Business Law 16th Edition Ebook PDF

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CONTENTS
KENNETH GARRETT/MEDIA BAKERY
Preface xiv Alternative Dispute Resolution 53

Table of Cases xix Chapter Summary 56
Table of Illustrations xxiii Cases 58
Questions 63
PART 1 Case Problems 64
The Legal Environment of Business 1 Taking Sides 65
1 Introduction to Law 2 4 Constitutional Law 66

Nature of Law 2 Basic Principles of Constitutional Law 67
Classification of Law 4 Powers of Government 68
Sources of Law 5 Limitations on Government 71
Legal Analysis 9 Chapter Summary 76
Chapter Summary 11 Cases 77
Cases 12 Questions 85
Case Problems 85
2 Business Ethics and the Social Taking Sides 87
Responsibility of Business 14
Law Versus Ethics 15 5 Administrative Law 88
Ethical Theories 15 Operation of Administrative Agencies 89
Ethical Standards in Business 18 Limits on Administrative Agencies 92
Ethical Responsibilities of Business 19 Chapter Summary 94
Corporate Governance 20 Cases 95
Chapter Summary 23 Case Problems 101
Cases 24 Taking Sides 103
Questions 24
Business Ethics Cases 26 6 Criminal Law 105
Nature of Crimes 105
3 Civil Dispute Resolution 42 White-Collar Crime 108
The Court System 42 Crimes Against Business 109
The Federal Courts 42 Defenses to Crimes 112
State Courts 44 Criminal Procedure 113
Jurisdiction 45 Chapter Summary 115
Subject Matter Jurisdiction 45 Cases 116
Jurisdiction over the Parties 47 Questions 121
Civil Dispute Resolution 49 Case Problems 122
Civil Procedure 49 Taking Sides 123
vi
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Contents vii
7 Intentional Torts 124 Acceptance of Offer 195

Intent 125 Communication of Acceptance 196
Harm to the Person 126 Variant Acceptances 197
Harm to the Right of Dignity 127 Chapter Summary 199
Harm to Property 130 Cases 200
Harm to Economic Interests 131 Questions 205
Defenses to Intentional Torts 132 Case Problems 207
Chapter Summary 134 Taking Sides 209
Cases 135
Questions 141 11 Conduct Invalidating Assent 210
Case Problems 142 Duress 210
Taking Sides 145 Undue Influence 211
Fraud 211
8 Negligence and Strict Liability 146 Nonfraudulent Misrepresentation 214
Negligence 146 Mistake 214
Breach of Duty of Care 147 Chapter Summary 217
Factual Cause 152 Cases 217
Scope of Liability (Proximate Cause) 152 Questions 225
Harm 153 Case Problems 226
Defenses to Negligence 154 Taking Sides 229
Strict Liability 155
Activities Giving Rise to Strict Liability 155 12 Consideration 230
Defenses to Strict Liability 156 Legal Sufficiency 230
Chapter Summary 157 Bargained-For Exchange 235
Cases 159 Contracts Without Consideration 236
Questions 166 Chapter Summary 239
Case Problems 167 Cases 240
Taking Sides 169 Questions 246
Case Problems 247
PART 2
Taking Sides 249
Contracts 171
9 Introduction to Contracts 172 13 Illegal Bargains 250
Violations of Statutes 250
Development of the Law of Contracts 172
Violations of Public Policy 252
Definition of a Contract 174
Effect of Illegality 255
Requirements of a Contract 174
Chapter Summary 255
Classification of Contracts 175
Cases 256
Promissory Estoppel 177
Questions 264
Quasi Contracts 177
Case Problems 265
Chapter Summary 178
Taking Sides 267
Cases 180
Questions 186
14 Contractual Capacity 268
Case Problems 186
Minors 268
Taking Sides 187
Incompetent Persons 271
10 Mutual Assent 189 Intoxicated Persons 271
Offer 189 Chapter Summary 272
Essentials of an Offer 190 Cases 272
Duration of Offers 192 Questions 279
viii Contents
Case Problems 280 Chapter Summary 354

Taking Sides 282 Cases 355
Questions 361
15 Contracts in Writing 283 Case Problems 362
Statute of Frauds 283 Taking Sides 364
Contracts within the Statute of Frauds 284
Compliance with the Statute of Frauds 289 PART 3
Effect of Noncompliance 290
Parol Evidence Rule 291
Agency 365
The Rule 291 19 Relationship of Principal and Agent 366
Situations to Which the Rule Does Not Apply 291 Nature of Agency 366
Supplemental Evidence 292 Creation of Agency 368
Interpretation of Contracts 292 Duties of Agent to Principal 369
Chapter Summary 294 Duties of Principal to Agent 372
Cases 296 Termination of Agency 374
Questions 304 Chapter Summary 377
Case Problems 305 Cases 378
Taking Sides 308 Questions 384
Case Problems 386
16 Third Parties to Contracts 309 Taking Sides 387
Assignment of Rights 309
Delegation of Duties 312 20 Relationship with Third Parties 389
Third-Party Beneficiary Contracts 314 Relationship of Principal and Third Persons 389
Chapter Summary 316 Contract Liability of the Principal 389
Cases 318 Tort Liability of the Principal 396
Questions 323 Criminal Liability of the Principal 399
Case Problems 325 Relationship of Agent and Third Persons 399
Taking Sides 327 Contract Liability of Agent 399
Tort of Liability of Agent 401
17 Performance, Breach, and Discharge 328 Rights of Agent Against Third Person 402
Conditions 328 Chapter Summary 402
Discharge by Performance 330 Cases 404
Discharge by Breach 330 Questions 411
Discharge by Agreement of the Parties 332 Case Problems 412
Discharge by Operation of Law 333 Taking Sides 414
Chapter Summary 335
Cases 337 PART 4
Questions 341 Sales 415
Case Problems 343
21 Introduction to Sales and Leases 416
Taking Sides 345
Nature of Sales and Leases 417
18 Contract Remedies 346 Definitions 417
Fundamental Principles of Article 2 and Article 2A 418
Interests Protected by Contract Remedies 346
Formation of Sales and Lease Contracts 421
Monetary Damages 346
Manifestation of Mutual Assent 421
Remedies in Equity 350
Consideration 425
Restitution 352
Form of the Contract 425
Limitations on Remedies 352
Chapter Summary 427
Contents ix
Cases 429 PART 5

Questions 435 Negotiable Instruments 529
Case Problems 436
Taking Sides 438 26 Form and Content 530
Negotiability 531
22 Performance 439 Types of Negotiable Instruments 532
Performance by the Seller 439 Formal Requirements of Negotiable Instruments 534
Performance by the Buyer 444 Chapter Summary 539
Obligations of Both Parties 446 Cases 540
Chapter Summary 449 Questions 543
Cases 450 Case Problems 545
Questions 456 Taking Sides 546
Case Problems 457
Taking Sides 459 27 Transfer and Holder in Due Course 547
Transfer 547
23 Transfer of Title and Risk of Loss 460 Negotiation 547
Transfer of Title 460 Indorsements 550
Risk of Loss 464 Holder in Due Course 554
Sales of Goods in Bulk 467 Requirements of a Holder in Due Course 554
Chapter Summary 469 Holder in Due Course Status 558
Cases 470 The Preferred Position of a Holder in Due Course 559
Questions 475 Limitations upon Holder in Due Course Rights 562
Questions 574
24 Products Liability: Warranties and Strict
Liability in Tort 478 Case Problems 576
Taking Sides 578
Warranties 478
Types of Warranties 479 28 Liability of Parties 579
Obstacles to Warranty Actions 481 Contractual Liability 579
Strict Liability in Tort 484 Signature 579
Requirements of Strict Liability 485 Liability of Primary Parties 581
Obstacles to Recovery 487 Liability of Secondary Parties 581
Restatement of Torts (Third): Products Liability 488 Termination of Liability 585
Chapter Summary 490 Liability Based on Warranty 585
Cases 492 Warranties on Transfer 586
Questions 500 Warranties on Presentment 587
Questions 597
25 Sales Remedies 505
Case Problems 598
Remedies of the Seller 505
Taking Sides 599
Remedies of the Buyer 511
Contractual Provisions Affecting Remedies 514 29 Bank Deposits, Collections, and Funds
Chapter Summary 516 Transfers 600
Cases 518 Bank Deposits and Collections 600
Questions 525 Collection of Items 601
Case Problems 526 Relationship Between Payor Bank and
Taking Sides 528 Its Customer 604
x Contents
Electronic Funds Transfers 607 Chapter Summary 659

Types of Electronic Funds Transfers 607 Cases 661
Consumer Funds Transfers 608 Questions 669
Wholesale Funds Transfers 609 Case Problems 672
Cases 614
Questions 617 32 Limited Partnerships and Limited
Case Problems 619 Liability Companies 674
Taking Sides 620 Limited Partnerships 674
Limited Liability Companies 679
Other Types of Unincorporated Business
PART 6 Associations 684
Unincorporated Business Chapter Summary 686
Cases 689
Associations 621
Questions 696
30 Formation and Internal Relations Case Problems 697
of General Partnerships 622 Taking Sides 698
Choosing a Business Association 622
Factors Affecting the Choice 623
PART 7
Forms of Business Associations 624
Formation of General Partnerships 626 Corporations 699
Nature of Partnership 626 33 Nature, Formation, and Powers 700
Formation of a Partnership 627
Nature of Corporations 701
Relationships Among Partners 630
Corporate Attributes 701
Duties Among Partners 630
Classification of Corporations 702
Rights Among Partners 632
Formation of a Corporation 704
Chapter Summary 636
Organizing the Corporation 704
Cases 638
Formalities of Incorporation 706
Questions 643
Recognition or Disregard of Corporateness 707
Case Problems 644
Defective Incorporation 707
Taking Sides 645
Piercing the Corporate Veil 709
31 Operation and Dissolution of General Corporate Powers 710
Partnerships 646 Sources of Corporate Powers 710
Relationship of Partnership and Partners with Ultra Vires Acts 710
Third Parties 646 Liability for Torts and Crimes 711
Contracts of Partnership 646 Chapter Summary 711
Torts and Crimes of Partnership 649 Cases 714
Notice to a Partner 649 Questions 719
Liability of Incoming Partner 649 Case Problems 720
Dissociation and Dissolution of General Taking Sides 722
Partnerships under RUPA 650
Dissociation 650 34 Financial Structure 723
Dissolution 651 Debt Securities 724
Dissociation without Dissolution 653 Authority to Issue Debt Securities 724
Dissolution of General Partnerships under UPA 655 Types of Debt Securities 724
Dissolution 656 Equity Securities 725
Winding Up 657 Issuance of Shares 725
Continuation after Dissolution 658 Classes of Shares 728
Contents xi
Dividends and Other Distributions 729 Default 810

Types of Dividends and Other Distributions 730 Suretyship 812
Legal Restrictions on Dividends and Other Nature and Formation 813
Distributions 731 Rights of Surety 815
Declaration and Payment of Distributions 734 Defenses of Surety and Principal Debtor 815
Liability for Improper Dividends and Distributions 734 Chapter Summary 817
Questions 743 Case Problems 827
Case Problems 744 Taking Sides 829
Taking Sides 745
38 Bankruptcy 830
35 Management Structure 746
Federal Bankruptcy Law 830
Corporate Governance 746
Case Administration—Chapter 3 831
Role of Shareholders 748
Creditors, the Debtor, and the Estate—Chapter 5 833
Voting Rights of Shareholders 748
Liquidation—Chapter 7 838
Enforcement Rights of Shareholders 753
Reorganization—Chapter 11 842
Role of Directors and Officers 754
Adjustment of Debts of Individuals—Chapter 13 844
Function of the Board of Directors 754
Creditors’ Rights and Debtor’s Relief Outside
Election and Tenure of Directors 756 of Bankruptcy 846
Exercise of Directors’ Functions 757 Creditors’ Rights 846
Officers 758 Debtor’s Relief 847
Duties of Directors and Officers 759 Chapter Summary 848
Taking Sides 777
36 Fundamental Changes 778 PART 9

Charter Amendments 778 Regulation of Business 859
Combinations 779
39 Protection of Intellectual Property 860
Dissolution 783
Trade Secrets 860
Chapter Summary 785
Trade Symbols 862
Cases 786
Trade Names 864
Questions 793
Copyrights 865
Case Problems 794
Patents 867
Taking Sides 795
Chapter Summary 869
PART 8 Cases 871
Questions 879
Debtor and Creditor Relations 797 Case Problems 880
37 Secured Transactions in Personal Property 798 Taking Sides 882
Secured Transactions in Personal Property 798
Essentials of Secured Transactions 799 40 Antitrust 883
Classification of Collateral 800 Sherman Act 883
Attachment 801 Clayton Act 888
Perfection 803 Robinson-Patman Act 890
Priorities among Competing Interests 806 Federal Trade Commission Act 892
xii Contents

Taking Sides 905
45 Environmental Law 1015
41 Consumer Protection 906 Common Law Actions for Environmental Damage 1015
State and Federal Consumer Protection Agencies 906 Nuisance 1015
Consumer Purchases 910 Trespass to Land 1016
Consumer Credit Transactions 912 Strict Liability for Abnormally Dangerous Activities 1016
Creditors’ Remedies 918 Problems Common to Private Causes of Action 1016
Chapter Summary 919 Federal Regulation of the Environment 1016
Cases 921 The National Environmental Policy Act 1017
Questions 927 The Clean Air Act 1018
Case Problems 928 The Clean Water Act 1020
Taking Sides 930 Hazardous Substances 1021
International Protection of the Ozone Layer 1024
42 Employment Law 931 Chapter Summary 1026
Labor Law 931 Cases 1027
Employment Discrimination Law 933 Questions 1031
Employee Protection 938 Case Problems 1031
Cases 944
46 International Business Law 1033
Questions 958
Case Problems 959 The International Environment 1033
Taking Sides 962 Jurisdiction over Actions of Foreign Governments 1035
Transacting Business Abroad 1036
43 Securities Regulation 963 Forms of Multinational Enterprises 1041
Securities Act of 1933 965 Chapter Summary 1041
Definition of a Security 965 Cases 1043
Registration of Securities 965 Questions 1046
Exempt Securities 967 Case Problems 1047
Exempt Transactions for Issuers 968 Taking Sides 1048
Exempt Transactions for Nonissuers 971
Liability 973 PART 10
Securities Exchange Act of 1934 974
Disclosure 974
Property 1049
Liability 980 47 Introduction to Property, Property
Chapter Summary 985 Insurance, Bailments, and Documents
Cases 987 of Title 1050
Questions 996 Introduction to Property and Personal
Case Problems 998 Property 1050
Taking Sides 999 Kinds of Property 1050
Transfer of Title to Personal Property 1052
44 Accountants’ Legal Liability 1000 Property Insurance 1054
Common Law 1000 Fire and Property Insurance 1054
Federal Securities Law 1003 Nature of Insurance Contracts 1055
Chapter Summary 1006 Bailments and Documents of Title 1057
Contents xiii
Bailments 1057 50 Trusts and Decedents’ Estates 1117

