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What are Universal Defenses?

What are Universal Defenses?

Universal defenses are the strongest possible defenses that a given party to a negotiable instrument might be able to mount in order to avoid payment on that negotiable instrument. These defenses are so strong that they actually supersede the protective rights of a holder in due course (HDC), and in turn, the protective rights of any holders through an HDC. The reason is that most of these universal defenses are based on blatant, inarguably illegitimate actions, each of which would serve as grounds for not paying the negotiable instrument in question. These defenses are also referred to as real defenses.

Fraud in Execution

Fraud in execution refers to a type of fraud in which an individual is convinced to sign something that he or she believes to be a given type of document, but which is actually a negotiable instrument. Essentially, this type of fraud revolves around the signer being deceived into signing something which he or she did not realize that he or she was signing. If this can be proven successfully, then it would afford the signer a universal defense against paying off any negotiable instruments that the individual was deceived into signing in this fashion.

This type of fraud might not necessarily support a universal defense, however, depending upon the exact circumstances surrounding its enactment. If the signing, defrauded party could have determined the exact nature of the document he or she was signing with a reasonable inquiry, then that party does not have the ability to lay claim to a universal defense based on fraud in execution.

This type of determination very much depends upon the exact qualities of the victim, as a younger, less intelligent or knowledgeable victim would likely be more easily granted this universal defense than an older, savvy business person who, by virtue of his or her experience and knowledge, should have known better. In other words, this type of universal defense will only protect victims of another person's manipulation or wrongdoing. It will not protect those who make mistakes which they should not have made.

Alteration

Alteration of a negotiable instrument can come in different types. The most important form of alteration with regard to universal defenses is material alteration, which is any kind of alteration that changes the terms of the contract represented by the negotiable instrument. For example, any change to the amount of money for which the instrument is valued would be a material alteration. A change of the interest rate on a promissory note would similarly be a material alteration.

Alterations of a less significant fashion, however, are not material alterations. For example, simply correcting a misspelled name, while a form of alteration, would not be a material alteration, and thus would not be grounds for a universal defense. Even if there is evidence of a material alteration, however, the victim still might not be able to mount a universal defense.

Material alteration will provide a full defense against any ordinary holder, meaning that the defending party will not have to pay any claims made by an ordinary holder. But a holder in due course (HDC) will still have some claim to the negotiable instrument, regardless of material alteration. The HDC's claim on the negotiable instrument will only be for what the instrument was prior to alteration, meaning that the defender will not have to pay any additional value that was added to the negotiable instrument through material alteration, but he or she will have to pay the original value of the instrument.

Material alteration also cannot be used as any kind of universal defense against an HDC when it is used with regard to unauthorized completion of an incomplete negotiable instrument, as the blame for such unauthorized completion lies on the drawer or maker of the incomplete instrument, who should have exercised more care.

Bankruptcy Discharge

Bankruptcy exists for the specific purpose of ensuring that the party claiming bankruptcy will be able to settle all debts, most likely because that party has no other recourse for settling those debts. As a result, discharge in bankruptcy will ensure that the discharging party does not have to pay off any claims from any outstanding negotiable instruments, regardless of whether or not the claimants are ordinary holders or holders in due course. This is unfortunate for the holders, of course, but necessary for bankruptcy proceedings to perform their intended function.

Minority

If an individual has not reached majority, then that individual may be able to mount a universal defense against paying any claims on negotiable instruments which he or she has issued. This is not necessarily true, however; a minority defense may only be mounted depending upon the exact statues of state law regarding minority parties. Specifically, the state law statutes surrounding simple contract liability apply to minors' liability for negotiable instruments. If the state laws would afford the minor an exemption from liability for a simple contract, then that individual will be able to mount an equal defense in terms of negotiable instruments. If this defense against simple contracts does not exist under state law, however, then the minor will have no such defense against any kind of holder of a negotiable instrument.

