National Legal System

This article of the New York Times articulates why The United States needs more low-skilled immigrants, contrary to popular belief. There is an enormous demand for low-skilled immigrants as the baby boomers are leaving the work force and creating an employment hole. But the argument for low skilled-immigration is not only about the employment hole; the politics of immigration are driven by the proposition that immigrant laborers take the jobs and depress the wages of Americans competing with them in the work force. This proposition underpins President Trump’s threat to get rid of the 11 million unauthorized immigrants in the US. Trump wants to cut legal immigration into the country by half and create a point system to ensure that only immigrants with high skills are allowed entrance in the future. But this plan excludes a number important benefits: that less-skilled immigrants are also consumers of American-made goods and services; that their cheap labor raises economic output and also reduces prices. What is critical to understand, in light of the current political debate, is that contrary to conventional wisdom, less-skilled immigration does not just knock less-educated Americans out of their jobs. It often leads to the creation of new jobs. Immigration’s bad reputation is largely due to a subtle yet critical omission: It overlooks the fact that immigrants and natives are different in consistent ways. As employers invest more to take advantage of the new source of cheap labor, they will also open new communications-heavy job opportunities for the natives. For instance, many servers and hosts in New York restaurants owe their jobs to the lower-paid immigrants washing the dishes and chopping the onions as native Americans have a language advantage over immigrants.

The benefits of immigration really come from occupational specialization. Immigrants who are relatively concentrated in less interactive and more manual jobs free up natives to specialize in what they are relatively good at, which are communication-intensive jobs. According to research; raising the share of less-skilled immigrants in the population by one percentage point increases the high school completion rate of Americans by 0.8 percentage point, on average, and even more for minorities.

If there is anything to fear for the Americans, it is that too few low-skilled immigrants may be willing to come and work in the US as there is an employment hole to fill in the future.

This article has a relationship between both law and business; the (illegal) immigrants that are necessary in the United States – according to this article – have a connection with the laws the American system drew up to limit immigration and protect American workers. The suitable work the immigrants can do, require a low educational level. That means the immigrants could do the work the Americans – who have a rather high educational level compared to the poor countries – refuse to do. The immigrants do work as cleaning, farming, food preparation etc. As result, buying these products and services are relatively cheap. The American policy makers should take all these facts in consideration when making decisions.

I find this article really interesting as I’m interested in the United States and their way of behaving. Even more after Trump became the president of the United States. I have heard a lot of commotion about immigrants in the US and I took interest in this article as soon as I read the title.

National Legal System Analysis

Country Information

The country that I’m analyzing is Spain. The official name of Spain the Kingdom of Spain and is located in South-Europe (Nationsonline, n.d.). After the death of General Francisco Franco in 1975, the dictatorship in Spain ended and it became a democratic state.

Spain is a parliamentary monarchy, based on parliamentary representation. The King, Felipe VI, is the head of the Spanish state. He represents the state, the unity and continuity of its institutions. The Spanish state’s power is divided between the legislative, executive, and judiciary powers. The executive power of the state is exercised by the government. Which consists of the prime minister, ministers, and other members. (Tapia del Campo, 2017) The prime minister of the Spanish state is Mariano Rajoy.(BBC, n.d. )

The Spanish Constitution was approved by the Spanish King in December 1978. It is the current supreme law of the Kingdom of Spain. (Congreso, 1978) Under the Spanish Constitution, the freedom to practice religion is a guaranteed right. Although there is no official state religion, the government and taxpayers allocate some financial recourses to the Catholic church. Between 70% and 75% of the Spanish population identify as Roman Catholic Christians. (Pariona, 2017)

International Disputes

A selection of international disputes of Spain are: (Globalsecurity, n.d. )

o In 2002 Gibraltar residents voted overwhelmingly by referendum to reject any ‘shared sovereignty’ arrangement – the government of Gibraltar insists on equal participation in talks between the UK and Spain. Spain disapproves of UK plans to grant Gibraltar greater autonomy.

