COMPS- Business & Mortuary Law

Malpractice

a breach of contract by a professional person; failure to perform a professional service with the ability and care generally exercised by others in the profession

Corporation

a business entity created by statutory law and owned by individuals known as stockholders

Preferred Claim

a claim which is accorded a priority, advantage or privilege; a superior claim or right of payment as against another of the same kind or class. The first claim to be paid is the highest preferred claim and superior to all other claims. (funeral expenses are _______ against an estate)

Corpse

(dead human body) - the body of a dead human being, deprived of life, but not yet entirely disintegrated. (The remains of a cremated body, a disintegrated corpse, or the bones of a skeleton are NOT a dead body - after decomposition, it is not a dead body in the eyes of the law.)

Express Contract

a contract in which the parties indicate their intentions, either orally or in writing, at the time of the agreement

Cadaver

a dead human body intended solely for scientific study and dissection

Felony

a funeral director cannot abandon or discard a dead body- it is a?

Executor or Administrator

a funeral director may serve as an?

Administrative Agency

a governmental body created by legislation empowered to regulate and issue rules and regulations

Statue

a law enacted by by a federal or state legislative body

Ordinance

a law passed by a local municipal governing body (e.g. zoning, building, safety, etc.)

Executor

a man appointed by the will of a deceased person to carry out the provisions thereof and settle the estate. (a funeral director may serve as an administrator or ______)

Administrator

a man who has been appointed by the court to settle an estate. (See also personal representative) (a funeral director may serve as an administrator or an executor)

Testator

a man who makes a valid will

Duress

a means of removing one's free will, obtaining consent by means of a threat to do harm to the person, his family, his property, or his earning power

Assignment

a means whereby one party in a contract conveys rights to another person, who is not a party to the original contract; if a funeral home agrees to give money from an upcoming funeral service to a bank in order to satisfy a lien

Process (Summons)

a notice given to a defendant, attaching the complaint and stating a time frame in which an answer must be filed or an appearance made

the contract is VOID

a party is legally declared insane or mentally incompetent contains legal objectives there are mutual mistakes

Injunction

a permanent judicial order or decree forbidding the performance of a certain act

Tort

a private or civil wrong, other than by breach of contract, for which there may be action for damages. The purpose of tort law is to compensate the aggrieved

Abatement

a proportional reduction of a legacy under a will when assets out of which such legacy are payable are not sufficient to pay it in full

Fiduciary

a relationship of trust and confidence, such as that which exists between partners in a partnership

Easement

a right to cross or otherwise use someone else's land for a specified purpose.; if the owner of the property refuses to allow access to a cemetery, call the police (cemeteries are governed by individual States through police power

Conditional Sale

a sale in which the buyer, so long as the buyer is not in default, has a right to possession before payment in full is made

Statute of Frauds

a statute originally enacted by English Parliament, and now enacted in some form in all the American states, listing certain types of contracts which could only be enforced if in written form

Holographic Will

a will written entirely by the testator with his own hand

Tort

a wrongful act committed by one person against another person or their property. (A breach of the duty of care one individual has toward others)

Trust Account

account established by one individual to be held for the benefit of another (as a method of payment of funeral expenses); creates a fiduciary responsibility, Money paid to a funeral home for future services (preneed) is placed in an account with the funeral home as trustee for the benefit of another. (If a client pays for a funeral in advance (preneed) the money will be put into a _________.)

Nuisance Per Se

act, occupations or structures which are nuisances at all times and under all circumstances. It may be prejudicial to public morals, dangerous to life, or injurious to public rights

Wage and Hour Laws

administered and enforced by the Wage and Hour Division of the Department of Labor

Replevin

an action to recover possession of personal property

Codicil

an addition or amendment of a last will and testament executed with the same formality of the will. (it must be witnessed and signed in order to be enforced) (a legal document which modifies an existing will)

Contract

an agreement between two or more competent persons which is enforceable by law

Void Contract

an agreement of no legal effect

Valid Contract

an agreement which will be enforced by the court

Voidable Contract

an agreement which would be enforceable, but due to circumstances, may be set aside by one of the parties

Mutual Agreement Competent Parties Consideration Legal Objectives

Elements of a Contract

Negligent embalming Mutilation of the body Wrongfully withholding a body Loss of the body Injury to Invitees Injury to pallbearers and clergy

Tort liabilities include

Compensatory Damages

an award paid to the injured party to cover the exact amount of their loss, but no more

Punitive Damages

an award paid to the plaintiff in order to punish the defendant, not to compensate the plaintiff. (Pays over and above the actual loss.)

