May 2, 2007 no. 484 - Vol. 5

"Success and failure are both difficult to endure. Along with success come drugs, divorce, fornication, bullying, travel, meditation, medication, depression, neurosis and suicide. With failure comes failure."

 Joseph Heller

In our celebrated column Grammatigalhas, today, we review title and risk of loss.

  • Top News

Bush vetoes Iraq war bill on day of political theater

Bush has made good on his promise to veto a $124 billion spending bill for the wars in Iraq and Afghanistan that includes a timetable for withdrawing U.S. troops. The president vetoed the measure a few hours after Congress sent it to him, capping a day of political theater in Washington. He said the funding was needed to give time for the new strategy of a surge of reinforcements in Baghdad to succeed.  It is only the second time since taking office that Bush has used the presidential veto.

US and EU agree 'single market'

The United States and the European Union have signed up to a new transatlantic economic partnership at a summit in Washington. The pact is designed to boost trade and investment by harmonizing regulatory standards, laying the basis for a US-EU single market. The two sides also signed an Open Skies deal, designed to reduce fares and boost traffic on transatlantic flights. Economics rather than the environment or politics was the focus of the summit. And little of substance was agreed on climate change. The two sides agreed to set up an "economic council" to push ahead with regulatory convergence in nearly 40 areas, including intellectual property, financial services, business takeovers and the motor industry. The aim is to increase trade and lower costs.

US issues new warning over piracy

China and Russia have topped a list of 12 nations not doing enough to tackle copyright piracy, according to a US trade report. The Bush administration placed the 12 on a "priority watch list" which will subject them to extra scrutiny. The Office of the US Trade Representative said piracy is costing the country billions of dollars.

Brazil's media leader Octavio Frias dies

Octavio Frias de Oliveira, who published Brazil's biggest newspaper and Web site and helped modernize the country's media, has died of kidney failure. He was 94. He led an opening of the media during Brazil's military dictatorship, allowing critical opinions of the regime to appear in his flagship Folha de S. Paulo newspaper. He also was among the first to publish on the Web. Frias' holdings included Folha de S. Paulo, the UOL Internet portal, Agora newspaper and the financial daily Valor Economico, which is run as a joint venture with Organizacoes Globo. His Folha Group also included the Datafolha polling organisation. President Lula was heading to Sao Paulo to attend Frias' funeral.

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  • Grammatigalhas

Legal Meaning Is Not Everyday Meaning

Common Carrier

Transportation firm that must carry any customer's goods if the customer is willing to pay. Common carriers include trucking companies, bus lines, and airlines. See also Inland Marine Insurance.

Lien holder

The term lien holder is usually used in instances of title of a vehicle (such as an automobile) to refer to the person who has right of property of the vehicle, as opposed to the party that merely has right of possession. The party that only has right of possession is referred to as a registered owner, and in the event the registered owner fails to pay off the lien according to the agreed-to terms, the lien holder has the right to invoke repossession of the vehicle.

Title search

A title search is the resulting document of data research on a piece of real estate. A real estate researcher, sometimes called an abstractor, will retrieve the records on a property, such as transfers, liens, judgments, and other recorded data. The results are compiled into a report, called a title search. This report can be used to understand the status of the property, such as if there are liens against the property, or ownership status.

Free on Board [F.O.B.]

A commercial term that signifies a contractual agreement between a buyer and a seller to have the subject of a sale delivered to a designated place, usually either the "place of shipment" or the "place of destination," without expense to the buyer. Thus a shipment "f.o.b. Shipping point" requires the seller to bear the expense and the risk of putting the subject of the sale into the possession of the carrier, but the duty to pay the transportation charges from the f.o.b. Point is on the buyer. Where the shipment is "f.o.b. Destination point," the seller is required to bear the transportation charges and the risk of transport until the buyer point of destination. The term is not merely a pricing agreement as to who shall bear the cost of transportation but is also a "delivery term" designating where title and risk of loss shall pass. An f.o.b. Contract that does not designate any point of delivery is commonly held to be an f.o.b. Shipping point agreement. When in addition to designating a delivery point, the agreement specifies a vessel, car or other vehicle, the seller must also load the goods aboard said vessel, car, or other vehicle at his own expense.

