Chapter 7 & 8 Business Law Exam Review.

Duty to skill and care Duty to good conduct Duty to keep and render accounts Duty to act only as authorized Duty to not to attempt the impossible or impractical Duty to obey Duty to give information

"Other Duties" General Duties of the Agent:

Executory contract

-agreements consisting of a set of promises before any performance is completed.

Both parties are giving consideration

A bilateral contract is one:

The subject of the contract is Illegal

A contract is a void if:

One of the parties lacks capacity to make one. If both principal and agent lack capacity

A contract is void or voidable when?

The Lendor

A mortgagee is:

Agreement.

Agencies can also be created without contract, such as by?

1) Fiduciary duty 2) Set of general duties imposed by agent law

Agent owes principal duties in 2 categories

A liquidated damages clause

Allows parties to set the amount of damages in the event of breach. Agreeing to a damage amount before any breach occurs can save money and time spent litigating.

The party that wrote the contract.

Ambiguities are construed against?

180

An EEOC complaint must be filed within how many days?

Offer, acceptance, and consideration

A valid contract requires:

The minor backs out from it or the minor ratify it when they turn 18

A voidable contract will remain valid unless?

Common law marriage

An example of an implied contract:

Exculpatory Clauses

Are clauses implemented in contract between two parties when there is an inherent risk of injury. The back of the baseball tickets have an exculpatory clause which makes it impossible to win a lawsuit with a baseball team if your hit with a foul ball

Quasi-Contract and promissory estoppel

Are two types of equitable remedies that a court may impose. When detrimental reliance is found, an equitable remedy can substitute for consideration. This allows the court to enforce the terms of the "contract," even though, technically speaking, there was no contract to begin with.

Public ADA requirements, like ramp sidewalks etc

Article 3 deals with?

assignable and delegable.

As a preliminary matter, it is important to realize that contracts are, by common law:

Bilateral contract

Both parties promise to do something, a promise for a promise. If party A. promises to wash a car then, party B. also promises to pay party a for washing it

False

Companies are required to undertake affirmative action programs? True or False

"right to sue" letter

EEOC can issue a?

300

EEOC complaint can be extended to which can be extended to how many days? -Only if there is a state agency that enforces a state law prohibiting discrimination on the same basis.

EEOC

Employees must file Title VII charges with the _______________ first before going to court.

True

Employer CANNOT require a medical exam before offering a job position? True or False

Kansas table of benefits

Even if an employee can work after an accident, may be eligible to receive compensation for specific injuries ______________________________ is quite extensive for various injuries to limbs, etc.

-Agent stands in position of trust -Duty to avoid self-dealing -May not profit from a conflict between his personal interest Duty to preserve confidential information -Reveal secrets to agent

Fiduciary duty:

for a legal purpose

For a contract to be valid the subject matter of the contract must be:

Statute of Frauds The Parole evidence rule Rules of interpretation

General technical legal rules fall within 3 general headings:

Can be avoided even if the agent is fully competent.

Generally, the law focuses on the principal. If the principal is a minor or otherwise lacks capacity then the contract?

The Civil Rights Act of 1964 / Title VII

Has broad significance for all racial minorities, religious organizations, and women.

Agency coupled with an interest

If the agent has a property interest in the business, they are known as?

the power of acceptance has been withdrawn by that revocation

If the offeror revokes an offer before the offeree accepts then:

34,000 or 36% of total number of complaints filed

In 2009 the EEOC received how many complaints of race-based discrimination in the workplace?

"by operation of law."

In areas of social need, courts have declared an agency to exist in the absence of an agreement. The agency relationship then is said to have been implied:

mirror image of the offer which means the acceptance must be precisely the same as the offer.

In common law contracts the acceptance must be a:

• if the agreed-on purpose of the agency cannot be fulfilled within one year or if the agency relationship is to last more than one year; • in many states, an agreement to pay a commission to a real estate broker; • in many states, authority given to an agent to sell real estate; and • in several states, contracts between companies and sales representatives.

In practice, many agency contracts are written to avoid problems of proof. And there are situations where an agency contract must be in writing:

Common law and the Uniform Commercial Code (UCC)

In the US what are the primary sources of law that govern our contracts?

True

Intentional discrimination against racial minorities is illegal? and Proving intentional discrimination is difficult? True or False

"Shop Rights" doctrine

Inventions developed and perfected in plant with its time, materials, appliances may be used by company without pay

Acceleration Clause

Is a clause commonly used in sports contracts with high profile athletes. When the fans want a bad player traded and management won't budge, most likely because the team will have to pay the remaining portion of the contract. This acceleration of payment is due to the this clause.

