BUl Final Exam Study

What are the two general elements required in order to prove guilt of a crime (of the defendant)?

(1) a voluntary act or omission (actus reus), accompanied by (2) a certain state of mind (mens rea).

When can you take title based on possession?

(1) actual, (2) open and notorious, (3) exclusive, (4) hostile, (5) under cover of claim or right, (6) and continuous and uninterrupted for the statutory time period.

What is a power of attorney?

(POA) is a legal document giving one person (the agent or attorney-in-fact) the power to act for another person (the principal).

What are the other privileges recognized by 5 th amendment?

1) right to indictment by the grand jury before any criminal charges for felonious crimes, 2) a prohibition on double jeopardy, 3) a right against forced self-incrimination, 4) a guarantee that all criminal defendants have a fair trial, and 5) a guarantee that government cannot seize private property without making a due compensation at the market value of the property.

What is the "fair use" doctrine?

is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.

What is common stock?

is a security that represents ownership in a corporation. Holders of common stock elect the board of directors and vote on corporate policies.

What is a general partnership?

is one of two or more investors who jointly own a business and assume a day-to-day role in managing it

What are the major steps in a criminal trial, from arrest to conviction?

initial court appearance, arraignment, release on a bail bond, seek legal advice, preliminary court dates, trial. sentencing

What are the remedies for copyright infringement?

injunctions, impoundment and destruction, damages, court and attorney fees, and criminal penalties

What are the four most common ownership interests in real estate?

interest, possession, time, and title

what is a limited partnership?

is when two or more partners go into business together, with the limited partners only liable up to the amount of their investment.

What is Fifth Amendment privilege against self-incrimination?

protects a person from being forced to reveal to the police, prosecutor, judge, or jury any information that might subject him or her to criminal prosecution.

When is the principal liable for negligent conduct of an agent?

when the agent is acting within the scope of authority and there is no frolic and detour by the agent

How long are patents valid?

20 years

What is a d.b.a

A DBA is a trade name or alias for a business

Does the fifth amendment apply to businesses as well?

A corporation does not have quite the same rights as individuals, including the Fifth Amendment privilege against self-incrimination that an organization cannot assert.

What is an attorney in fact?

An agent authorized to act on behalf of another person, but not necessarily authorized to practice law, e.g. a person authorized to act by a power of attorney. An attorney in fact is a fiduciary.

Is the 5th amendment applied equally to natural persons and corporations and partnerships?

Corporations do not have any rights under the Self-Incrimination Clause of the Fifth Amendment to the U.S. Constitution.

Where does the authority to regulate patents and copyrights come from?

Art. I, Sec. 8, Clause 8 of the United States Constitution, the so-called Intellectual Property Clause

How long is an individual granted copyright protection?

As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years.

What does it mean to take reasonable precautions to protect a trade secret?

Because trade secrets are often among a company's most valuable assets, owners may feel a need to take every possible measure to protect them.

what are the two different tests used to analyze whether principal is liable?

Benefits test and Characteristics test

What does the 8th amendment prohibit?

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

What is the Revised Limited Partnership Act?

The Uniform Limited Partnership Act, which includes its 1976 revision called the Revised Uniform Limited Partnership Act, is a uniform act, proposed by the National Conference of Commissioners on Uniform State Laws for the governance of business partnerships by U.S. States

Which is more serious, a felony or misdemeanor?

Felony

What happens when there is a hung jury?

If the jurors cannot agree on a verdict, a hung jury results, leading to a mistrial. The case is not decided, and it may be tried again at a later date before a new jury. Or the plaintiff or government may decide not to pursue the case further and there will be no subsequent trial.

When is the principal liable for intentional torts of the agent?

If the principal directed the agent to commit a tort or knew that the consequences of the agent's carrying out his instructions would bring harm to someone, the principal is liable. This is an application of the general common-law principle that one cannot escape liability by delegating an unlawful act to another.

What privileges is recognized under the Fifth Amendment?

In criminal cases, the Fifth Amendment guarantees the right to a grand jury, forbids "double jeopardy," and protects against self-incrimination.

Can someone who attempts to complete a crime be convicted of a crime even if they are unsuccessful in carrying out the original crime?

Individuals cannot be charged with attempt for accidentally committing a crime. ... Attempt is therefore categorized as a "specific intent" crime

What are the advantages of an LLC over other businesses?

It limits liability for managers and members. Superior protection via the charging order. Flexible management. Flow-through taxation: profits are distributed to the members, who are taxed on profits at their personal tax level.

What is a LLC and why is it popular?

LLC members receive the same personal liability protection as shareholders of a corporation without having to incorporate. This is an attractive feature because you save the time and expense of going through the incorporation process.