Illegality

A negotiable instrument can be made void if its execution was connected with illegal activities. If the negotiable instrument can be linked to an illegal act which, under state law, would have made any other contract similarly void, then that negotiable instrument can be voided. Such voiding based on illegality will allow the defending party to mount a universal defense against all claims made on that negotiable instrument, from holders to holders in due course alike.

Incapacity

This type of real defense is mounted around the idea that a given individual might not actually have the authority to sign a negotiable instrument, even if he or she did so knowingly, with his or her own signature. Any party which suffers from some form of mental incapacity will no longer be able to add his or her authority to negotiable instruments. Thus, if a party can be shown to have suffered from mental incapacity at the time of the negotiable instrument's making, then that party cannot be held responsible for any claims on the negotiable instrument. This is a full universal defense, defending the party suffering from mental incapacity from ordinary holders' claims and the claims of holders in due course with equal efficacy.

Extreme Duress

Neither ordinary holders nor holders in due course can mount a claim against a party that issued a negotiable instrument under any kind of extreme duress. Extreme duress is a defense mounted by a party claiming to have made a decision, such as signing or issuing a negotiable instrument, while under threat of physical injury. Thus, the decision to make the negotiable instrument would likely have been made unwillingly, only because the maker was coerced into doing so. Any negotiable instrument issued under such conditions is inapplicable and the defending party would never have to pay any claims mounted on such an instrument by any holder, ordinary or otherwise.

A Guide to Assault and Battery Defenses

A Guide to Assault and Battery Defenses

Assault and Battery: Defenses
Prosecuting a purported incidence of violent physical action as assault and battery requires that the legal system prove that nothing about the context of the action could excuse its performance and that the intention or responsibility of the actor can be demonstrated. A possible avenue of legal defense against a charge of assault and battery is to make the claim that the actor had consent from the aggrieved party, as in the implicit or explicit granting of a degree of latitude to take such actions.
Examples of consent being granted for an action that would otherwise constitute assault and battery can include a rough athletic competition or the performance of surgical procedures. An individual tasked with enforcing rules on behalf of the law or a disciplinary institution may also be able to claim “privilege” for their actions. After examining the possible motivation and justification behind an act, the legal system must determine if the act itself occurred within permissible limits, which vary according to jurisdiction.

Assault and Battery: Defenses: Consent
In order to determine that an act of assault and battery has occurred, an important element to consider is the issue of the offensive or injurious physical contact promised and then delivered as unwanted by the victim. In certain cases it can be argued that the subject of a violent act granted a degree of consent to the actor. For instance, participants in rough athletic competitions enter into such activities with the tacit acceptance that they may be subject to certain actions, at least within agreed-upon limits.
Surgeries might also be understood as severe forms of assault and battery if not for the consent of the patient. Indeed, when surgeries exceed their stated and reasonable cases, physicians may be legally liable. Legal practices for the understanding of consent may differ on the degree to which consent can be reasonably granted.

Assault and Battery: Defenses: Preventing Another Crime
A strong legal defense against a charge of assault and battery may be available to the defendant who can demonstrate that he or she was acting in order to prevent another crime from being committed by the purported victim. In order for this rationale to be accorded weight in a court of law, it must be demonstrated to have been enacted within reasonable limits and in proportion to the crime being committed.
The application of violent force in response to the violent assaults upon oneself or against another person will commonly be afforded the greatest latitude. Actions taken to prevent another crime which was not violent in nature may be liable if the actor resorted to violence unnecessarily.
The amount of force that may be applied in the defense of one’s possessions or residence vary by jurisdiction. Though abusive speech may cross over the threshold of legal permissibility, it will never be granted legitimacy as a justification for violence simply on the grounds of the offense suffered.

