Can A Security Be Oral?


Yesterday’s post identified some of the differences between the lists of securities in the California Corporate Securities Law and the federal Securities Act of 1933. One difference that I did not mention was California’s explicit statement that all of the listed items “are securities whether or not evidenced by a written document”.

This may seem to be an academic point, but the wont of a writing has saved at least one fortunate soul from the gaol. In Thomas v. State, 65 S.W.3d 38 (Tex. Crim. App. 2001), a Texas jury convicted a defendant of securities fraud in connection with the offer and sale of an “evidence of indebtedness”. On appeal, the defendant argued that an “evidence of indebtedness” must be in writing and the appellate courts agreed.

The drafters of the 2002 revisions of the Uniform Securities Act were cognizant of this issue and amended the definition of “security” in Section 102(28) to include “both a certificated and an uncertificated security”. According to the official comment, this change was intended ”to indicate that the term is intended to apply whether or not a security is evidenced by a writing.”

Hogamous, Higamous
Habemus, Habemas?

With the announcement of the election of a new pope yesterday, I noted several stories whose writers seemed to have forgotten their High School Latin. For example, the Christian Science Monitor, began this story with “Habemas papam”. The British paper, The Independent, also made the same mistake in this story. The correct spelling is “habemus”. In Latin, verbs are conjugated. The conjugations provide key information on person, number, tense, mood and voice. Habemus is in the first person, plural, present tense, indicative mood, active voice. “Habemas” is gibberish.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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