MGMT 455 Final Exam

Home improvement fraud

. An unreasonable difference between what you pay and what you get. Have the ability to add the attorney fees.

What are the exceptions to the parole evidence rule?

1) Contract is ambiguous, 2) Contract was secured by fraud. 3) Words with particular meaning.3) Contract is unconscionable.

4 Points about Minors and Contracts

1) Liable for Torts, 2) Parents may be liable as well, 3) Liable for Contract of Necessity, 4) Other Contracts may be rescinded upon reaching age 18.

What are the 5 circumstances for fraud?

1)Misrepresentation of material fact, 2) Knowledge of the Falsity, 3) Intent to Deceive, 4) Reasonable Reliance by the Other Part, 5) Damages

Express Contract

Agreement of the Parties manifested by their words, whether spoken or written.

What to Do if You Buy a Lemon

Allow a dealer a reasonable number of attempts to repair. A reasonable number of attempt means: your vehicle is subject to at least four repair attempts OR is out of service due to repairs for at least 30 business days and the problem still exists.

Home Improvement Contract

An agreement, oral or written, between a contractor and a consumer to make a home improvement and for which the contract price exceeds one hundred fifty dollars ($150).

Parole Evidence Rule

Can't introduce new evidence after a written contract is made. Prevents one party from changing the terms of a complete written contract. Terms or conditions prior to a written contract are void

Lease Access

Can't legally lock you out of your place, can't legally keep your property because you haven't paid rent.

What does the Lemon Law Cover?

Cars or Light Trucks.

What is the best form of consideration?

Cash

What types of damages are tort plaintiff's entitled to?

Compensatory Damage, punitive damages, nominal damages.

How can your bankruptcy be denied?

Concealed assets within 1 year of filing, destroyed records, make false statements or lied in bankruptcy proceeding, refuse to obey order, bankruptcy in past eight years.

What are the five ways to discharge a contract

Conditions relating to performance, breach by another party, discharge by new agreement, joint and several liability, bankruptcy.

Discharge of Contracts & Conditions Subsequent

Conditions that have to happen after the contract in order for the contract to be effective. An event or state of affairs that, if it happens, defeats or modifies an existing arrangement or discharges an existing duty. In a contract, a condition subsequent can often terminate the duty of one party to perform under the agreement. Ex) after notifying the Claims Adjuster of damages, your agreement will change.

Discharge of Contracts & Conditions Concurrent

Conditions that have to happen during the contract in order for the contract to be effective. Simultaneously with another condition. Ex) Paying for your premium yearly.

Discharge of Contracts & Conditions Precedent

Conditions that have to occur before the contract is effective. Ex) Applying for Insurance

Mental Incapacity and Contracts

Contracts are voidable when signed by someone with incapacity. If intoxicated, the contract can be voided upon gaining capacity.

Agreements vs. Public Policy

Contracts that go against public policy are unenforceable. Examples: Non-competition, emancipation, child support.

What are the new agreements that can be made to discharge a contract?

Covenant not to sue, release, accord and satisfaction. the terms of the original contract, such as a provision that the contract should end on a specified date;

Secured Debts

Debt backed or secured by collateral to reduce the risk associated with lending. An example would be a mortgage, your house is considered collateral towards the debt. If you default on repayment, the bank seizes your house, sells it and uses the proceeds to pay back the debt.

What is Chapter 7 Bankruptcy?

Debtor is unable or unwilling to pay debts. the bankruptcy trustee cancels many (or all) of your debts. At the same time the trustee might also sell (liquidate) some of your property to repay your creditors.

What's the difference between discovery phase and trial?

Discovery is very broad and anything can be asked, trial is very strict and narrow.

What is an example of a breach by another party?

Employee or an employer violating non-competition agreement. If you were terminated due to employer misconduct then the non-competition is discharged. If you were terminated due to employee fault (lateness,abscene,etc.) then the fact that you were terminated is not as significant.

Difference between Employees and Independent Contractors

Employer has more control over the final product with employee. Employer has less control over production with independent contractor.

What are the elements of a tort

Existence of a duty, breach of that duty, damage caused by the breach.

3 Kinds of Contracts

Express, Implied Quasi

Oral contract to sell a horse (items over $500) is illegal, but it is enforceable due to the price of the horse.

False

True or False: Security Deposit law applies to Greek Houses, Resident Halls, etc. and they can use security deposit for necessary repairs.

False

It is illegal to pay someone else's debts with a written contract.

False.

True or False: In bankruptcy, debts and liens go out the door

False.