Promissory Estoppel

an equitable doctrine that prevents the promisor from revoking the promise when the promisee justifiably acts in reliance upon the promise to his detriment. (if a client refuses to pay a cash advance, the funeral home can collect under ______)

Qualified Indorsement

an indorsement which limits the liability of the indorser

Counteroffer

an intended acceptance which changes or qualifies an original offer and in effect, rejects that offer and becomes a new offer; if a family cannot pay the bill, but offers to Pau a portion of the bill

Mutilation

any altering or change made to a dead human body from the time of death, other than by natural causes. Unauthorized embalming may be viewed by the courts as _______

Mutual Benefit Bailments

benefits both the bailor and the bailee (ex: rental of personal property such as an automobile - leasing a coach from a livery service)

Ratification

conforming an act which was executed without authority or an act which was voidable. (ex. - the restatement of a promise made as a minor)

Executory Contract

contracts in which the terms have NOT been completely executed or fulfilled by the parties.

Executed Contract

contracts in which the terms have been fulfilled by the contracting parties

Common Law

customs which have become recognized by the courts as binding on the community; non-legislated principals and rules of action predicated upon usage and customs

Negligence

failure to exercise ordinary care; omission to do something which a reasonable prudent person would do under ordinary circumstances or the doing of something which a reasonable and prudent would not do; the lack of due care (exercised by a wrongdoer who has not acted as a reasonable person would)

Sherman Antitrust Act

federal legislation intended to promote competition among businesses by prohibiting restraint of trade

Escheat

forfeiture of a decedent's property to the state in the absence of heirs

spouse or next of kin

has the primary right to control final disposition of a body

Legal Guardian

has the right above the parents

Courts of Equity

have the authority to settle controversies concerning dead bodies. (If a family were having a dispute regarding the final disposition of a body, they would apply to a court of equity to decide the resolution.)

Implied

if instructions are given for a funeral director to pick up a body without direct contact with the family, in this situation, the contract is

Malpractice

improper or negligent professional act by a professional person

Valid

in order for a contract to be enforced by the courts, it must be?

Funeral Insurance

is life insurance used to fund a separate preneed contract. The funeral home is the beneficiary or assignee of the policy

Ordinance

law enacted by a local government entity. (law passed by a local municipal governing body.)

Statutes

laws which are enacted by legislative bodies

Executor

may carry out written instructions of the decedent relating to his body, funeral, and burial

Common Law

non legislated principles and rules of action predicated upon usages and customs which the court considers binding on the community. "Unwritten Laws" (Who is given the right of disposition of the body has its roots ______)

Breach of Contractural Duty

not fulfilling part or all of the tasks that were agreed upon in a contract. (If a funeral director leaves the cemetery before interment and the body is damaged, the funeral director did not fulfill the duties that he was contracted to perform, therefore is facing a lawsuit.)

Devisee

one who inherits real estate under a will

General Agent

one who is authorized to execute the principal's business of a particular kind, or all the principal's business at a particular place, if not all of one kind

Nuncupative Will

oral will declared or dictated by testator during last illness before appropriate witnesses to dispose of personal property and afterwards reduced to writing (not valid in all states)

Usury (Usurious)

rate of interest which exceeds the maximum that is allowed by law

Administrative Law

that body of law created by Federal and State administrative agencies through implementation of powers and duties in the form of rules, regulations, orders and decisions (OSHA, FTC, STATE BOARD RULES).