Everyday "Legal" Jargon

Title and risk of loss

Title is a legal term for an owner's interest in a piece of property. It may also refer to a formal document that serves as evidence of ownership. Conveyance of the document may be required in order to transfer ownership in the property to another person. Title is distinct from possession, a right that often accompanies ownership but is not necessarily sufficient to prove it. In many cases, both possession and title may be transferred independently of each other.

The three elements of title are possession, the right of possession, and the right of property. Possession is the actual holding of a thing, whether or not one has any right to do so. The right of possession is the legitimacy of possession (with or without actual possession), the evidence for which is such that the law will uphold it unless a better claim is proven. The right of property is that right which, if all relevant facts were known (and allowed), would defeat all other claims. Each of these may be in a different person.

For example, suppose A steals from B, what B had previously bought in good faith from C, which C had earlier stolen from D, which had been an heirloom of D's family for generations, but had originally been stolen centuries earlier (though this fact is now forgotten by all) from E. Here A has the possession, B has an apparent right of possession (as evidenced by the purchase), D has the absolute right of possession (being the best claim that can be proven), and the heirs of E, if they knew it, have the right of property, which they cannot prove. Good title consists in uniting these three (possession, right of possession, and right of property) in the same person(s).

A simpler example is when someone purchases an automobile and finances it. The party "buying" the automobile has possession and is the "registered owner." The bank or finance company has legal ownership and is listed as the "lien holder." In the event the registered owner fails to make payments to the lien holder, the lien holder has the right to repossess the automobile, presumably to sell it. The registered owner has possession and right of possession, while the lien holder retains right of property.

Now, if the financed automobile referenced above was purchased by a company and was being loaned out by a car rental organization, the person who rented the vehicle would have possession; the rental company would be the registered owner and have right of possession, while again, the lien holder would have right of property.

The extinguishing of ancient, forgotten, or unasserted claims, such as E's in the example above, was the original purpose of statutes of limitations. Otherwise, title to property would always be uncertain.

Identification of goods

Before any interest in specific goods can pass from seller to buyer or from lessor to lessee, two conditions must be met: (1) the goods must be in existence, and (2) they must be identified as the specific goods designated in the contract.

Existing Goods: If the contract calls for the sale or lease of goods that already exist in their final form, then identification occurs at the time the contract is made.

Future Goods: If the contract calls for the sale or lease of goods that have yet to be completed or modified in accordance with the contract, identification occurs when the goods are shipped, marked, or otherwise designated by the seller or lessor for delivery to the buyer or lessee.

Fungible Goods: Goods that are alike by physical nature, by agreement, or by trade usage (e.g., grains of wheat, barrels of like-grade oil).  Identification of these goods occurs when the goods are shipped, marked, or otherwise designated by the seller or lessor for delivery to the buyer or lessee.

Identification is significant because it permits the buyer or lessee to insure the goods and to recover from third parties who damage the goods (in transit or otherwise).

Passage of title

The UCC provides that, unless a contrary agreement is explicitly made, title passes to the buyer at the time the goods are physically delivered to the buyer.

Shipment Contract: A contract that (1) requires the seller to ship the goods to the buyer via carrier and (2) relieves the seller of liability for the goods once they have been delivered to the carrier.  Title passes to the buyer at the time and place of shipment by the carrier.

Destination Contract: A contract that (1) requires the seller to ship the goods via carrier, (2) to a particular destination, and (3) relieves the seller of liability for the goods once they have been delivered to the designated destination.  Title passes to the buyer at the time when the goods are made available at the designated destination.

Non-Delivery Contract: When a contract provides that the buyer will take possession of the designated goods without delivery by the seller, title passes to the buyer at the time and place the contract is made, unless the seller is required to provide a document of title.  Title passes when the seller delivers the title document.