What is the Steps in the Pleading Phase

File a complaint , court then summons the defendant, defendant files an answer (may file a counterclaim).

Lease Inspections

Landlord has right to a key, has a right to make inspections, has a right to make repairs. IF you agree to inspection at 3 AM he can come in, but you must AGREE. IF the time landlord comes to inspect is inconvenient, the landlord has the right to negotiate a more appropriate time. Landlord can't come in to inspect whenever he wants.

What are the important notes on Trial?

Select a jury, if plaintiff is found 20% guilty than the plaintiff only recover 80% of damages. Usually winner takes all, jury can decide if plaintiff is entitled to more money. If plaintiff is found more than 50% at fault then the plaintiff loses. 30 days to appeal if there is a LEGAL error.

What is an example of intentional torts?

Slander/libel, battery, conversion.

What is the cap on punitive damages?

THE GREATER OF 3x the amount of the compensatory damages or $50,0000.

How much of wages can one garnish?

THE LESSER OF: 25% of disposable earnings OR amount by which disposable earnings exceed 30 times the federal minimum hourly wage. One at a time, two people can't garnish wages at same time. Child support takes precedence. Must be a local resident to garnish wages.

What are the Bankruptcy Exemptions?

Tangible Property( car, etc.) $9,350, Intangible Property (bank account) $350, Primary Residence (Personal Home, vacation homes not included) $17,600, retirement accounts are unlimited.

What debts are not discharged?

Taxes, child support, alimony, etc.

Mitigation

The landlord must mitigate (lessen or reduce) the landlord's own loss of rent. If you get a sub-tenant that does the trick, but it is NOT YOUR OBLIGATION to get a sub-tenant. The landlord must do something to reduce their loss.

What is mediation

The two parties will come to a compromise. Not the best or the worst day. A lot of variability with judges, mediation is best to come to an agreement with both sides.

What is a covenant not to sue

This is a covenant entered into by a party who had a cause of action at the time of making it, and by which he agrees not to sue the party liable to such action.

According to the Statute what can security deposits be used for?

To reimburse the landlord for actual damages to the rental unit that are not the result of ordinary wear and tear. To pay the landlord for all rent in arrearage under the rental agreement. To reimburse the landlord for utility or sewer charges paid by the landlord that are: the obligation of the tenant; and unpaid by the tenant.

Definition of a Contract

Total legal OBLIGATION which results from the parties' agreement.

Oral Agreements regarding the sale of real estate must be in writing.

True

Some contracts have to be in writing to be encforceable

True

The mailing of under ordered merch constitutes an unfair method of trade practice and competition. Any merch that is mailed can be treated as a gift and recipient has full rights of the merch.

True

True or False: Must pay a lawyer unless there is a contract or statute that says otherwise

True

What is the role of the Trustee in Bankruptcy?

Trustee is just like the sheriff, gathers up assets, sell them to turn them into money, and gets money to pay some unsecured creditors. Trustee becomes a owner/successor in interest to the ownership of property of the debtor in excess of exemptions.

Eligibility Requirements for Chapter 13

You must have enough disposable income to form a payment plan. Deals with unsecured and secured debts, if you have too much of either debts then you do not qualify.

What is contributory negligence?

a defense to a claim based on negligence, an action in tort. This principle is relevant to the determination of liability and is applicable when plaintiffs/claimants have, through their own negligence, contributed to the harm they suffered. A victim who is at fault to any degree, including only 1% at fault, may be denied compensation entirely.

What is respondeat superior?

a legal doctrine which states that, in many circumstances, an employer is responsible for the actions of employees performed within the course of their employment.

What is a release of a contract

a mutual cancellation, in which the parties agree to end their contract;

What is comparative fault?

a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim based upon the degree to which the plaintiff's own negligence contributed to cause the injury. If plaintiff is 20% at fault, 20% damages would be deducted.

Miranda Rights

a right to silence warning given by police in the United States to criminalsuspects in police custody (or in a custodial interrogation) before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings.

What are the defenses to a negligence claim?

act of god, comparative fault (applies to total amount of damages received), contributory negligence, assumption of risk, no duty is owed.

Specific Performance as a Remedy

action brought to compel the adverse party to perform a contract on the theory that merely suing for damages for its breach will not be an adequate remedy.

What is accord and satisfaction

agreement to substitute for an existing debt some alternative form of discharging that debt,coupled with the actual discharge of the debt by the substituted performance.

Quasi Contract

an obligation of one party to another imposed by law independently of an agreement between the parties. occurs when a person retains money or benefits that in all fairness belong to another, would exist without judicial relief. A quasi contract is a contract that exists by order of a court.

