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Business Law > Bus Law Final > Flashcards

Bus Law Final Flashcards

1
Q

Codes

A

a grouping of related statues

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2
Q

Common Law

A

rules of law that our forefathers brought over from europe, they are the foundational business

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3
Q

Modern Law

A

rules of law that have been modernized due to societal changes and growth of what’s going on (ex: the internet being created constitutes new laws)

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4
Q

Stare decisis

A

the lower courts must adhere to higher courts rule of law; latin term

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5
Q

Case precedents

A

cases that become precedents, and similar future cases, must be interpreted in the same way

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6
Q

Plaintiff

A

the party that initiated the lawsuit

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7
Q

Defendant

A

the individual or business that the lawsuit is filed against

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8
Q

Petitioner

A

the person bringing the issue to court

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9
Q

Respondent

A

other person involved in the issue

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10
Q

Appellant

A

the party who is appealing

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11
Q

Appellee

A

the party defending against the appeal

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12
Q

Complaint

A

the pleading that starts a case

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13
Q

Service of Process

A

letting the other party know you are suing them

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14
Q

Venue

A

the proper or most convenient location for a trail of a case

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15
Q

Due process rights

A

you have the right to be noticed and have an opportunity to be heard

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16
Q

Standing to sue

A

a party must have a steak in the claim (ex: property damages, injuries from the event)

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17
Q

Federal Jurisdiction

A

Needs to have a con law violation

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18
Q

Personal Jurisdiction

A

Requires:
1. Diversity of citizens
2. Amount of 75k or more

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19
Q

Remedies

A

what is being seeked against the person

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20
Q

Equitable Remedies (two types)

A
  1. Specific Performance: the plaintiff must establish that the item is unique (ex: a Picasso painting)
  2. Injunctive Relief: it stopes a party from doing whatever the activity is (ex: a restraining order)
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21
Q

Legal Remedies

A

monetary relief –trying to get your money back (ex: medical expenses, loss of compensation)

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22
Q

Writ of Certiorari

A

A means to have your case heard before the United States Supreme Court

Rule of 4 – the court will not issue the writ unless 5 of the nine justices approve it

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23
Q

Charges

A

-a criminal proceeding
-beyond a reasonable doubt

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24
Q

Causes of Action

A

-a civil proceeding
-burden of proof is clear and convincing evidence

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25
Q

Bench Trial

A

-a judge
-the decision will be made faster

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26
Q

Jury Trial

A

-a jury
-jury selection occurs
-voir dire: peremptory challenges
-jury instructions need to be read and a final decision takes longer due to deliberation

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27
Q

Opening Statement

A

during these statements it is mostly storytelling, no arguments yet.

the plaintiff goes first → defense council goes second.

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28
Q

Direct Examination

A

presenting witnesses and can only present NON-leading questions, this allows the witnesses to tell a story.
exception: hostile witness

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29
Q

Hostile Witness

A

your witness flips and isn’t helping your case, this allows you to deem them a hostile witness and allow you to ask leading questions on direct.

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30
Q

Cross-Examination

A

defendant can ask leading questions (yes or no answer) to the witness

*objection– when a witness tries to say more than yes or no to explain themselves

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31
Q

Closing Arguments

A

each side gets to explain what they were trying to stress to the jury; the final persuading.

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32
Q

Verdict

A

the final decision

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33
Q

Motion for a New Trial

A

if during the trial there is wrongfulness, the lawyer must go to the judge and ask for a motion for a new trial. If the wrongfulness is found out after the trial the motion is still able to be made.

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34
Q

Alternative Dispute Resolutions

A
  1. Negotiations
  2. Mediation
  3. Arbitration
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35
Q

Negotiations
(alternative dispute resolutions)

A

both parties, either on their own or with an attorney, come to some mutual agreement.