Imperfect title

Void Title: If a buyer unknowingly purchases goods from a seller who is not the owner of the goods, the buyer’s title to the goods is void, as was the seller’s title before the sale.

Voidable Title: A seller has voidable title if the goods she is selling were

(1)        obtained by fraud,

(2)        paid for with a dishonored check,

(3)        purchased from a minor, or

(4)        purchased on credit when the seller was insolvent.

Unlike a seller whose title is void, a seller whose title is voidable has the power to transfer valid title to a good faith purchaser who buys without knowing there is any impediment to the seller’s title.

Entrustment: Entrusting goods to a merchant who deals in goods of that kind gives the merchant the power to transfer all rights to a good faith purchaser in the ordinary course of business.

Risk of Loss

The financial risk of and responsibility for damage or destruction when property is being transferred between a buyer and a seller. The Uniform Commercial Code uses a contractual approach in allocating the risk of loss and assumes that the risk is upon the seller until some event occurs that shifts the risk to the buyer. Where the goods are identified and the contract authorizes the seller to ship the goods by carrier, the event necessary to shift the risk of loss is dependent upon whether the contract is a "shipment" or "destination" contract. See U.C.C. §2-509. Where the contract does not require the transfer of the goods by carrier, risk of loss passes to the buyer upon the taking of physical possession if the seller is a merchant, otherwise risk passes on tender of delivery, unless an agreement to the contrary is made. U.C.C. §2-509(3), (4).

The phrase is also an insurance term denoting the hazards and perils that an insured is protected against, i.e., the contingencies or unknown events that are contemplated by the insured and that are covered by the insurance policy. 45 C.J.S. §753.

There are four risk of loss rules, in order of application:

1. Agreement - the agreement of the parties controls

2. Breach - the breaching party is liable for any uninsured loss even though breach is unrelated to the problem. Hence, if the breach is the time of delivery, and the goods show up broken, then the breaching rule applies risk of loss on the seller.

3. Delivery by common carrier other than by seller.

a. Risk of loss shifts from seller to buyer at the time that seller completes its delivery obligations

b. If it is a destination contract (FOB (buyer's city)), then risk of loss is on the seller.

c. If it is a delivery contract (standard, or FOB (seller's city)), then the risk of loss is on the buyer.

4. If the seller is a merchant, then the risk of loss shifts to the buyer upon buyer's "receipt" of the goods. If the buyer never takes possession, then the seller still has the risk of loss.

Risk of loss: delivery or tender

Transported Goods: The risk of loss for goods sold under a shipment or destination contract is as follows:

Shipment Contract: Risk of loss passes to the buyer at the when the goods are delivered to the carrier.

Destination Contract: Risk of loss passes to the buyer at the time when the goods are made available to the buyer at the designated destination.

Goods Held by the Seller: If the seller is a merchant, risk of loss passes to the buyer at the time she takes physical possession of the goods.  If the seller is a non-merchant, risk of loss passes to the buyer when the seller tenders the goods to the buyer.

Goods Held by a Bailee: Risk of loss passes to the buyer when (1) the buyer receives the title document from the seller, (2) the bailee acknowledges the buyer’s right of possession, or (3) the buyer receives a nonnegotiable title document and has had a reasonable period of time to demand the goods from the bailee.

Bailee: A party who, by a bill of lading, warehouse receipt, or other document of title, acknowledges possession of goods or contracts to deliver them.

Risk of loss: conditional sales

Sale or Return: A conditional sale where title, possession, and risk of loss pass from the seller to the buyer; however, the buyer retains the option to return some or all of the goods, at the buyer’s expense and risk of loss, during the specified period even though the goods conform to the contract.

Consignment Sale: A transaction in which the owner of the goods (the consignor) delivers the goods to another (the consignee) for the consignee to sell.  The consignee pays the consignor for the goods when the consignee sells them.  Prior to sale by the consignee, the consignee holds title to the consignor’s goods and the consignor bears the risk of loss.