o Morocco protests Spain’s control over the coastal enclaves of Ceuta, Melilla, and the islands of Penon de Velez de la Gomera, Penon de Alhucemas, and Islas Chafarinas, and surrounding waters; both countries claim Isla Perejil (Leila Island)

o Morocco serves as the primary launching site of illegal migration into Spain from North Africa

o Portugal does not recognize Spanish sovereignty over the territory of Olivenza based on a difference of interpretation of the 1815 Congress of Vienna and the 1801 Treaty of Badajoz

Treaties

Spain signed a number of treaties in the last century. The most important ones are:

o Spain became part of the United Nations in 1955; 10 years after it was originally created. (UN, 2018)

o World Trade Organization 1994: WTO replaced GATT that Spain signed in 1963. (WTO, n.d.)

o Contracts for the International Sales of Goods 1991: an UN treaty related to purchase agreements (CISG, 2015).

Spain has been a member of the EU since 1986. The EU has free trade agreements with other economic associations (European Free Trade Association (EFTA)) and countries providing a higher level of mutual market access. (Export, 2017)

Court System

According to the 1978 Constitution; the judiciary is independent and subject only to the rule of law (Nationencyclopedia, 2018). The supreme governing and administrative body is the General Council of the Judiciary. Its primary functions are to appoint judges and to maintain ethical standards within the legal profession. The Constitution prescribes that twelve of this council’s twenty members are to be selected for five-year terms by judges, lawyers, and magistrates, with the remaining eight to be chosen by the Cortes. The ‘Cortes Generales’ is the Spanish parliament.

Constitutional queries and disputes are to be resolved by a special Constitutional Court. This court consists of twelve judges who serve for nine-year terms. They are chosen from among jurists of recognized standing with at least fifteen years’ experience. Once appointed, they are prohibited by the Constitution from engaging in other forms of political, administrative, professional, or commercial activity. The constitution of 1978 also established the twelve-member Constitutional Court (Tribunal Constitucional), with competence to judge the constitutionality of laws and decide disputes between the central government and the autonomous regions (Countrystudies, n.d. )

The highest judicial body is the Supreme Court (Tribunal Supremo). It is situated in the capital of Spain; namely Madrid. (Expatfocus, n.d.) The president of which is nominated by the 20 judges of the General Council of the Judiciary and appointed by the king. The Supreme Court is formed by its President, Deputy President, President of the five chambers, and the 84 senior judges. (Europeanlawinstitute, n.d.)

Territorial high courts (Audiencias) are the courts of last appeal in the 17 regions of the country; provincial Audiencias serve as appellate courts in civil matters and as courts of first instance in criminal cases.

On the lowest level are the judges of the first instance and instruction, district judges, and justices of the peace.

The National High Court (Audiencia Nacional), created in 1977, has jurisdiction over criminal cases that transgress regional boundaries and over civil cases involving the central state administration.

The European Court of Human Rights is the final arbiter in cases concerning human rights.

Defendants in criminal cases have the right to counsel at state expense if indigent. The constitution prohibits arbitrary arrest and detention. Suspects may be held for no more than three days without a judicial hearing.

A jury system was established in 1995, and a new penal code was enacted in 1996.

The constitution provides for the right to a fair public trial and the government respects this provision in practice.

Legal Profession

In Spain, a legal profession means a profession that can only be practiced by someone who has undergone special legal training. Given that their work has to do with applying the law.

The main professions in Spain are judges (jueces) and senior judges (magistrados), public prosecutors (fiscales), notaries (notaries), court registrars (letrados de la administración de justicia), lawyers (abogados), land and business registrars, and legal representatives (procuradores). (e-justice.europa, n.d.)

Law Enforcement

The Spanish police consists of three different forces: Civil Guard (Guardia Civil), the National Police (El Cuerpo National de Policia), and Local Police (Policia Local). (Latorreinfo, n.d.)

The police forces often have overlapping roles. The government plan to improve the three forces coordination. To improve use of skills and resources.

Civil Guard: They are Spain’s conventional police force who are organized along paramilitary lines and controlled by the Ministry of the Interior. They operate likely to a military group: they live, breath, and sometimes die for the job. They were known for being very strict while Franco was the leader, but now they’re one of the world’s most efficient police forces and have a reputation for honesty and courtesy.

National Police: The national police are the countrywide urban police agency of Spain. They are under the authority of the Ministry of the Interior. If there is a big problem, like terrorist activities, the National Police will take the lead.