Assault and Battery: Defenses: Defending Property
Part of the protection granted to property owners and homeowners under a typical system of law is the right to use force, as defined within varying permissible limits, in the protection of that property. Some cases which would otherwise be prosecuted as acts of assault and battery may be protected under the privilege of defense of property. Such rights are, however, generally less overarching than those granted for self-defense and the defense of others on the principle that human life and well being supersedes property.
If deadly or severely injuring force is used in the course of defending one’s property, it is most likely to be permissible in the instance that the property owner was faced with deadly force as a result of acting and was forced to use comparable force as a response. The degree to which such fear must be justified differs according to an area’s legal and social culture, with some sections of the United States allowing homeowners wide discretion in using force against intruders, whereas in other legal systems, such as New Zealand, deadly force in the protection of property is widely restricted.

Assault and Battery: Punishment

The concept of assault and battery is commonly given a wide application, ranging from instances of offensive touching to deadly attacks in order to grant recourse to legal action on a wide basis. The kinds of punishments potentially incurred from a conviction can thus also vary across a wide spectrum.
Terms of imprisonment for serious charges such as aggravated assault are usually defined by local statutes. Less serious charges, referred to as “simple” assaults which lack the presence of serious injuries or severely harmful intent, may be addressed with shorter periods of imprisonment, possibly in local jails instead of state or Federal prisons, or with less punitive measures such as requirements to render community service or to participate in anger-management courses. The severity of legal penalties incurred can also vary according to the kind of method used to accomplish the attack, traits of the victim, and the context for the dispute.

Assault and Battery: Defenses: Assault Lawyers
Defendants faced with charges of assault and battery are generally advised by legal authorities and commentators to find experienced assault attorneys early in the course of mounting a legal defense. The recourse to legal representation has been recommended by experts particularly for cases in which the basic physical facts of an attack are not strongly disputed.
Assault lawyers typically specialize in minimizing any exacerbating factors at play in the prosecution of charges, such as prior convictions on a record or aggravating factors in the assault. In the event that a conviction cannot be avoided, assault lawyers often try to minimize the effect that this occurrence will have on the defendant’s life after serving a term of imprisonment.

What Can an Assault Lawyer Do?

What Can an Assault Lawyer Do?

Charges of assault and battery can take the form of either misdemeanors or felonies. A common assault lawyer strategy is to concentrate on gaining leniency from the courts on this question.
 
 
In addition to their immediate legal penalties, felony convictions have the potential to permanently impact the defendant's life by appearing on his or her record. A practicing assault attorney will often choose to pursue the strategy of reducing the seriousness of the charges being filed rather than trying to have them dismissed altogether, in order to minimize overall impact on the defendant's quality of life.
 
 
Due to the system in place in the U.S. and other systems of law for understanding the severity of assault cases, one avenue that a defendant may choose for an assault lawyer to take is an argument based on the presence of mitigating or aggravating factors. One such factor may be the prior record of the defendant. A previous criminal conviction can be used to argue that the intention and likely result of an assault was serious, while a clean record could be used to argue against the seriousness of the assault being made.
 
 
Another aspect of an assault battery case commonly pointed to by an assault attorney, if applicable, is the relationship between the victim and defendant. A sudden and apparently unprovoked attack may be considered more serious than one arising from a past history of disputes between two individuals known to each other.
 
 
An assault lawyer may also seek such alternatives to terms of incarceration such as anger-management courses, being placed on a probationary condition, or engaging a form of community service.

The Consent in Assault and Battery Cases

The Consent in Assault and Battery Cases

In battery and assault cases, an important consideration to be made is that the threat or employment of acts of violence or offensive physical contact were not desired by the person toward whom they were directed. As a result, the understanding and prosecution of battery and assault cases may be altered if it can determined that to some extent the target of the threat or violence allowed them to happen.

Legal terminology refers to this aspect of battery and assault cases as the "privilege" granted to the actor by the adversely impacted individual. One potentially clear-cut form of privilege can be found in consent being give to what might otherwise be assumed to be unwanted physical interference. In cases of such applications of physical force so severe as to normally require the need for an aggravated assault defense, a degree of ambiguity may be found to exist as to whether battery and assault cases can be excused from prosecution by the presence of a form of consent.