Documents of Title 1061 Trusts 1117
Chapter Summary 1063 Types of Trusts 1117
Cases 1066 Creation of Trusts 1119
Questions 1070 Termination of a Trust 1120
Case Problems 1074 Decedents’ Estates 1121
Taking Sides 1075 Wills 1121
Intestate Succession 1125
48 Interests in Real Property 1077
Administration of Estates 1125
Freehold Estates 1077
Chapter Summary 1126
Leasehold Estates 1079
Cases 1128
Concurrent Ownership 1083
Questions 1133
Nonpossessory Interests 1085
Case Problems 1135
Taking Sides 1136
Cases 1090
Questions 1095 Appendices A-1
Case Problems 1096
Appendix A: The Constitution of the
Taking Sides 1098 United States of America A-2
49 Transfer and Control of Real Property 1099 Appendix B: Uniform Commercial Code
(Selected Provisions) B-1
Transfer of Real Property 1099
Appendix C: Revised Model Business
Contract of Sale 1099 Corporation Act (Selected Provisions) C-1
Deeds 1101
Appendix D: Dictionary of Legal Terms D-1
Secured Transactions 1102
Adverse Possession 1104 Index I-1
Public and Private Controls 1104
Zoning 1104
Eminent Domain 1105
Private Restrictions upon Land Use 1106
Cases 1109
Questions 1113
Case Problems 1114
Taking Sides 1116
PREFACE
T
he format of the Sixteenth Edition follows the tradi- chapters (Chapters 7 and 8) have been revised to incorpo-
tion established by prior editions, in that chapters rate Volume 2 of the new Restatement of the Law Third,
contain narrative text, illustrations, cases consisting Torts: Liability for Physical and Emotional Harm, which
of selected court decisions, chapter summaries, and end-of- was approved and published in 2011. Coverage of the 2012
chapter questions and case problems. We have added several amendments to Uniform Commercial Code (UCC) Article
new features: Chapter Objectives at the beginning of every 4A has been added. The Secured Transactions chapter (now
chapter, Applying the Law in a number of chapters, Practical Chapter 37) covers the most significant provisions of the
Advice throughout the narrative text in every chapter, and 2010 amendments to UCC Article 9. The Intellectual Prop-
Taking Sides at the end of chapters. erty chapter (now Chapter 39) includes the changes made
by the Leahy-Smith America Invents Act of 2011 and the
Foreign and Economic Espionage Penalty Enhancement Act
TOPICAL COVERAGE of 2012. The chapter on Securities Regulation (now Chapter
This text is designed for use in business law and legal envi- 43) covers the Jumpstart Our Business Startups Act of
ronment of business courses generally offered in universities, 2012, the Stop Trading on Congressional Knowledge Act of
colleges, schools of business and commerce, community col- 2012, and the U.S. Securities and Exchange Commission’s
leges, and junior colleges. By reason of the text’s broad and new disclosure rules clarifying how companies can use
deep coverage, instructors may readily adapt this text to spe- social media to disseminate information. Also, former
cially designed courses in business law or the legal environ- Chapters 27 and 28 have been combined into one chapter,
ment of business by assigning and emphasizing different titled “Transfer and Holder in Due Course” to integrate the
combinations of chapters. concepts covered.
Furthermore, this text covers the following parts of the
CPA Exam: (1) the legal responsibilities and liabilities of
accountants section and (2) the corporate governance por- READABILITY OF NARRATIVE TEXT
tion of the business environment and concepts section. See To make the text as readable as possible, all unnecessary
the inside front cover of this text for a detailed listing of the “legalese” has been omitted, and necessary legal terms have
CPA Exam topics covered in this text as well as the chapters been printed in boldface and clearly defined, explained, and
covering each topic. illustrated. Each chapter is carefully organized with sufficient
Emphasis has been placed upon the regulatory environ- levels of subordination to enhance the accessibility of the
ment of business law: the first eight chapters introduce the material. The text is enriched by numerous illustrative hypo-
legal environment of business, and Part 9 (Chapters 39 thetical and case examples, which help students relate the
through 46) addresses government regulation of business. material to real-life experiences. The end-of-chapter cases are
cross-referenced in the text, as are related topics covered in
other chapters.
UP-TO-DATE
The constitutional law chapter (Chapter 4) discusses the
U.S. Supreme Court’s decisions in the cases challenging the CHAPTER OBJECTIVES
constitutionality of the Patient Protection and Affordable Each chapter now begins with a list of learning objectives for
Care Act and the Defense of Marriage Act. The two torts the student.
xiv
Preface xv
thetical situations) and the case problems (taken from

APPLYING THE LAW reported court decisions) in our own classrooms and con-
A number of chapters include a new feature—Applying the sider them excellent stimulants to classroom discussion. Stu-
Law—that provides a systematic legal analysis of a specific dents, in turn, have found the questions and case problems
concept learned in that chapter. It consists of (1) the facts of helpful in enabling them to apply the basic rules of law to
a hypothetical case, (2) an identification of the broad legal factual situations.
issue presented by those facts, (3) a statement of the applica-
ble rule, (4) the application of the rule to the facts, and (5) a
legal conclusion in the case. TAKING SIDES
Each chapter—except for Chapters 1 and 2—has a new end-
of-chapter feature that requires students to apply critical-
PRACTICAL ADVICE thinking skills to a case-based fact situation. The students are
In this edition, we have added to each chapter a number of asked to identify the relevant legal rules and develop argu-
statements that illustrate how legal concepts covered in that ments for both parties to the dispute. In addition, the stu-
chapter can be applied to common business situations. dents are asked to explain how they think a court would
resolve the dispute.
CASE TREATMENT
All the cases have been edited carefully to preserve the actual APPENDICES
language of the court and to show the essential facts of the The text contains comprehensive appendices, including the
case, the issue or issues involved, the decision of the court, Constitution of the United States (Appendix A); the Uniform
and the reason for its decision. We have retained the land- Commercial Code (Appendix B); and the Revised Model
mark cases from the prior edition. In addition, we have incor- Business Corporation Act (Appendix C). A comprehensive
porated more than 30 recent cases, including the following Dictionary of Legal Terms appears in Appendix D.
U.S. Supreme Court cases: Mims v. Arrow Financial Services,
LLC; Nitro-Lift Technologies, LLC v. Howard; Williamson v. PEDAGOGICAL BENEFITS
Mazda Motor of America, Inc.; Brown v. Entertainment Mer-
chants Association; Mayo Foundation for Medical Education Classroom use and study of this book should provide the fol-
and Research v. United States; Sackett v. Environmental Pro- lowing benefits and skills for the student:
tection Agency; Radlax Gateway Hotel, LLC v. Amalgamated 1. Perception and appreciation of the scope, extent, and im-
Bank; Association for Molecular Pathology v. Myriad Genetics, portance of the law.
Inc; Matrixx Initiatives, Inc. v. Siracusano; Vance v. Ball State 2. Basic knowledge of the fundamental concepts, principles,
University; Freeman v. Quicken Loans, Inc; and Morrison v. and rules of law that apply to business transactions.
National Australia Bank Ltd. 3. Knowledge of the function and operation of courts and
government administrative agencies.
4. Ability to recognize the potential legal problems which
ILLUSTRATIONS
may arise in a doubtful or complicated situation, and the
We have used more than 210 classroom-tested figures, dia- necessity of consulting a lawyer and obtaining competent
grams, charts, tables, and chapter summaries. The figures professional legal advice.
and diagrams help the students conceptualize the many 5. Development of analytical skills and reasoning power.
abstract concepts in the law; the charts and tables not only
summarize prior discussions but also help to illustrate rela-
tionships among legal rules. Moreover, each chapter has a COMPREHENSIVE LEARNING SOLUTIONS
summary in the form of an annotated outline of the entire For more information about any of these ancillaries, visit the
chapter, including key terms. Mann and Roberts Smith & Roberson’s Business Law com-
panion website at www.cengagebrain.com.
END-OF-CHAPTER QUESTIONS AND INSTRUCTOR RESOURCES
CASE PROBLEMS • Instructor’s Manual The Instructor’s Manual, prepared
Classroom-proven questions and case problems appear at by Richard A. Mann, Barry S. Roberts, and Beth D.
the ends of chapters to test the student’s understanding of Woods, contains opening ethics questions, suggested
major concepts. We have used the questions (based on hypo- activities, and research projects; chapter outlines; teaching
xvi Preface
notes; answers to the Questions and Case Problems; briefs BUSINESS LAW DIGITAL VIDEO LIBRARY
to cases; and suggested case questions for students. Featuring more than one hundred video clips that spark class
R
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and guide student note-taking during lectures. Digital Video Library is organized into six series: Legal Con-
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false, multiple-choice, and essay questions. The questions forward explanations of concepts for student review); Drama
vary in levels of difficulty and meet a full range of tagging of the Law (features classic business scenarios that spark
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• Cognero Cengage Learning Testing Powered by Cognero encountered in real businesses); and Business Ethics in
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COURSEMATE This is your source for turning today’s challenges into
Cengage Learning’s CourseMate for Smith & Roberson’s tomorrow’s solutions. This online portal houses the most
Business Law, sixteenth edition, brings course concepts to life current and up-to-date content concerning the economic cri-
with interactive learning, study, and exam preparation sis. Organized by discipline, the GEW Resource Center offers
tools—including an e-book—that supports the printed text- the solutions instructors and students need in an easy-to-use
book. Brand new to this edition, student study materials and format. Included are an overview and timeline of the histori-
a set of auto-gradable, interactive quizzes allow students to cal events leading up to the crisis, links to the latest news
instantly gauge their comprehension of the material. Built-in and resources, discussion and testing content, an instructor
engagement tracking tools allow instructors to follow stu- feedback forum, and a Global Issues Database. Visit www.
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Preface xvii
Amy Wilson, Zane State College

ACKNOWLEDGMENTS Rizvana Zameeruddin, University of Wisconsin–Parkside
We express gratitude to the following professors for their
helpful comments: We are also grateful to those who provided us with com-
Wm. Dennis Ames, Indiana University of Pennsylvania ments for previous editions of the book: Miriam R. Albert,
Michael Balsamo, SUNY–Old Westbury Fordham University; Mark Altieri, Cleveland State Univer-
Andrea Boggio, Bryant University sity; Albert Anderson, Mount Aloysius College; Albert
Mark A Buchanan, Boise State University Andrews, Jr., University of Minnesota; Denise A. Bartles,
Michael Burg, University of St. Thomas Missouri Western State College; Lois Yoder Beier, Kent State
Debra Burke, Western Carolina University University; Robert Bing, William Paterson College; Joell
Regina W. Cannon, University of Georgia Bjorke, Winona State University; William N. Bockanic, John
Thomas D. Cavenagh, North Central College Carroll University; Donald Boren, Bowling Green State Uni-
Jennifer Chapman, Georgia Gwinnett College versity; Joyce Boland-DeVito, Esq., St. John’s University; Joe
Jeff Charles, Bowling Green State University Boucher, University of Wisconsin–Madison; L. Brooks, Nich-
John Cirace, CUNY–Lehman College ols College; Nicolaus Bruns, Jr., Lake Forest Graduate School
Arlen Coyle, University of Mississippi of Management; Mark A. Buchanan, Boise State University;
Robert H. Doud, Adelphi University Deborah Lynn Bundy, Marquette University; Thomas J. Can-
Robert Evans, Rockford College avan, Long Island University–C. W. Post Campus; Donald
Alfred E. Fabian, Ivy Tech Community College Cantwell, University of Texas–Arlington; John P. Carnasiotis,
J. Royce Fichtner, Drake University University of Missouri; Albert L. Carter, Jr., University of the
Thomas Fitzpatrick, Assumption College District of Columbia; Richard R. Clark, University of the Dis-
Samuel B. Garber, DePaul University trict of Columbia; Mitchell F. Crusto, Washington Universi-
Daniel Gillespie, DePaul University ty–St. Louis; Richard Dalebout, Brigham Young University;
Dr. Roy Girasa, Pace University Arthur S. Davis, Long Island University; John Davis, Ashland
Marvin Gordon, Loyola Chicago University Community & Technical College; Kenneth R. Davis, Ford-
John Gray, Faulkner University ham School of Business; William Day, Cleveland State Uni-
Brian Hanlon, North Central College versity; Alex DeVience, Jr., DePaul University; Craig
Dr. Ivan Harber, Indian River State College Disbrow, Plymouth State College, New Hampshire; William
Mary C. Keifer, Ohio University G. Elliott, Saginaw Valley State University; Edward Eramus,
William J. Koval, Jr., Notre Dame College State University of New York–Brockport; Kurt Erickson,
Joseph F. Lenius, Northeastern Illinois University South West Michigan College; Jay Ersling, University of St.
Avi Liveson, Hunter College Thomas, Minnesota; J. Royce Fichtner, Drake University; Joe
Romain Lorentz, University of St. Thomas W. Fowler, Oklahoma State University–Stillwater; Karla H.
Monika Lovewell Bellows, SUNY–Canton Fox, University of Connecticut; Stanley Fuchs, Fordham Uni-
Sharon Martin, Empire State College–Brooklyn Unit versity; Samuel B. Garber, DePaul University; Nathan T.
Bruce Marx, SUNY–Old Westbury Garrett, Esq., North Carolina Central University; Michael J.
James Mcgee, College of Westchester Garrison, North Dakota State University; Sue Gragiano,
Christopher J. Nyhus, University of Mary Bowling Green State University; James Granito, Youngstown
David Oliveiri, University of Rochester State University; Sally Terry Green, Texas Southern Univer-
Jim Pingel, Everest University–Brandon sity; Dale A. Grossman, Cornell University; Donald Haley,
Jonathan Politi, Columbus College of Art & Design Cleveland State University; Marc Hall, Auburn University
Lisa Rackley, Rich Mountain Community College Montgomery; James V. Harrison, St. Peter’s State College;
Roland W. Riggs, Marietta College Edward J. Hartman, St. Ambrose University; Frances J. Hill,
Alan Ross, University of California–Berkeley University of Wisconsin–Whitewater; Telford F. Hollman,
Mark Rossi, Briar Cliff University University of Northern Iowa–Cedar Falls; Georgia L.
Stuart Schafer, University of Mississippi Holmes, Mankato State University; James Holzinger, Muh-
Eric D Schwartz, LaRoche College lenberg College; Norman Hope, Tabor College; Sarah H.
Peter Smithfield, Argyle Academy Hudwig, Mary Baldwin College; Velma Jesser, Lane Commu-
Dale Thompson, University of St. Thomas nity College; Theresa Johnson, Cleveland State University;
Alix Valenti, University of Houston–Clear Lake Marilee Jones-Confield, California State University–Long
Karen Vitori, Schoolcraft College Beach; Al Joyner, Eastern Illinois University; Mary C. Keifer,
John G. Williams, Northwestern State University Ohio University; Randall Kilbourne, Northwestern State
xviii Preface
University; Barbara Kirkpatrick, Virginia Intermont College; Janis Stamm, Edinboro University of Pennsylvania; Beverly E.
Edward M. Kissling, Ocean County College, New Jersey; Stanis, Oakton Community College; James Staruck, DePaul
Robert Klepa, UCLA Extension; Louise Knight, Bucknell University; Al Stauber, Florida State University; David Steele,
University; Duane R. Lambert, California State University– University of Wisconsin–Eau Claire; Lowell E. Stockstill,
Hayward; Andrew Liput, Felician College; Sarah H. Ludwig, Wittenberg University; Peter Strohm, Georgian Court Col-
Mary Baldwin College; Richard Luke, Ricks College; Tanya lege; Al Talarczyk, Edgewood College; James D. Taylor, Clare-
M. Marcum, Bradley University; Pat Maroney, Florida State mont McKenna College; Kevin M. Teeven, Bradley
University; Michael A. Mass, American University; Cheryl University; Robert J. Tepper, University of New Mexico; Dale
Massingale, University of Tennessee–Knoxville; Greg K. B. Thompson, University of St. Thomas; Leonard Tripodi, St.
McCann, Stetson University; Bruce McClain, Cleveland State Joseph’s College; Nancy A. Wainwright, Eastern Washington
University; Ann L. McClure, Fort Hays State University; University; Charles H. Walker, University of Mississippi;
Charles R. McGuire, Illinois State University; Herbert Michael G. Walsh, Villanova University; Daniel Warner,
McLaughlin, Bryant College; James Molloy, University of Western Washington University; Peter M. Wasemiller,
Wisconsin–Whitewater; Sebrena R. Moten, Troy University; Fresno Pacific College; David Webster, University of South
Donald Nelson, University of Denver; Carol L. Nielsen, Florida–Tampa; Scott A. White, University of Wisconsin;
Bemidji State University; L. K. O’Drudy, Jr., University of E. Marshall Wick, Gallaudet University; Wells J. Wright,
Virginia; Ann Morales Olazabal, University of Miami; Rich- University of Minnesota; and James B. Zimarowski, Univer-
ard Paxton, San Diego Community College; Gail P. Petra- sity of Notre Dame.
vick, Bradley University; James L. Porter, University of New We express our thanks and deep appreciation to Debra
Mexico; Elinor Rahm, Central Missouri State University; Corvey for administrative assistance. For their support we
Samuel H. Ramsay, Jr., Bryant College; Lori K. Harris-Ran- extend our thanks to Karlene Fogelin Knebel and Joanne
som, Caldwell College; Decateur Reed, Boise State University; Erwick Roberts. And we are grateful to Vicky True-Baker,
Richard E. Regan, St. John Fisher College; Roger Reinsch, Sarah Blasco, Scott Dillon, and Ann Borman of South-West-
Emporia State University; L. Reppert, Marymount Univer- ern for their invaluable assistance and cooperation in con-
sity; Caroline Rider, Marist College; George Roe, University nection with the preparation of this text.
of Illinois–Chicago; Stanford Rosenberg, La Roche College; This text is dedicated to our children Lilli-Marie Knebel
Alan Ross, University of California–Berkeley; Tim Rueth, Mann, Justin Erwick Roberts, and Matthew Charles Roberts.
Marquette University; Donald H. Shoop, North Dakota State
University; Carol Wahle Smith, Central Florida Community Richard A. Mann
College; Michael J. Sovansky, Saginaw Valley State University; Barry S. Roberts
TABLE OF CASES
Cases in italic are the principal cases included at the ends of the chapters. Reference numbers are to pages.
Abrams v. United States, 72 Brehm v. Eisner, 770

