Business Law and Ethics|Legal Underpinnings of Business Law

images (5)  Today it is apparent that businesses in the United States have had problems with their owners’ and managers’ practices of being transparent and free from fraudulent activity concerning  dealings with partners, employees and consumers. It is the case, that many people have been harmed because of a business collapse under unethical leadership tactics.

In explanation, of unethical leadership tactics within a company the repercussions of such activities can be detrimental to not only consumers, but investors and employees. In preparedness for these kinds of situations the United States Congress has developed, and passed laws to thwart shady dealing by shady corporations; such as the Dodd-Frank Wall Street Reform and the Consumer Protection Act of 2010; as well as, the Consumer Financial Protection Bureau [CFPB] which for all purposes as noted by Seaquest (2012), “Increased oversight of the financial industry and was a preventative measure to risk taking and deceptive practices in areas such as mortgage lending” [The Regulatory Environment Section; para 1].

Concerning regulating the business environment –standards have been set that would protect both business and consumer. In this article, however, the businesses are deemed small and there is discussion of the Tinker and Taylor’s Home Security Service owners who have taken on certain business titles and by law have specific responsibilities when they breach a contract; such as is found in (a) Sole Proprietorship, (b) General Partnership, (c) Limited Partnership [LP], (d) Corporation [Corp], and (e) Limited Liability Company [LLC].

In business law, both parties enter into a contractual or verbal  agreement which says that Tinker’s Home Security Service install their systems free and monitor them monthly for a standard cost of 48.00 plus applicable sales tax per state allowance. In the first analogy of sole proprietorship Tinker and Taylor’s Home Security Service is being sued. Here are the problems with sole proprietorship as determined by the people at SBA.gov (2014) who state the disadvantages are that they could face sole liability (SBA, 2014) which makes sense since they own the business by and for themselves.

Here are the disadvantages to starting this type of business, but can also suffice to conditions that they could face in court:

  1. Unlimited personal liability. Because there is no legal separation between you and your business, you can be held personally liable for the debts and obligations of the business. [In this case, a suit takes money to defend oneself, that is, in the case of obtaining an attorney].
  2. Hard to raise money. Sole proprietors often face challenges when trying to raise money. [In this case, a sole proprietor’s money is not separated from home and business in the instance of cash flow. In essence, most people who own such businesses could consider this business their sole livelihood so extra money for court fees, unless, the owner sues a customer is out of pocket].
  3. Heavy burden. The flipside of complete control is the burden and pressure it can impose. You alone are ultimately responsible for the successes and failures of your business. [Hence, it is the case that a failure for the business could be a law suit which can impose harm to the business; such as damages paid out] [Disadvantages proprietorship Section] [Emphasis added].

In the case of the General Partnership for Tinker and Taylor’s Home Security Service establishing the business was relatively an easy one there was not application with the state and all was needed was for the partners basically to know how to install the systems, however, since the suit is against them the partners cannot agree to which the suit should attributed. After all they are both owners of the entity and since both own both are responsible. There are risks that can be gathered here, or rather, be taken heed of for future reference. In the article, “Sole Proprietorship and General Partnerships are Risky Business” the pronunciation of the risk stated, “If you are a co-owner of a business, and you have not formally created a corporation, LLC, limited liability partnership, limited partnership, or a limited liability limited partnership, you are operating a general partnership. This means that you have unlimited, personal liability for all of the businesses debts, including the acts of employees. In addition, in a general partnership, you also have unlimited, personal liability for the acts of all of the other owners” [Partnership Liability is a Major Risk Section; para. 1]. Therefore, the risk of being General Partner is provoked in the lawsuit. It is the case, that the acts or non-acts of either are the responsibility of both.

For example, in the initial installation of the alarm Partner 1 damages a wall in the home of the consumer and does a shabby job with the alarm so that he malfunctions often. Partner 2 states that damage to the wall is not his responsibility since he did not do the installation because Partner 1 took the call and the repair to the wall should come from Partner 1 since he started the business. Partner 1 screams that he cannot afford such a hit on his already taxed expenses and so forth. In reality Partner 1 did the damage, but since they are partners the damage belongs to both.