The National Police ‘replaced’ the loathed ‘armed’ police (during Franco). The armed police were much hated and feared by the Spanish population. But after the ‘replacing’, the National Police are now quite popular.

Local Police: Also known as the Policia Municipal. This is the force that is recruited, funded, and controlled by the town council or town halls. This force is as report into the elected mayor. Additionally, they are responsible for local crime and are usually first on the scene as crime is reported. However, the Local Police do not have the right resources, nor the time to deal with these local crime. That is why they often hand crimes over to the Civil Guard. (Spanishvida, n.d.) They are known as the most sympathetic Spanish police force. However, there are some exceptions. In some towns, the local police are heavy-handed and can be a las unto themselves and are not averse to using illegal methods.

The Spanish police is in general extremely helpful and will go out of their way to offer assistance. However, there are still corrupt policeman who are involved in drugs, prostitution, and other organized crime.

Reflection

I visit Spain regularly and have seen and experienced the country. I thought that my knowledge no the legal system was very limited. I thought I did not know any information about the legal system. I am already interested in the country and this persuaded me to analyze Spain. As I was preparing for this report, I realized that I may have known more than I thought. I already knew a lot of the law enforcement and the country information.

I think some subjects of Spain’s legal system are relatable to the legal system of the Netherlands. It has the same type of government; both countries have a king as head presentative and the executive power is the government. Therefore, I find the legal system easier to understand.

With Spain’s different courts I think the legal system is well organized. It is clear which court handles what kind of cases. To understand these courts better, you can find many information sources online. This makes the legal system of Spain transparent.

Spain is dependent on the European Union as some legal decisions need to be discussed with the EU, but apart from that Spain is independent. Most of the decisions are made by only the executive power and no other parties are involved.

Case Note

Computer Support Services Inc. V. Vaccination Services of America Inc.

(Blackboard, 2017)

The case is decided in the Nebraska Court of Appeals. The appeal is from the District Court for Douglas County by Judge Horacio J. Wheelock. The two parties involved are ‘Computer Support Services, Inc., doing business as Cyzap’ and ‘Vaccination Services of America, Inc., doing business as Total Wellness.’

o Appellant and Cross-appellee: Cyzap

o Appellee and Cross-Appellant: TotalWellness

Issue

The issue is that TotalWellness refused to pay Cyzap $45.500 for the liquidated damages that occurred when TotalWellness immediately terminated the contract in 2013. It is stated in an Agreement that both parties signed, that this is an early termination and TotalWellness owned Cyzap liquidated damages. However, according to TotalWellness, TotalWellness signed the Agreement under duress and that the Agreement should be invalid.

There are multiple reasons why this case is considered important.

1. The case endured for four years. At first, a complaint by Cyzap was filed in the district court and TotalWellness reacted and filed a counterclaim. As result, the problem concerning the Agreement was not solved by the district court in 2012.

Years later in 2016, a summary judgement hearing was held. In this hearing, the court found that the Agreement was enforceable. As a result, Cyzap appeals and TotalWellness cross-appeals.

2. At the end of the case, both parties were granted by the district court in the summary judgement. It is rare that both parties are granted by a district court.

Facts

The case took place in the Nebraska Court of Appeals and consists of two phases.

The first phase occurs in the district court at the end of 2013. Cyzap filed a complaint for the “Early Termination” of TotalWellness. A month later, TotalWellness filed an answer and a counterclaim.

The second phase is a summary judgement hearing in 2016. Cyzap filed a motion for summary judgement. A few weeks later, TotalWellness as well filed a motion for summary judgement. At the hearing, each party offered their exhibits which showed the history between the parties their business relationship. The exhibits showed the terms of the Agreement and it provided a calculation of the liquidated damages incurred by Cyzap after the early termination.

On October 1, 2012, Cyzap agreed to provide TotalWellness information technology services and support. This is all determined in a System License and Service Agreement. To terminate this Agreement after the first term, either party has to notify the other party on or before June 1, 2013. Within this deadline, neither party terminated the Agreement and the contract is renewed.