A common form of consent can be found in the case of athletes choosing to engage in competitive and potentially dangerous sports. Injuries suffered during the course of such games are deemed less likely to give rise to battery and assault cases than comparable cases occurring outside the context of competitive sports. An aggravated assault defense is only likely to be necessary in instances of actions taken during the game deemed to be outrageous and far outside the bounds of what is normally deemed permissible in game rules and procedures.

Another form of potentially dangerous and, in a sense, inherently violent action nonetheless unlikely to result in battery and assault cases is that of surgery, so long as it proceeds within the bounds reasonably agreed to beforehand. The giving of consent under the laws governing prosecution of assault and battery is not understood as completely opening up the patient to the use of physical force, as the mistaken or intentional action of the surgeon in operating on a part of the body that was neither agreed to beforehand nor justified by the circumstances can lead to the filing of charges.

In mounting a simple or aggravated assault defense in assault cases, defense attorneys may address the issue that violent actions, which coincided with the granting of consent for some form of "violence" but went beyond the bounds they established, can carry with them legal consequences. In such cases, the granting of consent was contingent on some kind of "reasonable" limit being observed, opening up culpability on the part of the granter of consent to a certain extent to the various consequences which an action might have, but only within certain boundaries.

An aggravated assault defense case may also have to contend with the limits which some legal systems may place on the degree of harm to which adult individuals may permissibly consent, even with great specificity, to be made subject to by other adult individuals.

Preventing Another Crime

Preventing Another Crime

Under normal circumstances, the proposal or performance of unwanted applications of physical force to other people incurs charges under battery and assault law. A minor form of battery, such as unwanted physical contact not aimed at physical injury, is unlikely to justify assault and battery against the offending party. Another way to demonstrate that the use of physical force did not run afoul of battery and assault law is to show that the defendant did not employ force until it was necessary.
 
 
Thus, in some circumstances, the defendant's claim of the justification of self-defense for the use of force will not hold up if he or she did not at first attempt to retreat from the threat. Exceptions to this rule can exist in cases in which the offending party is making his or her threatening actions in the defendant's home and does not possess the right to be in that household.
 
 
In cases in which the person responsible for issuing or acting on physical threats was acting in the interests of defending another person but was mistaken about the existence of any such threat, various legal jurisdictions differ on whether such a fact removes culpability.
 
 
Though the various forms in which verbal provocation may be offered to an individual may otherwise come under the heading of criminal acts, retaliating to verbal insults is never acceptable as an assault and battery defense.
 
 
In a broader sense, preventing the commission of a crime which does not in of itself involve any form of violent assault cannot be used in general to justify the application of violent physical threats or force against an individual involved in such activities. One exception can be found in instances where, in the course of attempting to prevent such a crime from being committed through non-violent crimes, violence is elicited from the offending party.

Seniority Systems to Help the Elderly

Seniority Systems to Help the Elderly

The Age Discrimination Act (ADA) prohibits employees from discrimination based on an individual's age. Age discrimination is prohibited in all forms of employment, hiring, training, promotions, tasks, and discharges. The seniority system is a way to determine employment advantages based on the length of service of employees. Although the seniority system is a way to reward long term employees, it might also be a liability for discrimination.
 
 
A seniority system that offers lesser rights and actually results in the discharge of individuals who are in a certain age group would be considered age discrimination. A bona fide seniority system may seem discriminatory because it allows only certain employees specific rights but it is not meant to be discriminatory so it is not unlawful.
 
 
The seniority system does not prohibit anyone from obtaining certain benefits, it simply allows employees who have been working with the company the longest to receive those benefits first, so it is not considered age discrimination. It would only be considered discrimination if it prohibited employees from enjoying those rights in regards to their gender, race, religion, or disability. It may seem discriminatory to some but it is not meant on a discriminatory basis.
 
 
It is required that employers make the seniority system clear to all of its employees in order to avoid any confusion. An example of the seniority system that might seem like age discrimination is if senior employees had the opportunity to compete for a promotion while junior employees are not eligible or would even receive less consideration.
 
