Business Law Final
Jurisdiction of the Supreme Court
-SC is an appellate court -hears appeals from fed circuit court of appeals and fed district courts, special fed courts, and highest state courts -no new evidence or testimony is heard -lower court record is reviewed to see errors -legal briefs are filed -parties granted brief oral hearing -SC's decision is final
Other defects- strict liability
-failure to provide adequate instructions -a defect that occurs when a manufacturer does not provide detailed directions for safe assembly and use of a product -everyone in COD strictly liable -others: 1. inadequate testing 2. inadequate selection of parts/materials 3. improper certification of product safety
Disparagement
-false statements about a competitor's products, services, property, or business reputation to prove aka trade libel, product disparagement, or slander of title 1.) made an untrue statement about the plaintiff's products, services, property, or rep 2. puplished it to 3rd party 3. knew it wasnt true 4. made the statement malicously with intent to injur
Fair Labor Standards Act
-federal act in 1938 that prohibits child labor and makes min wage and overtime pay requirements -enforced by the US Dept of Labor -applies to private employers /employees engaged in the production of goods for interstate commerce -it allows civil actions to be filed
National Labor Relations Board
-federal administrative agency that oversees union elections, prevents employers from engaging in illegal and unfair labor practices, and enforces and interprets certain federal labor laws -5 members appointed by president and approved by the senate -its decisions are enforceable in court
Treaties
- a compact made between two or more nations -the president and 2/3 senate enter into them -become part of supreme law of the land
Special Appearance
- a party who disputes the jurisdiction of a court can make a special appearance in that court to argue against the imposition of jurisdiction -service of process is not permitted during this time
Acceptance-upon-dispatch rule (mailbox rule)
- a rule stating that acceptance is effective when it is dispatched, even if it is lost transmission -bilateral contract begins when the offeree dispatches the acceptance by an authorized means of communication -does not apply if offeree sends a rejection before acceptance -overnight delivery (Fedex, Ups) or fax -states differ on MR with email -However, the offeror can state that acceptance is only effective when received to minimize lost acceptances
Mirror Image Rule
- a rule stating that in order for acceptance to exist, the offeree must accept the terms as stated in the offer -accept the offer without modification -modification makes a counteroffer, which rejects the original offer and causes the mirror image rule not to be met and no contract to be created
vior dire
-"to speak the truth" -the process whereby the judge and attorneys ask prospective jurors questions to determine whether they would be biased in their decisions -usually choose 6 to 12
Labor Law
-Norris-LaGuardia Act: 1932, legal for employees to organize -NLRA/Wagner Act: 1935, right to form and join labor organizations, to collectively bargain, and to engage in concerted activity to promote these rights -Labor Management Relations Act/ Taft-Hartley Act: 1947, 1. expanded labor union allowed activities 2. employers can have freedom of speech to discourage unions before elections 3. US president can stop a strike (within 80 days) that would create a national emergency -Labor Management Reporting and Disclosure Act/ Landrum Griffin Act: 59, -regulated internal union affairs and established union member rights -Rallway Labor Act: 26/34 covers emplyees of railways and airlines
Genetic Information Nondiscrimination Act
-A federal Statute that Title II of it makes it illegal for an employer to discriminate against job applicants and employees based on genetic information -cannot make employment decisions based on genetic information (see title VII for the list) -administered by the EEOC -violaters face corrective action and fines -individuals have a right to seek private lawsuits to seek hiring reinstatement, back pay, and compensatory and punitive damages -inadvertent discovery of genetic information and voluntary submission of such info doesn't violate the act unless the info is misused -GINA makes it illegal: employees cannot be harrased because of the information
Orders and Judicial Decisions
-Admin Agencies rulings are called orders "fourth branch of gov" -judicial decision: decision about an individual lawsuit issued by a federal or state court -include interpretations of laws -reported in books available at law libraries
Labor Law
-American Federation of Labor (AFL) was formed in 1866 under the leadership of Samuel Gompers -Only open to skilled craft workers (silversmiths, artisans) -Congress of Industrial Organizations (CIO): founded 1935 by John L. Lewis; covered semiskilled and unskilled workers -AFL and CIO combined in 1955 to form AFL-CIO: individual unions can join but not all unions are welcomed -in the early 1900s, members of the labor movement lobbied Congress to pass laws to protect the right to organize and bargain with management -during the Great Depression, statutes were enacted giving workers rights and protections
Promissory Estoppel (equitable estoppel)
-An equitable doctrine that permits enforcement of oral contracts that should have been in writing. -It is applied to avoid injustice. -exception to the statute of frauds -if: 1. the promise induces action or forbearance of action by another 2. the reliance on the oral promise was foreseeable 3. injustice can be avoided only by enofrcing the oral contract -the promisor is estopped from raising the statute of frauds as a defense to the enforcement of the oral contrcat