Alcoa Concrete & Masonry v. Stalker Bros., 256 Brentwood Academy v. Tennessee Secondary School
Aldana v. Colonial Palms Plaza, Inc., 318 Athletic Association, 78
Alpert v. 28 Williams St. Corp., 786 Brown v. Board of Education of Topeka, 75, 83
Alzado v. Blinder, Robinson & Co., Inc., 689 Brown v. Entertainment Merchants Association, 81
American Airlines, Incorporated v. Department of Broz v. Cellular Information Systems, Inc., 773
Transportation, 96 Burlington Industries, Inc. v. Ellerth, 945, 951
American Manufacturing Mutual Insurance Company v. Burlington N. & S. F. R. Co. v. White, 944
Tison Hog Market, Inc., 824
American Needle, Inc. v. National Football League, 894 Cappo v. Suda, 1112
American Tobacco Co. v. United States, 885 Carson v. Here’s Johnny Portable Toilets, Inc., 140
Anderson v. McOskar Enterprises, Inc., 260 Carter v. Tokai Financial Services, Inc., 429
Any Kind Checks Cashed, Inc. v. Talcott, 571 Catalano, Inc. v. Target Sales, Inc., 886
Apodaca v. Oregon, 115 Catamount Slate Products, Inc. v. Sheldon, 200
Arrowhead School District No. 75, Park County, Central Hudson Gas and Electric Corp. v. Public Service
Montana, v. Klyap, 357 Commission, 73
Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 888 Chapa v. Traciers & Associates, 823
Association for Molecular Pathology v. Myriad Genetics, Chicago Board of Trade v. United States, 884
Inc., 877 Christy v. Pilkinton, 333
Austin v. Michigan Chamber of Commerce, 72 Citizens United v. Federal Election Commission, 72
Coastal Leasing Corporation v. T-Bar S Corporation, 523
Beam v. Stewart, 772 Cohen v. Kipnes, 599
Bear’s Adm’x v. Bear, 277 Commerce & Industry Insurance Company v. Bayer
Beatty v. Guggenheim Exploration Co., 1119 Corporation, 433
Beckman v. Dunn, 128 Compaq Computer Corporation v. Horton, 764
Belden Inc. v. American Electronic Components, Inc., 492 Conklin Farm v. Doris Leibowitz, 663
Berardi v. Meadowbrook Mall Company, 217 Connes v. Molalla Transport System, Inc., 407
Berg v. Traylor, 272 Consolidated Edison Co. v. NLRB, 93
Bigelow-Sanford, Inc. v. Gunny Corp., 520 Cooke v. Fresh Express Foods Corporation, Inc., 791
Border State Bank of Greenbush v. Bagley Livestock Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A. v.
Exchange, Inc., 820 Bailey, 542
Borton v. Forest Hills Country Club, 1094 Coopers & Lybrand v. Fox, 714
Bradkin v. Leverton, 178 Copperwald Corp. v. Independence Tube Corp, 885
xix
xx Table of Cases
County of Washington v. Gunther, 936 Gaddy v. Douglass, 383

Cox Enterprises, Inc. v. Pension Benefit Guaranty Galler v. Galler, 703, 752
Corporation, 739 Geier v. American Honda Motor Co., 77
Credit Alliance Corp. v. Arthur Andersen & Co., 1001 Georg v. Metro Fixtures Contractors, Inc., 568
Golini v. Bolton, 1132
D.I. Felsenthal Co. v. Northern Assurance Co., 709 Greene v. Boddie-Noell Enterprises, Inc., 499
Dartmouth College v. Woodward, 700 Greenman v. Yuba Power Products, Inc., 496
Davis v. Watson Brothers Plumbing, Inc., 594 Griggs v. Duke Power Co., 949
Del Pilar v. DHL Global Customer Solutions (USA), Gross v. FBL Financial Services, Inc., 937
Inc., 378
Denney v. Reppert, 241 Hadfield v. Gilchrist, 1069
Department of Revenue of Kentucky v. Davis, et al., 80 Hadley v. Baxendale, 349, 350
Detroit Lions, Inc. v. Argovitz, 382 Halla Nursery, Inc. v. Baumann-Furrie & Co., 1001
Diamond v. Chakrabarty, 878 Hamilton v. Lanning, 853
Diamond, Commissioner of Patents and Trademarks v. Harold Lang Jewelers, Inc. v. Johnson, 714
Chakrabarty, 868 Harris v. Looney, 716
DiLorenzo v. Valve and Primer Corporation, 244 Harry Berenter, Inc. v. Berman, 257
DJ Coleman, Inc. v. Nufarm Americas, Inc., 431 Heinrich v. Titus-Will Sales, Inc., 471
Dodge v. Ford Motor Co., 734, 741 Heritage Bank v. Bruha, 540
Donahue v. Rodd Electrotype Co., Inc., 768 Hochster v. De La Tour, 331, 338
Donald R. Hessler v. Crystal Lake Chrysler-Plymouth, Hoffmann-La Roche Ltd v. Empagran S.A, 1039
Inc., 454 Home Rentals Corp. v. Curtis, 1090
Dr. Miles Medical Co. v. John D. Park & Sons Co., 896, 897 Honeycutt v. Honeycutt, 614
Horizon/CMS Healthcare Corporation v. Southern Oaks
Eastman Kodak Co. v. Image Technical Services, Inc., 898 Health Care, Inc., 665
Eastwood v. Superior Court, 139 Hospital Corporation of America v. FTC, 900
Ed Nowogroski Insurance, Inc. v. Rucker, 871 Household Credit Services, Inc. v. Pfennig, 922
Edgington v. Fitzmaurice, 213 Hun v. Cary, 759
ENEA v. The Superior Court of Monterey County, 642
Ernst & Ernst v. Hochfelder, 996, 1010 Ianelli v. Powers, 1083
Escott v. BarChris Const. Corp., 988 Illinois v. Gates, 114
Estate of Countryman v. Farmers Coop. Ass’n, 693 Inter-Tel Technologies, Inc. v. Linn Station Properties,
Estate of Jackson v. Devenyns, 300 LLC, 717
F.T.C. v. Motion Picture Advertising Service Co., 892 J.W. Hampton Co. v. United States, 70
F.T.C. v. Procter & Gamble Co., 889 Jackson v. Metropolitan Edison Co., 68
Faragher v. Boca Raton, 945 Jasdip Properties SC, LLC v. Estate of Richardson, 185
Faragher v. City of Boca Raton, 950 Jasper v. H. Nizam, Inc., 955
FCC v. Fox Television Stations, Inc., 99 Jenkins v. Eckerd Corporation, 302
Federal Trade Commission v. Cyberspace.Com LLC, 921 Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA,
Federal Trade Commission v. Ruberoid Co., 9, 88 924
Ferrell v. Mikula, 136 Johnson v. Transportation Agency, 935
First National Bank v. Bellotti, 72 Jones v. Star Credit Corp, 419
First State Bank of Sinai v. Hyland, 278
Fisher v. University of Texas at Austin, 75, 935 Kalas v. Cook, 299
Fletcher v. Rylands, 165 Keeney v. Keeney, 1128
Fox v. Mountain West Electric, Inc., 180 Kelo v. City of New London, 1110
Frank B. Hall & Co., Inc. v. Buck, 138 Kelso v. Bayer Corporation, 498
Freeman v. Barrs, 1066 Kenco Homes, Inc. v. Williams, 518
Freeman v. Quicken Loans, Inc., 923 Kentucky Bankers Ass’n et al. v. Cassady, 242
Furlong v. Alpha Chi Omega Sorority, 452 Kettler v. Security Nat. Bank of Sioux City, 1093
Table of Cases xxi
Kimbrell’s of Sanford, Inc. v. KPS, Inc., 822 Motschenbacher v. R.J. Reynolds Tobacco Co., 140
Klein v. Pyrodyne Corporation, 164 Mountain Peaks Financial Services, Inc. v. Roth-Steffen,
319
Landreth Timber Co. v. Landreth, 965 Murphy v. BDO Seidman, LLP, 1008
Lawrence v. Fox, 315
Leegin Creative Leather Products, Inc. v. PSKS, Inc., 886, National Business Services, Inc. v. Wright, 253
896 National Federation of Independent Business v. Sebelius,
Lefkowitz v. Great Minneapolis Surplus Store, Inc., 191, 69, 70
202 Nationsbank of Virginia, N.A. v. Barnes, 542
Leibling, P.C. v. Mellon PSFS (NJ) National Association, Neugebauer v. Neugebauer, 219
615 New England Rock Services, Inc. v. Empire Paving, Inc.,
Lesher v. Strid, 223 242
Light v. Centel Cellular Co. of Texas, 240 New York Times Co. v. Sullivan, 73
Local 53 of International Association of Heat and Frost Nitro-Lift Technologies, LLC v. Howard, 62
Insulators and Asbestos Workers v. Vogler, 934 Northern Corp. v. Chugach Electrical Association, 340
Logan v. Zimmerman Brush Co., 74 Northern Pacific Railway Co. v. United States, 884
Love v. Hardee’s Food Systems, Inc., 160
O’Neil v. Crane Co., 496
Mackay v. Four Rivers Packing Co., 298 Orr v. Orr, 75
Macke Co. v. Pizza of Gaithersburg, 321 Osprey L.L.C. v. Kelly-Moore Paint Co., Inc., 203
Madison Square Garden Corp., Ill. v. Carnera, 360
Marbury v. Madison, 67 Palsgraf v. Long Island Railroad Co., 162
Mark Line Industries, Inc. v. Murillo Modular Group, Palumbo v. Nikirk, 166
Ltd., 591 Parents Involved in Community Schools v. Seattle
Maroun v. Wyreless Systems, Inc., 221 School District No. 1, 75
Marrama v. Citizens Bank, 850 Parker v. Twentieth Century-Fox Corp., 60
Marsh v. Alabama, 68 Parlato v. Equitable Life Assurance Society of the United
Martin v. Melland’s Inc., 474 States, 405
Massachusetts v. Environmental Protection Agency, 1027 Payroll Advance, Inc. v. Yates, 258
Matrixx Initiatives, Inc. v. Siracusano, 991 People v. Farell, 116
Mayo Foundation for Medical Education and Research v. Philip Morris USA v. Williams, 135
United States, 95 Pike v. Bruce Church, Inc., 80
McCulloch v. Maryland, 67 Pittsley v. Houser, 430
McDonnell Douglas Corp. v. Green, 934 Plain Dealer Publishing Co. v. Worrell, 409
McDowell Welding & Pipefitting, Inc. v. United States Plessy v. Ferguson, 83, 84
Gypsum Co., 339 Prine v. Blanton, 1131
McLaurin v. Oklahoma State Regents, 84 Providence & Worcester Co. v. Baker, 748
Meinhard v. Salmon, 631 Public Service Commission of Maryland v. Panda-
Merritt v. Craig, 355 Brandywine, L.P., 320
Messing v. Bank of America, N.A., 593
Metropolitan Life Insurance Company v. RJR Nabisco, Quality King Distributors, Inc. v. L’anza Research Int’l,
Inc., 737 Inc., 875
Midwest Hatchery v. Doorenbos Poultry, 521
Miller v. McDonald’s Corporation, 380 Radlax Gateway Hotel, LLC v. Amalgamated Bank, 852
Mims v. Arrow Financial Services, LLC, 58 Raffles v. Wichelhaus, 216
Mirvish v. Mott, 1067 Raytheon Co. v. Hernandez, 934
Monsanto Co. v. Spray-Rite Service Corporation, 885 Real Estate Analytics, LLC v. Vallas, 359
Moore v. Kitsmiller, 163 Reed v. King, 222
Morrison v. National Australia Bank Ltd, 1039, 1044 Reed v. Reed, 75
Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Reiser v. Dayton Country Club Company, 318
Farm Mut. Automobile Ins. Co., 100 Ricci v. Destefano, 948
xxii Table of Cases
RNR Investments Limited Partnership v. Peoples First Taghipour v. Jerez, 691

