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ENTREPRENEURIAL LAW > Test 1 > Flashcards

Test 1 Flashcards

(59 cards)

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1
Q

Offer and Acceptance

A

One party offers to enter into an agreement. Acceptance - the other party must accept the terms of the offer.

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2
Q

Assent

A
  • Act of agreement. signature of actions indicating an agreement.
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3
Q

Consideration

A

something of value received or protected to induce the other party to enter the deal.

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4
Q

Mental Capacity

A
  • Includes minors, impared. Incompetent - duress (threats)
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5
Q

Meeting of the Minds - Mustang

A

Mutual mistake or acceptance must be the mirror image of what is being offered or no meeting of minds.

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6
Q

According and Satisfaction

A
  • for contract modification - “Paid in full”. New Set of terms for the same thing.
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7
Q

Implied Contract -

A

Restaurant - dictated by custom. Contract not explicitly articulated and is held to exist based on certain circumstances or on the conduct of the parties.

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8
Q

Unconscionable

A
  • fine print, element of surprise. . Trickery. When material term is in fine print NOT OKAY.
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9
Q

Boilerplate

A

fine print of all contracts

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10
Q

Choice of Law

A

Where you will go to court and what state laws will be followed?

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11
Q

Force Majure -

A

Impossibility of performance. (New Skin / Olympics). or commercially impractical

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12
Q

Integration Clause -

A

Entire agreement between parties. Prevent ambiguities with regard to discussions taking place after contract has been signed.

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13
Q

Injunction

A

Stop a wrong: Courts will stop something if personal info is going to be released or historic tree will be cut down, etc.

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14
Q

Specific Performance

A

Must Perform, ordering a party to perform an agreed promise (beyonce at the super bowl)

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15
Q

Ambiguity

A
  • Artist will paint the model nude . Use terms consistently, avoid unrealistic absolutes “best efforts”, define terms and use capital letters.
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16
Q

Mitigation

A

Lessening the damage of breach, If you don’t try to fix the breach, then courts won’t help with your outrageous requests - roommate and rent example.

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17
Q

How to sign a document for a corporation and why it matters

A

Limit liability to corporation and not you when you sign name, title, and corp.

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18
Q

Know the rules of interpretation

A

Courts want to figure out what the parties intended. Handwritten over typewritten.

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19
Q

Where do laws come and why are they enforced?

A

Legislature, Enforced through executive branch (administrative agencies).

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20
Q

What is the connection to a liberal administration and more regulations?

A 
Democratic = liberal, consumer protection , more regulations. 
Republicans = economy best with fewer constraints conservative.
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21
Q

How are regulations promulgated?

A

Federal Register where printed

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22
Q

Who are regulations meant to protect?

A

Consumers and economy as a whole, uneducated, vulnerable (minorities, children, elderly, animals)

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23
Q

Uniform Commercial Code

A

Applies to merchants in their course of trade in the sale of goods, provides legal “gap fillers” when a contract lacks detail, provides implied warranties: disclaimers, merchantability, title, fitness for a particular purpose.