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36
Q

Mediations
(alternative dispute resolutions)

A

-where a neutral third party helps to facilitate an agreement between the parties. the third party must be is outside of the lawsuit and unbiased.
-a mediator gives an opinion or another set of eyes on your case
and shows you it’s strengths and weaknesses
-this could lead to a negotiation and a resolution, but if not, then a bench or jury trial

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37
Q

Arbitration
(alternative dispute resolutions)

A

-you give your whole case to a third party and their judgment is final and binding
-a contract called an arbitration agreement is made and willfully and knowingly signed and must not be deemed unconscionable
-still start with negotiation even if started at arbitration

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38
Q

Criminal Law: Required Elements

A
  1. Actus Rea -guilty act
  2. Mens Rea -guilty mind
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39
Q

Common Law Felony Crimes
(MR. BARK)

A

Murder
Rape
Burglary
Arson
Robbery
Kidnapping

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40
Q

Murder (four types)

A
  1. Murder in the First Degree:
    immediate: cop killing, deaths that result from a felony crime
  2. Murder in the Second Degree:
    heat of passion, a quick reaction
    ex: killing your husband after catching him cheating
  3. Voluntary Manslaughter: drunk driving, get in a car intoxicated knowing you could possibly kill someone
  4. Involuntary Manslaughter: distracted while driving and you kill someone, did not have the intent of killing someone
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41
Q

Rape

A

Common Law — the unlawful carnal knowledge of a female without consent

Modern Law — the unlawful carnal knowledge of anyone without consent

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42
Q

Statutory Rape

A

Common Law — the unlawful carnal knowledge of a female under the age of 9

Modern Law — the unlawful carnal knowledge of anyone under the age of 18

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43
Q

Burglary

A

Common Law — the unlawful breaking and entering into the dwelling house of another during the nighttime with the specific intent to commit a crime there end

Modern Law — the unlawful breaking and entering into any structure at anytime with a specific intent to commit a crime there end

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44
Q

Arson

A

Common Law —The malicious burning of the dwelling house of another (there has to be charring and must cause property damage)

Modern Law —The malicious burning of any structure

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45
Q

Robbery

A

the trespassory taking and asportation of the personal property of another by force, fear or intimidation.

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46
Q

Personal Property

A

tangible and moveable (chattels and goods)

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47
Q

Real Property

A

fixed annex to the ground

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48
Q

Consent

A

Implied – gestures or a response to a past repeated behavior or experience

Expressed – verbal or written consent

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49
Q

Kidnapping

A

Common Law —The trespassory taking of a person outside the country

Modern Law — The trespassory taking of a person without consent

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50
Q

Embezzlement

A

the trespassory taking and asportation of the personal property of another while in lawful custody or possession (exceeding the scope of consent)

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51
Q

Larceny

A

the trespassory taking and asportation of the personal property of another

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52
Q

Felony

A

serious crimes punishable by death or by imprisonment of more than a year

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53
Q

Misdemeanors

A

less serious crimes punishable by a fine or by confinement of up to a year

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54
Q

Receiving stolen goods

A

when receiving stolen property you either knew or should have known the property to be stolen

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55
Q

Forgery

A

the modification or alteration of a legal document

ex: birth certificates, marital license, drivers license, death certificates, passports, checks, credit cards, titles

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56
Q

Fraud

A

the intentional misrepresentation of fact that’s known to be false by the wrongdoer for purposes of inducing action or an inaction and, in fact induces the action or inaction desired

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57
Q

Bribery

A

enticing a government official to do something they would not otherwise do

ex: Police, IRS, judges

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58
Q

Extortion

A

enticing a lay person to do something that they would not otherwise do (sometimes through threat)

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59
Q

Defenses to Crimes (nine types)(SDDDNIIIC)

A

Self Defense
Defense of Others
Defense of Property
Duress
Necessity
Insanity
Intoxication
Consent
Infancy

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60
Q

Self Defense (defenses to crimes)

A

one may use both deadly or non-deadly force to defend themselves where the same amount of force is being used against them.

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61
Q

Defense of Others (defenses to crimes)

A

one may use deadly or non-deadly force to defend another where the same amount of force is being used against the other.