Sale on Approval: A conditional sale where the buyer may take possession of the goods on a trial basis.  The sale becomes final only when the buyer approves of the goods being offered.  Title and risk of loss remain with the seller until the buyer accepts or approves the offered goods.  If the buyer does not accept, the goods will be returned at the seller’s expense and risk of loss.

Risk of loss: breach

Non-Conforming Goods: When the seller or lessor provides the buyer or lessee with goods that are sufficiently non-conforming as to entitle the buyer or lessee to reject them, risk of loss does not pass to the buyer until

(1)        the seller or lessor cures the breach, by providing conforming replacement goods, or

(2)        the buyer accepts the goods, despite their defects.

Revocation: If a buyer accepts and then discovers the defect, the buyer may revoke her acceptance, and pass the risk of loss back to the seller.

Breach by the Buyer or Lessee: When a buyer or lessee breaches a contract for sale or lease of goods, the risk of loss immediately shifts to the buyer or lessee, but only if the seller or lessor has already identified the goods.  In such a case, the buyer or lessee

(1)        only bears the risk of loss for a commercially reasonable time after the seller has learned of the breach, and

(2)        is liable only to the extent that the seller’s or lessor’s insurance does not cover the loss.

Insurable interests

Insurable Interest: A property interest in sold or leased goods that is sufficiently substantial to permit a party to insure against damage to the goods identified to the sale or lease contract.

A seller has an insurable interest as long as she retains title to the goods.

A buyer obtains an insurable interest when she takes title to the goods.

Even after title has passed, if the seller retains a security interest in the goods for payment still due, the seller can insure the goods to the extent of that interest.

Bulk transfers

Bulk Transfer: Any transfer, not made in the ordinary course of the transferor’s business, of a major part of the transferor’s material, supplies, merchandise, or inventory.  A bulk buyer may acquire title free and clear of all claims from the seller’s creditors if

(1)        the seller furnishes the buyer with a sworn list of the seller’s creditors, including the names, business address, and amounts owed, including disputed amounts;

(2)        the buyer and seller prepare a schedule of the property to be transferred;

(3)        the buyer preserves the seller’s list of creditors and the property schedule for up to six months and either (a) permits inspection of the list by any of the seller’s creditors or (b) files the list and schedule with the appropriate recording agency; and

(4)        the buyer gives notice of the proposed bulk transfer to the seller’s creditors at least 10 days before taking possession or making payment, whichever comes first.

Revised Article 6, inter alia, increases the notice period to 45 days.

As If Your Life Depended On It...  or How to get to Carnegie Hall? - Practice, practice

Assure / Ensure / Insure

To "assure" a person of something is to make him or her confident of it. According to Associated Press style, to "ensure" that something happens is to make certain that it does, and to "insure" is to issue an insurance policy. Other authorities, however, consider "ensure" and "insure" interchangeable. To please conservatives, make the distinction. However, it is worth noting that in older usage these spellings were not clearly distinguished.

European "life assurance" companies take the position that all policy-holders are mortal and someone will definitely collect, thus assuring heirs of some income. American companies tend to go with "insurance" for coverage of life as well as of fire, theft, etc.

As the bell clinks, so the fool thinks

A foolish person believes what he desires. In the 15th century tale of Dick Whittington, the young poor boy went to London because he believed its streets to be paved with gold and silver. Running away from his cruel master, he reached Highgate Hill where, hungry and tired, he did not know whether to continue his flight from the city. Bow Bells began to ring and the boy imagined that they said, 'Turn again, Whittington, thrice Lord Mayor of London.' The bells clinked their answer to his thoughts and he returned to prosper as a merchant and to become mayor three times. The story is based on a certain Richard Whittington (1358-1423) who came from Gloucestershire.


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  • Brief News 

Venezuela seizes last private oil fields

Hugo Chavez's government took over Venezuela's last privately run oil fields Tuesday, intensifying a struggle with international oil companies that could slow development of the world's largest known petroleum deposit. Bolivia's President Evo Morales said his country's takeover of gas fields one year ago had been "a blessing". Chavez has spoken of his ambition to set up what he calls a Bank of the South, backed by Venezuelan oil revenues, which would finance projects in South America.

