Business Law Final

What is stare decisis and why was it created

"Let the decision stand" • Once a court decides a particular case, it will apply the same rule to future similar cases • Stare Decisis is the heart of Common Law

Hamer v. Sidway

- Uncle becomes indebted to nephew after uncle promises nephew $5,000 if he can refrain from drinking, using tobacco, swearing and playing cards or billiards for money until age 21 - Nephew fulfills promise to refrain - Nephew gives the right to receive the money to receive the money to Louisa Hamer. - Uncle Dies - Sidway, executor for the Estate of the Uncle refuses to pay Hamer - Executor argues there was no consideration given in exchange for the promise to pay $5,000 - Court disagrees and says the action of refraining from a legal right is consideration

When should K be in writing?

-Statute of Frauds - The deal is crucial to your life or the life of your business - The terms are complex (mergers and acquisitions, sale of IP) - You do not have an ongoing relationship of trust with the other party (manufacturing vs home remodel)

Contracts that cannot be performed within ___ (length of time) must be in writing

1 year

Mirror Image Rule

A common law rule that Acceptance must be precisely the same terms as the offer

Negligence concerns what type of harm

Accidents

Purpose of FOIA

Avoids gov't secrecy - gives us access to the info agencies are using

How do we lose privacy in digital world?

Biometrics = physical and behavior characteristics such as fingerprints, facial patterns, DNA, and way we walk

Define Substantive Due Process

Certain rights are so fundamental, the gov't may not eliminate them • Eg: Right to contract, work in ordinary type of job, marry, raise one's child as a parent

What do most states follow? Contributory vs comparative doctrine?

Comparative

What's in the intro paragraph of a K

Date, Effective Effective (insert or date of last signing), parties, nature

Define and ID defamation. What happens if the statement is true?

False statements that harm someone's reputation Libel - written defamation (L=literature) Slander - oral defamation (S=spoken)

Wickard v Filburn

Farmer grew more wheat than allowed because he was being funded by congress. Congress said they could regulate that because even though it was for his personal consumption, it would effect interstate commerce. Expansion of power of the Commerce Clause

Bill of rights are which amendments?

First 10

How does EU view privacy rights

Fundamental

What is contributory negligence?

If Plaintiff is even slightly negligent, Plaintiff recovers nothing.• EG: A is speeding; B is drunk driving. Accident? A recovers $0

What is comparative negligence?

If Plaintiff is slightly negligent, Plaintiff's recovery is reduced• EG: A caused 5% of accident; B caused 95% of accident. A recovers 95% of damages

ID when an offer terminates

If offeror dies or become mentally incapacitated or the subject matter terminates

Capacity and violability

Minors lack capacity and can only create a voidable K

Misdemeanor vs Felony

Misdemeanors are minor crimes that are generally punished through fines, etc rather than jail time. Felonies are more serious crimes that usually require jail time.

Can you assign personal injury claims?

No

If a K prohibits delegation, can duties be delegated

No

Acceptance

Offeree says or does something that a reasonable person would understand they want to take the offer

Revocation

Offeror takes it back before offeree accepts

Termination by Rejection

Once rejected, rejected immediately terminates offer

original purpose of Statute of frauds

Prevent Lying

Define criminal law - who are the parties

Prevents certain behavior for benefit of society Gov't v Defendant

Define promissory estoppel

Remedy for injured Plaintiff who can show: a promise, reasonable reliance, and injustice

When is assignment prohibited

Substantially changes obligor's rights or duties under the Contract • Is forbidden by law or public policy (personal injury claims cannot be assigned) • Validly precluded by the Contract itself

Define jurisdiction

The authority of a court to hear a case

Capacity

The legal ability to enter into a K an adult of sound mind

Contract by unlicensed people where license required

Think Dr., lawyer, plumber, realtor. When a licensing requirement is designed to protect the public, any contract by an unlicensed worker is unenforceable. But if designed to raise # (retail stores), then contract from unlicensed person okay

What was the Palsgraf case about?

Two train employees helped the man get on the train. However, in the process, the man dropped the package. It fell to the rails and exploded, causing several scales at the other end of the platform to dislodge and injure Palsgraf. Palsgraf brought suit against the railroad for negligence.

Define Alterative Dispute Resolution

Ways to resolve without trial -Negotiations: most common way to resolve without trial. Done by parties or their lawyers -Mediation: Often ordered by judge before trial. Use skilled negotiator (mediator) to reach agreement. Parties control the outcome. Win-win. Can be binding or non-binding, whatever parties decide -Arbitration:• Mini-trial• Binding• Final result guaranteed, but parties lose control of the outcome

Burning flag, protected under freedom of speech?