Superseding or intervening event
-An event for which defendant is not responsible -the defendant is not liable for injuries caused by the event -under negligence, a person is only liable for foreseeable events -this is used as a defense against negiligence -golfer hits a person, person is struck by lightening waiting for dr.; golfer only responsible for hitting the person
State rights
-Constitution: powers not given to the fed are reserved for the states -state constitutions are patterned after Const. often more detailed -state conts. establish: state executive, legislative, and judicial branches and the powers of each branch -provisions of state const. are valid if they do not conflict with US Const or any fed law
Summary: Title VII of the Civil Rights Act of 1964
-Covered employers and employment decisions Employers. Employers with 15 or more employees for 20 weeks in the current or preceding year, all employment agencies, labor unions with 15 or more members, state and local governments and their agencies, and most federal government employers. -Employment decisions. Decisions regarding hiring; promotion; demotion; payment of salaries, wages, and fringe benefits; dismissal; job training and apprenticeships; work rules; or any other term, condition, or privilege of employment. Decisions to admit partners to a partnership are also covered. -Protected classes -Race. A broad class of individuals with common characteristics (e.g., African American, Caucasian, Asian, Native American). -Color. The color of a person's skin (e.g., light-skinned person, dark-skinned person). -National origin. A person's country of origin or national heritage (e.g., Italian, Hispanic). -Sex. A person's sex, whether male or female. OOOOOOIncludes sexual harassment and discrimination against females who are pregnant.OOOOOOOOOO -Religion. A person's religious beliefs. An employer has a duty to reasonably accommodate an employee's religious beliefs ooooooooooo if doing so does not cause an undue hardship on the employer. 00000000000000 -Types of discrimination -Disparate-treatment discrimination. Discrimination against a specific individual because that person belongs to a protected class. -Disparate-impact discrimination. Discrimination in which an employer discriminates against a protected class. A neutral-looking employment rule that causes discrimination against a protected class is disparate-impact discrimination. -Defenses -Merit. Job-related experience, education, or unbiased ability test. -Seniority. Length of time an employee has been employed by the employer. Intentional discrimination based on seniority is unlawful. - Bona fide occupational qualification (BFOQ). Discrimination based on sex, religion, or national origin is permitted if it is a valid BFOQ for the position. Qualification based on race or color is not a permissible BFOQ. -Remedies -Equitable remedy. The court may order the payment of back pay, issue an injunction awarding reinstatement, grant fictional seniority, or order some other equitable remedy. -Damages. The court can award compensatory damages in cases of intentional discrimination. The court can award punitive damages in cases involving an employer's malice or reckless indifference to federally protected rights.
Respondeat Superior
-Latin phrase meaning "let the master answer" -rule stating that an employer is liable for the tortious conduct of its employees or agents while they are acting within the scope of their authority -based on the theory of vicarious liability: liability without fault; occurs where a principal is liable for an agent's actions because of the employment contract between the principal and agent, not because the principal was at fault -doctrine of negligence asserts that if the principal expects benefits from the agent he should be liable for injuries the agent caused to third parties while in the scope of the agent's authority
Misrepresentation of a Material Fact
-Occurs by words (oral or written) or by the conduct of a party -To be actionable as fraud, the misrepresentation must be of a past or existing material fact meaning: the misrep must have been a significant factor in inducing the party to enter into the contract, doesn't have to be the sole factor -statments of opinion or predictions about the future are not fraud
Required Signature
-Statute of Frauds requires a written contract to be signed by the party who seeks enforcement NOT the party who is enforcing -so, a written contract may be enforceable against one party but not the other party -signature can appear anywhere and it does not have to be the persons full name: can be nickname, stamp, seal, initials, symbol -can hire handwriting experts to prove forgery
Intro to Statute of Frauds and Equitable Exceptions
-Statute of Frauds requires some contracts to be in writing -Other contract issues: -form of signature on a written contract -whether a contract can be formed by the integration of several documents -whether any previous oral or written agreements between the parties can be given effect -how contract language can be interpreted -Equitable Exceptions: promissory estoppel and the part performance exception
Race vs. Color Discrimination
-Title VII of the Civil Rights Act of 1964 was enacted primarily to prohibit employment discrimination based on a person's race and color - Title provides equal opportunity for minorities seeking jobs and promtions EEOC recognizes the following racial classifications having origins in... 1. African American: black racial groups of Africa 2. Asian: original people of the Far East, Southeast Asia, or Indian subcontinent 3. Caucasian: original peoples of North Africa, Middle East, or Europe 4. Native American: original peoples of North, South, or Central America 5. Pacific Islander: original peoples of Hawaii or Pacific Islands -Race Discrimination: employment discrimination against a person because of his race; violates Title VII -Color Discrimination: -the color or complexion of one's skin -light skinned refuses to hire dark skinned for example -violates Title VII -not as common -unlawful discrimination if a person is married to or associates/ member of a race-based organization
