Business Law 2150 Final Exam Review

Rules and Regulations (dont adopt statues)

Administrative agencies adopt

flat fees, hourly fees, contingency fees (share percentage of reward)

Attorneys fees come different ways

chosen to decide verdict

Beginning of trail of criminal or civil case jury is _____

Burden of proof in criminal case

Beyond a reasonable doubt

limit in NC is 30,000; therefore owner, if he found out this guy wasnt licensed wouldnt have to pay him

Builder not licensed in North Carolina and going to do a job that cost $35,000

Burden of proof in civil case

By the greater weight of the evidence (Scales of justice tipping just slightly)

Caballes v Illinois

Caballes written a warning ticket and another officer pulled up with a dog and the dog smelled marijuana in trunk; he was prosecuted, took it to the Supreme court and the court decided that dog equals probable cause to search your car

President; senate (requires 51 senators no matter what)

Federal judges and justices are nominated and appointed by _____ and confirmed with advice by _____.

Bill of Rights

First 10 amendments to us Constitution

offerer

For an offer to be effective the _____ must objectively intend to be bound by the offer; terms of offer must be reasonably definite and certain and the offer must be communicated to the offeree

no; it was a mutual mistake of value

If Bev sues Sung and demands return of the violin, can she win?

Charge

Instructions given by the judge to the jury is sometimes called

moral minimum - just because an action is legal, doesnt mean it is ethical; we have laws against unethical behavior but theres not a law for every unethical behavior

Issue that arises with complying with law is

comlaint; with the complaint came a document called the summons which came from the clerk of the federal court

Jill Kirby filed a civil suit against Antonia Carvello and she and her attorney filed a _____

defamation

Least protection by first amendment freedom of speech is

commerce clause (all federal laws and burdens on interstate commerce apply to business people if youre engaged in interstate commerce)

Most important clause for businesses is the

treaties

President proposes _____ and 2/3 senate have to be present

voir dire

Process of question jurors is

people that lack capacity to contract:

REMEMBER: resident alien is a legal alien and can enter into a contract

subject matter of that offer or contract is destroyed (so if you go and total the car youre selling the offer and contract is no longer binding)

Termination of an offer can occur in seven ways and in some of those ways you can terminate a contract as well:

summons

The paper that tells a defendant that he or she is being sued and asserts the power of the court to hear and determine the case; commands the defendant to appear before the court on a specific day and to answer the complaint made by the plaintiff

courts will enforce this; its not actually a contract but courts will enforce it based on promissory estoppel or detrimental reliance

Uncle tells nephew that he shouldnt have to work because of his handicap; uncle told nephew he would pay him to quit his job. nephew relying on the promise went and quit his job and uncle wouldnt pay the nephew

UCC

Uniform Commercial Code (Chapter 1);

no; no; no

Written letters back and forth about 4-runner; is there an offer? is there an acceptance? is there a contract?

Ethics

_____ is the study of which right or wrong behavior

Consideration

______ requires something of legally sufficient value is given in exchange for a promise

unilateral contract

a reward posted in a classified section in the newspaper is an example of an offer and basis for a

no; but if someone submits a bid (which is an offer) and its accepted then that creates a contract between the bidder and the county

ad in newspaper and county solicits concealed bids on construction on new jail; is this an offer?

US constitution

adopted in 1787

No, add is invitation or solicitation for an offer

advertise 4-runner (1st year, 2nd generation- 1990) in paper. is ad an offer?