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62
Q

Defense of Property (defenses to crimes)

A

NEVER use deadly force, only use non-deadly force

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63
Q

Duress (defenses to crimes)

A

one may use the defense of being under duress for everything (except murder)

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64
Q

Necessity (defenses to crimes)

A

The criminal act was necessary to prevent an even greater danger
Valid defense for everything (except murder)

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65
Q

Consent (defenses to crimes)

A

expressed - verbal or written

implied - gestures or passed repeated response

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66
Q

Insanity (defenses to crimes) (three types)

A
  1. M’Naghten Rule
  2. Irresistible Impulse Rule
  3. Model Penal Code
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67
Q

Insanity: M’Naghten Rule

A

the defendant at the time of the crime did not know the difference from right or wrong (majority rule)

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68
Q

Insanity: Irresistible Impulse Rule

A

the defendant at the time of the crime could not resist the impulse to do the crime even if they knew it to be wrong (minority rule)

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69
Q

Insanity: Model Penal Code

A

look to the state that the crime was committed in to determine the rule of law

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70
Q

Intoxication (defenses to crimes)

A

Voluntary – no valid legal defense
Involuntary – valid legal defense

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71
Q

Infancy (defenses to crimes)

A

0-6 → presumption of innocence

7-14 → rebuttable presumption of innocence

14 and above → guilty of the crime
Socio economic status, intellect, education etc. can be arguments

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72
Q

Necessity (defense of crimes)

A

The criminal act was necessary to prevent an even greater danger,
viable defense to everything except murder

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73
Q

1st Amendment

A

Freedom of religion – unless causes harm

Free speech – unless insights others or on private property

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74
Q

4th Amendment

A

-Prohibits against any unlawful governmental intrusion (searches and seizures) against one’s person and/or property.
-Search warrants required to search a home unless an exception applies

-Exceptions: consent, exigent circumstances, type of business (pawn shop, liquor store, strip clubs), plain sight, plain smell, plain hearing, terry stop and frisk etc.

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75
Q

5th Amendment (two terms)

A

The Right Against Self Incrimination: when you are deemed in custody or can be used while testifying in court

Double Jeopardy: no person shall be tried for the same offense twice
-not guilty, may not be tried again
-hung jury, may be tried again

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76
Q

6th Amendment (four terms)

A
  1. The Right to Counsel at Trial:
    counsel must be available in all felony prosecutions and any other prosecution where there is the potential for loss of liberty.
  2. Right to Cross Exam/Confront a Witness
  3. Right to a Fair and Impartial Trial:
    under the due process clause you have the guarantee of an impartial trial. The right is to ensure that the defendant is tried only by an impartial judge or jury
  4. The Right to a Jury Trial:
    where there is the potentials of imprisonment of 6 months or more
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77
Q

7th Amendment

A

At common law, the right trial jury for civil lawsuits, the amount in controversy must exceed 20 dollars

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78
Q

8th Amendment (two terms)

A

No Cruel or Unusual Punishment:
making someone do something against their religion, denying the right to exercise, denying the right to smoke, watch t.v. etc.

Unreasonable bail:
bail depends on case and person

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79
Q

14th Amendment

A

The Equal Protection Clause:
prohibits against discrimination based on race, religion, age, disability, gender, sexual orientation etc.

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80
Q

Tort

A

a civil non-contractual wrong

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81
Q

Tort Law (six terms)

A

Intentional Torts
Defamation
Privacy
Strict Liability
Product Liability
Negligence

82
Q

Intentional Torts (seven terms)

A

Assault
Battery
False Imprisonment
Trespass to Land
Trespass to Chattels
Conversion
Intentional Infliction of Emotional Distress

83
Q

Assault
(intentional tort)

A

The intentional placing of one in reasonable apprehension of an immediate harmful or offensive touching to plaintiff or plaintiffs’ person.

-harmful, offensive, fear, obnoxious
-must be aware of the attempted assault
-Immediate sense of harm, not in the future

84
Q

Battery
(intentional tort)

A

The intentional harmful or offensive touching to plaintiff or plaintiffs’ person

-must have contact (punched in the face etc.)

85
Q

False Imprisonment
(intentional tort)

A

The intentional confinement of a person without responsible means of ingress (the act of going in) or egress (the act of going out).

86
Q

Trespass to Land
(intentional tort)

A

The intentional entry onto the land of another without consent or privilege

87
Q

Trespass to Chattels
(intentional tort)

A

The intentional taking of the personal property of another without consent

88
Q

Conversion
(intentional tort)

A

Dominion and control of the personal property of another

89
Q

Intentional Infliction of Emotional Distress (intentional torts)

A

Extreme and outrageous (goes beyond all bounds of decency) conduct calculated to cause, and causes, severe emotional distress

90
Q

Defenses to Intentional Torts (six terms)

A

Self Defense
Defense of Others
Defense of Property
Consent
Shopkeepers Privilege
Necessity

91
Q

Shopkeepers Privilege
(defense of intentional torts)

A

A shopkeeper may detain a party for reasonable period of time under reasonable belief that the other has their property

92
Q

Necessity
(defense of intentional torts)

A

Public: where you’re protecting a large group or class of individuals then you do not need to reimburse and are not liable.