Mandatory Arbitration Clause

Is a clause that large companies will use to keep as much mitigation out of court as possible. Any ensuing argument second to civil rights complaints will be handled by an arbitrator if you sign this a contract containing this clause

Commercial impracticability

Is a defense that can be used when fulfilling a contract has become extraordinarily difficult or unfair for one party.

Undue influence

Is a defense that can be used when one party ceases to be able to exercise his or her free will due to the superior power and influence exerted over that party by the other.

A Contract

Is a legally enforceable promise.

An agent

Is a person who acts in the name of and on behalf of another, having been given and assumed some degree of authority to do so.

bona-fide occupational qualification (BFOQ)

Is a reasonably necessary for normal business operations.

A counteroffer

Is a rejection to the offer the offeror is free to walk away from the failed negotiation.

Special agent

Is one who has authority to act only in a specifically designated instance or in a specifically designated set of transactions

- It usually avoids ambiguity - It can serve as a communications device and a device of allocation of power - Should a dispute arise, written contracts can add proof that both the contract was agreed to and of what its terms were.

It is generally true that a written contract has at least 3 benefits over an oral one, these include:

"A word is not crystal, transparent and unchanged; it is of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used."

Justice Oliver Wendall Holmes Jr. noted?

ADA or Americans with Disabilities Act

Made it illegal to discriminate against "Qualified Employees with Disabilities"

Integrate African Americans into the mainstream of society.

Main purpose of Title VII was to?

Permitted for high level execs

Mandatory retirement at certain ages is:

Voidable contract

May be enforceable by one party but not the other a minor does not have to carry out the contract if he or she wishes not too, but if the adult wants to carry it out and the minor doesn't the adult can't enforce it

Contract

Most agencies are created by?

legally binding

Most oral agency contracts are?

100% of cost

Most workers' compensation acts provide for ____________________ of a worker's hospitalization and medical care necessary and payment for lost wages and death benefits

1) Contract 2) Tory 3) Statutorily

Principles duty to the agent:

specified in the contract for it to be binding

Quantity is an essential term that must be?

"Is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking."

Restatement (Second) of Agency, Section 2, defines an independent contractor as?

cannot bind a principal

There are, however, a few situations in which the capacity of the agent is important. Thus, a mentally incompetent agent?

Five

There are____________ types of agents

Subagents

These appointments may or may not be authorized by the principal. • For legal purposes, they are agents of both the principal and the principal's general agent, and both are liable for the _______________ conduct although normally the general agent agrees to be primarily liable.

Uniform Commercial Code

Specifically requires contracts for the sale of goods for the price of five hundred dollars or more to be in writing and "signed by the party against whom enforcement is sought or by his authorized agent."

Compensation acts

Statutory enactments that dramatically overhauled the law of torts as it affected employees.

Expressed contract

Terms are clearly laid out in either the written or oral contract

"physical or mental impairment that substantially limits one or more major life activities," -has a record of such impairment, or is regarded as having such an impairment.

The ADA states that an individual is disabled if he or she has?

All terms to be written in the contract.

The Parol Evidence Rule Requires?

a written contract intended to be the parties' complete understanding discharges all prior or contemporaneous promises, statements, or agreements that add to, vary, or conflict with it.

The Parol Evidence Rule at common law is this:

Oral agreements after the contracts

The Parol Evidence Rule does NOT apply to?

"an agent employed by a master [employer] to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master."

The Restatement (Second) of Agency, Section 2, defines a servant as?

Contracts for Sale of Real Estate

The Statute of Frauds applies to?

express terms, course of performance, course of dealing and usage of trade.

The courts prefer the items in the order of?

taxation, workers' compensation, and liability insurance.

The distinction between agent and independent contractor has important legal consequences for:

Mutual assent.

Offer and acceptance together form?

-Employers cannot categorize certain jobs as single- sex only unless a bona fide occupational qualification (BFOQ) applies -Also includes making stereotypical assumptions about women simply because they might be the primary caregiver to children at home

The prohibition on sex discrimination means that?

Protect all Americans from race discrimination

The provisions of Title VII are meant to?

Quie pro quo & Hostile Work Environment

The theories of sexual harrasment are called?

Unilateral contract

One party makes an offer, and the other party performs an act, -Example is a reward of $50 for return of a lost dog - other party returns the dog and completes the contract. -Not a promise in exchange for a promise - a promise in exchange for performance.