However, on September 3, 2013, TotalWellness sent Cyzap a letter admonishing that TotalWellness was terminating the Agreement immediately. According to the Agreement this is called an “Early Termination”. As result, on November 21, 2013, Cyzap filed a complaint in the district court alleging that TotalWellness owns them $45.500, – in liquidated damages. As response, on December 20, 2013, TotalWellness filed an answer and a counterclaim. Therein, TotalWellness denied that it owed Cyzap money and it alleged that TotalWellness signed the Agreement under duress. Furthermore, TotalWellness asked to be awarded the difference between the fair market value of the service it received from Cyzap and the $3.500, – per months it had paid to Cyzap. This amount would be $34.100, -.

After a few years, in 2016, both parties filed a motion for summary judgement. At the hearing, each party had shown exhibits.

Theory

District Court: A designation of an inferior state court that exercises general jurisdiction that it has been granted by the constitution or statute which created it. A state district might determine civil actions between state residents based upon contract violations or to tortious conduct that occurred within the state. (Legal-Dictionary, 2018)

 The case between Cyzap and TotalWellness is decided by the district court.

Duress: Such constraint or coercion as will render void a contract or other legal act entered or performed under its influence. (Dictionary, 2018)

 In the counterclaim of TotalWellness in 2013, they stated that TotalWellness signed the Agreement under duress.

Business Venture: Start-up entity developed with the intent of profiting financially. Many ventures will be invested in by one or more individuals or groups with the expectation of the business bringing in a financial gain for all backers. (Businessdictionary.com)

 TotalWellness started a new business venture in 2009. It is called the “Health Risk Assessment.” For this project, Cyzap was asked to provide information technology services to support this venture. Both parties signed a written contract.

System License and Service Agreement (The Agreement): This is an agreement between the companies Cyzap and TotalWellness. It contains information about the conditions for terminations. Furthermore, the services that both parties are obliged to perform are mentioned.

 This Agreement is the focus of the current appeal.

The Hosting and Support Term: This term indicates the time of the first contract of the Agreement. The Agreement began on October 1, 2012, and continued for 12 months from that date. The Agreement would be renewed for a consecutive 12-month term, unless either party notified the other party 120 days prior to the end of the original term. The end term would be June 1, 2013.

 TotalWellness decided to end the contract after the deadline of June 1, 2013. It is an early termination and that means that TotalWellness decided to ignore the rules of The Hosting and Support Term.

Terminate: The termination of a contract signifies the process whereby an end is put to whatever remains to be performed thereunder. (Legal-dictionary, 2018)

 In 2013, TotalWellness notified Cyzap that they were terminating the Agreement. This is an early termination and as a result, Cyzap filed a complaint in the district court.

Liquidated Damages: Sum of money – agreed to and written into a contract – specified as the total amount of compensation an aggrieved party should get, if the other party breaches certain part(s) of the contract. (Businessdictionary, Businessdictionary, 2018)

 The Agreement provided that TotalWellness could terminate the Agreement at any time. However, if it was an early termination, TotalWellness would owe Cyzap liquidated damages.

 In section 9.1.1. of the Agreement, the calculation of the liquidated damages is explained.

Counterclaim: An opposing claim. Especially a claim brought by a defendant against a plaintiff in a legal action. (Merrriam-Webster, 2018)

 As reaction to Cyzap filing in a complaint in the district court, TotalWellness filed an answer and a counterclaim.

 In the counterclaim, TotalWellness denied that it owed Cyzap money. According to TotalWellness, the Agreement was void because TotalWellness signed the Agreement under duress. Additionally, TotalWellness alleged the monthly fee that Cyzap charged TotalWellness under the Agreement was unconscionable. Therefore, TotalWellness asked that it be awarded with $34.100.

Motion: A written, or oral application made to a court or judge to obtain a ruling or order directing that some act be done in favor of the applicant. (Legal-Dictionary, 2018)

 In 2016, both Cyzap and TotalWellness filed a motion for summary judgment.

Summary Judgement Hearing: A procedural device used during civil litigation to promptly and expeditiously dispose of a case without a trial. It is used when there is no dispute as to the material facts of the case and a party is entitled to judgement as a Matter of Law. (Legal-Dictionary, 2018)

 Both Cyzap and TotalWellness filed a motion for a summary judgement in 2016.

