PJC Business

F RAUD AND N EGLIGENT M ISREPRESENTATION

PJC 105.28

to determine that status. Appropriate definitions of “debtor” and “debt,” or “creditor” and “claim,” should accompany the question. See Tex. Bus. & Com. Code § 24.002(3)–(6). The defrauded creditor need not be the plaintiff, and defendants may include the debtor and the transferee. See Tex. Bus. & Com. Code §§24.006(b), 24.008. If there is a dispute regarding when the creditor’s claim arose, a predicate question should be submitted to determine whether the creditor’s claim arose before the transfer was made. See Tex. Bus. & Com. Code § 24.006(b). Asset. The question assumes the thing transferred is an asset of the debtor. If there is a factual dispute about the thing’s status as an asset, a predicate question should be submitted to determine that status. See Tex. Bus. & Com. Code §§ 24.002(2) (defining “asset” as “property of a debtor” but excluding certain property), 24.002(10) (defining “property” as “anything that may be the subject of ownership”). Whether one of the exclusions from the asset definition applies in a given case may present a question of law for the court. If there is no dispute regarding what the asset or obligation at issue is, it may be preferable not to list it or to specifically identify the asset or obligation in the text of the question, as opposed to listing the potential assets or obligations in the instruction. Insider. The statute includes a lengthy, nonexclusive definition of “insider,” parts of which incorporate definitions of “affiliate” and “relative.” See Tex. Bus. & Com. Code §24.002(1), (7), (11). If there is no factual dispute that a pertinent person or entity is an insider, or that no insiders participated in the relevant transactions, the court may instruct the jury accordingly. If there is a factual dispute regarding insider status, the relevant parts of the following definition should be submitted: “Insider” includes— [Insert the following if Dean Debtor is an individual.] 1. a relative of Dean Debtor or a general partner of Dean Debtor ; 2. a partnership in which Dean Debtor is a general partner; 3. a general partner in a partnership in which Dean Debtor is a general partner; or 4. a corporation in which Dean Debtor is a director, officer, or person in control.

[Insert the following if Dean Debtor is a corporation.] 1. a director, officer, or person in control of Debtor, Inc. ; 2. a partnership in which Debtor, Inc. is a general partner;

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