Yes

Can congress pass any type of law it wants?

Yes

Does UCC requires over $500 to be in writing

Yes

IF a K is for personal services - like music or art - can it be delegated?

Yes

If someone assigns rights, is that legally enforceable?

Yes

Obscene speech, protected under 1A?

Yes

If an administrative agency adjudicates a decision and you don't like it - what next?

You can appeal

Life insurance who can take out policy?

You may only take out policy on the life of someone else if you have an insurable interest in that person

Past Consideration

a completed act cannot be basis for consideration

Define and ID force majeure event

a disruptive, unexpected occurrence for which neither party is to blame and that prevents one or both parties from complying with the contract.

What is HIPAA

a federal law that required the creation of national standards to protect sensitive patient health information from being disclosed without the patient's consent or knowledge.

Define nominal damages

a token sum ($1) given to Plaintiff to show a breach, but no serious damages(moral victory)

Define tort

a violation of a duty imposed by the civil law

What is a statute

a written law passed by a legislative body

How are ambiguities interpreted?

accidentally unclear. Parties think it's clear but it's not.

Offer

an act or statement that proposes definite terms and permits the other party to create a contract by accepting those terms

What is assult?

an act that makes a person reasonably fear an imminent battery

ID duty to mitigate damages

an injured party may not recover for damages they could have avoided with reasonable efforts ❖ EG: Landlord must look for replacement tenant

Define and ID sever ability provision

asks the court simply to delete the offending clause and enforce the rest of the contract

When do Lawyers like to negotiate touchy subjects?

at the beginning of the relationship

What should a K title say and look like

be descriptive - not just "Agreement" make it "Employee Confidentiality Agreement"

Why are ethics important

builds trust

Usury laws

cannot charge excess interest on loans. If a creditor charges more than allowable amount, then depending on the state they forgo the illegal interest, all interest, or even the entire loan balance

exculpatory clause

contract provision that attempts to release 1 party from liability in the event the other is injured MUST BE CLEARLY WRITTEN, IN BOLD, CAPITAL LETTERS

Specific performance and when available

court can award this which is a court order making both parties complete the deal ❖ Only allowed in cases involving sale of land or other asset considered unique

Consequential Damages

damages resulting from the unique circumstances of the injured party (aka "special damages") ❖ Only available if they are a foreseeable consequence of the breach ❖ EG: Your neighbor breaches the agreement to sell you their car and now you have to rent a car. The cost of the rental car are the consequential damages. Recoverable if neighbor knew you needed a car to drive to work

Direct damages

damages that flow directly from the contract ❖ Most common monetary award ❖ EG: You were going to buy your neighbor's 2020Toyota Highlander for $20K. They breach the contract. You find the same 2020 Toyota Highlander for $21K. You sue your neighbor for the $1k in direct damages

Define and ID stakeholders

employees, customers, communities

Define breach

fail to perform a duty without a valid excuse.

Define IOT and what it does

gathers sends and receives data

Why do many major companies actively encourage ethical behavior?

generate a range of benefits for employees, companies, and society.

Define ethics

how people SHOULD behave

Preexisting Duty

if someone provides a service that they're already required to do = Not consideration

What is battery?

intentional touching of another person in a way that is harmful or offensive

Looking at scenarios of different types of landowners, which has highest liability owed to them

invitees-customers of businesses

Define common law

judge made law

What is strict liability?

liability regardless of fault

How are most cases solved

negotiations

Purpose of 3 branches of government

no central person has power

Elements of a Contract

offer, acceptance, consideration, legality, capacity, consent, writing

civil case burden of proof

preponderance of the evidence

Incidential Damages

relatively minor costs that the injured party suffers when responding to the breach ❖ EG: additional shipping cost, additional mpg, cost of taxi ride, additional advertising costs, additional storage costs

Minor what happens if they rescind a K

return and get $ back

Miranda Warning is to protect against?

self incrimination. gov't must remind defendant of constitutional rights

Criminal law is what type of law

statutory

Define ID theft and ID what it might include

stealing SSN, fake Facebook page

Define larceny

taking and carrying away the property of another

Consideration

the inducement, price, or promise that causes a person to enter a contract and is a basis for the parties' exchange

Define life principles

the rules by which you live your life

Purpose of K law

to enforce the agreement of the parties.

Define liquidated damages

when it's difficult or impossible to prove the damages, write in an amount into the contract. Must be reasonable.

What is entrapment?

when law enforcement officials encourage persons to commit crimes that they otherwise would not commit