Private: when you’re protecting a smaller group or class of individuals then excused for the actions but you MUST reimburse, repair or replace what you used.

93
Q

Strict Liability

A
  1. Animals
  2. Ultra-hazardous Material/Abnormally Dangerous
  3. Product Liability
94
Q

Animals
(strict liability)

A

Domestic– first injury (one free bite), second injury (on notice)
*exception: a pitbull does not get one free bite

Wild– regardless, you are at fault but it needs to be a typical injury of animal

95
Q

Ultra-hazardous Material/Abnormally Dangerous
(strict liability)

A

Possessing hazardous objects or materials makes you responsible for the damages/injuries that they may do to others

Ex: fireworks, dynamite, hazardous chemicals in water etc.

96
Q

Product Liability (strict liability)

A

A defective product has been placed in the stream of commerce causing damages, the user, consumer and/or bystander may bring forth a lawsuit against the seller, manufacturer, and/or retailer.

-when someone claims a product as their own it takes away responsibility of the company

97
Q

Professionals

A

one who deals in goods of a kind

98
Q

Garage Sellers (product liability)

A

they are NOT professionals in the field so if a product has a malfunction the fault does not land on the garage seller

99
Q

Misuse (product liability)

A

if there are warnings on products and the consumer alters the product or doesn’t follow instructions that is misuse
(misuse = you can’t sue)

100
Q

Negligence (four terms)

A

Duty
Breach
Causation
Damages

101
Q

Duty
(negligence)

A

to act as a reasonable prudent person under same or similar circumstances

102
Q

Justice Cardozo’s Rule (duty)

A

a duty is owed to only those in the foreseeable zone of danger

103
Q

Justice Andrews Rule (duty)

A

a duty is owed to the entire world

104
Q

Specialized Duty Rules (five terms)

A

Professionals: duty to the community

Specialist: duty to the nation

Landlord to Tenant: warn and make safe the known dangerous instrumentalities

Doctor to Patient: must act as a fiduciary and hold confidences

Parent to Child: must provide and not negligent

105
Q

Breach (negligence)

A

A failure to act when there is a duty to act

106
Q

Causation (negligence)

A

Foreseeability– it was a foreseeable cause that resulted in the plaintiff’s injury

Unforeseeability– it was an unforeseeable cause that resulted in the plaintiff’s injury

107
Q

Damages (negligence)

A

The defendant caused damages to the plaintiff

Ex: legal damages, compensatory, punitive damages (damages designed to punish the civil defendant)

108
Q

Defenses to Negligence (three types)

A
  1. Assumption of the risk
  2. Comparative Negligence
  3. Contributory Negligence
109
Q

Assumption of the risk
(defenses to negligence)

A

Where one volitionally undertakes or assumed the risk involved

110
Q

Comparative Negligence
(defenses to negligence)`

A

Comparing the negligence of both parties and apportioning the damages (if the plaintiff is 51% or more at fault than the defendant is not liable to the plaintiff for damages)

111
Q

Contributory Negligence
(defenses to negligence)

A

Where the plaintiff contributes to his/her own negligence (in some jurisdictions this is a valid defense)

112
Q

Defamation

A

The false defamatory statement of and concerning the plaintiff communicated to a third party

113
Q

Defamation Defenses

A
  1. Truth
  2. Consent
  3. Privilege?
114
Q

Privacy Torts (four terms)

A
  1. False Light
  2. Intrusion into Seclusion or Solitude
  3. Commercial Appropriation
  4. Public Disclosure of Private Facts
115
Q

Contracts

A

Offer
Acceptance
Consideration

116
Q

Offer
(contracts)

A

The outward manifestation of present contract intent to be bound by certain and definite terms communicated to the offeree

Offeror – presenting the offer
Offeree – receiving the offer

117
Q

Certain and Definite Terms
(contracts) (five terms)

A

Quantity
Time
Interested Parties
Price
Subject Matter

U.C.C– only need quantity term

118
Q

Ways to Destroy an Offer
(contracts) (RRDLDI)

