Business law is sometimes called mercantile law or commercial law and refers to the laws that govern the dealings between people and commercial matters.
There are two distinct areas of business law; regulation of commercial entities through laws of partnership, company, bankruptcy, and agency and the second is regulation of the commercial transactions through the laws of contract. The history of these types of laws dates back several centuries and can be seen in the peace-guilds where members would pledge to stand by each other for protection. A lot of business law involves trying to prevent problems that can hurt the business or cause legal disputes.
To understand the role of business law within the legal system, it helps to view businesses as entities separate from their owners and employees. Just like individuals living together in society, business entities are subject to legal rules designed to give every participant in the marketplace a fair opportunity to succeed.
A contract is a legally-enforceable promise or set of promises made by one party to another. A contract is a legally binding agreement concerning a bargain which is essentially commercial in its nature and involves the sale or hire of commodities such as goods, services or land.
Business Formation
Business law starts with setting up a business. In the eyes of the law, each business is their own legal entity. Starting a new business typically starts with filing the paperwork that makes the business formally exist in the government’s eyes.
Many types of business entities are similar throughout the country. However, the exact entities that a new business can choose from vary by state. The process to file the paperwork to establish the business also varies from state to state.
Business lawyers help decision makers weigh the pros and cons of each entity when they’re starting a business. They help educate the business founders in the law in order to help them choose the entity that’s in their best interests. Then, they help them file the paperwork to formally start the business.
Businesses can be formed as corporations, limited liability companies (LLCs), partnerships, and other entities. Most of these business forms can be further customized to meet the needs of the company. Examples include corporations formed as “S-corps” in order to achieve tax savings, and partnerships formed as “limited partnerships” to allow some owners to participate as investors only.
Business law attorneys are also available to draft the internal agreements that will control how a new company is managed. A common example is an LLC operating agreement. This document should be drafted with care, as it governs how the company’s owners will share profits and losses, make important business decisions, and transfer their ownership rights.
One way to distinguish business law as its own field of practice is to take note of when these issues arise. Business law provides rules and guidance for companies to follow before disputes occur. Attorneys who practice in this area are experts at structuring transactions to minimize the company’s exposure to litigation. This sort of strategic legal maneuvering can end up saving the company huge amounts of money.
Consider the example of a services company headquartered in one state, with customers all across the nation. The company might hire a lawyer to draft customer agreements that require customers to follow specific dispute procedures, such as giving the company an opportunity to remedy deficient services before a legal claim is made, or providing that disputes must be submitted to arbitration in the company’s home state. In every industry, there are opportunities for business attorneys to save their clients money and provide them with a greater competitive advantage.
Employment considerations
Once a business is up and running, they might need employees. Businesses need legal advice to help them understand how to hire and fire employees. They need to know how to handle employee disputes and discipline. Businesses need to know what they need to offer employees in terms of pay and benefits. There are also mandatory payroll taxes and deductions. Business lawyers educate their clients on the rules and best practices for managing employees.
Sales of consumer goods
Buying and selling isn’t as easy as it sounds. There are regulations that govern how companies can make products and how they can sell them. From working conditions in a factory to distribution requirements to price controls, there are all kinds of laws and rules that might regulate how a company makes and sells its products.
One of the most influential documents for business operations is the Uniform Commercial Code. It’s a model code that outlines recommendations for commercial transactions. It covers topics such as the statute of frauds, contracts, leases, sales, credit, bulk sales and secured transactions. Business lawyers help their clients identify the laws that a business needs to follow, and they help ensure the company’s compliance with the laws.
Contract drafting and negotiations
A lot of business has to do with preparing and negotiating contracts. A contract can be anything from a lease agreement to a purchasing agreement to an agreement with a third-party vendor to sell a product. A lot of contract law comes from common law. Common law isn’t written down anywhere. Instead, it’s principles of law and rules that have developed through the courts over time. Lawyers in business law have to not only understand the elements of contract law from both statutes and common law, but they must also appreciate the nuances that might impact enforcement of a contract. They must work with their clients in order to skillfully negotiate and draft contracts that work to the client’s best interests.
Anti-trust
Most businesses want to control a large share of the market. They want to grow and expand. Companies who want to increase their profits and their market share need to make sure that they go about it in legal ways. Companies that employ deceptive or unfair practices in order to cut out competitors or avoid competition might find themselves the subject of allegations of anti-trust violations. Business attorneys help their clients identify conduct that might amount to anti-trust before the behavior has the chance to create problems for the business.
Intellectual Property
When a business invents a new product, they need to make sure they protect their ability to profit from their invention. Making sure a business gets to exclusively keep and use their own products falls under intellectual property and copyright law. Intellectual property is technical and complicated. Lawyers need to have a scientific background in order to formally practice before the U.S. Patent and Trademark Office. Intellectual property work is critical to helping companies profit from their novel work.
Similarly, copyright laws help companies profit from their creative work. Business lawyers help companies register copyrights and enforce them. This process is critical to making sure that a business retains control of its work in order to commercialize it for a profit.
Taxes
Businesses pay taxes. There are estimated taxes, employee taxes and deductions to be aware of. In addition to helping a business comply with tax requirements, a business lawyer helps their client take legal steps to minimize their tax burden. They may help the business apply for special tax forgiveness or waivers that might be available in a certain location or for certain industries.
Bankruptcy
Lawyers help businesses in both good times and bad. When businesses go through financial difficulties, they need lawyers to help them determine their options. Filing bankruptcy might be the only option or the best option for a struggling business.
Making the decision to file for bankruptcy is just the beginning. There are many different types of bankruptcy filings available to businesses. They have different requirements, and there might be a reason that a business should choose one type of filing over another. Business lawyers can give their clients advice on the pros and cons of different actions. Once the business makes a plan, lawyers can help the company complete the filing accurately and stay in compliance with the associated requirements.
A
- ► Agency law
- ► Arbitration
- ► Audit legislation
B
- ► Bankruptcy
- ► Business law journals
C
- ► Commercial crimes
- ► Competition law
- ► Consumer protection law
- ► Contract law
- ► Corporate law
F
- ► Financial regulation
- ► Fisheries law
I
- ► Industrial relations
- ► Insolvency
J
- ► Joint ventures
L
- ► Labor law
N
- ► Negotiable instrument law
O
- ► Organizations by legal status
T
- ► Corporate taxation
U
- ► Uniform Commercial Code
BUSINESS CLIENT INTAKE FORM
General Information:
- Name of business
- Headquarters address
- Person and address to which billings should be sent?
- Date of incorporation
- State of incorporation
- States are you licensed to do business in
- Fictitious business names used
- Corporate affiliates (parent and or subsidiary companies)
Insurance information:
- Name and title of Risk Management officer
- Name of insurance broker
- Insurance carriers, policy numbers, and dates. (Auto, CGL, Employer, Workers’ Comp.)
Legal Information:
- General counsel’s name
- Business address
- Telephone number
- Fax number
- Name and Title of Officer in charge of litigation
- Business address
- Telephone number
- Fax number
- Name any other (outside) counsel you have consulted about this case?