 At the Summary Judgement Hearing, each party offered exhibits that detailed the history between the parties.

Affidavit: A written statement of facts voluntarily made by an affiant under an oath of affirmation administered by a person authorized to do so by law. (Legal-Dictionary, 2018)

 During the Summary Judgement Hearing, Cyzap presented evidence that $3.500 per month was a reasonable fee for the serviced provided to TotalWellness.

 Cyzap’s president Khurana stated in his affidavit that the costs for Cyzap providing these services, the costs were thousands of dollars higher.

 Furthermore, Khurana stated in his affidavit that the monthly fee became higher after the end of the Partnership, because the revenues associated with the Partnership were sufficient to cover the costs associated with providing the Hosting and Support Services.

Windfall: A sudden of unexpected gain or advantages. Often financial. (Translegal, 2018)

 TotalWellness alleged that the $45.500 for liquidated damages provided Cyzap much more compensation than any losses the company actually suffered as a result of TotalWellness’ decision for terminating the contract.

 The district court answered with the fact that the liquidated damages are not intended to provide a windfall and that is not the case this time.

Penalty: A punitive measure that the law imposes for the performance of an act that is proscribed, or for the failure to perform a required act. (Legal-Dictionary, 2018)

 The district court concluded that Section 9.1.1. of the Agreement constitutes an unenforceable penalty provision and not a liquidated damages clause.

Voidable: Capable of being nullified or invalidated. (Dictionary, 2018)

 In the cross-appeal, TotalWellness alleged that the contract was signed under duress and thus unconscionable.

 The Agreement cannot be voidable only because of duress. The Agreement must not only be obtained by means of the pressure brought to bear, but the agreement itself must be unjust, unconscionable, or illegal.

Renegotiate: To negotiate again.

 After the Partnership ended in 2012, Cyzap notified TotalWellness that renegotiation for the monthly fees were necessary. However, TotalWellness never participated in such negotiations. Instead, Cyzap determined that it could no longer provide the services to TotalWellness for a fee of $400 per month and it suspended the services. Because there was no contractual obligation to continue to provide these services, Cyzap had a legal right to discontinue providing the services.

 However, no evidence was shown about these events in the Summary Judgement Hearing in 2016.

The Legal Issue

1. Is the Agreement between both parties enforceable?

2. Did TotalWellness breach Section 9.1.1. of the Agreement?

3. Does TotalWellness have to pay the liquidated damages?

a. Is the contract invalid since the contract was signed “under duress”?

b. Is the amount asked for the liquidated damages too high?

Applicable Law

Cases

1. Oldfield v. Nebraska Machinery Co., 296 Neb. 469, ___N.W.2d___ (2017)

LAW APPLIED: An appellate court will affirm a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law.

While the appellate court was reviewing the summary judgement, the appellate court viewed the evidence in the way most favorable to Cyzap and it gives Cyzap the benefit.

2. Berens and Tate, P.c. V. Iron Mountain Information Management, Inc., 275 Neb. 425, 747 N.W.2d 383 (2008)

LAW APPLIED: The question whether a sum mentioned in a contract is to be considered as ‘liquidated damages’ or as a ‘penalty’ is a question of law, dependent on the construction of the contract by the court.

Cyzap argues that the district court did not need to analyze this appeal under the rubric of whether section 9.1.1. is a liquidated damages clause or an unenforceable penalty provision. According to Cyzap, TotalWellness never breached the Agreement. Cyzap states that TotalWellness terminated the Agreement “early”, because TotalWellness was permitted to terminate the Agreement at any time.

However, the district did not agree with this argument.

3. Kozlik v. Emelco, Inc., 240 Neb. 525, 483 N.W.2d 114 (1992)

LAW APPLIED: The reasonableness of the stipulated damages can be judged as of the time the contract was formed. The Supreme Court has consistently upheld the right of contracting parties to privately bargain for the amount of damages to be paid in the event of a breach of contract, provided the stipulated sum is reasonable in light of the circumstances.

The Supreme Court of the case said that figuring out the right sum for liquidated damages is difficult to be sure of. It is difficult to know if the amount stipulated is either reasonable estimate of the damages which would ‘probably’ be caused by a breach or is reasonably proportionate to the damages which have ‘actually’ been caused by the breach.