In review of the Limited Partnership [LP], the owners of the Tinker and Taylor’s Home Security Service the lawsuit may be more favorable. In this instance what comes to mind would be a sign to tell consumers that ‘Owners are not responsible for damage resulting from installation’ or something more outstanding to inform the customer that basically they are not paying for it, and for this reasons consumers’ should beware of getting professional help. However, if one knows their neighbor is good at what he does who needs assurance? So here is a good reason for a more acceptable outcome in court, according to Stephanie Morrow (2005), author of the article “LLC or LP: What’s Best for Your Business?”

She wrote:

An LP has one or more general partners and one or more limited partners. The general partners participate in management and have 100% liability for partnership obligations. Limited partners cannot participate in the management and have no liability for partnership obligations beyond their capital contributions, protecting them against personal liability for the partnership’s debts and other obligations. They do, however, receive a share of the profits for their involvement as limited partners. Many partnerships are formed as LPs because the limited liability is attractive to passive investors. It is often easier to market limited partner interests as an investment and general partners can raise money without involving outside investors in the management of the business. Assets are also protected in an LP. Unlike a corporation, which allows a shareholder’s stock to be confiscated in a personal lawsuit, an LP has provisions that protect a partner’s interest from being taken away when that partner is sued personally [What is an LP Company Section; para.1].

In essence, in a limited partnership the implications here are that there is no liability beyond that of their contributions. In other words, shareholders have no say in the functioning of management from day to day. Hence, for the Tinker and Taylor’s Home Security Service their breach of contract lies with the owners, Tinker and Taylor not the members who contribute and neither their investment in the company as stated above. For example, Partner 1 is accused of defrauding the customer in their free installation agreement and receives a bill that ultimately goes unpaid and is now on the customer’s credit is not the fault of the partners who have limited claim to the company but the actual owners.

Tinker and Taylor’s Home Security Service, as a Limited Liability Company [LLC] and a Corporation are similar, in that a Limited Liability Company has some of the same exact features as a Corporation, but the question is would how would a breach of promise affect the LLC, or would the two be affected the same? In an LLC company Morrow (2005) wrote:

An LLC is a hybrid business organization that mixes the best of corporations, partnerships, and sole proprietorships. Each owner (also called a member) of an LLC has limited liability like a stockholder of a corporation. LLCs allow any entity, including individuals, partnerships, trusts, estates, corporations, or other LLCs to be owners. They also offer greater flexibility than corporations—like no limits on the number of members—yet they have the tax advantages of a partnership, such as pass-through taxable income and losses [What is a Limited Liability Company? Section; para.1].

So it is fair to say that as an LLC all members are not privy to lawsuits. In essence, we can see that in larger corporations although managers in smaller entities might be privy to lawsuits not all of the players are included in these, such as breach of contract. However, big corporal giants can be included in class action suits such as discrimination and some class action suits are privy to lawsuits such as overcharges and overbilling; however, one might need to narrow down the identity clause there and go after individuals, because identity is difficult to prove with larger corporations seeing there are many business inside the one entity.

There are several descriptions related to the lawsuit against Tinker and Taylor’s Home Security Service and their different establishments; as well as their approach to the breach of contract  suit which in review of the outcome notes that (a) for sole proprietor there will be loss in consideration to damages, (b) the general partnership has as much responsibility to damages in a law suit even if the blame is caused by an employee whether of acts or none acts of the company both partners are held accountable, (c) for LP the liability is more favorable for the partners in that they are more protected, however, the owners are still held accountable, and (d) LLC and Corporations, as mentioned, are not all privy to lawsuits because not all partners are involved as like investor, or rather silent partners. However, there can still be suits brought against individual companies or those who own them. In essence, the outcome here is that sole proprietorship and general partners is taking on a huge risk.

 

Watch: The Secret to Starting a Small Business Online

 

Sources:

Sole Proprietorship and General Partnerships are Risky Business. Business Owner’s Toolkit.

 Corporation Definition

Choose Your Business Structure.

Seaquist, G. (2012). Business law for managers. San Diego, CA: Bridgepoint Education, Inc.

 What’s Best for Your Business? 

 

 

 

 

 

 

 

 

Crime and Business: Negligent Tort

 

CarOn June 29, 2014, the General Motors Company recalled thousands of vehicles which are said to have faulty mechanics and parts which have led to or have been the cause of serious or fatal injury to consumers.