What are owners of an LLC usually called?

Members

does an attorney in fact have to be an attorney?

No

Where do articles of incorporation have to be filed?

Office of the Secretary of State where the business chooses to incorporate

Which amendment grants the right to a jury trial? What does this right include?

The Sixth Amendment guarantees the rights of criminal defendants, including the right to a public trial without unnecessary delay, the right to a lawyer, the right to an impartial jury, and the right to know who your accusers are and the nature of the charges and evidence against you.

What is the Racketeer Influenced and Corrupt Organizations Act (RICO)?

Passed in 1970, the Racketeer Influenced and Corrupt Organizations Act (RICO) is a federal law designed to combat organized crime in the United States.

Which state law governs a limited partnership?

Since 1986, limited partnerships have been governed by the Florida Revised Uniform Limited Partnership Act of 1986 ("FRULPA 1986").

What are the main types of property rights?

Sole Ownership. Joint Tenancy. Tenancy in Common. Tenancy in Common vs. Joint Tenancy. Tenants by the Entirety. Owning Partnership (LLC) Owning Corporation. Owning Trust.

Who is responsible for debts of a sole proprietorship?

Sole Proprietorship liability is unlimited, the owner remains fully liable for any debts created by the business.

What are the two ways a corporation can be dissolved?

The first is voluntary dissolution, which is an elective decision to dissolve the entity. A second is involuntary dissolution, which occurs upon the happening of statute-specific events such as a failure to pay taxes.

What functions is imprisonment intended to serve?

These purposes are retribution, incapacitation, deterrence and rehabilitation.

What is a hung jury?

When there are insufficient jurors voting one way or the other to deliver either a guilty or not guilty verdict

Are the partners in a dissolved general partnership still responsible for unsatisfied debts

Without a written agreement that one partner was to pay a certain portion of the debt, or to pay a certain debt, the other partners are still liable

What real estate agreements need to be in writing under the Statute of Frauds?

a contract to buy or sell real estate

What is the relationship between a franchisor and a franchisee?

a dependent relationship. The franchisor establishes business systems, the operating business, and grants franchisees the right to establish their own franchise location. As a franchisee, you have rights and obligations.

What is a patent?

a government authority or license conferring a right or title for a set period, especially the sole right to exclude others from making, using, or selling an invention.

What is a deed?

a legal document that transfers property ownership from a seller/grantor to a buyer/grantee.

What is a limited liability partnership?

a partnership structure where each partner's liabilities are limited to the amount they put into the business. Having business partners means spreading the risk, leveraging individual skills and expertise, and establishing a division of labor.

What is an independent contractor?

a person, business, or corporation that provides goods or services under a written contract or a verbal agreement. Unlike employees, independent contractors do not work regularly for an employer but work as required, when they may be subject to law of agency

What are the articles of incorporation?

a set of formal documents filed with a government body to legally document the creation of a corporation.

What is meant when it is said that C corporations are doubly taxed?

a situation that affects C corporations when business profits are taxed at both the corporate and personal levels. The corporation must pay income tax at the corporate rate before any profits can be paid to shareholders.

What types of law govern agency?

actual authority (whether express or implied), apparent authority, and ratified authority ...

What is a bailment?

an act of delivering goods to a bailee for a particular purpose, without transfer of ownership.

What is the difference between an easement and a license?

an easement is an interest in land that lasts either indefinitely or for some specified period of time. A license, on the other hand, is permission to use land that can be revoked at any time.

After a criminal trial, who can appeal the verdict?

defendant may appeal

What is the legal term for property ownership?

any interest in land, real estate, growing plants or the improvements on it

What is a trade secret?

are intellectual property (IP) rights on confidential information which may be sold or licensed.

How are copyrights created?

as soon as the work is fixed in a tangible medium of expression

What are the three types of principal/agency relationships?

between principal and agent, between principal and third party, and between agent and third party.

What is a "trademark?"

can be any word, phrase, symbol, design, or a combination of these things that identifies your goods or services.

What is the difference between a publicly held corporation and a closely held corporation?

closely held corporation has a tight-knit group of shareholders that make up the ownership committee for the business, while a publicly held corporation is one that is owned by stockholders.

What are corporate shareholders?

corporations that have purchased another corporation's stock

What are the 2 types of tangible property?

current and fixed assets (land, property, equipment)

What are the two types of patents?

design patents and utility patents.

How long can a trademark be registered for?

every ten years

Any exceptions to business searches without warrants?

exigent circumstances or building inspections?