 
This might not be because of their age but simply because of their work experience. Seniority also makes the employees who have been with the company or business the longest less likely to lose their jobs as a result of layoffs.
 
 
The seniority system should not require older individuals to involuntarily retire simply because of their age. This is unlawful and prohibited as part of the Age Discrimination Act. The seniority system also should not base the amount of payment or each benefit on the age of the employee. All employees are entitled to the same amount of pay and to the same benefits.
 
 
This does not mean that if a person that has been with a company for thirty years and, due to when they started, the benefits package was a certain amount, that a person who has been with the company for only five years has the same amount in their benefits package.
 
 
If a benefit package is based on accrued amounts and the starting amounts differ each year, then that is discussed with the employees when they are hired and it is not required that all employees have the same benefit packages.
 
 
Age discrimination is unlawful and the Age Discrimination Act prohibits employers from discriminating. The seniority system is a way to reward those who have provided service to a business for longer periods of time and it is not unlawful. It is also not meant to be discriminatory.

What Are Bona Fide Occupational Qualifications?

What Are Bona Fide Occupational Qualifications?

It is unlawful to hire or discriminate against employees based on their gender, age, religion, or origin. However, an exception to this rule would be when any of those factors are considered bona fide occupational qualifications.
 
 
Bona fide occupational qualification is when an employer is allowed to hire employees based on qualities or attributes that would be discrimination when considered in other contexts. An employer must prove that the bona fide occupational qualification is reasonably necessary to the operation of the business to avoid liability for potential discrimination. These practices are not illegal if they are necessary.
 
 
Some industries or organizations are more prone to using bona fide occupational qualifications without liability. These industries include the fashion industry, any religious organization, and the entertainment industry.
 
 
Religious organizations or religious schools are allowed to hire only people that pertain to that religion, although it may not be a bona fide occupational qualification. For example, a Catholic school may choose to only hire Catholic school teachers even though the subjects that they are teaching might not need a Catholic background.
 
 
Another example would be the fashion industry. A women's clothing designer may hire only female models because the necessity is only for women. The same goes for men's clothing, the designer has the right to hire only men because that is what is required of the business.
 
 
The fashion industry may also go a step further and hire women with certain attributes. If they only hire women who are 5'7 and 120 pounds because that is who is going to fit into the clothing, then it is not considered discrimination. However, there would be liability for discrimination if they omit any women simply based on their race or religion.
 
 
In the entertainment industry liability for potential discrimination is minimal as there are specific requirements for roles or jobs. A casting director might be specific to hire a certain age, race, and gender. If the role calls for an African American woman in her sixties then it is absurd to think that this is discrimination of any sort because he will not interview a white male in his twenties. This is not discrimination in any way; these characteristics or qualities are essential for what that particular business might need.
 
 
An employer must be able to show that the bona fide occupational qualifications are a necessity to the business, and that the discriminatory criteria is related to the job and the operation of the business.
 
 
Liability for discrimination would exist if the bona fide occupational qualities did not coincide with the business needs at all. A clothing apparel manager cannot discriminate against someone based on their gender, age, religion, or origin; this would be unlawful. They may not say that young attractive personnel will bring in more customers, and therefore, they will not hire anyone that is considered unattractive or old. This would be grounds for discrimination.
 
 
Some businesses are on the fence about this, though. For example, the chain style restaurant Hooters employs males as cooks, busboys, and managers but they only employ females for the wait staff. They argue that the overall "essence of the business would be undermined if the business eliminated their discriminatory policy." The premise for the business is female sex appeal and the requirements for the job include wearing a Hooters girl uniform. Since it is partially necessary for the business to have a female wait staff and it is their policy, this might not be discrimination.
 
 
If an employer is going to hire based on bona fide occupational qualifications, it is best to be sure that it really is necessary to the operation of the business.

Preventing Discrimination with Business Necessity

Preventing Discrimination with Business Necessity

Business necessity is an employer's defense of an employment related decision that is based on the requirements of the business and is consistent with other such decisions. To establish business necessity an employer must prove that the practice is job related and consistent with business necessity.
 