A

Revocation – the offeror revokes the offer prior to acceptance

Rejection – the offeree, reject the offer and can counteroffer if wanted. this makes them the secondary offeror (changing the terms of the offer = rejection)

Destruction of Subject Matter –prior to acceptance, the subject matter is destroyed

Lapse of Time – once the time frame given is exceeded, the offer is destroyed

Death of a Party – when a party dies the offer dies

Insanity – if a party is deemed mentally unstable when the offer is made then the offer is destroyed

119
Q

Ways to Keep an Offer Open

A
  1. Option Contract
  2. Firm Offer Rule
120
Q

Option Contract
(ways to keep an offer open)

A

An option contact keeps an offer open for a stated period of time and is supported by consideration.
The offeree can give up something to the offeror so that the offeror keeps the offer open for only them for a stated period of time. This prevents the offeror from revoking their offer or offering it to someone else instead.

121
Q

Firm Offer Rule
(ways to keep an offer open)

A

U.C.C - An offer is made by a merchant to keep an offer open not to exceed 3 months or 90 days and no consideration is required

122
Q

Acceptance
(contracts)

A

the unqualified unequivocal assent to the terms of an offer

123
Q

Mirror Image Rule
(contracts: acceptance)

A

there must not be any variances or changes to the terms of the offer
a pure acceptance is saying yes to the terms of the offer given

124
Q

Grumbling Acceptance
(contracts: acceptance)

A

Accepting an offer but not being happy about it, expressing your negativity about the offer but still accepting the terms of it anyway.

125
Q

Looking for Counter Offers
(contracts: acceptance)

A

Rejection of the offer and creation of a new offer

126
Q

Mailbox Rule
(contracts: acceptance)

A

Acceptance – is valid on dispatch
Rejection – is valid on receipt

If the acceptance is received first and followed by rejection then acceptance prevails

If the rejection is received first and followed by acceptance then rejection prevails

Whichever comes first prevails

127
Q

Consideration
(contracts)

A

the bargained for exchange of a legal detriment (the offeree and the offeror are both giving up something)

128
Q

Potential Issues with Consideration
(contracts) (three terms)

A
  1. Past Consideration
  2. Pre-Existing Duty Rule
  3. Promissory Estoppel
129
Q

Past Consideration
(contracts: consideration)

A

-This is NOT consideration
-Giving something up already in the past doesn’t count

130
Q

Pre-Existing Duty Rule
(contracts: consideration)

A

-If it is part of someone’s job to do what is being offered

-ex: missing person, family member offers something for the police officer to find the person: the police officer already has a pre-existing duty to find the missing person so not consideration

131
Q

Promissory Estoppel
(contracts: consideration)

A

-If the offeror makes a promise to the offeree and the promise is relied by the offeree, if the promise is not seen to fruition and would cause a detriment to the offeree then this would meet consideration

-If you give up something when relying on the promise then there is consideration, if not then it’s not

132
Q

Types of Contracts (five types)

A

Implied/Expressed
Valid/Void/Voidable
Unilateral/Bilateral
Quasi-Contracts
Executed/Executory

133
Q

Implied/Expressed Contracts

A

Implied: implicit by its very nature

Expressed: verbal or written contract

134
Q

Valid/Void Contracts

A

Valid: a contract that is valid under the law

Void: an illegal contract

135
Q

Unilateral/Bilateral Contracts

A

Unilateral: a promise in exchange for an act (extremely rare)

Bilateral: a promise in exchange for a promise (usually bilateral)

136
Q

Quasi-Contracts

A

a fictitious contract created by the court to prevent an unjust enrichment

ex: pool built at the wrong house, contract needs to be created to prevent the unjust enrichment of getting a pool for free

137
Q

Executed/Executory Contracts

A

Executed: contracts that are fully performed by both sides

Executory: only one party has performed

138
Q

Mutual Assent

A

a mutual agreement by both parties to contract

(offer, acceptance and consideration OR mutual assent and consideration)

139
Q

Defenses to Contracts (six types)

A

Capacity
Mistake
Fraud
Undue Influence
Duress
Unconscionable Contracts

140
Q

Capacity
(defenses to contracts) (three types)