Mailbox rule

aka deposited acceptance rule; get an offer in mail, agree to it and sign it and put it back in mail. once back in mail it is considered to be communicated

covenants not to compete (frowned upon by courts because limits trade); like cardiac surgeons case where surgeons brought into clinic and then were asked after they were hired to sign a covenant not to compete; its possible for the covenant not to compete to lack consideration but if employer tells you to sign it or else youre fired then thats duress, but if he offered you a pay raise to sign it then that is consideration and can be upheld

an employer goes to employees that have been working for him for a while and says he needs them to sign a covenant not to compete and if they dont sign it theyre fired

Exclusionary rule

any evidence obtained illegally by government may not be used in the criminal trial

usury

charging of excessive or illegal interest on a loan is called

Katzenback and mcclung

closely related to Heart of Atlanta case; mcclung said no one ate at his restaurant that was from out of state so he doesnt participate in interstate commerce, but court said he does because he buys food and supplies from out of state

commercial impracticability (penalizes one of the parties to a contract and lets guy with worlds tiniest violins get out of a deal if they have an extreme case of excessive cause or reason why they cant do the job)*

contract performance has been excused due to impossibility courts in 1975 recognize this as

bankruptcy, impossibility, use of statue of limitations, and frustration of purpose (so answer is all of the above)

contracts can be discharged in many ways:

all of the above

contracts can be in writing, verbal and expressed, implied, expressed written and expressed verbal

contractual compacity

contracts can be voidable or void if made with minor or incompetent person or intoxicated person or an illegal alien

had to do with the UCC; under UCC any item up for the purchase of $500 or more must be in writing to be enforcable

contracts that have to be in writing

adequacy of a contract or adequacy of consideration; reason is, even though adequacy and sufficiency seem like synonyms theyre really not; adequacy they ignore (because if not people would sue just because they made a bad deal and the courts would be overwhelmed with cases) but they always pay attention to sufficiency

court generally doesnt question _____

no because silence is not acceptance and you didnt have any legal duty to reject the offer

credit card offer in mail and says small service fee of $50 will be charged to your new card annually whether you activate and or use you card and you never do activate your card then are you liable?

liquidated damages- must be reasonable not excessive

damages for not having a place constructed completely to be ready for the opening for a commercial business and they agree builder will pay owner $1000 per day that he is late; with grand opening youve already published when it would be ready by and builder has to be done at least a week before; the money he owes you is called

loss of profits

either compensatory or consequential

Utilitarianism

employs a cost benefit analysis where you do analysis of whos going to benefit and whats the cost for those being benefited

Lucy v zimmer

example of contractual intent; not a case of intoxication as a contractual competency issue

proof of intoxication and drugs (severely impaired judgement that they couldnt understand the legal consequences of entering into a contract)

for a contract to be voidable

Equitable Remedy

for misrepresentation or fraud is rescission of the contract; sell someone car and its misrepresented, whoever bought it can give car back and get money back

in NC the following people could sue and get money back and rescission of a contract:

fraud, and person who pays a usurious interest on a loan ( if you pay a loan theres a time window within you can sue and get all money back); poker game and unilateral fact

implied infact contract (non-express contract: without words)

guy enters cafe and has an open charge account, orders a cup of coffee holds it up to show the cashier, she nods so he knows she acknowledges that she saw it and he walks out knowing that he will be billed at the end of the month

Heart of Atlanta

guy says hes not apart of interstate commerce, and so he doesnt have to comply with Civil rights act of 1964; court said yes you are, you advertise out of state and you have out of state people coming in

actual cause but not proximate cause because he didnt know hed knock out all power and hospital power would go out and people would die

guy who drove his car negligently and crashed into telephone pole

clerk prosecuted for murder and should be held liable because he used excessive force

guy works for tool store and a gang of four distract him and one of the gang members steals a chainsaw and they run away into car, clerk grabs shotgun and shoots through back window and kills driver of car; what happens to clerk

the first promise is the one that must be met with an act; the act itself by the other party is the performance of the contract also the acceptance of the offer

in a unilateral contract

offer and acceptance (both are promises)

in bilateral contract there is an _____

fiduciary relationship (aka confidential relationship)

in order to prove undue influence there must be proof of

Categorical imperative

individuals should evaluate their actions in light of the consequences that would follow if everyone in the society acted the same way

void ab initio

injudicated inompetant all contracts whether buying or selling are void at that point

bail on lease landlord still has to advertise and try and find someone to take the place

landlords may be required to mitigate their damages in the event of breaches of a lease agreement with a tenant