The models affected are: 1997-2005 Chevrolet Malibu; 1998-2002 Oldsmobile Intrigue; 1999-2004 Oldsmobile Alero; 1999-2005 Pontiac Grand Am; 2000-2005 Chevrolet Impala and Monte Carlo; 2004-2008 Pontiac Grand Prix. The problem?  Reportedly, the ignition key can be bumped out of run position while driving [See: CNN Report| Every General Motors recall in 2014], and it is estimated that as many as 7,610,862 million vehicles are at risk nationwide. Consequently, as noted in news reports there is negligence on behalf of the GM employees; as well, as their CEO, Mary Barra who is accused of covering up faults in the installation of ignition switches the vehicles. This article will show where corporations, notably General Motors, failed or are neglectful and which might reportedly have led to civil action suits against them; hence, the elements of discussion are:  (a) Duty of Care, (b) Standard of Care, (c) Breach of Duty of Care, (d) Actual Causation, (e) Proximate Causation, (f) Actual Injury, and (g) Defenses to Negligence.

The General Motors Company apparently is no stranger to such recalls as this, however, not to such a magnitude because according to the list there have also been a number of recalls; not only for June, but also beginning with February 2014 through September 2014. According to Seaquist (2013) there are at least involved in the Duty of Care, or Reasonable Personal Standard (Seaquist, 2013) which speaks of the standard of behavior expected of a person in a particular situation. For example, there are at least 230 [including fifteen fired] employees accused in the suit, and as mention the CEO.

The article, “GM Admits Incompetence, Negligence Led to Delayed Recall,” disclosed GM’s lack of Duty to Care:

Last month, GM paid a $35 million fine — the largest ever assessed by the National Highway Traffic Safety Administration — for failing to report the problem quickly to federal regulators. GM knew about problems with the ignition switches as early as 2001, and in 2005 it told dealers to tell owners to take excess items off their key chains so they wouldn’t drag down the ignition switch. In 2006, an engineer at GM approved a change in the switch design, but didn’t inform the government or change the corresponding part number. In subsequent years, that made it harder for other GM engineers to figure out why older Cobalts’ performed worse than newer ones (The Associated Press, 2014).

In this case, there is a burden of proof for the defendants for them to prove that they are not negligent, according to Seaquist (2013) who wrote concerning the Statutory Duty of Care.

There certain elements:

  1. Defendants have burden of proof to prove they were not negligent.
  2. Plaintiff must prove that the defendant failed at the duty of care.

There is also the element of Foreseeability [actual causation] and Proximate Causation which is direct causation, or the breach of the Duty of Care, or rather the circumstance of negligence which caused the injury and this includes foreseeability which begs the question of whether the defective part was known beforehand. In essence, knowing the part was faulty, and also knowing the consequences beforehand; yet, still allowing the cars out for sale causing injury to consumers (Seaquist, 2014).

Here is the premise, for example, is it foreseeable that people who buy cars have a tendency to add other objects to their key rings, and can be a problem with an already faulty ignition switch? According to the Associated Press article, GM knew and yes they knew there would be a problem, because they apparently recalled vehicles before for the same thing:

A new article stated, “In 2006, an engineer at GM approved a change in the switch design, but didn’t inform the government or change the corresponding part number. In subsequent years, that made it harder for other GM engineers to figure out why older Cobalts performed worse than newer ones. In May, GM recalled another 2.7 million vehicles for various issues. The bulk of the recall was for Chevrolet Malibu cars from 2004-2012 as well as the 2004-2007 Chevrolet Malibu Maxx, 2005-2010 Pontiac G6 and 2007-2010 Saturn Auras, all to modify the brake lamp wiring harness” [The Associate Press, 2014].

The last thing on the list to find negligence on the part of the manufacturing company General Motors is the industry of care which would give reference to expert opinion. Notably, there were also investigations initiated in notice of interviews, and firings which subsequently resulted from those. In the article, “General Motors releases delayed recall investigation, cites negligence and incompetence” Barra reports the finding of the experts in the scandal. The Daily News stated, “In 2006, GM engineer Ray De Giorgio – who designed the switch – approved a change in the switch design, but didn’t inform the government or change the corresponding part number. In subsequent years, that made it harder for other GM engineers to figure out why older Cobalts performed worse than newer ones. Barra confirmed Thursday that two employees placed on leave in April have been fired; De Giorgio was one of those employees.” (The Daily News, 2014). Hence, the manufacturer is in a jam as far as the defendant proving lack of neglect, because they have admitted their part, and as the article stated paid a hefty fine as a result.