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24
Q

Battle of the forms

Study These Flashcards
A

common terms form contract - inconsistent terms fall out

25
Merchantability (Uniform Commercial Code)
Seller is a merchant in the goods sold - implied the goods are fit for the ordinary purposes. Breach warrant if product is lesser quality than stated.
26
Title (Uniform Commercial Code)
Applies to merchants in their course of traf in the sale of goods.
27
Fitness for a particular purpose (Uniform Commercial Code)
Seller has a reason to know the buyer has a particular purpose for which he/she wants to use the goods & buyer relies on sellers skill or judgement to select and finish goods. (cream to help wish a rash)
28
Corporations are formed under GOV. or STATE? and WHY?
STATE LAWS: each state has its own rules, though there is uniformity on many rules. COORPORATE CODE IS different in each state: incentives are different in each state to attract business
29
What is the state of preference for public companies?
DELAWARE: it has the longest (therefore most stable) history of case law and precedant
30
What is the State of Preference for most favorable corporate statute?
No corporate state income tax, privacy of owners, limited residency requirement.
31
What are BYLAWS
tell you what to do when something comes up -> created by corporation/company.
32
State Law (actions on BYLAWS, rules, and requirements).
If your bylaws do not specify certain rules of operation, state law will fill in the blanks. State law may also set minimum require,emts and rules. (ie you can't change boting rights without the vote of those who currently hold voting rights.
33
Uniform Partnership act
Will govern partnerships if no partnership agreement states otherwise. BARE MINIMUM: 1. partners have = shares of profits + losses 2. partners will not compete w/business o/partnership. 3. All partners have rights to inspect books o/ the partnership. 4. Any partner can bind the partnership.
34
Piercing the Veil or "alter ego"
Loosing the liability protections of a corporation or LLC due to failure to maintain "formalities".
35
Corporate Formalities
include forming the board, filing articles, adopting bylaws, holding meetings according to the bylaws, keeping minutes of meetings, signing resolutions, filing taxes.
36
An "S" Election
an IRS section (not "small") that allows the corporation to be taxed as a partnership. If not elected in 6 months, the default is a C corporation.
37
DBA
Doing Business As - filed for sole proprietorships and partnerships.
38
Capital Accounts
Allow for LLC's to make ongoing accountings of member contributions. Accounting mechanism to allow LLC's to make adjustments to capital accounts for each person/member.
39
Implied Warranties: (4)
Disclaimers - Merchantability - Title Fitness for a particular purpose
40
Disclaimers
State item is sold "as is" or "with all faults". Must be visibly noticeable, disclaim on impaired warranty of fitness for a particular purpose must be in writing and be conspicuous. Disclaim any implied warranty of merchantability - if in writing, must be conspicuous - disclaim expertise with the goods.
41
Elements of a commercial contract
1. Identifications (parties) 2. Effective date 3. Recitals (background to contract; 4. Terms of agreement 5. Logistics (performance details - instructions) 6. Payment and collection terms; representations & warranties 7. Indemnities - transfer or risk to prevent loss or compensation for a loss which may occurs as a result of a special event. 8. Limitations of a liability (allocation of risk) 9. Term and termination - renewal 10. Breach (notice and cure)
42
Rules of Interpretation
When a contract contains ambiguous or unclear terms, a court resorts to one or more of the following rules to determine and give effect to parties intent" 1. Specific terms prevail over general terms 2. When the language has more than one meaning, any ambiguity is construed against the drafting party. 3. Words given preference over #'s or Symbols 4. Negotiated terms given greater consideration than standard form/boiler plate terms.
43
Contracts:
Terms should preails those of the original contract/agreement.
44
Quantum Meruit
Have to pay for services even if you didn't agree to it - Medical bills when unconsious
45
Mandatory Mediation Clause
Requires parties to meet with a mediator to try and settle before filing a lawsuit. (If that doesn't work, they will go to court).
46
Bilateral Promise:
Promise for Promise.
47
Unilateral Promise:
Promise of exchange for performance of a certain act.
48
Reliance Damages:
Compensated plantiff for any expenditures he/she made in reliance on a contract that was breached. (reliance damages return plantiff to position before the contract).
49
Restitution
Similar to reliance damages but looks at what both parties have gained - returned parties to the state before the contract - paid for something you didn't do? Other party gets paid that amount too!
50
Consequential Damages:
Plantiff compensated for losses that occur as a foreseeable result of a breach.
51
Liquidated Damages
Contracted compensation in case of a breach of contract - best estimate of damages expected to be.
52
Express Warranties
Quality or features of the goods - sample ad, description of good, doesn't have to be in writing but usually is.
53
Express contract
A contract where the terms of the agreement are fully and explicitly stated orally or in writing.
54
Articles of incorporation
1. Name of the company 2. Legal Purpose 3. Fiscal Tax Year 4. Incorporators/Organizers 5. Number of shares 6. Registered Agent (Person who signs for service of process against corporation in the state of inc.
55
Articles of Organization
1. Name of the LLC 2. Address 3. Agent for service of process 4. Term 5. Governed by members or managers?
56
Operating Agreement
How is the money handles in a LLC?
57
Where are laws and rules found?
In the federal register.
58
Joint an Several Liability
As partners are jointly and individually liable for losses > those with more money sought after more when liabilities need to be paid up (rich guy over college student).
59
Sever-ability
Use the whole contract except for that small part that isn't legal - instead of voiding the entire contract.

ENTREPRENEURIAL LAW (2 decks)

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