Protesters press for path to citizenship

Angry over recent raids and frustrated with Congress, thousands of people protested across the country Tuesday to demand a path to citizenship for an estimated 12 million illegal immigrants, many of them Latino, living in the US. Legislation which would offer a "path to citizenship" for illegal immigrants as well as tougher border controls is currently stalled in the US Congress.

Turkey's presidency vote annulled

Turkey's Islamist-rooted government has vowed to press on with presidential elections after the top court annulled the first round of voting. This paves the way for early general elections. The opposition, backed by Turkey's powerful military establishment, is trying to block the election of a moderate Islamist as the country's new head of state. The parties accuse Abdullah Gul of having a hidden Islamist agenda and say his election would threaten Turkey's secular tradition. Turkey's Prime Minister Recep Tayyip Erdogan has said he will ask parliament to approve an early general election when it meets on Wednesday. He also said he would ask for a change in the constitution to allow the president to be chosen by the people.

Carmakers see US April sales slip

US vehicle sales fell sharply in April to what is expected to be an 18-month low, as economic worries kept customers out of the country's car showrooms. Even Toyota, which had double-digit growth in March, saw demand for its new vehicles fall 4% - its first US sales drop in two years. Ford said demand had dropped 12.9% compared with this time last year, with General Motors (GM) down 9.5%.

Change France but keep the lunches

As France goes to the polls many agree that change is vital to tackle the slowing economy and growing public debt. But they also want to keep the best of what makes the country so distinctive... so French. “The fear is that banishing what is bad could endanger what everyone likes most - the sense that people in France still matter more than money, and that a good lunch is worth making time for.”

News Corp. bids $5B for Dow Jones

Dow Jones & Co., publisher of The Wall Street Journal, said Tuesday it received an unsolicited bid from Rupert Murdoch's News Corp. to buy the company for $5 billion. The Bancroft family, which owns 62.4% of Dow shares has indicated that it will not accept the offer - which analysts say may push the price higher - and possibly tempt other would-be buyers.

Brazil concerned about EU environmental certification for biofuels

With the expansion of the biofuel industry, many groups have raised concerns about producing fuel crops in an environmentally sustainable way. The European Union Commission has proposed implementing a mandatory environmental certification program on its biofuel imports to try to protect Brazilian rainforests from being destroyed for biofuel production. Brazil is wary of the idea of EU certification and its implications.

More law firms charge fixed fees for routine jobs

When it comes to buying legal services, corporations mostly pay lawyers by the hour. But critics say that approach encourages lawyers to be inefficient, leading to wasted time and bloated, unpredictable bills. Now, thanks in part to improved technology for tracking the costs of legal work, companies are increasingly finding ways to avoid the oft-dreaded billable hour. General counsels, in charge of their companies' legal matters and budgets, are perpetually under pressure to trim and better manage expenses. But it hasn't been easy to move away from the familiar billable-hour system, in part because neither companies nor law firms typically have a good sense of what a piece of legal work will end up costing. Now, new tools are helping both sides estimate costs up front, giving general counsels more confidence to move ahead with arrangements like fixed fees and "value-based billing," in which the payment a firm gets depends in part on the results it achieves. The boosts have mostly come from off-the-shelf electronic-billing and "matter-management" software programs. Over time, as data accumulate, general counsels' offices are able to organize cost information on everything from a group of 20 patent filings to a large single task like reviewing three million document pages.

Patent holders' grip weakens

The Supreme Court made it harder to get new patents and to defend existing ones, giving new force to the law that denies patents to inventions deemed "obvious." In a unanimous decision, the justices yesterday sided with critics who argue that lower-court rulings have given patent holders more power than Congress intended, potentially stifling innovation. The ruling, the latest to roll back patent holders' clout, comes amid a sharp debate over how to maintain the nation's competitive edge while protecting those who labor to design cutting-edge inventions. Many of the developments that drive the economy are governed by patent law, an arcane field that has become a battleground in the larger debate about U.S. industrial strength. The opinion could have especially big implications for technology companies, whose software programs typically are built through small improvements in prior designs. Also affected will be the growing and much-disputed field of "business method" patents, which are granted for abstract processes rather than specific devices.