Community Bank, 661 Telex Corp. v. IBM, 888
Robinson v. Durham, 470 Texaco, Inc. v. Pennzoil, Co., 132
Rosewood Care Center, Inc. v. Caterpillar, Inc., 296 The Hyatt Corporation v. Palm Beach National Bank, 566
Ryan v. Friesenhahn, 11 Thomas v. Lloyd, 640
Rylands v. Fletcher, 165 Toyota Motor Manufacturing, Kentucky, Inc. v.
Williams, 952
Sackett v. Environmental Protection Agency, 98 Transatlantic Financing Corp. v. United States, 341
Salvador v. Murillo, 591 Travelers Indemnity Co. v. Stedman, 595
Sanchez v. Western Pizza Enterprises, Inc., 262 Triffin v. Cigna Insurance, 573
Saudi Arabia v. Nelson, 1043 Tucker v. Hayford, 1091
Schmerber v. California, 115
Schoenberger v. Chicago Transit Authority, 404 U.S. v. Virginia, 75
Schreiber v. Burlington Northern, Inc., 995 U.S. Oil Co., Inc. v. Midwest Auto Care Servs, 183
SEC v. Edwards, 987 Ultramares Corporation v. Touche, 1001
SEC v. W. J. Howey Co., 988 Union Planters Bank, National Association v. Rogers, 616
Securities and Exchange Commission v. W.J. Howey Co., United States v. O’Hagan, 983, 993
965 United States v. Socony-Vacuum Oil Co., 886
Shawnee Telecom Resources, Inc. v. Brown, 788 United States v. Windsor, 74, 75
Shelley v. Kraemer, 68 United Travel Service, Inc. v. Weber, 253
Sherrod v. Kidd, 204
Silvestri v. Optus Software, Inc., 337 Vance v. Ball State University, 945
Skebba v. Kasch, 183 Vanegas v. American Energy Services, 240
Skidmore v. Swift & Co., 90 Vonholdt v. Barba & Barba Construction, Inc., 1109
Smith v. Van Gorkom, 760
Soldano v. O’Daniels, 159 Waddell v. L.V.R.V. Inc., 453
South Dakota v. Dole, 70 Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 873
South Florida Water Management District v. Miccosukee Wards Cove Packing Co. v. Antonio, 935
Tribe of Indians, 1029 Warnick v. Warnick, 666
State ex rel. Foster v. Standard Oil Co. of Kansas, 765 Weeks v. United States, 114
State of Qatar v. First American Bank of Virginia, 567 White v. Samsung Electronics America, Inc., 139
State of South Dakota v. Morse, 118 White v. Winchester Land Development Corp., 717
State v. Kelm, 120 Williamson v. Mazda Motor of America, Inc., 77
State v. Rivers, 119 Wilson v. Scampoli, 450
Steinberg v. Chicago Medical School, 182 Windows, Inc. v. Jordan Panel Systems Corp., 473
Stine v. Stewart, 322 Womco, Inc. v. Navistar International Corporation, 495
Stone v. Mississippi, 72 World-Wide Volkswagen Corp. v. Woodson, 59
Strougo v. Bassini, 766 Wyler v. Feuer, 690
Supap Kirtsaeng v. John Wiley & Sons, Inc., 874
Sweatt v. Painter, 84 Zelnick v. Adams, 276
TABLE OF ILLUSTRATIONS
1-1 Law and Morals 4 6-1 Degrees of Mental Fault 106

1-2 Classification of Law 4 6-2 Constitutional Protection for the Criminal
1-3 Comparison of Civil and Criminal Law 5 Defendant 113
1-4 Hierarchy of Law 6
7-1 Intent 126
2-1 Kohlberg’s Stages of Moral Development 19 7-2 Privacy 129
2-2 The Stakeholder Model 22 7-3 Intentional Torts 133
2-3 Pharmakon Employment 26
2-4 Pharmakon Affirmative Action Program 27 8-1 Negligence and Negligence Per Se 149
2-5 Mykon R&D Expenditures 29 8-2 Defenses to a Negligence Action 155
2-6 UN AIDS/WHO 31 9-1 Law Governing Contracts 173
2-7 Regional Statistics for HIV and AIDS, 9-2 Contractual and Noncontractual Promises 174
End of 2011 32 9-3 Validity of Agreements 175
2-8 Stock Price of Vulcan, Inc. 40 9-4 Contracts, Promissory Estoppel, and Quasi
2-9 Average Daily Volume of Vulcan, Inc., Contracts 178
Stock 40
2-10 Purchases of Vulcan Stock by Selected 10-1 Duration of Revocable Offers 196
Executives 41 10-2 Mutual Assent 198
10-3 Offer and Acceptance 198
3-1 Federal Judicial System 43
3-2 Circuit Courts of the United States 44 11-1 Misrepresentation 214
3-3 State Court System 45
12-1 Consideration in Unilateral and Bilateral
3-4 Federal and State Jurisdiction 46
Contracts 232
3-5 Subject Matter Jurisdiction 47
12-2 Modification of a Preexisting Contract 234
3-6 Stare Decisis in the Dual Court System 48
12-3 Consideration 238
3-7 Jurisdiction 49
3-8 Stages in Civil Procedure 54 14-1 Incapacity: Minors, Nonadjudicated
3-9 Comparison of Court Adjudication, Incompetents, and Intoxicated 272
Arbitration, and Mediation/Conciliation 55
15-1 The Statute of Frauds 288
4-1 Separation of Powers: Checks and Balances 68 15-2 Parol Evidence Rule 293
4-2 Powers of Government 71
17-1 Discharge of Contracts 335
4-3 Limitations on Government 72
18-1 Contract Remedies 353
5-1 Administrative Rulemaking 90
5-2 Limits on Administrative Agencies 92 19-1 Duties of Principal and Agent 373
xxiii
xxiv Table of Illustrations
20-1 Contract Liability of Disclosed Principal 391 30-1 General Partnership, Limited Partnership,
20-2 Contract Liability of Unidentified Principal 392 Limited Liability Company, and Corporation 623
20-3 Contract Liability of Undisclosed Principal 393 30-2 Tests for Existence of a Partnership 628
20-4 Tort Liability 396 30-3 Partnership Property Compared with
Partner’s Interest 634
21-1 Law of Sales and Leases 417
21-2 Selected Rules Applicable to Merchants 421 31-1 Contract Liability 647
21-3 Battle of the Forms 424 31-2 Tort Liability 650
21-4 Contract Law Compared with UCC Law 31-3 Dissociation and Dissolution under RUPA 655
of Sales and Leases 427
32-1 Comparison of General and Limited
22-1 Tender of Performance by the Seller 442 Partners 679
22-2 Performance by the Buyer 447 32-2 Comparison of Member-Managed and
Manager-Managed LLCs 683
23-1 Passage of Title in Absence of Agreement
32-3 Liability Limitations in LLPs 685
by Parties 462
23-2 Void Title 463 33-1 Promoter’s Preincorporation Contracts
23-3 Voidable Title 463 Made in the Corporation’s Name 705
23-4 Entrusting of Goods to a Merchant 464 33-2 Comparison of Charter and Bylaws 707
23-5 Passage of Risk of Loss in Absence of Breach 468
34-1 Issuance of Shares 727
24-1 Warranties 484 34-2 Debt and Equity Securities 730
24-2 Product Liability 489 34-3 Key Concepts in Legal Restrictions upon
Distributions 732
25-1 Remedies of the Seller 510
34-4 Liability for Improper Distributions 735
25-2 Remedies of the Buyer 515
35-1 Management Structure of Corporations:
26-1 Use of Negotiable Instruments 531
The Statutory Model 749
26-2 Order to Pay: Draft or Check 532
35-2 Management Structure of Typical Closely
26-3 Draft 533
Held Corporation 749
26-4 Check 533
35-3 Management Structure of Typical Publicly
26-5 Promise to Pay: Promissory Note or
Held Corporation 749
Certificate of Deposit 534
35-4 Concentrations of Voting Power 751
26-6 Note 534
35-5 Shareholder Suits 754
26-7 Certificate of Deposit 534
36-1 Fundamental Changes under Pre-1999
27-1 Bearer Paper 548
RMBCA 784
27-2 Negotiation of Bearer and Order Paper 548
27-3 Stolen Order Paper 549 37-1 Fundamental Rights of Secured Party and
27-4 Indorsements 552 Debtor 799
27-5 Placement of Indorsement 553 37-2 Requisites for Enforceability of Security
27-6 Rights of Transferees 555 Interests 804
27-7 Effects of Alterations 561 37-3 Methods of Perfecting Security Interests 807
27-8 Alteration 562 37-4 Priorities 811
27-9 Availability of Defenses Against Holders 37-5 Suretyship Relationship 813
and Holders in Due Course 563 37-6 Assumption of Mortgage 814
27-10 Rights of Holder in Due Course under the 37-7 Defenses of Surety and Principal Debtor 816
Federal Trade Commission Rule 564
38-1 Collection and Distribution of the Debtor’s
28-1 Contractual Liability 584 Estate 840
28-2 Liability on Transfer 587 38-2 Comparison of Bankruptcy Proceedings 846
28-3 Liability Based on Warranty 589
39-1 Intellectual Property 869
29-1 Bank Collections 602
40-1 Restraints of Trade under the Sherman Act 887
29-2 Parties to a Funds Transfer 611
40-2 Meeting Competition Defense 892
29-3 Credit Transaction 611
Table of Illustrations xxv
41-1 Magnuson-Moss Warranty Act 912 44-1 Accountants’ Liability to Third Parties for
41-2 Consumer Rescission Rights 913 Negligent Misrepresentation 1002
44-2 Accountants’ Liability under Federal
42-1 Unfair Labor Practices 933
Securities Law 1005
42-2 Charges Filed with the EEOC from 2006
to 2012 934 45-1 Major Federal Environmental Statutes 1025
42-3 Federal Employment Discrimination Laws 938
47-1 Kinds of Property 1052
43-1 Registration and Exemptions under 47-2 Duties in a Bailment 1059
the 1933 Act 969
48-1 Freehold Estates 1079
43-2 Exempt Transactions for Issuers under
48-2 Assignment Compared with Sublease 1082
the 1933 Act 972
48-3 Rights of Concurrent Owners 1085
43-3 Registration and Liability Provisions of
the 1933 Act 975 49-1 Fundamental Rights of Mortgagor and
43-4 Applicability of the 1934 Act 976 Mortgagee 1103
43-5 Disclosure under the 1934 Act 977 49-2 Eminent Domain 1106
43-6 Parties Forbidden to Trade on Inside
50-1 Trusts 1118
Information 981
50-2 Allocation of Principal and Income 1120
43-7 Civil Liability under the 1933 and
50-3 Per Stirpes and Per Capita 1126
1934 Acts 984
P A R T 1
THE LEGAL
ENVIRONMENT
OF BUSINESS
CHAPTER 1 Introduction to Law
CHAPTER 2 Business Ethics and the Social Responsibility

of Business
CHAPTER 3 Civil Dispute Resolution
CHAPTER 4 Constitutional Law
CHAPTER 5 Administrative Law
CHAPTER 6 Criminal Law
CHAPTER 7 Intentional Torts
CHAPTER 8 Negligence and Strict Liability

