BUSA Final Exam
UCC damages - if buyer breaches sale of goods
1. resell goods elsewhere 2. if seller doesn't resell, get difference between contract and market price
mirror image rule
A common law rule that requires that the terms of the offeree's acceptance adhere exactly to the terms of the offeror's offer for a valid contract to be formed.
past consideration
A completed act cannot be the basis for consideration
exculpatory clause
A contract provision that attempts to release one party from liability in the event the other is injured
entrapment
A defense requiring proof that the defendant would not have committed the crime but for police trickery.
specific performance
A legal action to compel a party to carry out the terms of a contract. available when no other remedy (such as money) will adequately compensate the other party.
mediation
A method of settling disputes outside of court by using the services of a neutral third party, called a mediator. The mediator acts as a communicating agent between the parties and suggests ways in which the parties can resolve their dispute.
nominal damages
A small monetary award (often one dollar) granted to a plaintiff when no actual damage was suffered.
how does a minor ratify?
After a minor reaches the age of majority, he can ratify the contract.
ADR
Alternative Dispute Resolution
assault
An act that makes a person reasonably fear an imminent battery
can you assign personal injury claims? why?
Assignment of personal injury tort claims is prohibited throughout the United States
when is assignment prohibited?
Assignments can't take place if they materially alter what's expected under the contract.
If someone assigns rights, is that legally enforceable?
Assignments of contract rights are usually enforceable, but will not be under these circumstances: Assignment is prohibited in the contract language, which is called an anti-assignment clause. Assignment of rights changes the foundational terms of the agreement.
substantive due process
Constitutional requirement that governments act reasonably and that the substance of the laws themselves be fair and reasonable; limits what a government may do.
What happens if a minor doesn't ratify later?
Contracts signed by minors under the age of 18 do not have the same legal status as contracts signed by adults, as minors do not have the same understanding of the law as adults.
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
Hamer v. Sidway - outcome
Homer asserts that the promisee, by refraining from the use of liquor and tobacco, was not harmed, but benefited and unless the promisor was benefited, the contract was without consideration. However, it is sufficient that he restricted his lawful freedom of action within certain prescribed limits upon the faith of his uncle's agreement, and now, having fully performed the conditions imposed, it is of no moment whether such performance actually proved a benefit to the promisor, and the court will not inquire into it. Judgment reversed.
what does 1A do and protect
It protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances.
stare decisis
Let the decision stand; decisions are based on precedents from previous cases
obscene speech, protected under the first amendment?
Obscenity is not protected under First Amendment rights to free speech, and violations of federal obscenity laws are criminal offenses.
if a contract is for personal services, can it be delegated?
Personal services are not delegable. If the contract is such that the promisee expects the obligor personally to perform the duty, the obligor may not delegate it.
How does EU view privacy rights?
Privacy and data protection are two rights enshrined in the EU Treaties and in the EU Charter of Fundamental Rights. The Charter contains an explicit right to the protection of personal data (Article 8).
life insurance
Provides payment to beneficiaries who were named by the insured person
theft
Taking another person's possessions
legality
The contract's purpose must be to accomplish some goal that is legal and not against public policy.
strict liability
The legal responsibility for damage or injury even if you are not negligent
purpose of contract law
To assure those who enter into private agreements that the promises they make will be enforceable
Palsgraf v. Long Island Railroad
Tort: Negligence Element: Duty of Care There must be a direct foreseeable link between the negligent act and the damage. Injury caused to a party of sufficient distance in an unforeseeable manner does not attract a duty of care.
primary methods of ADR
While the two most known forms of ADR are arbitration and mediation, negotiation is almost always attempted first to resolve a dispute. Negotiation allows the parties to meet in order to settle a dispute.
IOT (Internet of Things)
a large network of physical objects including sensors and equipment
preexisting duty - consideration
a service already required to do
under what circumstances is intrusion into someone's private life a tort?
a tort if a reasonable person would find it offensive.
tort
a violation of a duty imposed by the civil law
capacity
ability
How are ambiguities interpreted?
accidentally unclear. court will construct AGAINST drafter.