US court rejects Guantanamo case

The US Supreme Court has refused to hear a case lodged by two Guantanamo Bay prisoners who sought to challenge the legality of US military courts. The court gave no reason for its decision but three out of nine judges said they would have heard the case. A total of four votes would have been sufficient to have the case heard by the Supreme Court. The decision forced Bush to return to Congress to obtain the legal authority to continue with the system of military tribunals.

  • Daily Press Review


Kibaki: Tuition fees to go
East African Standard, Liberal daily of Nairobi, Kenya

Aspiring NPP parliamentary candidate entreats party members
Ghanaian Chronicle, Independent, published  in Accra, Ghana

Bush vetoes timetable for Iraq withdrawal
Mail and Guardian, Liberal daily of Johannesburg, South Africa

Court dismisses Chifubu parliamentary petition
Times of Zambia, Government-owned daily of Lusaka, Zambia


Social partnership crucial
Barbados Advocate, Independent daily of St Michael, Barbados

Million Turks rally to keep country secular
Buenos Aires Herald, Liberal daily of Buenos Aires, Argentina

Early Turkish elections to end standoff: PM
The Globe And Mail, Centrist daily of Toronto, Canada

No health fees for children - Move to cost Government of Jamaica $350m
Jamaica Gleaner, Centrist daily of Kingston, Jamaica

Mexico City legalizes abortion
The Guadalajara Colony Reporter, Independent weekly of Guadalajara, Mexico

Asia Pacific

Defense plan to be agreed '2-plus-2' meet to reconfirm Japan under U.S. N-umbrella
Daily Yomiuri, Conservative daily of Tokyo, Japan

President Hu spends Labor Day with farmers, workers
People's Daily Online, Pro-government daily of Beijing, China

Hostage stabbed, knife man killed
The Sydney Morning Herald, Centrist daily of Sydney, Australia

Buddha Jayanti Being Celebrated Today
The Himalayan Times, Independent daily of Kathmandu, Nepal

Ping linked to spying case in US
The Manila Times, Pro-government daily of Manila, Philippines

Umno shuts the door on Anwar
The Sun, Independent daily of Kuala Lumpur, Malaysia


Court Annuls Turkish Presidential Vote
Deutsche Welle, International broadcaster of Cologne, Germany

Oil spill detected from Russian freighter in Archipelago Sea
Helsingin Sanomat, Centrist daily of Helsinki, Finland

Tianwan's 2nd unit launched at minimum capacity - company
Interfax, Government-owned news agency, Moscow, Russia

'My baby is going to die anyway'
Irish Examiner, Centrist daily of Cork, Ireland

Estonia Accuses Duma of Meddling
The Moscow Times, Independent, English-language daily of Moscow, Russia

Devil is in detail of UN climate change talks
The Scotsman, Centrist daily of Edinburgh, Scotland

Judgment day cometh
Turkish Daily News, Independent daily of Istanbul, Turkey

Middle East

Truce torn again
Al-Ahram Weekly, Semi-official, English-language weekly of Cairo, Egypt

Kingdom Stays Committed to Asia's Growing Energy Needs
Arab News, Pro-government, English-language daily of Jidda, Saudi Arabia

Business Bay bridge opens
Gulf News, Independent daily of Dubai, United Arab Emirates

Kadima kingpin Yitzhaki publicly urges PM to quit
Ha'aretz, Liberal daily of Tel Aviv, Israel

Supreme Leader: SFRC's policy devising efforts are helpful
Islamic Republic News Agency, Government-owned news agency of Tehran, Iran

Kadima rebellion against Olmert gathers pace
The Jerusalem Post, Conservative daily of Jerusalem, Israel


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