C H A P T E R 1
INTRODUCTION TO LAW
CHAPTER OUTCOMES
After reading and studying this chapter, you should be able to:
• Identify and describe the basic functions of law. • Identify and describe the sources of law.
• Distinguish between (1) law and justice and (2) law • Explain the principle of stare decisis.
and morals.
• Distinguish between (1) substantive and procedural
law, (2) public and private law, and (3) civil and crim-
inal law.
L
aw concerns the relations of individuals with one
another as such relations affect the social and eco- NATURE OF LAW
nomic order. It is both the product of civilization and The law has evolved slowly, and it will continue to change. It
the means by which civilization is maintained. As such, law is not a pure science based upon unchanging and universal
reflects the social, economic, political, religious, and moral truths. Rather, it results from a continuous effort to balance,
philosophy of society. The laws of the United States influence through a workable set of rules, the individual and group
the lives of every U.S. citizen. At the same time, the laws of rights of a society. In The Common Law, Oliver Wendell
each State influence the lives of its citizens and the lives of Holmes wrote,
many noncitizens as well. The rights and duties of all indi-
The life of the law has not been logic; it has been expe-
viduals, as well as the safety and security of all people and
rience. The felt necessities of the time, the prevalent
their property, depend upon the law.
moral and political theories, avowed or unconscious,
The law is pervasive. It interacts with and influences the
even the prejudices which judges share with their fel-
political, economic, and social systems of every civilized soci-
lowmen, have had a good deal more to do than the syl-
ety. It permits, forbids, or regulates practically every human
logism in determining the rules by which men should
activity and affects all persons either directly or indirectly.
be governed. The law embodies the story of a nation’s
Law is, in part, prohibitory: certain acts must not be commit-
development through many centuries, and it cannot be
ted. For example, one must not steal; one must not murder.
dealt with as if it contained only the axioms and corol-
Law is also partly mandatory: certain acts must be done or
laries of a book of mathematics.
be done in a prescribed way. Taxes must be paid; corpora-
tions must make and file certain reports with State or Federal
authorities; traffic must keep to the right. Finally, law is per- DEFINITION OF LAW
missive: individuals may choose to perform or not to per- A fundamental but difficult question regarding law is this:
form certain acts. Thus, one may or may not enter into a what is it? Numerous philosophers and jurists (legal scholars)
contract; one may or may not dispose of one’s estate by will. have attempted to define it. American jurists and Supreme
Because the areas of law are so highly interrelated, an indi- Court Justices Oliver Wendell Holmes and Benjamin
vidual who intends to study the several branches of law known Cardozo defined law as predictions of the way that a court
collectively as business law should first consider the nature, will decide specific legal questions. William Blackstone, an
classification, and sources of law as a whole. This enables the English jurist, on the other hand, defined law as “a rule of
student not only to comprehend better any given branch of civil conduct prescribed by the supreme power in a state,
law but also to understand its relation to other areas of law. commanding what is right, and prohibiting what is wrong.”
Chapter 1 Introduction to Law 3
Similarly, Austin, a nineteenth-century English jurist, defined law, as well as this text, involves property and its disposition,
law as a general command that a state or sovereign makes to including the law of property, contracts, sales, commercial
those who are subject to its authority by laying down a course paper, and business associations.
of action enforced by judicial or administrative tribunals. A third essential function of the law is preservation of the
Because of its great complexity, many legal scholars have state. In our system, law ensures that changes in leadership
attempted to explain the law by outlining its essential charac- and the political structure are brought about by political
teristics. Roscoe Pound, a distinguished American jurist and actions such as elections, legislation, and referenda, rather
former dean of the Harvard Law School, described law as than by revolution, sedition, and rebellion.
having multiple meanings:
LEGAL SANCTIONS
First, we may mean the legal order, that is, the regime of
ordering human activities and relations through system- A primary function of the legal system is to make sure that
atic application of the force of politically organized soci- legal rules are enforced. Sanctions are the means by which
ety, or through social pressure in such a society backed the law enforces the decisions of the courts. Without sanc-
by such force. We use the term “law” in this sense when tions, laws would be ineffectual and unenforceable.
we speak of “respect for law” or for the “end of law.” An example of a sanction in a civil (noncriminal) case is
Second, we may mean the aggregate of laws or legal the seizure and sale of the property of a debtor who fails to
precepts; the body of authoritative grounds of judicial pay a court-ordered obligation, called a judgment. Moreover,
and administrative action established in such a society. under certain circumstances, a court may enforce its order
We may mean the body of received and established by finding an offender in contempt and sentencing him to
materials on which judicial and administrative determi- jail until he obeys the court’s order. In criminal cases, the
nations proceed. We use the term in this sense when we principal sanctions are the imposition of a fine, imprison-
speak of “systems of law” or of “justice according to law.” ment, and capital punishment.
Third, we may mean what Mr. Justice Cardozo has
happily styled “the judicial process.” We may mean the
LAW AND MORALS
process of determining controversies, whether as it Although moral and ethical concepts greatly influence the
actually takes place, or as the public, the jurists, and the law, morals and law are not the same. They may be consid-
practitioners in the courts hold it ought to take place. ered as two intersecting circles, as shown in Figure 1-1. The
more darkly shaded area common to both circles includes
the vast body of ideas that are both moral and legal. For
FUNCTIONS OF LAW
instance, “Thou shall not kill” and “Thou shall not steal” are
At a general level the primary function of law is to maintain both moral precepts and legal constraints.
stability in the social, political, and economic system while On the other hand, the part of the legal circle that does
simultaneously permitting change. The law accomplishes this not intersect the morality circle includes many rules of law
basic function by performing a number of specific functions, that are completely unrelated to morals, such as the rules
among them dispute resolution, protection of property, and stating that you must drive on the right side of the road and
preservation of the state. that you must register before you can vote. Likewise, the por-
Disputes, which inevitably arise in a society as complex tion of the morality circle which does not intersect the legal
and interdependent as ours, may involve criminal matters, circle includes moral precepts not enforced by law, such as
such as theft, or noncriminal matters, such as an automobile the moral principle that you should not silently stand by and
accident. Because disputes threaten the stability of society, watch a blind man walk off a cliff or that you should provide
the law has established an elaborate and evolving set of rules food to a starving child.
to resolve them. In addition, the legal system has instituted
societal remedies, usually administered by the courts, in place u SEE FIGURE 1-1: Law and Morals
of private remedies such as revenge.
The recognition of private ownership of property is fun- LAW AND JUSTICE
damental to our economic system, based as it is upon the Law and justice represent separate and distinct concepts.
exchange of goods and services among privately held units of Without law, however, there can be no justice. Although jus-
consumption. Therefore, a second crucial function of law is tice has at least as many definitions as law does, justice may
to protect the owner’s use of property and to facilitate volun- be defined as fair, equitable, and impartial treatment of the
tary agreements (called contracts) regarding exchanges of competing interests and desires of individuals and groups
property and services. Accordingly, a significant portion of with due regard for the common good.
4 Part 1 The Legal Environment of Business
u FIGURE 1-1: Law and Morals
ª Cengage Learning
On the other hand, law is no guarantee of justice. Some of Basic to understanding these classifications are the terms
history’s most monstrous acts have been committed pursuant right and duty. A right is the capacity of a person, with the
to “law.” Examples include the actions of Nazi Germany dur- aid of the law, to require another person or persons to per-
ing the 1930s and 1940s and the actions of the South African form, or to refrain from performing, a certain act. Thus, if
government under apartheid from 1948 until 1994. Totalitar- Alice sells and delivers goods to Bob for the agreed price of
ian societies often have shaped formal legal systems around $500 payable at a certain date, Alice has the capability, with
the atrocities they have sanctioned. the aid of the courts, of enforcing the payment by Bob of the
$500. A duty is the obligation the law imposes upon a person
CLASSIFICATION OF LAW to perform, or to refrain from performing, a certain act. Duty
and right are correlatives: no right can rest upon one person
Because the subject is vast, classifying the law into categories without a corresponding duty resting upon some other person
is helpful. Though a number of classifications are possible, or, in some cases, upon all other persons.
the most useful categories are (1) substantive and procedural,
(2) public and private, and (3) civil and criminal. u SEE FIGURE 1-2: Classification of Law
u FIGURE 1-2: Classification of Law

ª Cengage Learning
SUBSTANTIVE AND PROCEDURAL LAW law provides are a judgment for money damages and a
Substantive law creates, defines, and regulates legal rights decree ordering the defendant to perform a specified act or
and duties. Thus, the rules of contract law that determine to desist from specified conduct.
when a binding contract is formed are rules of substantive A crime is any act or omission that public law prohibits
law. This book is principally concerned with substantive law. in the interest of protecting the public and that the govern-
On the other hand, procedural law establishes the rules for ment makes punishable in a judicial proceeding brought
enforcing those rights that exist by reason of substantive law. (prosecuted) by it. The government must prove criminal
Thus, procedural law defines the method by which one may guilt beyond a reasonable doubt, which is a significantly
obtain a remedy in court. higher burden of proof than that required in a civil action.
The government prohibits and punishes crimes upon the
PUBLIC AND PRIVATE LAW ground of public policy, which may include the safeguarding
of the government itself, human life, or private property.
Public law is the branch of substantive law that deals with
Additional purposes of criminal law include deterrence and
the government’s rights and powers in its political or sover-
rehabilitation.
eign capacity and in its relation to individuals or groups.
Public law consists of constitutional, administrative, and u SEE FIGURE 1-3: Comparison of Civil and Criminal
criminal law. Private law is that part of substantive law gov- Law
erning individuals and legal entities (such as corporations) in
their relations with one another. Business law is primarily
private law. SOURCES OF LAW
The sources of law in the U.S. legal system are the Federal
CIVIL AND CRIMINAL LAW and State constitutions, Federal treaties, interstate compacts,
The civil law defines duties the violation of which constitutes Federal and State statutes and executive orders, the ordi-
a wrong against the party injured by the violation. In con- nances of countless local municipal governments, the rules
trast, the criminal law establishes duties the violation of and regulations of Federal and State administrative agencies,
which is a wrong against the whole community. Civil law is a and an ever-increasing volume of reported Federal and State
part of private law, whereas criminal law is a part of public court decisions.
law. (The term civil law should be distinguished from the The supreme law of the land is the U.S. Constitution. The
concept of a civil law system, which is discussed later in this Constitution provides that Federal statutes and treaties shall
chapter.) In a civil action the injured party sues to recover be the supreme law of the land. Federal legislation and trea-
compensation for the damage and injury he has sustained as ties are, therefore, paramount to State constitutions and stat-
a result of the defendant’s wrongful conduct. The party utes. Federal legislation is of great significance as a source of
bringing a civil action (the plaintiff) has the burden of proof, law. Other Federal actions having the force of law are execu-
which he must sustain by a preponderance (greater weight) tive orders of the President and rules and regulations of Fed-
of the evidence. Whereas the purpose of criminal law is to eral administrative officials, agencies, and commissions. The
punish the wrongdoer, the purpose of civil law is to compen- Federal courts also contribute considerably to the body of
sate the injured party. The principal forms of relief the civil law in the United States.
u FIGURE 1-3: Comparison of Civil and Criminal Law

Civil Law Criminal Law
Commencement of Action Aggrieved individual (plaintiff) sues State or Federal government prosecutes
Purpose Compensation Punishment

Deterrence Deterrence
Rehabilitation
Preservation of peace
ª Cengage Learning
Burden of Proof Preponderance of the evidence Beyond a reasonable doubt
Principal Sanctions Monetary damages Capital punishment

Equitable remedies Imprisonment
Fines
6 Part 1 The Legal Environment of Business
u FIGURE 1-4: Hierarchy of Law
ª Cengage Learning
The same pattern exists in every State. The paramount CONSTITUTIONAL LAW
law of each State is contained in its written constitution. A constitution—the fundamental law of a particular level of
(Although a State constitution cannot deprive citizens of government—establishes the governmental structure and
Federal constitutional rights, it can guarantee rights beyond allocates power among the levels of government, thereby
those provided in the U.S. Constitution.) State constitutions defining political relationships. One of the fundamental prin-
tend to be more specific than the U.S. Constitution and, gen- ciples on which our government is founded is that of separa-
erally, have been amended more frequently. Subordinate to tion of powers. As detailed in the U.S. Constitution, this
the State constitution are the statutes that the State’s legisla- means that the government consists of three distinct and in-
ture enacts and the case law that its judiciary develops. Like- dependent branches: the Federal judiciary, the Congress, and
wise, State administrative agencies issue rules and regulations the executive branch.
having the force of law, as do executive orders promulgated A constitution also restricts the powers of government and
by the governors of most States. In addition, cities, towns, specifies the rights and liberties of the people. For example, the
and villages have limited legislative powers within their re- Constitution of the United States not only specifically states
spective municipal areas to pass ordinances and resolutions. what rights and authority are vested in the national government
u SEE FIGURE 1-4: Hierarchy of Law but also specifically enumerates certain rights and liberties of
the people. Moreover, the Ninth Amendment to the U.S. Con- journey’s end. The law, like the traveler, must be ready for
stitution makes it clear that this enumeration of rights does not the morrow. It must have a principle of growth.”
in any way deny or limit other rights that the people retain.
All other law in the United States is subordinate to the EQUITY As the common law developed in England, it
Federal Constitution. No law, Federal or State, is valid if it became overly rigid and beset with technicalities. Conse-
violates the Federal Constitution. Under the principle of quently, in many cases the courts provided no remedies
judicial review, the Supreme Court of the United States because the judges insisted that a claim must fall within one
determines the constitutionality of all laws. of the recognized forms of action. Moreover, courts of com-
mon law could provide only limited remedies; the principal
JUDICIAL LAW type of relief obtainable was a monetary judgment. Conse-
The U.S. legal system is a common law system, first devel- quently, individuals who could not obtain adequate relief
oped in England. It relies heavily on the judiciary as a source from monetary awards began to petition the king directly for
of law and on the adversary system for the adjudication of justice. He, in turn, came to delegate these petitions to his
disputes. In an adversary system the parties, not the court, chancellor.
must initiate and conduct litigation. This approach is based Gradually, there evolved a supplementary system of judi-
upon the belief that the truth is more likely to emerge from cial relief for those who had no adequate remedy at common
the investigation and presentation of evidence by two oppos- law. This new system, called equity, was administered by a
ing parties, both motivated by self-interest, than from judicial court of chancery presided over by a chancellor. The chan-
investigation motivated only by official duty. Other English- cellor, deciding cases on “equity and good conscience,”
speaking countries, including England, Canada, and Aus- afforded relief in many instances in which common law
tralia, also use the common law system. judges had refused to act or in which the remedy at law was
In distinct contrast to the common law system are civil inadequate. Thus, two systems of law administered by differ-
law systems, which are based on Roman law. Civil law ent tribunals developed side by side: the common law courts
systems depend on comprehensive legislative enactments and the courts of equity.
(called codes) and an inquisitorial method of adjudication. An important difference between law and equity was that
In the inquisitorial system, the judiciary initiates litigation, the chancellor could issue a decree, or order, compelling a
investigates pertinent facts, and conducts the presentation of defendant to do or refrain from doing a specific act. A de-
evidence. The civil law system prevails in most of Europe, fendant who did not comply with the order could be held in
Scotland, the State of Louisiana, the province of Quebec, contempt of court and punished by fine or imprisonment.
Latin America, and parts of Africa and Asia. This power of compulsion available in a court of equity
opened the door to many needed remedies not available in a
COMMON LAW The courts in common law systems have court of common law.
developed a body of law, known as “case law,” “judge-made Equity jurisdiction, in some cases, recognized rights that
law,” or “common law,” that serves as precedent for deter- were enforceable at common law but for which equity pro-
mining later controversies. In this sense, common law is dis- vided more effective remedies. For example, in a court of eq-
tinguished from other sources of law such as legislation and uity, for breach of a land contract, the buyer could obtain a
administrative rulings. decree of specific performance commanding the defendant
To evolve steadily and predictably, the common law has seller to perform his part of the contract by transferring title
developed by application of stare decisis (to stand by the to the land. Another powerful and effective remedy available
decisions). Under the principle of stare decisis, courts, in only in the courts of equity was the injunction, a court order
deciding cases, adhere to and rely on rules of law that they requiring a party to do or refrain from doing a specified act.
or superior courts announced and applied in prior decisions Still another remedy not available elsewhere was reformation,
involving similar cases. Judicial decisions thus have two uses: in which case, upon the ground of mutual mistake, contract-
(1) to determine with finality the case currently being ing parties could bring an action to reform or change the
decided and (2) to indicate how the courts will decide similar language of a written agreement to conform to their actual
cases in the future. Stare decisis does not, however, preclude intentions. Finally, an action for rescission of a contract
courts from correcting erroneous decisions or from choosing allowed a party to invalidate a contract under certain circum-
among conflicting precedents. Thus, the doctrine allows suf- stances.
ficient flexibility for the common law to change. Although courts of equity provided remedies not available
The strength of the common law is its ability to adapt to in courts of law, they granted such remedies only at their dis-
change without losing its sense of direction. As Justice cretion, not as a matter of right. The courts exercised this
Cardozo said, “The inn that shelters for the night is not the discretion according to the general legal principles, or
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DANCE ON STILTS AT THE GIRLS’ UNYAGO, NIUCHI
Newala, too, suffers from the distance of its water-supply—at least