Void contract

One that requires breaking the law and is therefore unenforceable by both parties

General agent

Possesses the authority to carry out a broad range of transactions in the name and on behalf of the principal. -To restrict the ____________________ authority, the principal must spell out the limitations explicitly, and even so the principal may be liable for any of the agent's acts in excess of his authority. One common form of _____________________ is the person who holds another's power of attorney. This is a delegation of authority to another to act in his stead

Racial Segregation

President John F. Kennedy called for passing a landmark civil rights bill in response to:

quantity

Prices, delivery dates, warranties and other terms can be filled in by the UCC gap fillers, but _________________ cannot.

A merchant

is a person who deals in goods or holds himself out as having special knowledge or skill regarding practices or goods that are the subject of the transactions

Strict performance

is a standard that requires express terms in the contract to that effect and circumstances where a high standard is reasonable

A minor breach

is when the party has substantially performed but has not strictly performed.

oral

parol means?

It does not cause an undue hardship on the employer's operation of its business

Under Title VII, Employers must reasonably accommodate an employee's religious beliefs or practices as long as?

Executive Order 11246

Under _____________________, most federal contractors or subcontractors must develop an annual affirmative action plan and take "affirmative steps" to recruit, hire, and train females and minorities in the workforce.

Substantially limits one or more life activities.

Under the ADA, an individual is considered disabled if her impairment:

Foreign accent

Unless it seriously interferes with an Eee's Work, it is illegal to discriminate against her because of a:

Servant

Until the early nineteenth century, any employee whose work duties were subject to an employer's control was called a ______________.

They can demonstrate that they were discriminated against because they were members of a protected class.

Workers in a protected class may be protected if?

At-Will Employment

Workers in the United States are hired and fired at will, meaning they can be hired or fired for any reason and at any time. The term for this is?

They are required for the job being performed

Workplace "English-only" rules are illegal unless?

Sex

______________, as a protected class in Title VII was a legislative maneuver designed to kill the bill while it was being debated in Congress.

Written contracts

____________________ contracts do not guarantee escape from disputes and litigation.

Equal pay Act

____________________, Used to eliminate the wage gap between women and men. -Do not need to file complaint with EEOC because it's very hard to prove and must be substantially equal work and pay

Pregnancy discrimination act

_____________________, Act made it Illegal to discriminate based on pregnancy. -All females who are pregnant are entitled to the same benefits as men and cannot refuse to hire a woman based on pregnancy and must also save job for woman who is on leave due to pregnancy.

Implied agencies

_______________________ also arise where one person behaves as an agent would and the "principal," knowing that the "agent" is behaving so, acquiesces, allowing the person to hold himself out as an agent.

Implied contract

_______________________- inferred from the action of the parties, if someone orders a sandwich it's implied they agreed to pay for it _______________________- can be applied to marriage in some states, if an unmarried couple lives together for a while it is implied that they wish to be married

New Jersey & Texas

________________________ workers' compensation is not compulsory, the employer may decline to participate. Then the employees must seek redress in court. In those states, the old common law defenses have been eliminated, greatly enhancing an employee's chance of winning a suit

Common law

_________________________ governs contracts for services as well as contracts not otherwise governed by the UCC

Workers' Compensation

___________________________ is a no-fault system - the employee gives up the right to sue the employer in return for compensation for a job-related injury, regardless of who caused it. Employer avoids the risk of losing a big lawsuit.

1866 Discrimination Act

______________________________, Prohibits discrimination based on race, passed to protect citizenship to slaves Is still in effect today does not need an eeoc claim to sue -Does not have the statutory limits of the 1964 act most lawsuits use both the 1964 act and this act to sue

Personal satisfaction

_______________________________ can be enforced if the contract expressly requires it.

Union pressure and grass roots lobbying

________________________________________ led to workers' compensation acts

Executed contract

a contract that has been carried out fully by both parties.

The rights conveyed by the contract may be transferred to another party by assignment, unless an express restriction on assignment exists within the contract, or unless an assignment would violate public policy.

assignable and delegable means that:

Age discrimination act 1967

This made it illegal to discriminate to people over 40 -Companies cannot hire the 25 year old over the 40 year old if the 25 year old is less qualified If the older worker cannot perform the job functions due to age then they don't have to be hired -Cannot set a mandatory retirement age unless it is a high ranking executive entitled to pensions -Courts ruled that employers can't make unreasonable physical tests if it doesn't pertain to the job

farm laborers, domestic laborers and public employees

Those frequently excluded from workers' comp are?