What do you need for capacity?
adult of 18 or greater and sound mind
severe ability provision
allows the remainder of the legislation's or contract's terms to remain effective, even if one or more of its other terms or provisions are found to be unenforceable or illegal.
offer
an act or statement that proposes definite terms and permits the other party to create a contract by accepting those terms
When do lawyers prefer to negotiate touchy subjects?
at the beginning
Jurisdiction
authority of court to decide a particular case
The purpose of the FOIA (Freedom Of Information Act)
avoids government secrecy and gives us access information agencies are using
why are ethics important?
builds trust
Which is more common - contributory or comparative negligence?
comparative negligence
miranda warning helps to protect against
compelled self-incrimination.
statute
congress/legislature pass laws, simple majority in House and Senate (>50%)
direct damages
damages that flow directly from the contract
liquidated damages
damages that parties to a contract agree in advance should be paid if the contract is breached
what's in the intro paragraph of a contract?
date, effective, parties, nature
Capacity (voidable contract)
defendant lacks legal ability to enter into contract
usary - if you charge more than allowable interest, what's the result?
depends
contract titles should be...
descriptive
HIPPA (Health Insurance Portability and Accountability Act)
doesn't apply to healthcare info. people give to non-healthcare businesses
breach
failure to perform without excuse
bill of rights are which amendments?
first 10 amendments of constitution
flag burning, protected under the first amendment?
flag burning constitutes a form of "symbolic speech" that is protected by the First Amendment.
FOIA should be used:
how an agency operates and spends money and information an agency has about you
ethics
how people SHOULD behave. right vs. wrong
Which scenario does a landlord have the highest liability owned to them?
invitee - public place, business guest
common law
judge-made law
Misdomeanor
less serious crime, <1 year incarceration (jail)
Which ADR gives most win-win outcome?
mediation
how are most cases solved?
negotiations
if a contract prohibits delegation, can duties be detected?
no
purpose of 3 branches of government
no central person has power
completed act consideration?
not legally required to do
duty to mitigate damages
obligation on non-breaching party to use reasonable efforts to minimize damage resulting from defendant's breach of contract
elements of a contract
offer, acceptance, consideration, legality, capacity, consent, writing
contracts that cannot be performed within ___ must be in writing.
one year
consent
permission to do something
ways we lose our privacy
phishing, hacking the IOT, malware, denial-of-service attacks
who are the parties involved in a criminal case?
plaintiff (presents case) and defendant
contributory negligence
plaintiff recovers nothing
comparative negligence
plaintiff's recovery is reduced
civil case burden of proof
preponderance of the evidence
usary law purpose
prevent lenders from imposing unreasonable or predatory interest rates.
original purpose of the statute of frauds:
prevent lying
rejection
refusal to accept
incidental damages
relatively minor costs that the injured party suffers when responding to the breach
Felony
serious crime, >1 year incarceration (prison)
arbitration
settling a dispute by agreeing to accept the decision of an impartial outsider
consequential damages
special damages resulting from unique circumstances of injured party
is criminal law common or statutory?
statutory
acceptance
the action of consenting to receive or undertake something offered
defamation
the action of damaging the good reputation of someone; slander or libel.
consideration
the inducement, price, or promise that causes a person to enter into a contract and forms the basis for the parties' exchange
promissory estoppel
the legal enforcement of an otherwise unenforceable contract due to a party's detrimental reliance on the contract
when an offer terminates:
the offeree's legal power to bind the offeror ends
stakeholders
the people whose interests are affected by an organization's activities. employees, customers, communities
life principles
the rules by which you live your life
larceny
theft of personal property
criminal law
to prevent certain behavior for the benefit of society
Why do many major corporations actively encourage ethical behavior?
unethical behavior can quickly destroy a business
battery
unlawful touching of another person without consent
what happens if a minor rescinds a contract?
voidable by minor
Contract Licensing
when a licensing requirement is designed to protect the public. any contract by an unlicensed worker is unenforceable, but if designed to raise money (retail stores), contract from unlicensed person is okay.
when should a contract be in writing?
when it is valued at $500 or more and if it cannot be performed within a year
revocation
withdrawing an offer before it is accepted
UCC - sale of goods
writing required if sale of goods is over $500
If an administrative agency adjudicates a decision and you don't like it - what next?
you can appeal