Hadley v. Baxendale

landmark case establishing forseeability of damages

Contracts

legal agreement between two or more competant parties where consideration is exchanged now or in the future

minors can do this within a reasonable time

minor enters contact when hes 16 the day after he turns 18 he changes his mind and wants to disaffirm the contract in exchange of property and money

mistake where its a mutual mistake of material fact

no contract will exist under _____

impossibility of performance (other reasons are destruction of subject matter and supervening illegality)

one of the parties of a personal service contact dies a discharge of the contract may occur due to

statute of frauds

oral contract of property is unenforceable under _____ if there isnt an actual contract; but if deed is created and both people sign it then statute doesnt matter

this is a written contract if over $500

order things online and they have to be shipped to you

Jackson Steelmill

ordered some coal to be delivered and coal company delivered it so their part of the contract is complete but jacksons isnt because coal isnt paid for yet and is considered executory

verdict

outcome

venire

panel or pool

Free exercise clause

part of freedom of religion in first amendment

establishment clause

part of freedom of religion in first amendment

duress

parties to a proposed contract - if someone threatened with blackmail or extortion and forced to enter into contract that is _____

yes

performer and someone writes bad review; can they sue for deformation of character

cross examination (questioning other peoples witnesses)

plaintiffs attorney questions defendant witnesses

preexisting legal duty

preexisting legal duty to perform whether or not that constituted consideration; no consideration if sheriff or off duty police officer to collect a reward for arresting a fugitive within the jurisdiction and considered a preexisting duty of a building contractor to do his job even if they had a fixed contract rate and materials went up

direct examination (re-direct)

questioning own witnesses

forbearance

refraining from doing something you have the right to do

Miranda warnings include

right to remain silent (5th amendment), explanation said that anything can and will be used against you in court, right to consult with an attorney, if individual cant afford an attorney they will be given one (traffic offenses you cant be appointed an attorney)

Indiana case

road stop in Indiana; went over this case with caballes v Illinois

obscenities - hardest to define

some areas that are supposed to be protected like _____

preferred remedy for sale of land because all land is unique

specific performances are a remedy and so is breach of contracts for sale of real estate

appropriation

the use of one person by another persons name likeness or voice or image without permission is (Bet Medler or vanna white)

counteroffer

this is a way to terminate an offer; you offer ask 20,000, I offer 18,000 you counter 19,500; 18,000 offer is terminated and you become offerer now and i become offeree. hats are turned

Equal protection

three tests: strict scrutiny test (suspect trait in the classification - race or national origin), intermediate test and rational basis test

fraud

tort involving contract law and closely related to crime and same name

cause (picking a jury and want to get rid of a juror - judge goes along with it juror has to show bias) and peremptory jury challenges (only a certain number of those - limited in number and cant discriminate based on race, gender, nationality)

two types of jury challenges:

consequential (Hadley v Baxendale)

types of damages that werent rewarded by court to a non breaching party in a contract case for indirect or special damages is called

yes because he is refraining from painting his house a color he has a legal right to paint and there is consideration on both sides

unannounced paint your house some unusual color and neighbor says dont do that itll keep me up at night, he offers to go to paint store and help pick a color that wont keep him up at night and he'll pay for the paint; is that ok?

Hamer v Sidway

uncle and nephew; nephew refrained from doing something he has a legal right to do (something called a forbearance)

she can sue but she wont get it because technically she didnt earn it, he was just going to give it to her, there was no consideration

uncle and niece; uncle promises niece $500 for christmas but before christmas he changes his mind and he wont give it to her; can she sue and get it

cant

unlicensed contractor who goes over 30,000; once you paid them you _____ get that money back

no meeting of the minds so no voluntary consent

voluntary consent can be used to set a contract aside

Palsgraf

why did he lose? court said there wasnt actual causation; wasnt forseeable for railroad people that he would have fireworks and it would go off

subpoena

witnesses ask to come to court