Some forms in Defense of Negligence are: (a) Contributory negligence, (b) Comparative negligence or assumption of risk, and (c) Pure Contributory Negligence. The first contributory is where the plaintiff along with the defendant is responsible. In essence, as Seaquest (2013) noted about the snow on the walk, that is yes it is the business owners duty to make sure the snow is shovel, however, if there is snow on walk why did the plaintiff walk on it.  Could he have gone around? Did the customer have to use that business? Who knows? Hence both have a part, although the defendant might owe the greater responsibility for the injury because he did not shovel the walk (Seaquest, 2013). Secondly, Comparative Negligence would stem from the plaintiff help with his injury. Hence, if the defendant sued for two million dollars, and a jury decides that the plaintiff should pay a portion then that total is subtracted from the total award and the plaintiff wins the remained. In example, 2 million – plaintiff deduction/part = remaining award. In the Pure Comparative, the law agrees that the irresponsible party wins something no matter if the accident was caused by the defendant; however, the plaintiff’s award is greater.

Concerning Consumer Protection [ which is mentioned briefly], it is all important and is law which protects customers from harm. Seaquist (2013) wrote:  Strict Liability in Tort In contrast with absolute liability, strict liability is a recently developed theory in law that holds manufacturers, wholesalers, and retailers liable for defects in the design or manufacturing of products that render such products unreasonably dangerous to the intended users (Seaquest, 2014). Consequently, GM has to face Congress on their negligent acts and failure to protect the public they serve [Read: General Motors executives to face Congress over car recall scandal]  in their efforts or lack of thereof in keeping their Duty of Care.

 

 

Sources:
LIABILITY OF AUTOMOBILE MANUFACTURERS FOR UNSAFE DESIGN OF PASSENGER CARS

Business law for managers. San Diego, CA: Bridgepoint Education, Inc.

General Motors releases delayed recall investigation, cites negligence and incompetence

GM Admits Incompetence, Negligence Led to Delayed Recall. Mashable. Business

Money Every General Motors recall in 2014 

Crime and Business: Murder In the Name of Business

images (2)The topic of crime and business is an interesting one and one cannot even fathom that there are people in business that would actually kill for whatever cause, but one cannot fathom even more the idea of killing for money which is probably why someone would kill. Hence, the idea of murder in the corporate is best believed in Hollywood. However, according to the New York Times, this idea is being given more of a consideration than in the past, because seemingly, courts have struggle with the premise that the corporation as living and breathing. Yet, their acts, as such, should find someone to blame.

E.R. Shipp (1985) wrote:

For years, the courts rejected the notion that a corporation could be charged with a crime. Since it had no mind, it could not be said to have had intent. Gradually it was accepted that a corporation can be held criminally liable for the conduct of agents acting as employees, or for violations of antitrust or regulatory laws. But the idea of corporate ”personhood” stopped short for murder – the killing of one person by another. (Shipp, 1985, para. 1).

I can look at the healthcare industry as a corporate entity and say that many people have been murdered because of intentionally sending people home to die this act being a crime against society. In this instance, the corporation is a privately owned medical facilities, or rather, for profit medical entities. By intent as Seaquist (2013) wrote, that intent does not mean that the harm was intentional,” but that there was harm done which caused damage (Seaquist, 2013). However, one can still say that there is intent when someone is sent home while hospital knows that surgery is of the utmost importance in whether a person lives or dies.

For example, a woman has a heart attack for the third time, and the doctors knowing that she has blockage in her heart that can ultimately kill her decide that because she had no insurance send her home with pills that they tell her will dissolve the clot. This is not malpractice in the sense that no treatment is done, but an intent that would cause harm had the woman died. However, she is alive and well today thanks to healthcare reform which allows all people adequate care without being turned away for inability to pay. Hence, had the woman died, in my opinion this would be a crime, not only against her but against society; in which, she is not the only one with that experience.

Today what would be the legal grounds involved if the perhaps a death or injury claim is brought forth by the family since this type behavior is illegal? Well for one it is a breach of the First Amendment. [See: You're on the clock: Doctors rush patients out the door].

