LCN 2

Under the "Negotiation Jujitsu" approach, why should you use questions instead of statements when dealing with a difficult or positional negotiator?

-Non-threatening - No position of attack - Do not criticize; they educate

What are the goals of negotiation?

To better relationships and reach a wise agreement

When are acts considered to be within the scope of employment?

When the employee is motivated by a desire to serve the employers interest

Define "apparent agency."

When the entity gives the impression that the employee or other acquaintance has the authority to act

Give the general definition of "Condition."

- A future and uncertain event on which the existence or extent of an obligation or liability depends - Affects time of performance, specific date or events - The word "condition" is not often used

Give the general definition of "Option."

- A privilege that one party may or may not choose to exercise - Usually refers to the ability to continue the term of the contract for an additional period

Define "Warranty."

- An express or implied promise that something is guaranteed - Must be strictly complied with

Define "Rider."

- Attached to an agreement for live performance - Sets forth special needs of performer, usually relating to food, beverages, dressing rooms, etc)

Name the three ways marketplace competition benefits consumers?

- Better quality - More choices - Lower Prices

What is a Most Favored Nations clause?

- Clause that states that the party promised this status will receive as good of a deal as anyone else -If there are multiple parties to a contract you promise to give all parties equal treatment.

List the elements of a wise agreement.

- Durable - Fair - Meets legitimate Interests

What three elements must be satisfied to establish monopolization?

- Intent to control - Predatory Actions - Dangerous probability of success that it will turn into a monopoly

What three things must be shown to prove that the speech is incitement to violence?

- Intent to incite someone to criminal action - That it is imminent - Likely to result in violence

What are the three elements of a consent decree?

- No admission of guilt - No piggybacking - Cease anti-competitive conduct

Why would you include a Liquidated Damages clause in a contract? How must it be limited?

- Provides for a specific dollar amount to be paid if the contract is breached - Must not act as a punishment - Excessive amounts will not be upheld

What are the four steps of Principled Negotiation?

- Separate people from the problem - Generate Options - Focus on interests - Objective criteria

What is "Indemnity?"

- To hold harmless (not responsible) - A duty to make good any loss, damage, or liability incurred by another - To absolve another form any financial responsibility for damage or other liability arising from the transaction - Agreeing in advance not to sue each other because of things that are out of their control

What are the five points of a valid contract?

- Unambiguous: proper communication / mutual assent - Consideration - Capacity: age, mental ability, authority - No illegal acts - Mutual agreement

What are the six types of contracts that fall under the Statute of Frauds?

1. Cannot be performed within 1 year 2. Concerning interest in realty 3. In consideration of marriage 4. assuming the debt of another 5. sale of goods over $500 6. Assignment of Copyright

What are some ways in which you can design a deal to minimize risks?

1. Carry out their side of the deal first 2. Build guarantees into the agreement 3. Don't let them treat your doubts as a personal attack 4. Add a dispute resolution procedure

CONDITION PRECEDENT

A trigger; something must happen BEFORE other obligations CONDITION SUBSEQUENT: Something that will cause the contract to prematurely be brought to an end without liability of either party

What is the Mailbox Rule?

Acceptance is effective (and offer cannot be withdrawn) once it has been mailed. This may be negated by the terms of the offer

What is the Mirror Image Rule?

Acceptance must be unconditional and must not change, add to, or qualify the terms of the offer

Define "fiduciary duty."

An affirmative duty to act in the best interest of another which arises due to the relationship of the parties

IMPLIED WARRANTIES

Certain warranties are implied by law and need not be stated to be binding Implied warranty of merchantability Fitness for a particular purpose

DISCLAIMER OF WARRANTIES

Disclaimers of implied warranties must STAND OUT from the rest of the text Larger font, different color and/or set apart from the rest of the text

What is "respondeat superior?"

Employer responsible for the actions of their employee

What is California Labor Code Section 2855? What effect does it have on options?

Personal services contracts may not be enforced beyond 7 years The contract may not be enforced after 7 years. The entire contract is NOT void and is still binding for the initial 7 year period

What are the terms of the Sherman Act and the consequences for businesses that violate them?

Prevent unreasonable restraints on trade and monopolization of entire industry Consequence - business can be broken down and separated or dissolved

What is the difference between a Material Breach and an Immaterial Breach?

Material Breach - Non-breaching party is excused from further performance under the contract Immaterial Breach - Non-breaching party is NOT excused from obligations

What are some examples of fair criteria upon which the result of a negotiation can be judged?

Objective professional standards, fair market value, facts and laws, cost

What is the Statute of Frauds?

Statute created to prevent fraud -Covers areas, which have traditionally been subject to fraud -If an oral contract concerns one of these areas, the court will NOT enforce the agreement

Define "market power."

The ability to affect market price and indication of monopolization

An indemnity clause commonly follows which clause?

Warranty

When is an employer liable for the intentional torts of his employee?

When there is a foreseeable consequence of the activity

Why is it important to read and understand the definitions given in a contract?

Words can mean different things to different people - default rule "Plain meaning rule" - they will assume that the word that you meant was whatever the society finds to be the dictionary definition of that word One word can have many different meanings Defined words in all caps