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08/29/2018

USA Civil and related branches of law – Part 1

In the sphere of civil and family law, in most American states, not codes, but laws governing individual legal institutions, or rules of common law. The exception is the state of Louisiana, which operates the Civil Code of 1870, continuing the tradition of French law, and the states of Georgia, California, Montana, North and South Dakota, where there are civil codes that regulate only a narrow range of issues of civil and family law.

Norms on the legal status of individuals, in addition to those of a general constitutional nature, are very different. In particular, the age of civil majority in the states ranges from 18 to 21 years. Regarding the legal status of legal entities, usually referred to as corporations, there are also quite significant differences. Many states have uniform laws on full and limited partnerships, an approximate law on entrepreneurial corporations has become less widespread, although in general, American legislation in this area has a serious impact on many capitalist countries. American laws allow the formation of a corporation by even one person and do not contain restrictions on the minimum size of its initial capital.

The uniform law on marriage and divorce, developed by the National Conference of Commissioners (1970), was fully approved only in 11 states, and there is no unity in the regulation of these issues. The laws of some states require a civil form of registration of marriage, others give legal force to church marriage, but provided that it is preceded by a license from the municipal services. Finally, in some states, legal consequences can be recognized and for actually established marital relations. Over the past decades, including through the decisions of the US Supreme Court, the rights of children born out of wedlock are increasing, the number of which is constantly growing. The property of the spouses, after the marriage, often remains in their separate property, although in several states the regime of the community of spouses ‘property is recognized (such a regime is recommended and approved by the 1984 National Convention authorized by uniform laws on marriage contracts and spouses’ property).

The grounds for divorce are the laws of some states only recognize the irreparable disintegration of marriage, others – separation of spouses for six months; in some states it is required to prove in court the fault of one of the spouses in ill-treatment, infidelity, etc. The most liberal rules are in force in the state of Nevada, which economically proves to be extremely advantageous because of the influx of people wishing to accelerate the receipt of a divorce.

Equally diverse are the rules of inheritance. Everywhere inheritance is allowed both by law and by will. In the case of small inheritances, simplified rules are most often applied, and for large ones, judicial control over the decision on the transfer of property and its management carried out by the executor of the will or by a “personal representative” or other persons appointed by the court. In many states, the law provides for special protection of the rights of the surviving spouse.

In the field of trade relations, a number of authorized uniform acts prepared by the National Conference regulating the most important legal institutions have been published. In the first half of the XX century. relevant acts on securities, purchase and sale, bills of lading, conditional sales, etc., approved in many states, were prepared. However, the central place in this area was taken by the ETC, which absorbed all these laws. His first project was developed in 1952, then revised several times at the request of individual states (now the official text of 1978). It was adopted, with very little amendments, by all US states, except for Louisiana, but since 1974 many of its sections have been operating. All this gives the ETC an exceptional weight as a general American source of law. It regulates a very wide range of issues related not only to domestic and foreign trade, but also to a number of other legal relationships. At the same time, a considerable number of problems remained outside the limits of its regulation. This document is the result of a thorough analysis of existing business practices and is designed to maximize the development of trade in a free enterprise system, combined with safeguards against abuse for transaction participants, and primarily consumers. The ETC consists of 9 main sections arranged in the following order: 1) general provisions, 2) sale, 3) trade papers, 4) bank deposits and collection operations, 5) letters of credit, 6) complex alienation, 7) warehouse certificates, bills of lading and other documents of title, 8) investment securities and 9) securing transactions.

The so-called antitrust legislation has turned into an independent branch of legal regulation, carried out mainly by federal laws, aimed at preventing the excessive concentration of economic power in the hands of individual monopolies to the detriment of the system of capitalist competition. The first federal act in this field was the Sherman Act of 1890, which, with reference to the norms of common law, declared illegal associations striving to monopolize the interstate and foreign trade of the United States. Sherman’s law, which remains the basis of antitrust legislation in the United States, was supplemented in 1914 by Clayton’s Law as important in this field and the Law on the Federal Trade Commission, which banned attempts to monopolize other spheres of economic activity. These acts declared illegal “unfair methods of competition” in trade, as well as some types of business practices, if they entailed “a significant weakening of competition” or “the tendency to create monopolies.” In particular, it is recognized as a cartel agreement on the division of the market or on fixed prices. However, the American monopolies have developed a variety of techniques to circumvent the provisions of the named and similar acts. For example, they are widely used traditional trust institution, providing for the transfer of property, shares, etc. at the disposal of the trustee, for the concentration in the banks of property management of the owners of the largest fortunes. As a result, antitrust law does not result in the liquidation of monopolies, but rather in the creation of a very flexible system of state-monopoly regulation of the economy.

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