the Newala of to-day does; there was once another Newala in a lovely
valley at the foot of the plateau. I visited it and found scarcely a trace
of houses, only a Christian cemetery, with the graves of several
missionaries and their converts, remaining as a monument of its
former glories. But the surroundings are wonderfully beautiful. A
thick grove of splendid mango-trees closes in the weather-worn
crosses and headstones; behind them, combining the useful and the
agreeable, is a whole plantation of lemon-trees covered with ripe
fruit; not the small African kind, but a much larger and also juicier
imported variety, which drops into the hands of the passing traveller,
without calling for any exertion on his part. Old Newala is now under
the jurisdiction of the native pastor, Daudi, at Chingulungulu, who,
as I am on very friendly terms with him, allows me, as a matter of
course, the use of this lemon-grove during my stay at Newala.
FEET MUTILATED BY THE RAVAGES OF THE “JIGGER”
(Sarcopsylla penetrans)
The water-supply of New Newala is in the bottom of the valley,

some 1,600 feet lower down. The way is not only long and fatiguing,
but the water, when we get it, is thoroughly bad. We are suffering not
only from this, but from the fact that the arrangements at Newala are
nothing short of luxurious. We have a separate kitchen—a hut built
against the boma palisade on the right of the baraza, the interior of
which is not visible from our usual position. Our two cooks were not
long in finding this out, and they consequently do—or rather neglect
to do—what they please. In any case they do not seem to be very
particular about the boiling of our drinking-water—at least I can
attribute to no other cause certain attacks of a dysenteric nature,
from which both Knudsen and I have suffered for some time. If a
man like Omari has to be left unwatched for a moment, he is capable
of anything. Besides this complaint, we are inconvenienced by the
state of our nails, which have become as hard as glass, and crack on
the slightest provocation, and I have the additional infliction of
pimples all over me. As if all this were not enough, we have also, for
the last week been waging war against the jigger, who has found his
Eldorado in the hot sand of the Makonde plateau. Our men are seen
all day long—whenever their chronic colds and the dysentery likewise
raging among them permit—occupied in removing this scourge of
Africa from their feet and trying to prevent the disastrous
consequences of its presence. It is quite common to see natives of
this place with one or two toes missing; many have lost all their toes,
or even the whole front part of the foot, so that a well-formed leg
ends in a shapeless stump. These ravages are caused by the female of
Sarcopsylla penetrans, which bores its way under the skin and there
develops an egg-sac the size of a pea. In all books on the subject, it is
stated that one’s attention is called to the presence of this parasite by
an intolerable itching. This agrees very well with my experience, so
far as the softer parts of the sole, the spaces between and under the
toes, and the side of the foot are concerned, but if the creature
penetrates through the harder parts of the heel or ball of the foot, it
may escape even the most careful search till it has reached maturity.
Then there is no time to be lost, if the horrible ulceration, of which
we see cases by the dozen every day, is to be prevented. It is much
easier, by the way, to discover the insect on the white skin of a
European than on that of a native, on which the dark speck scarcely
shows. The four or five jiggers which, in spite of the fact that I
constantly wore high laced boots, chose my feet to settle in, were
taken out for me by the all-accomplished Knudsen, after which I
thought it advisable to wash out the cavities with corrosive
sublimate. The natives have a different sort of disinfectant—they fill
the hole with scraped roots. In a tiny Makua village on the slope of
the plateau south of Newala, we saw an old woman who had filled all
the spaces under her toe-nails with powdered roots by way of
prophylactic treatment. What will be the result, if any, who can say?
The rest of the many trifling ills which trouble our existence are
really more comic than serious. In the absence of anything else to
smoke, Knudsen and I at last opened a box of cigars procured from
the Indian store-keeper at Lindi, and tried them, with the most
distressing results. Whether they contain opium or some other
narcotic, neither of us can say, but after the tenth puff we were both
“off,” three-quarters stupefied and unspeakably wretched. Slowly we
recovered—and what happened next? Half-an-hour later we were
once more smoking these poisonous concoctions—so insatiable is the
craving for tobacco in the tropics.
Even my present attacks of fever scarcely deserve to be taken
seriously. I have had no less than three here at Newala, all of which
have run their course in an incredibly short time. In the early
afternoon, I am busy with my old natives, asking questions and
making notes. The strong midday coffee has stimulated my spirits to
an extraordinary degree, the brain is active and vigorous, and work
progresses rapidly, while a pleasant warmth pervades the whole
body. Suddenly this gives place to a violent chill, forcing me to put on
my overcoat, though it is only half-past three and the afternoon sun
is at its hottest. Now the brain no longer works with such acuteness
and logical precision; more especially does it fail me in trying to
establish the syntax of the difficult Makua language on which I have
ventured, as if I had not enough to do without it. Under the
circumstances it seems advisable to take my temperature, and I do
so, to save trouble, without leaving my seat, and while going on with
my work. On examination, I find it to be 101·48°. My tutors are
abruptly dismissed and my bed set up in the baraza; a few minutes
later I am in it and treating myself internally with hot water and
lemon-juice.
Three hours later, the thermometer marks nearly 104°, and I make
them carry me back into the tent, bed and all, as I am now perspiring
heavily, and exposure to the cold wind just beginning to blow might
mean a fatal chill. I lie still for a little while, and then find, to my
great relief, that the temperature is not rising, but rather falling. This
is about 7.30 p.m. At 8 p.m. I find, to my unbounded astonishment,
that it has fallen below 98·6°, and I feel perfectly well. I read for an
hour or two, and could very well enjoy a smoke, if I had the
wherewithal—Indian cigars being out of the question.
Having no medical training, I am at a loss to account for this state
of things. It is impossible that these transitory attacks of high fever
should be malarial; it seems more probable that they are due to a
kind of sunstroke. On consulting my note-book, I become more and
more inclined to think this is the case, for these attacks regularly
follow extreme fatigue and long exposure to strong sunshine. They at
least have the advantage of being only short interruptions to my
work, as on the following morning I am always quite fresh and fit.
My treasure of a cook is suffering from an enormous hydrocele which
makes it difficult for him to get up, and Moritz is obliged to keep in
the dark on account of his inflamed eyes. Knudsen’s cook, a raw boy
from somewhere in the bush, knows still less of cooking than Omari;
consequently Nils Knudsen himself has been promoted to the vacant
post. Finding that we had come to the end of our supplies, he began
by sending to Chingulungulu for the four sucking-pigs which we had
bought from Matola and temporarily left in his charge; and when
they came up, neatly packed in a large crate, he callously slaughtered
the biggest of them. The first joint we were thoughtless enough to
entrust for roasting to Knudsen’s mshenzi cook, and it was
consequently uneatable; but we made the rest of the animal into a
jelly which we ate with great relish after weeks of underfeeding,
consuming incredible helpings of it at both midday and evening
meals. The only drawback is a certain want of variety in the tinned
vegetables. Dr. Jäger, to whom the Geographical Commission
entrusted the provisioning of the expeditions—mine as well as his
own—because he had more time on his hands than the rest of us,
seems to have laid in a huge stock of Teltow turnips,[46] an article of
food which is all very well for occasional use, but which quickly palls
when set before one every day; and we seem to have no other tins
left. There is no help for it—we must put up with the turnips; but I
am certain that, once I am home again, I shall not touch them for ten
years to come.
Amid all these minor evils, which, after all, go to make up the
genuine flavour of Africa, there is at least one cheering touch:
Knudsen has, with the dexterity of a skilled mechanic, repaired my 9
× 12 cm. camera, at least so far that I can use it with a little care.
How, in the absence of finger-nails, he was able to accomplish such a
ticklish piece of work, having no tool but a clumsy screw-driver for
taking to pieces and putting together again the complicated
mechanism of the instantaneous shutter, is still a mystery to me; but
he did it successfully. The loss of his finger-nails shows him in a light
contrasting curiously enough with the intelligence evinced by the
above operation; though, after all, it is scarcely surprising after his
ten years’ residence in the bush. One day, at Lindi, he had occasion
to wash a dog, which must have been in need of very thorough
cleansing, for the bottle handed to our friend for the purpose had an
extremely strong smell. Having performed his task in the most
conscientious manner, he perceived with some surprise that the dog
did not appear much the better for it, and was further surprised by
finding his own nails ulcerating away in the course of the next few
days. “How was I to know that carbolic acid has to be diluted?” he
mutters indignantly, from time to time, with a troubled gaze at his
mutilated finger-tips.
Since we came to Newala we have been making excursions in all
directions through the surrounding country, in accordance with old
habit, and also because the akida Sefu did not get together the tribal
elders from whom I wanted information so speedily as he had
promised. There is, however, no harm done, as, even if seen only
from the outside, the country and people are interesting enough.
The Makonde plateau is like a large rectangular table rounded off
at the corners. Measured from the Indian Ocean to Newala, it is
about seventy-five miles long, and between the Rovuma and the
Lukuledi it averages fifty miles in breadth, so that its superficial area
is about two-thirds of that of the kingdom of Saxony. The surface,
however, is not level, but uniformly inclined from its south-western
edge to the ocean. From the upper edge, on which Newala lies, the
eye ranges for many miles east and north-east, without encountering
any obstacle, over the Makonde bush. It is a green sea, from which
here and there thick clouds of smoke rise, to show that it, too, is
inhabited by men who carry on their tillage like so many other
primitive peoples, by cutting down and burning the bush, and
manuring with the ashes. Even in the radiant light of a tropical day
such a fire is a grand sight.
Much less effective is the impression produced just now by the
great western plain as seen from the edge of the plateau. As often as
time permits, I stroll along this edge, sometimes in one direction,
sometimes in another, in the hope of finding the air clear enough to
let me enjoy the view; but I have always been disappointed.
Wherever one looks, clouds of smoke rise from the burning bush,
and the air is full of smoke and vapour. It is a pity, for under more
favourable circumstances the panorama of the whole country up to
the distant Majeje hills must be truly magnificent. It is of little use
taking photographs now, and an outline sketch gives a very poor idea
of the scenery. In one of these excursions I went out of my way to
make a personal attempt on the Makonde bush. The present edge of
the plateau is the result of a far-reaching process of destruction
through erosion and denudation. The Makonde strata are
everywhere cut into by ravines, which, though short, are hundreds of
yards in depth. In consequence of the loose stratification of these
beds, not only are the walls of these ravines nearly vertical, but their
upper end is closed by an equally steep escarpment, so that the
western edge of the Makonde plateau is hemmed in by a series of
deep, basin-like valleys. In order to get from one side of such a ravine
to the other, I cut my way through the bush with a dozen of my men.
It was a very open part, with more grass than scrub, but even so the
short stretch of less than two hundred yards was very hard work; at
the end of it the men’s calicoes were in rags and they themselves
bleeding from hundreds of scratches, while even our strong khaki
suits had not escaped scatheless.
NATIVE PATH THROUGH THE MAKONDE BUSH, NEAR