What is Chapter 13 Bankruptcy?

Wage earners plan. you keep your property, but pay back all or a portion of your debts over a three to five-year period. This is unlike Chapter 7 bankruptcy, where most of your debts are cancelled but you may have to surrender some property to the bankruptcy trustee to pay your creditors.

Innkeeper's Lien Law

applies to transient tenants who don't pay their rent. Hotels can keep their personal property until they pay.If landlord keeps tv as hostage for late rent. Go to court and sue the landlord for conversion and sue him for 3x the value of what was taken and attorney fees.

Liquidated Damages

can only sued them.Monetary compensation for a loss, detriment, or injury to a person or a person's rights or property, awarded by a court judgment or by a contract stipulation regarding breach of contract.

Punitive Damages

cap of $50,000 or 3X the amount of compensatory damages, the GREATER of. Plaintiff can get 25% of punitive damages, other 75% can go to violent crime compensatory fund. Not ordinarily awarded in contract actions.

What is the small claims limit?

$6,000

What is a strict liability tort?

civil wrong for which there is absolute liability because of the inherent danger in the underlying activity, for examples, the use of explosives.

What is an intentional tort

civil wrong that results from intentional conduct

What damages are eligible to be recovered for breach of contract

liquidated, compensatory, punitives, and sometimes contract dames.

Unsecured debt

means that someone loaned you money, but they don't have a lien on anything. Credit cards and student loans are good examples of unsecured debt, because there's nothing they can directly repossess if the borrower doesn't pay.

Non competition Agreement

must be reasonable within area and time, and the employer can't break it first.

What are the conditions for a negligent tort?

the injury must be approximately caused by the defendant and the injury must be foreseeable.

What to Do if they can't fix your Lemon in Time

the manufacturer has 30 days to accept return of your vehicle and, at your option, replace the vehicle or refund your money.

Restitution as a Remedy

type of remedy available in many civil lawsuits and in some criminal cases. This type of remedy is calculated based on the gains of the defendant, rather than the plaintiff's losses. Restitution basically requires a defendant to forfeit gains that they have unlawfully obtained to the plaintiff.

Partnership Agreement

written and legal agreement between business partners. It is always recommended but not essential for partners to have such an agreement. Include what to do for death , disability, and disagreement.

Eligibility Requirements for Chapter 13

You must have enough disposable income to form a payment plan.

Requirements for a Valid Contract

1)Agreement between Parties, 2)Agreement supported by Consideration, 3) Legal Capacity of the Parties, 4)Legal Purpose, 5) Agreement in the Proper form.

Eligibility Requirements for Chapter 9

You must be a municipality. Have to be insolvent.

What is the tort claim act?

180 days to submit written claim, court has 90 days to review the claim.

What are the conditions of the Chapter 13 payment plan?

36 to 60 months, payment plan made out of net disposable income. Pay trustee's commission. Unsecured debts are discharged.

What is a Subpoena

A court order for a witness to report to court, come to deposition, or give evidence or documents.

Unjust Enrichment

A general equitable principle that no person should be allowed to profit at another's expense without making restitution for the reasonable value of any property, services, or other benefits that have been unfairly received and retained.

What is a Summons?

A notice that they are to come to court.

What should you do when you leave the lease?

Hand in KEYS and WRITTEN ADDRESS. After that, landlord has 45 days to send you a letter with how they spent the security deposit or send you the security deposit reimbursement. If landlord does not do it in 45 days then law says there is no damages. Even though landlord fails to send you letter in 45 days, you are still obligated to contractual damages (rent). A waiver of these rules is void.

Contract Damages

Landlord can receive some money for the damages caused by disobeying a contract.

Leases and Evicition

Landlord has to go down to court to fill a lawsuit against the student. "Possession for Nonpayment or Rent". Student can't get kicked out until there is a hearing, due process. Judge must say you have to leave, landlord can't say that. Tenant has 7 days from court date to get out (may be longer). Late Fees - no more than $150 (according to Judge Vanay) If student doesn't get out after the 7 days after the court order, the landlord has to file an affidavit for eviction. After that you get a 72 hour notice to get out. Then sheriff comes and kicks you out.

Lease Repairs

Landlords are not liable for Repairs that you would like to see happen, but are not crucial unless otherwise stated in the contract. Repairs that make it so you cannot live in the place. Heat, electricity, plumbing, etc required. Put up with it. Call a plumber, you pay the plumber. You can sue the landlord to recover cost of the plumbing, but it will cost attorney fees. You gotta move. Your defense is that the landlord has committed an constructive eviction .