As far as crime against business, I think stealing from the company is a crime. Stealing, as Seaquist (2013) stated is conversion. She wrote: “If the defendant interferes with someone’s personal property to such a degree that it is ruined or lost, then this is conversion. The tort of conversion consists of permanently depriving the owner of personal property of its use and enjoyment through theft or destruction.” (Seaquist, 2013).

I don’t know if this is the same thing, however, a Texas prosecutor was killed, because a former Justice of the Peace was disgruntled over being fired for stealing computers from the court house, and not only did he kill the prosecutor, but he and his wife killed police chief and his wife in their home as well [See: Death Penalty Sought in Case of Killing of Texas Prosecutors].

Sources:

. CAN A CORPORATION COMMIT MURDER?  

FEDERAL HEALTH CARE LAW 

Your Sunday Bread: Know the Truth About It and Stun the World with Your Wisdom

discerment_true_falseI felt like that, that people who suffer in their mind that some are so severely vexed that they cannot determine night from day, and  are taken over by evil spirits.

In fact, when my husband’s mother was sick was the first time I had experience mental collapse in a person, or rather seen it to such a degree that I saw for the first time in that home she was placed in individuals whose minds had been taken over.

One woman in a wheel chair was having fits to such a degree that she was tormented and twisted. Hence, this place was filled with demonic spirits and I said that within myself as I sat there beside my mother in law, and then a while later as my husband and I were leaving that same woman which was sorely vexed stopped screaming and turned her head  to follow us with her stare. I was looking back and noticed as the demon took over once again as she went back to that tormented place in her mind. Screaming in agony and body twitching.

I thought to myself that I should go back and pray, but did not because I was scared hearing so many stories, especially about demonic forces. However, there are still many forces to be reckoned with in everyday life because when people cannot think straight it shows. Therefore, it shows in the jails, in the hospital rooms, it shows in the sanatoriums, and it shows in us when we cannot believe truth, that is, that Yah can do the impossible.

About the following  video,  “Sign and Wonders| Glenda Jackson?” there have been many instances where so called miracles have been performed through deceiving spirits taking unsuspecting and desperate souls unawares.benny-hinn  It is the case that just because someone says they are prophetic doesn’t mean prophecy in the sense of biblical standards but in divination, which is fortune telling or a soothsayer, and the scriptures speak of how Paul was on his way to the temple and was accosted by such. The lesson in this is when to determine what is fake and what is of Yah.

In essence, do not put your money up when you can receive your healing free through your belief in the true Name of the Most High [See: Signs and Lying Wonders: Will You Be Deceived?].

 Read:

”And it came to be, as we went to prayer, that a certain slave girl possessed with a spirit of Puthon, did meet us, who brought her masters much profit by foretelling. Having followed Sha’ul and us, she cried out, saying, “These men are the servants of the Most High Elohim, who proclaim to us the way of deliverance.” And she was doing this for many days. But Sha’ul, greatly annoyed, turned and said to the spirit, “I command you in the Name of יהושע Messiah to come out of her.” And it came out that same hour. But when her masters saw that their anticipation of money-making was gone, they seized Sha’ul and Sila and dragged them into the market-place to the rulers. And having brought them to the captains, they said, “These men, being Yehuḏim, greatly disturb our city, and they proclaim practices which are not right for us to receive nor to do, being Romans.” And the crowd rose up together against them. And the captains tore off their garments and commanded them to be beaten with rods. And having laid many blows upon them, they threw them into prison, commanding the jailer to keep them safely, who, having received such a command, put them into the inner prison and fastened their feet in the stocks.” (Acts 16:16-28).

We should beware of the deception because the people are being robbed instead of healed. It is not the case that no people are healed, but that some people come in a name that is deceptive. Do you know the difference? As we see with the set apart ones coming in the Right name to cast out demons can cause some problems for the money makers.

For your hearing:

Matthew 24:24

Watch: Sign and Wonders| Glenda Jackson

 

AN AHA MOMENT

light-bulb-moment1stHere is why we should pay close attention to these terms. In an earlier post the lesson brought that we should not fight with temptation but expose it. Hence, to do that we are going to do a dissection.

Here is the scripture Matthew 4:1 which reads:
Then יהושע was led up by the Spirit into the wilderness to be tried by the devil.