 
It is unlawful to discriminate against an employee because of race in any aspect of the job, hiring, training, promotion, firing, benefits, and privileges. Employment discrimination is when an employer singles out an employee or applicant based on their age, sex, race, or disability.
 
 
Title VII of the Civil Rights Act protects individuals against employment discrimination because of race, color, origin, gender, or religion. It has the intent to ensure that all employees and potential employees are presented with the same opportunities.
 
 
Racism and any other form of employment discrimination is unlawful. Employment decisions based on stereotypes and assumptions about abilities or performance are also prohibited. Title VII of the Civil Rights Act includes all aspects of the business. Asking about a potential employee's race may be discrimination. However, if the employer is asking about race to track applicant flow or for affirmative action purposes then this is not considered racism.
 
 
The employer should use separate forms to ensure that the information gathered does not affect the decision-making process. Work assignments, pay, training, benefits, and any other aspect of the job should not be in any way based on color or race, as this would be considered racism or employment discrimination. 
 
 
Employment discrimination also includes harassment of any sort based on an individual's race or color. Harassment includes any racial jokes, derogatory comments, offensive comments, and any other verbal or physical conduct that is based on an employee's race. This is considered unlawful, as well as creating a hostile or intimidating environment, and interferes with this individual's job performance.
 
 
Racism also includes segregation or classification of an employee based on their race or color. Title VII prohibits that job assignments or positions be based on race. If an individual that is a minority in the workplace is assigned a position simply because of his or her race and the assumption that is made is that this position suits them only because of their race, then this is considered racism. It is also unlawful to categorize employees together based on their race or to assign employees to an establishment or location based on their race.
 
 
It is important that employers hire employees based on their qualifications rather than their race to avoid discrimination. This is also true in all aspects of the job. Employees should be assigned to tasks based on their skills and abilities to perform that task, as well as get promotions or demotions solely based on their job performance instead of race, gender, origin, religion, or disability.
 
 
Employers should treat all employees equally and provide equal opportunities for all employees to ensure that they are not charged with discrimination.

Know the Defenses to Employment Discrimination

Know the Defenses to Employment Discrimination

Business Necessity: 
 
 
Business necessity is an employer's defense related to a decision that is based on the requirements of the business and is consistent with other such decisions. To establish business necessity the employer must prove that such practice is job related.
 
 
Any form of discrimination such as race, gender, or religion is unlawful. It is prohibited that an employer make any assumptions about an employee or potential employee based on their race, gender, or religion. If an employer asks a potential employee about their race in order to make a hiring decision, that is discrimination.
 
 
However, an employer is allowed to ask a potential employee their race in order to track applicant flow or for affirmative action. It is mandatory that all employers hire employees based solely on their qualifications. 
 
 
Bona Fide Occupational Qualification: 
 
 
Bona fide occupational qualification is when an employer is allowed to hire employees based on qualities or attributions that would be discrimination when considered in other contexts. An employer must prove that the bona fide occupational qualification is reasonably necessary to the operation of the business to avoid liability for potential discrimination.
 
 
There are certain industries that are required to hire employees based on a quality that would in other terms be considered discriminatory. These industries include religious organizations and schools, the modeling industry, and the entertainment industry. If an employer is going to hire based on bona fide occupational qualifications, it is best to be sure that it really is necessary to the operation of the business.
 
 
Seniority Systems: 
 
 
The Age Discrimination Act was enacted in order to prohibit employers from discriminating against individuals because of their age. The seniority system is a way to determine employment advantages based on the length of service of employees. It should offer rewards and opportunities to employees who have been with the company for longer periods of time.
 
 
It is unlawful for the seniority system to require older employers to involuntarily retire because of their age. All employees are entitled to the same amount of pay and to the same benefits.
 
 
A seniority system would only be considered discriminatory if it did not allow an employee to enjoy the benefits that come with seniority because of their gender, race, or religion. It is not meant to be discriminatory; it is a way to reward employees that have provided their services for a long period of time.