Funeral Service Law (Mortuary Law/Mortuary Jurisprudence)

that branch of law which relates to matters concerned with the disposal of the dead and regulation of funeral directors/embalmers and funeral establishments

Consideration

that which the promisor demands and receives as the price for a promise

Quasi-Property Theory

the accepted theory of the legal status of a dead human body. Rights associated with the body are as if it were property for the purpose of disposition only. (The survivor is given the right to take the body for purposes of disposition, to allow body parts to be used, to exclude others from possession of the body. - ex: the corneas cannot be removed without the permission of the next of kin.)

Liquidated Damages

the amount of the damages stipulated in a contract to be paid in the event one party breaches the contract

Revocation

the annulment or cancellation of an instrument, act or promise by one doing or making of the offer

Testate

the condition of leaving a will at death

The Funeral Home Cemetery A Church where the Funeral is Held

the funeral home is legally liable for accidents that happen at:

Place of Death

the funeral home would NOT be liable for accidents that happen at:

Eminent Domain

the inherent power of a government to take private property for public use. In the U.S. just compensation to the property owners is required

Police Power

the inherent power of every government to make reasonable laws to protect the safety, health, morals and general welfare of its citizens. The state's regulation of funeral service for protection of the citizens. (The state legislatures can require licenses for funeral directors and funeral homes because of their __________ to protect the public)

Fraud

the intentional or reckless false statement of a material fact, upon which the injured party relied, which induced the induced party to enter into a contract, to his or her detriment. (If a funeral director intentionally misrepresents a benefit of a preneed funeral arrangement, it is fraud

Per Capita

the method of dividing an estate by which an equal share is given to each of a number of persons, all of whom stand in equal degree to the decedent

Per Stirpes

the method of proportionally dividing an estate between beneficiaries according to their deceased ancestor's share

Revocation

the omission or cancellation of an instrument, act, license, or promise

Agent

the part appointed by the principal to enter into a contract with a third party on behalf of the principal; drivers hired by funeral homes are _______; the funeral home is directly responsible for an _______. If they break the law, the funeral home could be sued

Bailee

the party who acquires possession, but not the title, of personal property by one party to another, under agreement; the funeral director that receives the personal effects of the deceased from the family

Bailor

the party who gives up possession, but not the title, of personal property in a bailment; the next of kin who delivers the personal effect of the deceased to the funeral home

Defendant

the person against whom legal action is brought; the party who is sued in a civil suit

Actual Custody

the physical possession of the dead human body or other property. A funeral director has the dead body in his possession

Entombment

the placing of a remains in a crypt in a mausoleum

Probate

the process where the estate of a decedent is administered. The act or process of proving a will

Disaffirmance

the repudiation of, or election to avoid, a voidable contract; if a minor, intoxicated, or mentally incompetent person decides to avoid the legal obligations within a contract that is signed

Constructive Custody

the situation whereby one party has a right to acquire actual custody/ possession of the dead body although another party has actual physical possession. The funeral home that has control of final disposition although the body may not be in their possession

Novation

the substitution of a new party for one of the original parties to a contract, such that the prior contract terminates, and a new one substitutes for it. (The change of one of the parties to a contract at the mutual agreement of the original parties.)

Bailment

transfer of possession but not the title of personal property by one party to another, under agreement; the property of a deceased person is considered to be a ______ property

Joint and Several Contracts

two or more persons are bound both together (jointly) and individually by the contract. (ex: if a husband and wife sign the funeral contract to be individually or both together responsible)

Implied Warranties

warranties imposed by law, arising automatically because the sale has been made. (If the bottom of the casket falls out, or the handle falls off, the funeral home has breached the implied warranty.)

Express Contract

which type of contract ALWAYS says "I promise to pay" and have everyone sign it?

Implied Contract

One in which the terms of the contract are implied by acts or conduct of the parties. The terms of agreement are inferred from the conduct of the parties (If a funeral home is called to remove a body from a nursing home or hospital, there is an implied contract that the family is responsible to pay for the removal.)

The offer must be definite It must appear to be seriously intended It must be communicated to the offeree The acceptance is the assent to an offer that results in a contract

Requirements for a VALID contract

Personal Property Money A Promise of a Service

Consideration in a contract