MAHUTA
I see increasing reason to believe that the view formed some time
back as to the origin of the Makonde bush is the correct one. I have
no doubt that it is not a natural product, but the result of human
occupation. Those parts of the high country where man—as a very
slight amount of practice enables the eye to perceive at once—has not
yet penetrated with axe and hoe, are still occupied by a splendid
timber forest quite able to sustain a comparison with our mixed
forests in Germany. But wherever man has once built his hut or tilled
his field, this horrible bush springs up. Every phase of this process
may be seen in the course of a couple of hours’ walk along the main
road. From the bush to right or left, one hears the sound of the axe—
not from one spot only, but from several directions at once. A few
steps further on, we can see what is taking place. The brush has been
cut down and piled up in heaps to the height of a yard or more,
between which the trunks of the large trees stand up like the last
pillars of a magnificent ruined building. These, too, present a
melancholy spectacle: the destructive Makonde have ringed them—
cut a broad strip of bark all round to ensure their dying off—and also
piled up pyramids of brush round them. Father and son, mother and
son-in-law, are chopping away perseveringly in the background—too
busy, almost, to look round at the white stranger, who usually excites
so much interest. If you pass by the same place a week later, the piles
of brushwood have disappeared and a thick layer of ashes has taken
the place of the green forest. The large trees stretch their
smouldering trunks and branches in dumb accusation to heaven—if
they have not already fallen and been more or less reduced to ashes,
perhaps only showing as a white stripe on the dark ground.
This work of destruction is carried out by the Makonde alike on the
virgin forest and on the bush which has sprung up on sites already
cultivated and deserted. In the second case they are saved the trouble
of burning the large trees, these being entirely absent in the
secondary bush.
After burning this piece of forest ground and loosening it with the
hoe, the native sows his corn and plants his vegetables. All over the
country, he goes in for bed-culture, which requires, and, in fact,
receives, the most careful attention. Weeds are nowhere tolerated in
the south of German East Africa. The crops may fail on the plains,
where droughts are frequent, but never on the plateau with its
abundant rains and heavy dews. Its fortunate inhabitants even have
the satisfaction of seeing the proud Wayao and Wamakua working
for them as labourers, driven by hunger to serve where they were
accustomed to rule.
But the light, sandy soil is soon exhausted, and would yield no
harvest the second year if cultivated twice running. This fact has
been familiar to the native for ages; consequently he provides in
time, and, while his crop is growing, prepares the next plot with axe
and firebrand. Next year he plants this with his various crops and
lets the first piece lie fallow. For a short time it remains waste and
desolate; then nature steps in to repair the destruction wrought by
man; a thousand new growths spring out of the exhausted soil, and
even the old stumps put forth fresh shoots. Next year the new growth
is up to one’s knees, and in a few years more it is that terrible,
impenetrable bush, which maintains its position till the black
occupier of the land has made the round of all the available sites and
come back to his starting point.
The Makonde are, body and soul, so to speak, one with this bush.
According to my Yao informants, indeed, their name means nothing
else but “bush people.” Their own tradition says that they have been
settled up here for a very long time, but to my surprise they laid great
stress on an original immigration. Their old homes were in the
south-east, near Mikindani and the mouth of the Rovuma, whence
their peaceful forefathers were driven by the continual raids of the
Sakalavas from Madagascar and the warlike Shirazis[47] of the coast,
to take refuge on the almost inaccessible plateau. I have studied
African ethnology for twenty years, but the fact that changes of
population in this apparently quiet and peaceable corner of the earth
could have been occasioned by outside enterprises taking place on
the high seas, was completely new to me. It is, no doubt, however,
correct.
The charming tribal legend of the Makonde—besides informing us
of other interesting matters—explains why they have to live in the
thickest of the bush and a long way from the edge of the plateau,
instead of making their permanent homes beside the purling brooks
and springs of the low country.
“The place where the tribe originated is Mahuta, on the southern
side of the plateau towards the Rovuma, where of old time there was
nothing but thick bush. Out of this bush came a man who never
washed himself or shaved his head, and who ate and drank but little.
He went out and made a human figure from the wood of a tree
growing in the open country, which he took home to his abode in the
bush and there set it upright. In the night this image came to life and
was a woman. The man and woman went down together to the
Rovuma to wash themselves. Here the woman gave birth to a still-
born child. They left that place and passed over the high land into the
valley of the Mbemkuru, where the woman had another child, which
was also born dead. Then they returned to the high bush country of
Mahuta, where the third child was born, which lived and grew up. In
course of time, the couple had many more children, and called
themselves Wamatanda. These were the ancestral stock of the
Makonde, also called Wamakonde,[48] i.e., aborigines. Their
forefather, the man from the bush, gave his children the command to
bury their dead upright, in memory of the mother of their race who
was cut out of wood and awoke to life when standing upright. He also
warned them against settling in the valleys and near large streams,
for sickness and death dwelt there. They were to make it a rule to
have their huts at least an hour’s walk from the nearest watering-
place; then their children would thrive and escape illness.”
The explanation of the name Makonde given by my informants is
somewhat different from that contained in the above legend, which I
extract from a little book (small, but packed with information), by
Pater Adams, entitled Lindi und sein Hinterland. Otherwise, my
results agree exactly with the statements of the legend. Washing?
Hapana—there is no such thing. Why should they do so? As it is, the
supply of water scarcely suffices for cooking and drinking; other
people do not wash, so why should the Makonde distinguish himself
by such needless eccentricity? As for shaving the head, the short,
woolly crop scarcely needs it,[49] so the second ancestral precept is
likewise easy enough to follow. Beyond this, however, there is
nothing ridiculous in the ancestor’s advice. I have obtained from
various local artists a fairly large number of figures carved in wood,
ranging from fifteen to twenty-three inches in height, and
representing women belonging to the great group of the Mavia,
Makonde, and Matambwe tribes. The carving is remarkably well
done and renders the female type with great accuracy, especially the
keloid ornamentation, to be described later on. As to the object and
meaning of their works the sculptors either could or (more probably)
would tell me nothing, and I was forced to content myself with the
scanty information vouchsafed by one man, who said that the figures
were merely intended to represent the nembo—the artificial
deformations of pelele, ear-discs, and keloids. The legend recorded
by Pater Adams places these figures in a new light. They must surely
be more than mere dolls; and we may even venture to assume that
they are—though the majority of present-day Makonde are probably
unaware of the fact—representations of the tribal ancestress.
The references in the legend to the descent from Mahuta to the
Rovuma, and to a journey across the highlands into the Mbekuru
valley, undoubtedly indicate the previous history of the tribe, the
travels of the ancestral pair typifying the migrations of their
descendants. The descent to the neighbouring Rovuma valley, with
its extraordinary fertility and great abundance of game, is intelligible
at a glance—but the crossing of the Lukuledi depression, the ascent
to the Rondo Plateau and the descent to the Mbemkuru, also lie
within the bounds of probability, for all these districts have exactly
the same character as the extreme south. Now, however, comes a
point of especial interest for our bacteriological age. The primitive
Makonde did not enjoy their lives in the marshy river-valleys.
Disease raged among them, and many died. It was only after they
had returned to their original home near Mahuta, that the health
conditions of these people improved. We are very apt to think of the
African as a stupid person whose ignorance of nature is only equalled
by his fear of it, and who looks on all mishaps as caused by evil
spirits and malignant natural powers. It is much more correct to
assume in this case that the people very early learnt to distinguish
districts infested with malaria from those where it is absent.
This knowledge is crystallized in the
ancestral warning against settling in the
valleys and near the great waters, the
dwelling-places of disease and death. At the
same time, for security against the hostile
Mavia south of the Rovuma, it was enacted
that every settlement must be not less than a
certain distance from the southern edge of the
plateau. Such in fact is their mode of life at the
present day. It is not such a bad one, and
certainly they are both safer and more
comfortable than the Makua, the recent
intruders from the south, who have made USUAL METHOD OF
good their footing on the western edge of the CLOSING HUT-DOOR
plateau, extending over a fairly wide belt of
country. Neither Makua nor Makonde show in their dwellings
anything of the size and comeliness of the Yao houses in the plain,
especially at Masasi, Chingulungulu and Zuza’s. Jumbe Chauro, a
Makonde hamlet not far from Newala, on the road to Mahuta, is the
most important settlement of the tribe I have yet seen, and has fairly
spacious huts. But how slovenly is their construction compared with
the palatial residences of the elephant-hunters living in the plain.
The roofs are still more untidy than in the general run of huts during
the dry season, the walls show here and there the scanty beginnings
or the lamentable remains of the mud plastering, and the interior is a
veritable dog-kennel; dirt, dust and disorder everywhere. A few huts
only show any attempt at division into rooms, and this consists
merely of very roughly-made bamboo partitions. In one point alone
have I noticed any indication of progress—in the method of fastening
the door. Houses all over the south are secured in a simple but
ingenious manner. The door consists of a set of stout pieces of wood
or bamboo, tied with bark-string to two cross-pieces, and moving in
two grooves round one of the door-posts, so as to open inwards. If
the owner wishes to leave home, he takes two logs as thick as a man’s
upper arm and about a yard long. One of these is placed obliquely
against the middle of the door from the inside, so as to form an angle
of from 60° to 75° with the ground. He then places the second piece
horizontally across the first, pressing it downward with all his might.
It is kept in place by two strong posts planted in the ground a few
inches inside the door. This fastening is absolutely safe, but of course
cannot be applied to both doors at once, otherwise how could the
owner leave or enter his house? I have not yet succeeded in finding
out how the back door is fastened.
MAKONDE LOCK AND KEY AT JUMBE CHAURO

This is the general way of closing a house. The Makonde at Jumbe
Chauro, however, have a much more complicated, solid and original
one. Here, too, the door is as already described, except that there is
only one post on the inside, standing by itself about six inches from
one side of the doorway. Opposite this post is a hole in the wall just
large enough to admit a man’s arm. The door is closed inside by a
large wooden bolt passing through a hole in this post and pressing
with its free end against the door. The other end has three holes into
which fit three pegs running in vertical grooves inside the post. The
door is opened with a wooden key about a foot long, somewhat
curved and sloped off at the butt; the other end has three pegs
corresponding to the holes, in the bolt, so that, when it is thrust
through the hole in the wall and inserted into the rectangular
opening in the post, the pegs can be lifted and the bolt drawn out.[50]
MODE OF INSERTING THE KEY
With no small pride first one householder and then a second

showed me on the spot the action of this greatest invention of the
Makonde Highlands. To both with an admiring exclamation of
“Vizuri sana!” (“Very fine!”). I expressed the wish to take back these
marvels with me to Ulaya, to show the Wazungu what clever fellows
the Makonde are. Scarcely five minutes after my return to camp at
Newala, the two men came up sweating under the weight of two
heavy logs which they laid down at my feet, handing over at the same
time the keys of the fallen fortress. Arguing, logically enough, that if
the key was wanted, the lock would be wanted with it, they had taken
their axes and chopped down the posts—as it never occurred to them
to dig them out of the ground and so bring them intact. Thus I have
two badly damaged specimens, and the owners, instead of praise,
come in for a blowing-up.
The Makua huts in the environs of Newala are especially
miserable; their more than slovenly construction reminds one of the
temporary erections of the Makua at Hatia’s, though the people here
have not been concerned in a war. It must therefore be due to
congenital idleness, or else to the absence of a powerful chief. Even
the baraza at Mlipa’s, a short hour’s walk south-east of Newala,
shares in this general neglect. While public buildings in this country
are usually looked after more or less carefully, this is in evident
danger of being blown over by the first strong easterly gale. The only
attractive object in this whole district is the grave of the late chief
Mlipa. I visited it in the morning, while the sun was still trying with
partial success to break through the rolling mists, and the circular
grove of tall euphorbias, which, with a broken pot, is all that marks
the old king’s resting-place, impressed one with a touch of pathos.
Even my very materially-minded carriers seemed to feel something
of the sort, for instead of their usual ribald songs, they chanted
solemnly, as we marched on through the dense green of the Makonde
bush:—
“We shall arrive with the great master; we stand in a row and have
no fear about getting our food and our money from the Serkali (the
Government). We are not afraid; we are going along with the great
master, the lion; we are going down to the coast and back.”
With regard to the characteristic features of the various tribes here
on the western edge of the plateau, I can arrive at no other
conclusion than the one already come to in the plain, viz., that it is
impossible for anyone but a trained anthropologist to assign any
given individual at once to his proper tribe. In fact, I think that even
an anthropological specialist, after the most careful examination,
might find it a difficult task to decide. The whole congeries of peoples
collected in the region bounded on the west by the great Central
African rift, Tanganyika and Nyasa, and on the east by the Indian
Ocean, are closely related to each other—some of their languages are
only distinguished from one another as dialects of the same speech,
and no doubt all the tribes present the same shape of skull and
structure of skeleton. Thus, surely, there can be no very striking
differences in outward appearance.
Even did such exist, I should have no time
to concern myself with them, for day after day,
I have to see or hear, as the case may be—in
any case to grasp and record—an
extraordinary number of ethnographic
phenomena. I am almost disposed to think it
fortunate that some departments of inquiry, at
least, are barred by external circumstances.
Chief among these is the subject of iron-
working. We are apt to think of Africa as a
country where iron ore is everywhere, so to
speak, to be picked up by the roadside, and
where it would be quite surprising if the
inhabitants had not learnt to smelt the
material ready to their hand. In fact, the
knowledge of this art ranges all over the
continent, from the Kabyles in the north to the
Kafirs in the south. Here between the Rovuma
and the Lukuledi the conditions are not so
favourable. According to the statements of the
Makonde, neither ironstone nor any other
form of iron ore is known to them. They have
not therefore advanced to the art of smelting
the metal, but have hitherto bought all their
THE ANCESTRESS OF
THE MAKONDE
iron implements from neighbouring tribes.
Even in the plain the inhabitants are not much
better off. Only one man now living is said to
understand the art of smelting iron. This old fundi lives close to
Huwe, that isolated, steep-sided block of granite which rises out of
the green solitude between Masasi and Chingulungulu, and whose
jagged and splintered top meets the traveller’s eye everywhere. While
still at Masasi I wished to see this man at work, but was told that,
frightened by the rising, he had retired across the Rovuma, though
he would soon return. All subsequent inquiries as to whether the
fundi had come back met with the genuine African answer, “Bado”
(“Not yet”).
BRAZIER
Some consolation was afforded me by a brassfounder, whom I

came across in the bush near Akundonde’s. This man is the favourite
of women, and therefore no doubt of the gods; he welds the glittering
brass rods purchased at the coast into those massive, heavy rings
which, on the wrists and ankles of the local fair ones, continually give
me fresh food for admiration. Like every decent master-craftsman he
had all his tools with him, consisting of a pair of bellows, three
crucibles and a hammer—nothing more, apparently. He was quite
willing to show his skill, and in a twinkling had fixed his bellows on
the ground. They are simply two goat-skins, taken off whole, the four
legs being closed by knots, while the upper opening, intended to
admit the air, is kept stretched by two pieces of wood. At the lower
end of the skin a smaller opening is left into which a wooden tube is
stuck. The fundi has quickly borrowed a heap of wood-embers from
the nearest hut; he then fixes the free ends of the two tubes into an
earthen pipe, and clamps them to the ground by means of a bent
piece of wood. Now he fills one of his small clay crucibles, the dross
on which shows that they have been long in use, with the yellow
material, places it in the midst of the embers, which, at present are
only faintly glimmering, and begins his work. In quick alternation
the smith’s two hands move up and down with the open ends of the
bellows; as he raises his hand he holds the slit wide open, so as to let
the air enter the skin bag unhindered. In pressing it down he closes
the bag, and the air puffs through the bamboo tube and clay pipe into
the fire, which quickly burns up. The smith, however, does not keep
on with this work, but beckons to another man, who relieves him at
the bellows, while he takes some more tools out of a large skin pouch
carried on his back. I look on in wonder as, with a smooth round
stick about the thickness of a finger, he bores a few vertical holes into
the clean sand of the soil. This should not be difficult, yet the man
seems to be taking great pains over it. Then he fastens down to the
ground, with a couple of wooden clamps, a neat little trough made by
splitting a joint of bamboo in half, so that the ends are closed by the
two knots. At last the yellow metal has attained the right consistency,
and the fundi lifts the crucible from the fire by means of two sticks
split at the end to serve as tongs. A short swift turn to the left—a
tilting of the crucible—and the molten brass, hissing and giving forth
clouds of smoke, flows first into the bamboo mould and then into the
holes in the ground.
The technique of this backwoods craftsman may not be very far
advanced, but it cannot be denied that he knows how to obtain an
adequate result by the simplest means. The ladies of highest rank in
this country—that is to say, those who can afford it, wear two kinds
of these massive brass rings, one cylindrical, the other semicircular
in section. The latter are cast in the most ingenious way in the
bamboo mould, the former in the circular hole in the sand. It is quite
a simple matter for the fundi to fit these bars to the limbs of his fair
customers; with a few light strokes of his hammer he bends the
pliable brass round arm or ankle without further inconvenience to
the wearer.
SHAPING THE POT
SMOOTHING WITH MAIZE-COB
CUTTING THE EDGE