Why do we say that corporations are "artificial persons?"

gives them the ability to stand up in a court of law on behalf of their own interests and customers, to enter into legally-enforceable contracts, and to be held accountable for their misdeeds

What duties do the directors have to the corporation?

governing the organization by establishing its mission, policies, and objectives; selecting, appointing, supporting, and reviewing the officers; approving annual budgets; and accounting to the shareholders for the corporation's performance.

What is a corporate merger?

happens when a company finds a benefit in combining business operations with another company in a way that will contribute to increased shareholder value

What must a trademark be to qualify for federal protection?

it must be in use in commerce and it must be distinctive.

What rights do preferred stockholders have?

limited rights which usually does not include voting. 1 Preferred stock combines features of debt, in that it pays fixed dividends, and equity, in that it has the potential to appreciate in price.

What is the primary source of criminal law?

most of the criminal law today is made by state legislatures, with the federal criminal law being made by Congress.

What must an invention be to be patented?

must be statutory, novel, useful, and nonobvious

What is the board of directors of a corporation?

n elected group of individuals that represent shareholders. The board is a governing body that typically meets at regular intervals to set policies for corporate management and oversight. Every public company must have a board of directors.

How many times can a trademark be renewed?

no limit

What is the agent's duty of loyalty?

obligates a real estate broker to act at all times solely in the best interests of his principal to the exclusion of all other interests, including the broker's own self-interest.

what is embezzlement?

occurs when someone steals or misappropriates money or property from an employer, business partner, or another person who trusted the embezzler

Who is protected under the Fourth Amendment? What are they protected from?

people from unreasonable searches and seizures by the government. The Fourth Amendment, however, is not a guarantee against all searches and seizures, but only those that are deemed unreasonable under the law.

What is tangible property?

personal property is anything other than real property (land and building) that is used in the operations of a business or rental property.

What is the exclusionary rule?

prevents the government from using most evidence gathered in violation of the United States Constitution.

What does the prohibition against double jeopardy prevent?

prohibits anyone from being prosecuted twice for substantially the same crime.

What is preferred stock?

refers to a class of ownership that has a higher claim on assets and earnings than common stock has.

What is the attorney-client privilege?

refers to a legal privilege that works to keep confidential communications between an attorney and his or her client secret.

What are patentable subject matters?

refers to an invention that meets the standards set forth by the United States Patent and Trademark Office (USPTO) to receive patent protection. ... Examples of patentable subject matter include: Business methods and processes. Computer hardware.

what is burden of proof in a civil case?

rests on the plaintiff or the person filing the suit. The plaintiff should prove that the allegations are true and that the defendant, or the other party, caused damages. When it comes to establishing a civil case, the plaintiff must usually do so by a preponderance of evidence.

what are six major legal structures of business

sole proprietorships, partnerships, limited liability companies, corporations and cooperatives

How is a sole proprietorship taxed?

taxed through the personal tax return of the owner, on Form 1040

what happens in the dissolution of a general partnership?

terminates the authority of any business partner to carry on doing business of the partnership. When a partnership dissolves, general partners may only make transactions designed to wind up the partnership's business affairs.

what are the advantages of a sole proprietorship

that they are easier to set up than other business entities. A person becomes a sole proprietor simply by running a business. Another functional advantage of a sole proprietorship is that the owner maintains 100% control and ownership of the business.

what is burden of proof in a criminal case?

the burden of proving the defendant's guilt is on the prosecution, and they must establish that fact beyond a reasonable doubt.

In a criminal lawsuit, who is the plaintiff?

the government agency, and it is acting on behalf of the people

What is a key factor in determining if someone is independent contractor?

the payer has the right to control or direct only the result of the work and not what will be done and how it will be done. The earnings of a person who is working as an independent contractor are subject to Self-Employment Tax.

What is reverse engineering?

the reproduction of another manufacturer's product following detailed examination of its construction or composition.

What is eminent domain?

the right of a government or its agent to expropriate private property for public use, with payment of compensation.

Who elects the board of directors?

the shareholders in general meeting or through a proxy statemen

How does a person acquire real property by adverse possession?

to a property owned by another if they openly occupy the land and pay real property tax for at least seven years

What crimes are considered business or white-collar crimes?

wage theft, fraud, bribery, Ponzi schemes, insider trading, labor racketeering, embezzlement, cybercrime, copyright infringement, money laundering, identity theft, and forgery.

What are Miranda rights?

warning is a protection for citizens to inform suspects—and when I say suspects, people who are under arrest, people who are in custody and suspected of particular crimes—to inform them of their Fifth Amendment right against self-incrimination and their Sixth Amendment right to counsel ...

Does the government need a warrant to search a business?

yes