ‘contract’.

CONSIDERATION : When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consid­eration for the promise.

Steps involved in contract :-

·        Offer and its acceptance

·        Free consent of both parties

·        Mutual and lawful consideration for agreement

·        It should be enforceable by law. Hence, intention should be to create legal relationship. Agreements of social or domestic nature are not contracts

·        Parties should be competent to contract

·        Object should be lawful

·        Certainty and possibility of performance

·        Contract should not have been declared as void under Contract Act or any other law

ACCEPTANCE MUST BE ABSOLUTE - In order to convert a proposal into a promise, the acceptance must - (1) be absolute and unqualified; (2) be expressed in some usual and reasonable manner, unless the proposal prescribed the manner in which it is to be accepted. Acceptance of offer is complete only when it is absolute and unconditional.  Conditional acceptance or qualified acceptance is no acceptance.

PROMISES, EXPRESS OR IMPLIED - Insofar as the proposal or acceptance of any promise is made in words, the promise is said to be express. Insofar as such proposal or acceptance is made otherwise than in words, the prom­ise is said to be implied. For example, if a person enters a bus, there is implied promise that he will pay the bus fair.

VOIDABLE CONTRACT - An agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other or others, is a voidable contract. 

(a)  When consent is obtained by coercion, undue influence, misrepresentation or fraud is voidable at the option of aggrieved party i.e. party whose consent was obtained by coercion/fraud etc. However, other party cannot avoid the contract.

(b) When a contract contains reciprocal promises and one party to contract prevents the other from performing his promise, the contract becomes voidable at the option of the party to prevented.

(c)  When time is essence of contract and party fails to perform in time, it is voidable at the option of other party (section 55). A person who himself delayed the contract cannot avoid the contract on account of (his own) delay.

VOID CONTRACT - A contract which ceases to be enforceable by law be­comes void when it ceases to be enforceable. Thus, initially a contract cannot be void, i.e. a contract cannot be void ab initio

Who are competent to contract - Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject.

Free consent – Consent of both parties must be free. Consent obtained through coercion, undue influence, fraud, misrepresentation or mistake is not a ‘free consent’. Two or more persons are said to consent when they agree upon the same thing in the same sense.

Void agreements - An agreement not enforceable by law is said to be void.

Note that it is not ‘void contract’, as an agreement which is not enforceable by law does not become ‘contract’ at all.

Following are void agreements –

* Both parties under mistake of fact

 * Unlawful object or consideration

 * Agreement without consideration

 * Agreement in restraint of marriage

 * Agreement in restraint of trade

 * Agreement in restraint of legal proceedings

* Uncertain agreement

 * Wagering agreement

 * Agreement to do an impossible Act

Contingent contract - A “contingent contract” is a contract to do or not to do something, if some event, collateral to such contract, does or does not happen. 

Example- A contracts to pay B Rs. 10,000 if B’s house is burnt. This is a contingent contract.

Contracts which must be performed - The parties to a contract must either perform, or offer to perform, their respective promises, unless such performance is dispensed with or excused under the provisions of this Act, or of any other law. Promises bind the representatives of the promisors in case of the death of such promisors before performance, unless a contrary intention appears from the contract.

Performance of reciprocal promises - Promises which form the consideration or part of the consideration for each other are called reciprocal promises. A mutual promise can be of following types –

(a) Mutual and independent – Where each party must perform his promise independently and irrespective of whether the other party has performed or willing to perform e.g. Seller agrees to deliver on 5^th and Buyer agrees to pay on 15^th.

(b) Conditional and dependent – Performance of promise by one party depends on prior performance of promise by other party. e.g. Buyer agrees to pay for goods 15 days after delivery. Hence, unless seller delivers goods, buyer’s liability does not arise.

 (c) Mutual and concurrent – Where the promises of both parties must be performed simultaneously.

Contracts which need not be performed  - Normally, a contract is expected to be performed. The performance my be actual or by way of tender, i.e. attempted performance. However, in certain situations as stated below, the contract need not be performed.

Quasi Contracts - ‘Quasi’ means ‘almost’ or ‘apparently but not really’ or ‘as if it were’. This term is used when one subject resembles another in certain characteristics but there are intrinsic differences between the two. ‘Quasi contract’ is not a ‘contract’. It is an obligation which law created in absence of any agreement. It is based on equity. There are certain relations resembling those created by contract. These are termed as ‘quasi contracts’.  These are –

 (a) Supply of necessaries

(b) Payment of lawful dues by interested person

(c) Person enjoying benefit of a gratuitous act

 (d) Finder of goods

 (d) Goods or anything delivered by mistake or coercion

Consequences of Breach of Contract - Compensation is payable for breach of contract. Penalty is also payable if provided in contract. Breach of contract may be actual or anticipatory.

GENERAL DAMAGES – General damages are those which result from ‘direct and proximate’ consequences from breach of contract. Normally, what can be awarded is compensation for loss or damage which can be directly or proximately attributed to the breach of contract.

CONSEQUENTIAL LOSS OR SPECIAL DAMAGE – Special damages or consequential damages arise due to existence of special circumstances. Such damages can be awarded only in cases where the special circumstances were foreseeable by the party committing the breach or were specifically known to the party. Consequential losses like loss of profit due to breach, which may occur  indirectly due to breach cannot be normally awarded unless there are special circumstances which parties were aware. Loss of profit can be awarded only in cases where seller could have foreseen those losses and arose directly as result of breach.

PROMISEE SHOULD TAKE STEPS TO MITIGATE THE LOSS OR DAMAGE – Explanation to section 73 specifically provides that in estimating loss or damage, the means available for remedying the inconvenience caused by breach of contract shall be taken into account. Thus, promisee should take all reasonable steps to mitigate the losses.

VINDICTIVE OR EXEMPLARY DAMAGES – Vindictive or exemplary damages cannot be awarded under Contract Act. However, these may be awarded by Court under tort under special circumstances.

CONSIDERATION FOR GUARANTEE - Anything done, or any promise made, for the benefit of the principal debtor, may be sufficient consideration to the surety for giving the guarantee.

(a) B requests A to sell and deliver to him goods on cred­it. A agrees to do so, provided C will guarantee the payment of the price of the goods. C promises to guarantee the payment in consideration of A’s promise to deliver the goods. This is sufficient consideration for C’s promise.

(b) A selms and delivers goods to B. C afterwards requests A to gorbear to sue B for the debt for a year, and promises that if xe does so,`C will pay for them in default of payment by B. A agrees to forbear as requested. This is a sufficient considera­tion for C’s promise.

(c) A sells and delivers goods to B. C afterwards, without consideration, agrees to pay for them in default of B. The agree­ment is void.

Bailment - Bailment is another type of special contract. Since it is a ‘contract’, naturally all basic requirements of contract are applicable. - - Bailment means act of delivering goods for a specified purpose on trust. The goods are to be returned after the purpose is over. In bailment, possession of goods is transferred, but property

Bailment of pledges - Pledge is special kind of bailment, where delivery of goods is for purpose of security for payment of a debt or performance of a promise. Pledge is bailment for security.

Contract of Agency - Agency is a special type of contract. The concept of agency was developed as one man cannot possibly do every transaction himself. Hence, he should have opportunity or facility to transact business through others like an agent. The principles of contract of agency are –

 (a) Excepting matters of a personal nature, what a person can do himself, he can also do it through agent (e.g. a person cannot marry through an agent, as it is a matter of personal nature)

 (b) A person acting through an agent is acting himself, i.e. act of agent is act of Principal. - - Since agency is a contract, all usual requirements of a valid contract are applicable to agency contract also, except to the extent excluded in the Act. One important distinction is that as per section 185, no consideration is necessary to create an agency.

By:-  Ashish Kumar