-Fellow-Servant rule states that the employer is NOT held responsible tor torts committed by one employee against another -Contributory negligence - failure to heed a warning -Assuming risk, if an employee is aware of a danger and something happens, the employer is not at risk for workers' comp. claim

Three Common Law rules:

1. Purchase employers' liability and workers' compensation policies through private commercial insurance companies A. Payment by the insurer of all claims filed under workers' comp and relates laws B. Coverage of the costs of defending any lawsuits filed against the employer, including judgements awarded (certain exceptions to the "no sue" ban - deliberate injuries) 2. Insure through a State fund established for purpose 3. Self-insure - generally only very large corps qualify · The amount the employer must pay for the insurance depends on the number and seriousness of claims made - how dangerous the work is · Recurring legal issues: 1. Is the injury work related? - on the job injuries are covered, but sometimes injuries from drunkenness or fighting can be covered 2. Is the insured person an employee? - an example was the U of M student student- teaching at a school 3. How palpable must the injury be - physical vs psychological injury

Three general methods which employers may comply with workers' compensation laws:

A material breach in a service contract

when a party has not substantially performed under the terms of the contract, this is called?

Make a prima facie case of discrimination- which involves demonstrating that he or she is a member of a protected class of workers. Must then prove by a preponderance of evidence that the employer's explanation is insufficient and only a pretext for discrimination. • If a victim is unable to prove disparate treatment, he/she may instead use a theory called disparate impact- where the discrimination is unintentional. • Policies that raise suspicion for disparate impact; educational qualifications, written tests, intelligence or aptitude tests, height and weight requirements, credit checks, nepotism in hiring, and subjective procedures such as interviews

A plaintiff wanting to go for a disparate treatment has three steps:

an invitation to bargain.

An advertisement is not an offer, it is?

"quantum merit"

Damages awarded in a Quasi- contract remedy are called _____________________, meaning as much as is deserved.

Offer, Acceptance, and Consideration.

Elements of common law contract formation include:

tort and worker's compensation duties

Employers owe employees certain statutorily imposed:

An Offer

Gives power of acceptance to another party.

Congress passed the Lily Ledbetter Fair Pay Act of 2009

Gives victims the right to file a complaint within 180 days of their last discriminatory paycheck.

Substantial performance

Means the performing party acted in good faith and conveyed enough benefit of the contract to the other party.

Quantity Term

The UCC Requires?

Sales between merchants

The UCC applies to?

whether the party indented to enter into a binding agreement.

The UCC's primary issue is:

ALL of the above

The US supreme Court has held that sexual harassment applies to: A. Men B.Women C.same sex victims D. all of the above

by agreement (expressly) or by operation of law (constructively or impliedly).

The agency relationship can be created in two ways:

-disparate treatment- which alleges that the defendant's employer intentionally discriminated against the victim due to the victim's membership in a protected class. -If a victim is unable to prove disparate treatment, he/she may instead use what's called the disparate impact- where the discrimination is unintentional.

Title VII claim in federal court must prove his/her claim using one of two theories. They are?

The Equal Employment Opportunity Commission (EEOC) which is intended to enforce civil rights in the workplace

Title VII created a federal agency called?

Job discrimination on race, color, religion, sex, and national origin. ex.) employers are not permitted to maintain all-white or all-black work crews even if they can demonstrate that doing so is good for business or morale.

Title VII eliminates?

discrimination on religion, sex, and national origin if there is a bona-fide occupational qualification (BFOQ)- which is a reasonably necessary for normal business operations.

Title VII law allows?

Employers with 15 or more employees

Title VII of the Civil Rights Act applies:

acts of retaliation against anyone who complains about, or participates in, any employment discrimination complaint.

Title VII prohibits?

The legitimate skill, experience, education, or other requirements for the position he or she is seeking and be able to perform the "essential functions" of the job without reasonable accommodation.

To be Qualified for ADA or Americans Disablility Act the individual must meet?

Affirmative action programs

To correct past mistakes of women and minorities, many companies go beyond being equal opportunity employers by adopting?

-rules for everyone -rules for merchants

What are the Uniform Commercial Code two sets of rules for contracts:

Race-based discrimination

What generates the highest number of complaints to the Equal Employment Opportunity Commission (EEOC)?

Sexual Orientation

What is NOT a protected class?

Unconscionability

What is a defense used when the contract contains markedly unfair terms against the party with less bargaining power or sophistication than the party who created the terms and induced the other party to sign it?

in breach of the contract.

When a party fails to perform under the terms of the contract without a legally justifiable reason, the party is said to be: