2nd Quarter- BUSINESS LAW Quarter Final Flashcards
“Blackstone’s definition.” Rules of civil conduct commanding what is right and prohibiting what is wrong. A governmental rule prescribing conduct / caring out a penalty for violation.
law
bodies of law
Criminal Law / Civil Law
Related to crimes and punishment of wrong doers.Laws dealing with offenses against society
criminal law
legal proceedings concerned with the rights of public citizens.Laws dealing with the enforcement or protection of private rights..Examples: Tort Law Contract Law
civil law
Criminal offense punishable by confinement in prison or by death. Example: Murder Bank Robbery
felony
Criminal offense which is neither treason nor a felony. Example: Speeding ticket Running a stop sign.
misdemeanor
bending or breaking the law
tort law
a private or civil wrong, either intentional or caused by negligence, for which there may be action for damages / private wrong for which damages might be recovered
tort
basis for tort liability
Intentional / Negligence/ Strict Liability)
“Failure to exercise ordinary care.”
negligence
failing to do something which a reasonable and prudent person would do under ordinary circumstance.
act of omission
doing something which a reasonable and prudent person would not do under ordinary circumstance.
act of commision
liability for injury regardless of negligence or intent.
strict liability
when seller is liable for any and all defective or hazardous products which threaten a consumer’s personal safety.
product liablility
Improper or negligent professional act by a professional person. Example: poor embalming. or the doctor leaves instrument in abdominal cavity during or after surgery.
malpractice
Related to making and executing contracts.Laws dealing with making contacts.
contract law
Rules of conduct prescribed by a government and its agencies to regulate business transactionsRules of conduct for the performance of business transactions
business law
Rules of conduct prescribed by a government and its agencies, in regulating transactions related to Real and Personal property.
property law
Land and objects permanently attached to land. Real Estate.Land, Building, Fences, Trees, etc.
real property
All property which is not real property.Cars, Furniture, Jewelry, Insurance, Stocks, Bonds, etc.
personal property
sources of US law
o Common Law o Constitutional Lawo Statuary Lawo Police Powero Administrative Lawo Ordinanceso Case Lawo Stare Decisis
The Pyramid of Law
Stare DecisisCase LawOrdinancesAdministrative LawPolice PowerStatutory LawConstitutional LawCommon Law
- customs which have become recognized by the courts as binding on the community. 2. Forms the historical foundation of U.S. Law. 3. Based on human experience. “Common good” of all people(Members of Society). 4. Rooted in English and early colonial law. “If it makes sense,it must be good law.”Constitutional Law - written document containing fundamental principles of government. Power and duties of a government. Guarantees Rights of the people - first 10 amendments of the constitution. “Law of the land.” Example: Federal and individual state constitutions
common law
enacted by legislative bodies.
statutory law
Legislative bodies include Federal, State and Local Governments
statutes
enacted by the U. S. Congress
federal statutes
enacted by individual state legislatures
state statutes
inherent power of every government to make reasonable laws to protect the safety, health, morals, and general welfare of its citizens. Example: Mortuary law Licensure Health standards Business operations
police power
Body of law created by federal and state administrative agencies to implement their powers and duties in the form of rules, regulations, orders, and decisions. Example: OSHA regulations FTC funeral rule State board rules and regulations
administrative law
Appointed governmental body charged with the implementing particular legislation.Examples: Occupational Safety and Health Administration (OSHA)Federal Trade Commission (FTC)Texas Funeral Service Commission (TFSC)
administrative agencies
Laws enacted by local municipalities, villages, towns or city.Example: City of Houston has parking ordinances / No Smoking In Public Buildings.
ordinances
Court decisions that establish precedent principles. Laws based on a court’s interpretation of federal, state, and local laws. Determines “constitutionality” of a law.
case law
Principle that decisions of a court should serve as guide or precedent and control the decision of a similar case in the future. Reliance on authority of established law “like cases are decided in like manner”. Applicable to mortuary law and court cases.
Stare Decisis (Decision Stands)
authority of a court to hear a case. Related to the subject matter and person(s) involved in a court case. Function of the courts – to interpret & apply law to a given situation.
jurisdiction
Have exclusive jurisdiction over – bankruptcy, claims against USA, Patent & Copy Right Cases.
federal courts
Trial courts of the federal court system. Largest class of federal courts / Deal only with criminal cases involving violation of federal law. Or civil suits that meet specified criteria. Cases brought by US Govt., Cases arising under U.S. Constitution / Federal Laws/Treaties
federal district courts
Offense which is injurious to society as a whole / punishable offense against society.
Crime
Deliberate and intentional action to cause harm
Intentional
There are 12 federal judicial districts. Courts that hear appeals in the federal court system. Hears appeals from cases originating in federal district courts. Hears appeals from federal administrative agencies and departments within its circuit. Decision have precedence over lower courts.
Federal Circuit Court of Appeals
o Highest court in the United States.o Court of original jurisdiction in cases involving ambassadors, public ministers, consuls, and cases in which a state is a party.o As well as cases appealed from federal courts of appeal.Supreme decision over all lower courts
U.S. Supreme Court
issued by Supreme Courto Order to produce the record of a case.o Only such cases will be heard by the U. S. Supreme Court
Writ of Certiorari
Federal trial courts with limited jurisdiction. Limited by laws of Congress creating them. Examples: Bankruptcy Court / Tax Court / Court of International Trade U.S. Court of Federal Claims (against the courts).
Special Courts
Inferior courts - Courts of original general jurisdiction - Appellate courts - Special courts (State & City)
State Courts
Trial courts that hear only cases involving minor criminal offenses and disputes between citizens.Examples: District, Magistrate, County ,Municipal (city) ,Small claims, Justice, and Tax Courts.
Inferior Courts
Court in which a case is first heard. Maintain an official record of all proceedings. Broad jurisdiction over disputes between two or more parties. Criminal offenses against the state. This Court: Hear witnesses Receive evidence Try a case Examples: Trial Court, Court of Record, Circuit Court, District Court, and Superior Court
Court of Original General Jurisdiction (State)
usually in larger cities.Courts hearing cases appealed from lower state courtsExamples: Court of Appeals State Supreme Court
Appellate Courts (State)
Courts with limited jurisdictionExamples: Probate Court Juvenile Courts Domestic Court
Special Courts (State)
Laws specifying how actions are filed & that trial procedure to follow
. Procedural Laws
Person Licensed to represent others in court.
attorney/ lawyer
written request initiating a civil suit
complaint or petition
a notice of complaint given to a defendant defining the complaint and a time frame in which a response, or answer, must be filed. Serves the purpose of conferring personal jurisdiction over defendant. Also known as a process
summons
The response of the defendant to a complaint. Also known as a motion.
answer
The decision of the court. Favor of the Plaintiff or Defendant
judgement
Carrying out of completion of some task
execution
Individual who initiates a civil action
plaintiff
Person against whom legal action is brought
defendant
agreement between two or more competent persons (parties) which is enforceable by law.
contract
Classifications of contracts: Based on:
formation / performance / enforceability
parties express their intentions, either orally or in writing, at the time of the agreement.
express contract
terms of the contract are implied by acts or conducts of the parties.In fact - example: “first call.”
implied contractsalso called contract implied in fact
those with a special form or produced in a certain way.Contract “under seal.”Today most contracts are these kindExample: Real Estate ContractsNegotiable InstrumentsFuneral Contract
formal contracts
- any contract which is not a formal contract
simple contract
- calls for an act in consideration for a promise.One promise is given in exchange for an act.you find my lost dog; I pay you $100
unilateral contract
mutual exchange of promises.Exchange a promise for a promise.You agree to buy my car for $5,000. Car is yours when you give me the money.Most contracts are bilateral contracts.
bilateral contract
terms of the contract have not been completely executed or fulfilled by the parties.
executory contracts
- terms have been fulfilled by the parties
executed contracts
contract enforceable by court.
valid contract
Agreement with no legal effect. Example: contract to rob a bank.
void agreementalso called a void contract
Contract which would be an enforcement agreement, but due to circumstances, may be set aside by one of the parties. Example: party to a contract is declared “mentally incompetent” / party contracts with a minor / minor contracts with anotherminor
voidable contract
Agreement which is not in the form required by law, but can be made so by the parties.- a contract that is not currently binding Example: simple contract made into a formal contract.
unenforceable contract
Legal objectives of written contracts
legal purpose and execution, as long as elements of a contract are legal (Mutual Agreements,competent parties and Consideration) terms of contract should be executed. Illegality renders a contract void.
expression of willingness of the offeror to enter a contractual agreement.
offer
person or party who initiates or makes and offer
offeror
person or party to whom an offer is made
offeree
requirements of a valid offer
Must be Definiteo Basis for agreemento Seriously intendedo Not a joke / Nor offered in jest, fear, or anger.o Communicated from offeror to offeree.o Both parties must be cognizant of the agreement.
Offer vs. invitation to deal
o Is it truly an offer?o Or an invitation to deal and make a subsequent offer?
invitation to deal
• Advertisement • Price list and quotations• Bids • Estimates• Not valid offers • May lead to an offer.
termination of an offer
o By revocation - annulment or cancellation of an instrument, act, promise by one doing or making it.o Communicated by offeror to offeree prior to acceptance.By terms of the offer:o If terms are not met, there is no contract.o By lapse of “reasonable” period of time.o Depends on type of offer.o By death or insanity of offeror.By rejection.o Refusal to accept.o By counter offer - intended acceptance which changes or qualifies the offer, and is a rejection of the original offer.o By intervening illegality.(Legal situation interfering with an offer and agreement. Example:Making a contract to kill someone.)
person afflicted with a serious mental disorder impairing ability to function.
insane
intended acceptance which changes or qualifies the offer, and is a rejection of the original offer
counter offer
o Legal situation interfering with an offer and agreement.
intervening illegalityexample: making a contract to kill someone
o Agreement to an offer resulting in a contract.o Communicated by offeree to offeror.o Oral or written.o Including mail or telegram.
acceptance
o Justifiable reliance by offeree.o Offeree believes what offeror says is true.o No reason to believe otherwise.o Without this, contract is voidable.
reality of consent
False statement of a matter of fact.
misrepresentation
False statement made in the belief it is true.
innocent misrepresentation
Intentional or reckless false statement of a material fact, upon which the injured party relied, which induced the injured party to enter into a contract, at his/her detriment.
fraud
manner of committing fraud
o By expressed misrepresentation.o Oral or written.o By concealment. (attempting to hide information)o By silence when one has a duty to speak.(Not sharing information when asked or requested.)
• Improper influence that is asserted by one dominant person over another, without threat or harm.o Often with a fiduciary relationship.
undue influence
Person in a relationship of trust or confidence
fiduciary Examples• Family relationship.• Attorney and client.• Physician and patient.• Funeral director and family.
Means of removing one’s free will. Obtaining consent by threat to do harm to the person, his/her family, or property.o Element of coercion or force.Can be physical, emotional and financial.
duress