A

Minors – cannot contract with minors
Exceptions: emancipated minor (under the law deemed an adult), at the option of the minor (the choice of the minor if they want to keep the contract going)

Intoxication – have to be of sound mind

Mental state of mind – have to be mentally stable and of sound mind

141
Q

Mistake
(defenses to contracts) (two)

A

Unilateral Mistake – where the nonmistaken party either knew or should have known of the mistake
Look for scrivener’s error

Bilateral Mistake – mutual mistake/ both parties are mistaken of the underlying facts of the contract

142
Q

Undue Influence
(defenses to contracts)

A

Where one party uses their position of power over another

Ex: caregivers, family members, etc. and can go hand and hand with duress

143
Q

Duress
(defenses to contracts)

A

Through violence or threat to entice another to do something they would not otherwise do

Ex: attorneys, priests, etc.

144
Q

Unconscionable Contracts
(defenses to contracts)

A

-Contracts that are heavily favored towards one party
-Arbitration agreements are contracts

145
Q

Statute of Frauds (five types)

A

Contracts that must be in writing in order for them to be deemed valid

  1. Marriage
  2. Realty
  3. Answering for the debt of another
  4. Contracts by their very terms cannot be completed within one year
  5. Goods of $500.00 or more
146
Q

Rebuttals to or Invalidates the Statute of Frauds (five types)

A
  1. Signed Writing –something tangible to indicate writing
  2. Part Performance –partially or fully performed
  3. Main Purpose Doctrine –must benefit the party, change or improve/give money
  4. Full performance – the contract is fully performed
  5. Receipt in full or part payments or of the goods themselves
147
Q

Statute of Frauds (defendant rebuttals for plaintiff) (five)

A

Signed Writing
– for all statue of frauds)

Part Performance
– Realty

Main Purpose Doctrine
– Answering for the debt of another

Full Performance
– Contracts by their very terms cannot be completed within one year

Receipt in full or part payments or of the goods themselves
–Goods of $500 or more

148
Q

Conditions (time for performance) (three types)

A

Condition Precedent:
One party performs first

Condition Subsequent:
One party performs second

Condition Concurrent:
Both parties perform at the same time

149
Q

Performance of Contracts
(are excuses not defenses) (IWNRFP)

A
  1. Impossibility/Impracticability
  2. Waiver/Modification
  3. Novation
  4. Rescission
  5. Frustration of Purpose
  6. Performance
150
Q

Impossibility/Impracticability
(performance of contracts)

A

-When conditions cause the reasoning to be impossible for a party to perform
-This can allow the contract to be pushed back or destroyed

151
Q

Waiver/Modification
(performance of contracts)

A

-Waiving a right your entitled to
(ex: arbitration)
-Change or alter post contracting

152
Q

Novation
(performance of contracts)

A

A third party must step in the shoes of one of the original contracting party, relieving that party of responsibility or liability, and seeking consent from all three
Always have a waiver and a modification

153
Q

Rescission
(performance of contracts)

A

When both parties mutually agree to rescind the contract

154
Q

Frustration of Purpose
(performance of contracts)

A

Both parties know and understand the underlying purpose of the contract

155
Q

Performance
(performance of contracts) (two types)

A

Complete: both parties have performed their side of the contract

Substantial: not complete performance but almost completed all the obligations under the contracts

156
Q

Risk of Loss: Vocab

A

Shipping terms/agreements
(who owns the title or who bears risk of loss)

Common carrier – takes either an item or a person from point A to point B

157
Q

Risk of Loss: Terms (four terms) (FFCS)

A
  1. Free on board the common carrier
  2. Free alongside the common carrier
  3. Cost of insurance and freight
  4. Sale on approval
158
Q

Free On Board the Common Carrier (risk of loss)

A

Once the person puts the item on board the common carrier, its as if the buyer already has possession of it (ex: on a plane)

159
Q

Free Alongside the Common Carrier (risk of loss)

A

When the good is alongside the common carrier, it’s as if the buyer already has possession of it (ex: on a boat or train)

160
Q

Cost of Insurance and Freight
(risk of loss)

A

If one party assumed the cost of insurance then they are liable up until it is in possession

Ex: usually the seller assumes the cost of insurance so if the good or item is lost while being delivered they are liable

161
Q

Sale on approval
(risk of loss)

A

Once you have received the good and there is valid verification that it was delivered and approved then the seller is no longer liable