FINISHING THE BOTTOM
LAST SMOOTHING BEFORE

BURNING
FIRING THE BRUSH-PILE

LIGHTING THE FARTHER SIDE OF
THE PILE
TURNING THE RED-HOT VESSEL
NYASA WOMAN MAKING POTS AT MASASI

Pottery is an art which must always and everywhere excite the
interest of the student, just because it is so intimately connected with
the development of human culture, and because its relics are one of
the principal factors in the reconstruction of our own condition in
prehistoric times. I shall always remember with pleasure the two or
three afternoons at Masasi when Salim Matola’s mother, a slightly-
built, graceful, pleasant-looking woman, explained to me with
touching patience, by means of concrete illustrations, the ceramic art
of her people. The only implements for this primitive process were a
lump of clay in her left hand, and in the right a calabash containing
the following valuables: the fragment of a maize-cob stripped of all
its grains, a smooth, oval pebble, about the size of a pigeon’s egg, a
few chips of gourd-shell, a bamboo splinter about the length of one’s
hand, a small shell, and a bunch of some herb resembling spinach.
Nothing more. The woman scraped with the
shell a round, shallow hole in the soft, fine
sand of the soil, and, when an active young
girl had filled the calabash with water for her,
she began to knead the clay. As if by magic it
gradually assumed the shape of a rough but
already well-shaped vessel, which only wanted
a little touching up with the instruments
before mentioned. I looked out with the
MAKUA WOMAN closest attention for any indication of the use
MAKING A POT. of the potter’s wheel, in however rudimentary
SHOWS THE a form, but no—hapana (there is none). The
BEGINNINGS OF THE embryo pot stood firmly in its little
POTTER’S WHEEL
depression, and the woman walked round it in
a stooping posture, whether she was removing
small stones or similar foreign bodies with the maize-cob, smoothing
the inner or outer surface with the splinter of bamboo, or later, after
letting it dry for a day, pricking in the ornamentation with a pointed
bit of gourd-shell, or working out the bottom, or cutting the edge
with a sharp bamboo knife, or giving the last touches to the finished
vessel. This occupation of the women is infinitely toilsome, but it is
without doubt an accurate reproduction of the process in use among
our ancestors of the Neolithic and Bronze ages.
There is no doubt that the invention of pottery, an item in human
progress whose importance cannot be over-estimated, is due to
women. Rough, coarse and unfeeling, the men of the horde range
over the countryside. When the united cunning of the hunters has
succeeded in killing the game; not one of them thinks of carrying
home the spoil. A bright fire, kindled by a vigorous wielding of the
drill, is crackling beside them; the animal has been cleaned and cut
up secundum artem, and, after a slight singeing, will soon disappear
under their sharp teeth; no one all this time giving a single thought
to wife or child.
To what shifts, on the other hand, the primitive wife, and still more
the primitive mother, was put! Not even prehistoric stomachs could
endure an unvarying diet of raw food. Something or other suggested
the beneficial effect of hot water on the majority of approved but
indigestible dishes. Perhaps a neighbour had tried holding the hard
roots or tubers over the fire in a calabash filled with water—or maybe
an ostrich-egg-shell, or a hastily improvised vessel of bark. They
became much softer and more palatable than they had previously
been; but, unfortunately, the vessel could not stand the fire and got
charred on the outside. That can be remedied, thought our
ancestress, and plastered a layer of wet clay round a similar vessel.
This is an improvement; the cooking utensil remains uninjured, but
the heat of the fire has shrunk it, so that it is loose in its shell. The
next step is to detach it, so, with a firm grip and a jerk, shell and
kernel are separated, and pottery is invented. Perhaps, however, the
discovery which led to an intelligent use of the burnt-clay shell, was
made in a slightly different way. Ostrich-eggs and calabashes are not
to be found in every part of the world, but everywhere mankind has
arrived at the art of making baskets out of pliant materials, such as
bark, bast, strips of palm-leaf, supple twigs, etc. Our inventor has no
water-tight vessel provided by nature. “Never mind, let us line the
basket with clay.” This answers the purpose, but alas! the basket gets
burnt over the blazing fire, the woman watches the process of
cooking with increasing uneasiness, fearing a leak, but no leak
appears. The food, done to a turn, is eaten with peculiar relish; and
the cooking-vessel is examined, half in curiosity, half in satisfaction
at the result. The plastic clay is now hard as stone, and at the same
time looks exceedingly well, for the neat plaiting of the burnt basket
is traced all over it in a pretty pattern. Thus, simultaneously with
pottery, its ornamentation was invented.
Primitive woman has another claim to respect. It was the man,
roving abroad, who invented the art of producing fire at will, but the
woman, unable to imitate him in this, has been a Vestal from the
earliest times. Nothing gives so much trouble as the keeping alight of
the smouldering brand, and, above all, when all the men are absent
from the camp. Heavy rain-clouds gather, already the first large
drops are falling, the first gusts of the storm rage over the plain. The
little flame, a greater anxiety to the woman than her own children,
flickers unsteadily in the blast. What is to be done? A sudden thought
occurs to her, and in an instant she has constructed a primitive hut
out of strips of bark, to protect the flame against rain and wind.
This, or something very like it, was the way in which the principle
of the house was discovered; and even the most hardened misogynist
cannot fairly refuse a woman the credit of it. The protection of the
hearth-fire from the weather is the germ from which the human
dwelling was evolved. Men had little, if any share, in this forward
step, and that only at a late stage. Even at the present day, the
plastering of the housewall with clay and the manufacture of pottery
are exclusively the women’s business. These are two very significant
survivals. Our European kitchen-garden, too, is originally a woman’s
invention, and the hoe, the primitive instrument of agriculture, is,
characteristically enough, still used in this department. But the
noblest achievement which we owe to the other sex is unquestionably
the art of cookery. Roasting alone—the oldest process—is one for
which men took the hint (a very obvious one) from nature. It must
have been suggested by the scorched carcase of some animal
overtaken by the destructive forest-fires. But boiling—the process of
improving organic substances by the help of water heated to boiling-
point—is a much later discovery. It is so recent that it has not even
yet penetrated to all parts of the world. The Polynesians understand
how to steam food, that is, to cook it, neatly wrapped in leaves, in a
hole in the earth between hot stones, the air being excluded, and
(sometimes) a few drops of water sprinkled on the stones; but they
do not understand boiling.
To come back from this digression, we find that the slender Nyasa
woman has, after once more carefully examining the finished pot,
put it aside in the shade to dry. On the following day she sends me
word by her son, Salim Matola, who is always on hand, that she is
going to do the burning, and, on coming out of my house, I find her
already hard at work. She has spread on the ground a layer of very
dry sticks, about as thick as one’s thumb, has laid the pot (now of a
yellowish-grey colour) on them, and is piling brushwood round it.
My faithful Pesa mbili, the mnyampara, who has been standing by,
most obligingly, with a lighted stick, now hands it to her. Both of
them, blowing steadily, light the pile on the lee side, and, when the
flame begins to catch, on the weather side also. Soon the whole is in a
blaze, but the dry fuel is quickly consumed and the fire dies down, so
that we see the red-hot vessel rising from the ashes. The woman
turns it continually with a long stick, sometimes one way and
sometimes another, so that it may be evenly heated all over. In
twenty minutes she rolls it out of the ash-heap, takes up the bundle
of spinach, which has been lying for two days in a jar of water, and
sprinkles the red-hot clay with it. The places where the drops fall are
marked by black spots on the uniform reddish-brown surface. With a
sigh of relief, and with visible satisfaction, the woman rises to an
erect position; she is standing just in a line between me and the fire,
from which a cloud of smoke is just rising: I press the ball of my
camera, the shutter clicks—the apotheosis is achieved! Like a
priestess, representative of her inventive sex, the graceful woman
stands: at her feet the hearth-fire she has given us beside her the
invention she has devised for us, in the background the home she has
built for us.
At Newala, also, I have had the manufacture of pottery carried on
in my presence. Technically the process is better than that already
described, for here we find the beginnings of the potter’s wheel,
which does not seem to exist in the plains; at least I have seen
nothing of the sort. The artist, a frightfully stupid Makua woman, did
not make a depression in the ground to receive the pot she was about
to shape, but used instead a large potsherd. Otherwise, she went to
work in much the same way as Salim’s mother, except that she saved
herself the trouble of walking round and round her work by squatting
at her ease and letting the pot and potsherd rotate round her; this is
surely the first step towards a machine. But it does not follow that
the pot was improved by the process. It is true that it was beautifully
rounded and presented a very creditable appearance when finished,
but the numerous large and small vessels which I have seen, and, in
part, collected, in the “less advanced” districts, are no less so. We
moderns imagine that instruments of precision are necessary to
produce excellent results. Go to the prehistoric collections of our
museums and look at the pots, urns and bowls of our ancestors in the
dim ages of the past, and you will at once perceive your error.
MAKING LONGITUDINAL CUT IN
BARK
DRAWING THE BARK OFF THE LOG
REMOVING THE OUTER BARK

BEATING THE BARK
WORKING THE BARK-CLOTH AFTER BEATING, TO MAKE IT

SOFT
MANUFACTURE OF BARK-CLOTH AT NEWALA

To-day, nearly the whole population of German East Africa is
clothed in imported calico. This was not always the case; even now in
some parts of the north dressed skins are still the prevailing wear,
and in the north-western districts—east and north of Lake
Tanganyika—lies a zone where bark-cloth has not yet been
superseded. Probably not many generations have passed since such
bark fabrics and kilts of skins were the only clothing even in the
south. Even to-day, large quantities of this bright-red or drab
material are still to be found; but if we wish to see it, we must look in
the granaries and on the drying stages inside the native huts, where
it serves less ambitious uses as wrappings for those seeds and fruits
which require to be packed with special care. The salt produced at
Masasi, too, is packed for transport to a distance in large sheets of
bark-cloth. Wherever I found it in any degree possible, I studied the
process of making this cloth. The native requisitioned for the
purpose arrived, carrying a log between two and three yards long and
as thick as his thigh, and nothing else except a curiously-shaped
mallet and the usual long, sharp and pointed knife which all men and
boys wear in a belt at their backs without a sheath—horribile dictu!
[51]
Silently he squats down before me, and with two rapid cuts has
drawn a couple of circles round the log some two yards apart, and
slits the bark lengthwise between them with the point of his knife.
With evident care, he then scrapes off the outer rind all round the
log, so that in a quarter of an hour the inner red layer of the bark
shows up brightly-coloured between the two untouched ends. With
some trouble and much caution, he now loosens the bark at one end,
and opens the cylinder. He then stands up, takes hold of the free
edge with both hands, and turning it inside out, slowly but steadily
pulls it off in one piece. Now comes the troublesome work of
scraping all superfluous particles of outer bark from the outside of
the long, narrow piece of material, while the inner side is carefully
scrutinised for defective spots. At last it is ready for beating. Having
signalled to a friend, who immediately places a bowl of water beside
him, the artificer damps his sheet of bark all over, seizes his mallet,
lays one end of the stuff on the smoothest spot of the log, and
hammers away slowly but continuously. “Very simple!” I think to
myself. “Why, I could do that, too!”—but I am forced to change my
opinions a little later on; for the beating is quite an art, if the fabric is
not to be beaten to pieces. To prevent the breaking of the fibres, the
stuff is several times folded across, so as to interpose several
thicknesses between the mallet and the block. At last the required
state is reached, and the fundi seizes the sheet, still folded, by both
ends, and wrings it out, or calls an assistant to take one end while he
holds the other. The cloth produced in this way is not nearly so fine
and uniform in texture as the famous Uganda bark-cloth, but it is
quite soft, and, above all, cheap.
Now, too, I examine the mallet. My craftsman has been using the
simpler but better form of this implement, a conical block of some
hard wood, its base—the striking surface—being scored across and
across with more or less deeply-cut grooves, and the handle stuck
into a hole in the middle. The other and earlier form of mallet is
shaped in the same way, but the head is fastened by an ingenious
network of bark strips into the split bamboo serving as a handle. The
observation so often made, that ancient customs persist longest in
connection with religious ceremonies and in the life of children, here
finds confirmation. As we shall soon see, bark-cloth is still worn
during the unyago,[52] having been prepared with special solemn
ceremonies; and many a mother, if she has no other garment handy,
will still put her little one into a kilt of bark-cloth, which, after all,
looks better, besides being more in keeping with its African
surroundings, than the ridiculous bit of print from Ulaya.
MAKUA WOMEN

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Business Law 16th Edition, (Ebook

Preface xiv Alternative Dispute Resolution 53

1 Introduction to Law 2 4 Constitutional Law 66

7 Intentional Torts 124 Acceptance of Offer 195

Case Problems 280 Chapter Summary 354

Cases 429 PART 5

Electronic Funds Transfers 607 Chapter Summary 659

Dividends and Other Distributions 729 Default 810

36 Fundamental Changes 778 PART 9

Chapter Summary 893 Cases 1008

Bailments 1057 50 Trusts and Decedents’ Estates 1117

thetical situations) and the case problems (taken from

Amy Wilson, Zane State College

Abrams v. United States, 72 Brehm v. Eisner, 770

County of Washington v. Gunther, 936 Gaddy v. Douglass, 383

RNR Investments Limited Partnership v. Peoples First Taghipour v. Jerez, 691

1-1 Law and Morals 4 6-1 Degrees of Mental Fault 106

CHAPTER 1 Introduction to Law

CHAPTER 2 Business Ethics and the Social Responsibility

CHAPTER 3 Civil Dispute Resolution

CHAPTER 4 Constitutional Law

CHAPTER 5 Administrative Law

CHAPTER 6 Criminal Law

CHAPTER 7 Intentional Torts

CHAPTER 8 Negligence and Strict Liability

u FIGURE 1-1: Law and Morals

u FIGURE 1-2: Classification of Law

u FIGURE 1-3: Comparison of Civil and Criminal Law

Purpose Compensation Punishment

Burden of Proof Preponderance of the evidence Beyond a reasonable doubt

Principal Sanctions Monetary damages Capital punishment

u FIGURE 1-4: Hierarchy of Law

Newala, too, suffers from the distance of its water-supply—at least

The water-supply of New Newala is in the bottom of the valley,

NATIVE PATH THROUGH THE MAKONDE BUSH, NEAR

MAKONDE LOCK AND KEY AT JUMBE CHAURO

MODE OF INSERTING THE KEY

With no small pride first one householder and then a second

Some consolation was afforded me by a brassfounder, whom I

SMOOTHING WITH MAIZE-COB

CUTTING THE EDGE

LAST SMOOTHING BEFORE

FIRING THE BRUSH-PILE

TURNING THE RED-HOT VESSEL

NYASA WOMAN MAKING POTS AT MASASI

DRAWING THE BARK OFF THE LOG

REMOVING THE OUTER BARK

WORKING THE BARK-CLOTH AFTER BEATING, TO MAKE IT

MANUFACTURE OF BARK-CLOTH AT NEWALA

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