Administrative Provisions

1. Liquidated Damages Provision

LAW APPLIED: Liquidated damages provision specifies a predetermined amount of money that must be paid as damages for failure to perform under a contract. The amount of the liquidated damages is the best estimated amount at the time both parties sign the contract of the damages that would be caused by a breach. However, if the predetermined amount of damages ends up grossly disproportionate to the actual harm suffered, courts will refuse to enforce the provision on the grounds that it is a penalty instead of an estimate of actual damages. (Fitzgerald, 2018)

2. Hosting and Support Provision

LAW APPLIED: Herein, it is said that TotalWellness will owe Cyzap the balance amount which be the total of the monthly fees owed by TotalWellness at the time of such termination multiplied by the total number of months remaining in the current term.

3. Penalty Provision

LAW APPLIED: A provision in a contract providing for a form of punishment such as a fine or forfeit for not fulfilling the contract. (Collinsdictionary, 2018)

The district court determined that section 9.1.1 of the Agreement constituted an unenforceable penalty provision and, as a result, granted summary judgment in favor of TotalWellness on this issue.

The Decision

The district court determined that the liquidated damages provision was an unenforceable penalty and granted summary judgement in favor of TotalWellness.

Additionally, the district court as well granted summary judgement in favor of Cyzap on TotalWellness’ claims that the Agreement between the parties was invalid due to duress. As a result, Cyzap was enriched by the monthly fees paid by TotalWellness. The total amount of $45.500. The court found that the agreement between Cyzap and TotalWellness was enforceable and that TotalWellness’ claims failed as a matter of law.

Concerning the laws the district court applied, the court decided to include the law applied in the ‘Oldfield v. Nebraska Machinery Co., 296 Neb. 469, ___N.W.2d___ (2017)’ case. The case was viewed in the way most favorable to Cyzap and Cyzap was paid the $45.500 in liquidated damages. In addition, the district court decided that TotalWellness breached the contract and the sum mentioned in the contract is viewed as a penalty. The court decided this with the law used in the ‘Berens and Tate, P.c. V. Iron Mountain Information Management, Inc., 275 Neb. 425, 747 N.W.2d 383 (2008)’ case. The last case used in the decision of the district court is the ‘Kozlik v. Emelco, Inc., 240 Neb. 525, 483 N.W.2d 114 (1992)’ case. According to the Supreme Court of Nebraska, it is difficult to figure out the right sum for liquidated damages. However, the evidence Cyzap that had been shown in the summary judgement hearing, convinced the district court that $45.500 was the right amount since it did not even cover the real damages that have occurred due to TotalWellness’ early termination. Lowering the amount would be unfair opposed to Cyzap. The district court did not ignore any laws in the cases referred to in the case.

As for the provisions, the district court decided to apply the laws applied in the ‘Liquidated Damages Provision’ and the ‘Hosting and Support Provision. The predetermined amount per month is the amount that TotalWellness has to pay, that means $3.500 per month multiplied by 13 months. Additionally, the district court decided to ignore the ‘Penalty Provision’ since the district court determined that section 9.1.1. of the Agreement constituted an unenforceable penalty provision. Conclusion

At the start of the review, I had a hard time understanding the case. There were words I did not initially understand and the formal way the case was written made it even more difficult. However, after writing the theory part, I began to understand. When I passed the phase of misunderstanding the case, I began to enjoy writing this case note. I find assignments concerning legal issues very interesting. It made it easier to work on the assignment.

Deciding the final judgement seems difficult regarding this case. TotalWellness alleges that the Agreement should not be valid since it is signed under duress. However, I personally think that it is odd since TotalWellness notified this fact years later after signing the contract. In addition, less problems would have occurred if TotalWellness ended the contract in July 2013, instead of September 2013. The difference is two months and if TotalWellness took better notice of this, there would not be a case running for 4 years.

Therefore, I find it equitable that TotalWellness has to pay the $45.500 in liquidated damages. I do not know if the Agreement was actually signed under duress by TotalWellness, but it is clearly stated in Section 9.1.1. in the Agreement that liquidated damages need to be paid. Hence, I agree with the district court.