162
Q

The Uniform Commercial Code

A

with contracts for the sale of a good, the uniform commercial code applies

163
Q

U.C.C – Good/Good Faith

A

Goods: movable items

Good Faith: having honest intentions

164
Q

U.C.C – Merchant/Non-Merchants

A

a merchant is one who deals in goods of a kind, non-merchants do not

165
Q

U.C.C – Offer

A

only need QUANTITY term, the court can use gap fillers to fill in the areas that lack the requirements for certain and definite terms

166
Q

U.C.C – acceptance and consideration

A

nothing changes, stays the same

167
Q

U.C.C Defenses: Statute of Frauds

A

Goods of $500 or more

168
Q

3rd Party Contracts (three types)

A
  1. 3rd party beneficiaries
  2. Assignments
  3. Delegations
169
Q

3rd party beneficiaries
(third party contracts) (two types)

A

Intended =
Vesting rights, allows the intended beneficiary (the third party) to do whatever the original contracting party could have done. They have a stake in the claim.
Ex: life insurance policies, trusts, wills etc.

Incidental =
No vesting rights, they have no stake in the claim, the party wasn’t named, considered or known during the contracting process.

170
Q

Assignments
(third party contracts)

A

You are assigning a right away that you are entitled to

171
Q

Delegations
(third party contracts)

A

-You’re delegating a duty that you owe to another
-It cannot be too personal in nature

Ex: you hire picasso to paint you and he delegates his duty over to someone else, this duty is too personal in nature, there’s only one picasso

172
Q

Warranties (three types)

A

Implied Warranty of Merchantability = the good you buy should be what you expect it to be

Implied Warranty of Fitness for a Particular Purpose = you relied on a merchant and the merchant did not provide the good you expected

Express Warranty = expressly states verbally or in writing

173
Q

Agency Relationships (three types)

A

Fiduciary Relation =
means that the relationship involves trust and confidence between the parties

Principal/Agent =
agency relationship commonly exist between employers and employees
-Principal (employer/master)
-Agent (employee/servant)

Respondeat Superior =
the principal (employer) is responsible/liable for the acts of its agent (employee) that caused a 3rd party hard during the course and scope of employment. (not applicable for intentional torts unless the job indicates)

174
Q

Respondeat Superior-Vicarious Liability (agency)

A

Indirect liability is put onto the principal (employer) holding the principal vicariously liable for the tortious/contractual acts caused by the agent (employee) during the course and scope of employment

Frolic and Detour: if the employee frolics they are liable, if the employee makes a detour the employee is till liable

175
Q

Independent Contractors

A

Are not deemed employees because those who hire them have no control over the detail of their work. Therefore no respondeat superior/vicarious liability.

176
Q

Formation of the Agency/Authority (four types)

A

Express – expressed by employer

Implied – implied by employer

Ratification – an employee acts on behalf of the employer without expressed or implied authority, however the employer acknowledged and accepts the employees actions

Agency by Estoppel – an employee gives the impression to a third party that they are acting as an employee for another person or business ad they must be given the power to act on their behalf

once formation of the agency – look for what authority was given – expressed and.or implied

177
Q

Duties of the Agents
(to the principals) (PNLOA)

A

Performance
Notification
Loyalty
Obedience
Accounting

178
Q

Duties owed by the Principal
(to the agents) (CRICP)

A

Compensation
Reimbursement
Indemnification
Cooperation
Provide a safe working environment

*Liability for contract and tortious acts: (unless intentional torts and the exception to the rule if the job dictates) ex: police officer, bouncer, bartender, and so forth.

179
Q

Termination of the relationship
(agency) (DINALP)

A

Death
Insanity
Notice Given
Agreement Fulfilled
Lapse of Time
Purpose Achieved

180
Q

Corporations

A

Shareholders (owner of the corporation) → Board member
→ Officers

*respondeat superior: the corporation is vicariously liable for torts and contracts

181
Q

Classification of Corporations (four types) (DFAC)

A
  1. Domestic– incorporated/formed and conducts business in the same state
  2. Foreign– incorporated/formed in one state and does business in another state
  3. Alien– a corporation formed in another country but does business in the U.S.
  4. Closed– one who shared are held by relatively few persons (often family members)
182
Q