We want to concentrate on the devil here, not that Yahusha was tempted, because we know that he is victorious. However, the fact that we are not is a force to reckon.

Remember I said that we need to learn to use Satan’s name. I know we don’t like to say it I agree, because I am having a hard time writing it, but we cannot resist the opponent with our eyes closed. So wake up!

Satan, is a noun [masculine] according to Hebrew translation means an adversary, or the adversary and the one who opposes himself to another.

In the general sense, Satan also is a personal entity or a national one which makes sense since the scripture says he roams to and fro. The adversary makes war (1 Kings 5:18; 11:14,23, 25) and he is an enemy in the court of justice (Psalms 109:6), and also opposes himself to another (2 Samuel 19:23; Numbers 22:22), and it says, “the angel of Yahovah stood in the way to resist Him” [v. 32].

The devil, or rather, for this verse ‘the devil’ is not speaking of a person, place or thing as represented with a name but is speaking of the entity’s character, according to the Greek translation of diabolos [diabolical] which means the character of Satan is diabolical. The term is an adjective which means when we say ‘the devil’ we are describing something devilish, or rather, in this case according to the greek diabolical. Does that make sense?

Let’s see some more:

Satan is prone to slander , a slanderer
Satan is an a calumniator, false accuser,
Metaphorically, Satan, applied to a man who, by opposing the cause of God, may be said to act the part of the devil or to side with him

Satan is a diabolical liar, schemer, trickster, conster, manipulator and his behavior is devilish. However, how can we resist someone we cannot think to call by name?

Same thing:

Submit your will to God, resist the devil and he will flee from you.

Submit your will to Yah, resist Satan and he will flee you.

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ATF involved in Friday Ferguson shooting

Kay Dailey:

“A few of them had handguns within their hands,” said Logan. He said it was unclear why someone started firing shots. Police are looking for a maroon colored vehicle believed to be involved in the shooting.

The victim was walking on the parking lot with another person when the shooting started.

“The two subjects walking heard gunshots, ducked down and one individual who ducked down was struck in the upper chest area,” said Ferguson Police Capt. Dan DeCarli.

Logan said the victim tried to duck behind a dumpster after hearing the first shot fired.

“Three more shots rang out, and one of those shots ended up hitting him,” said Logan.

Logan and another man stayed with the victim until paramedics arrived, hoping he would survive.

Originally posted on FOX2now.com:

FERGUSON, MO (KTVI) – St. Louis County police confirm there has been a shooting near the intersection of Ferguson Road and Sharondale.  The shooting occurred on Friday afternoon near the Park Ridge apartments.

The Federal Bureau of Alcohol Tobacco and Firearms are involved in the incident.  Police are on the scene.  They are looking closely at a black Chevy car parked on the grass near the apartments.  Officers can be seen taking pictures of the vehicle and looking inside.

More details will be posted as this story develops.

Related:  Man shot at Ferguson apartment complex dies

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Ahh–There it is! Are You Sleeping?

Kay Dailey:

“And have no fellowship with the fruitless works of darkness, but rather convict them. For it is a shame even to speak of what is done by them in secret. But all matters being convicted, are manifested [made known] by the light, That He says, ‘Wake up, you who sleep, and arise from the dead, and Messiah shall shine on you.’ See then that you walk exactly, not as unwise, but wise, redeeming the time, because the days are wicked. So then do not be foolish, but understand what the desire of Yahuah is. [Eph'siyim (Ephesians) 5:11-17].

Originally posted on daileytalks:

1601408_856151227730842_1851059024327149907_n“And have no fellowship with the fruitless works of darkness, but rather convict them. For it is a shame even to speak of what is done by them in secret. But all matters being convicted, are manifested [made known] by the light, That He says, ‘Wake up, you who sleep, and arise from the dead, and Messiah shall shine on you.’ See then that you walk exactly, not as unwise, but wise, redeeming the time, because the days are wicked. So then do not be foolish, but understand what the desire of Yahuah is. [Eph'siyim (Ephesians) 5:11-17].

In a court of law is where people are tried for their crimes, supposedly, by a jury of their peers. However, witnesses are put on the stand in offense, defense, and character. In this thing we find that some people bear false witness swearing that it is truth. More specifically, even witness testimony…

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