What is the process for Bankruptcy?

List all debts and property, file for Exemptions, Reaffirm Debt, Redeem Property,Debts discharged.( Debts not discharged: Taxes, Child support and alimony, etc.)

Principal of an Agency is not liable for the Independent Contracts and Torts except?

MEchanic's Liens, Extra Hazardous Work, Non-delegable duties.

Eligibility Requirements for Chapter 7

Means Test, if you make too much money and have too much disposable income you cannot file bankruptcy.

What is Chapter 9 Bankruptcy?

Municipality Bankruptcy. includes cities, towns, counties, taxing districts, municipal utilities, and school districts. Chapter 9 allows municipalities to reorganize their debt by extending the timeline on repaying debts, debt refinancing, or the reduction of principal or interest on existing debts. The assets of a municipality are not liquidated under Chapter 9.

Is an offer of employment considered consideration?

No

What happens with preferences and transfers?

No transfer within 1 year for an insider and 90 days for a non-insider.

How are Contracts Formed?

Offer and Acceptance, Intent to Contract, No Unconscionable Clauses, offer must be accepted in the proper duration of the offer.

What is the Process of a Court Case

Pleading Phase, Discovery Phase, Mediation, Trial, Judgement.

Consideration

Promise or performance that the promisor demands as the price of the promise. What each party to a contract gives up to the other in making their agreement.

What three things need a written contract to be enforcable?

Sale of Land, Goods over $500, Payment of Other People's Debts. (Statute of Frauds)

What expenses are entitled to refund under Lemon Law?

Sales Tax, Unexpended portion of the registration fee and excise tax, finance charges, recover rental car costs, recover towing fees. Must be full contract price of the car.

What is Chapter 11 Bankruptcy?

When a business re-organizes and gets rid of bad divisions. Under Chapter 11, a debtor can restructure its finances through a plan of reorganization approved by the bankruptcy court. By reducing obligations and modifying payment terms, a Chapter 11 plan can help a debtor balance its income and expenses, regain profitability, and continue in operation. Under Chapter 11, a debtor also can sell some or all of its assets so it can downsize its business if necessary or pay down claims that it owes.

Conversion

When a landlord tries to keep your TV for late payment, can't do that.

When is an offer effective?

When it has been accepted

When is an acceptance effective?

When it has been communicated to/received by the offeror

When is a revocation effective?

When it has been received

What is joint and several liability

When multiple parties can be held liable for the same event or act and be responsible for all restitution required. In cases of joint and several liability, a person who was harmed or wronged by several parties could be awarded damages and collect from any one, several, or all of the liable parties.

Implied Contract

When people have done previous business together. Have a habit of dealing with each other the court rules the contract implied

What does it mean to reaffirm the debt?

When you reaffirm a debt, you agree that you will still owe the debt after your bankruptcy case is over. Both the creditor's lien on the collateral and your personal liability for the debt under the original promissory note survive bankruptcy intact, often, just as if you never filed for bankruptcy.

What to do if you can't garnish wages

Writ of execution to seize property. Car, money in bank, retirement account, real estate.

What happens if your partner dies when you have a partnership agreement?

You are liable for the debts. Life insurance policy, goes to partner, then goes to estate, write check to estate, pay estate monthly for certain number of years.

Eligibility Requirements for Chapter 9

You must be a municipality. Authorized by the state. Negotiate in good faith with their creditors (if there are too many creditors then you don't have too). Have to be insolvent (not have enough money to pay their debts).

What is a negligent tort

failure to exercise due care under the circumstances in consequence of which harm is proximately cause to one to whom the defendant owed a duty to exercise due care.

Promissory Estoppel

if you relinquish or give up a legal right, in return for a contract, that forgiving of a legal right may be used as consideration for a contract.

Injunction as a Remedy

order of a court of equity to refrain from doing (negative injunction) or to do (affirmative or mandatory injunction) a specified act. Statute use in labor disputes has been greatly restricted. For Example, when the obligation in an employee's contract is to refrain from competing after resigning from the company and the obligation is broken by competing, a court may order or enjoin the former employee to stop competing.

Compensatory Damages

out of pocket expenses. A sum of money awarded in a civil action by a court to indemnify a person for the particular loss, detriment, or injury suffered as a result of the unlawful conduct of another.

What are some examples of strict liability torts?

product liability, animals (if you raise wild animals, you are liable for any damage they cause)

Term of Protection for Lemon Law

the Earlier of 18 months OR 18,000 miles after purchase or delivery day.