Powers of Corporations

A

Expressed/Implied

183
Q

Promotor liability
(corporations)

A

So they won’t be liable they seek =

Ratification: an agreement to each contract

Novation: ratification leads to this so promoter no longer liable
Indemnification: promoter should be reimbursed for out of pocket expenses if still held responsible for the contract even after novation

184
Q

Corporation personality (four)

A

Due process: right to be heard

Equal protection: right not to be discriminated against

Attorney client privilege: an entity needs to be represented

5th Amendment

185
Q

Formation
(corporation)

A
  1. Promoters
  2. Incorporation Procedures
    –State of Incorporation: file with the secretary of state, name of corporation, purpose, initial number of directors, articles and bylaws of the corporation, then receive a seal of approval
186
Q

Defective corporate status (three)

A

Dejure (majority of jurisdiction) =
the corporation substantially complied with all the corporation formalities (did almost everything required there was just a slight error)

Defacto (minority of jurisdiction) = the corporation colorably complied with all the corporate formalities
(slight defect in the corporation formality, small error)

Corporation by estoppel =
the individuals who started up their corporation did not know, in good faith, that they needed to be adequately formed.

187
Q

Ultra Vires

A

Exceeding the powers of the corporation. Acts that are beyond its expressed or implied powers are deemed ultra vires

Ex: acts involving contract for unauthorized purchases

188
Q

Piercing the Corporate Veil

A

The owner uses a corporate entity to perpetrate a fraud or in someway accomplish an illegitimate objective for their own benefit.

189
Q

Alter-Ego Theory

A

The courts piece the corporation veil of the corp. Entity to avoid an injustice or fraud that would result from the wrongdoers (shareholders/officer/board members) board of directors so that they cannot hide behind limited liability

190
Q

Duties of the Shareholders

A

The majority owes a duty not to sell to looters

191
Q

Rights of the Shareholder (eleven types) (AVAPEPIACDS)

A
  1. Right to Attend Annual Meetings
  2. Right to Vote
  3. Approval of Fundamental Changes in Corporate Structure
  4. Right to Proxies
  5. Election and Removal of Directors
  6. Preemptive Rights
  7. Inspection of Books and Records
  8. Adoptions and Modification of Bylaws
  9. Right to Collect Dividends
  10. Right to Dissolve the Corporation
  11. Right to Shareholder Suits
192
Q

Duties of Directors and Officers (two)

A

Fiduciary duty of care–
a officer or board member that acted negligently and it wasn’t helpful of the company, even though they breached they still had that duty of care to the company

Fiduciary duty of loyalty– commingling of funds, conflict of interest, usurpation of a corporation opportunity

193
Q

Rights of Directors (three)

A
  1. To hold office until next election
  2. Removal with cause at modern law, without cause at common law
  3. Right to compensation and indemnification
194
Q

Rights of Officers (four types)

A
  1. To carry out business without interruption
  2. Election and removal by the board 3. Compensation and Indemnification
195
Q

SEC Violations (three)

A

10B5

16B

14A

196
Q

10B5 (sec violation)

A

Insider Trading (common law fraud)

Ex: knowing information and using it to one’s advantage before it is publicly announced
–Selling shares knowing before it is going down or bankrupt
–Buying shares while its low knowing before it is going to go up

197
Q

16B (sec violation)

A

Short swing profits – profits within a short period of time, the company must have at least 4 million dollars in profits

198
Q

14A (sec violation)

A

Proxy

199
Q

Right to Vote (rights of the shareholder)

A

quorum (a majority of the shareholders) must be present

200
Q

Right to Proxies (rights of the shareholder)

A

Revocable Proxies: can revoke the proxies right

Irrevocable Proxies: cannot revoke the proxies right

Proxies: third parties who are voting for the shareholders right to vote
-one share = one vote

201
Q

Right to Shareholder Suits (rights of the shareholder)

A

Direct – right to sue against company if any rights are violated)

Derivative – a shareholder finding out about a breach and the company doesn’t sue, the shareholder can step in the shoes of the corporation and sue

-Majority of jurisdictions require…

Step 1: shareholder demand on the board
Step 2: contemporaneous ownership in the corporation at the time of the injury

Minority of jurisdictions require…
Step 1 and 2
Step 3: must demand other shareholders

Business Law (2 decks)

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