Section 2A-201(1) of UCC
-UCC Statute of frauds section 2a-201(1) -Lease contracts requiring payments of $1,000 or more must be in writing or it is uneforceable -writing must be sufficient enough to indicate that a contract has been made between the parties -unless exempted, the writing must be signed by the party who seeks enforcement
Valid, Void, Voidable, and Unenforceable Contracts
-Valid: all the essential elements of a contract -agreement, consideration, contractual capacity, lawful object -is enforceable by at least one of the parties -Void: no legal effect -as if no contract had been created ex: contract to commit a crime -neither party is obligated to perform or enforce -Voidable contract: one or both parties have the option to void their contractual obligations - if voided, both parties are released from their contractual obligations -if the party with the option goes through w/contract both parties must perform their obligations -contracts may be voided by minors, insane, under influence, fraud, or mutual mistake -unenforceable contract: essential elements of a contract but there is some legal defense to the enforcement of the contract -i.e.: a contract is required to be in writing but is not -both parties may voluntarily perform an unenforceable contracts
money laundering
-When criminals make money from illegal activities, they are often faced with the problem of having large sums of money and no record of how this money was earned. The criminals then purchase a business to "wash" their money so it looks legitimate to the government. -they run money through these businesses to clean it before they recieve it from these legimate businesess -the businesses have cooked books with fake expenses/revenues -Money Laundering Control Act crime to: 1. engage knowingly in a money transaction (deposit) through a financial institution involving property from an unlawful activity worth more than 10,000 2. engage knowingly in a financial transaction (buying property) involving the proceeds of an unlawful activity -it's now a federal crime
Best Efforts Contract
-a contract that contains a clause that requires one or both of the parties to use their best efforts to achieve the objective of the contract -courts hold that the imposition of best efforts provides consideration to make a contract enforceable
Criminal Conspiracy
-a crime in which two or more persons enter into an agreement to commit a crime and an overt act is taken to further the crime -the crime itself does not have to be committed -the gov brings charges if 1. the defendants have been prevented from committing the crime 2. there is insufficient evidence to prove the substantive crime
Consolidated Omnibus Budget Reconciliation Act (COBRA)
-a federal law that permits employees and their beneficiaries to continue their group health insurance after an employee's employment has ended -can be offered because of voluntary or involuntary leave -employer must notify covered employees of their rights -covered persons must may group rate premium -usually available for 18 months after employment has ended -provisions exist for gov employees
UCITA (Uniform Computer Information Transactions Act)
-a model act that establishes uniform legal rules for the formation and enforcement of electronic contracts and licenses -doesn't become law until state legislature adopts
Independent Contractor
-a person who contracts with another to do something and is not controlled by the other or subject to control of his physical conduct in the performance of the thing -persons who are not employees that do certain tasks on the principal's behalf -principal-independent contractor relationship -they operate their own businesses or professions
Intoxicated Persons
-a person who is under contractual incapacity because of ingestion of alcohol or drugs to the point of incompetence -contracts are voidable by the intoxicated -but only if the person was so intoxicated they couldn't comprehend -rule holds even if the intoxication was self-induced -some states allow the person to disaffirm the contract only if they were forced to become intoxicated -amount of drugs/alcohol varies case by case -look at the persons tolerance and their physical characteristics -a drunk person who disaffirms is returned to status quo -they must return the consideration received -after becoming sober they can ratify the contract -in a quasi contract they have to pay the reasonable value for necessities they received
Tort Liability of Principals and Agents to Third Parties
-a principal and an agent are each personally responsible for their own tortious conduct -principal is liable for the agent's conduct if he is acting within the scope of his authority -the agent is only liable for the principal's conduct if he directly or indirectly participates in it or aids and abets the principal's conduct 1. Was the act specifically requested or authorized by the principal? 2. Was it the kind of act that the agent was employed to perform? 3. Did the act occur substantially within the time period of employment authorized by the principal? 4. Did the act occur substantially within the location of employment authorized by the employer? 5. Was the agent advancing the principal's purpose when the act occurred? -tort remedies are available to the injured party. These remedies include recovery for medical expenses; lost wages; pain and suffering; emotional distress; and, in some cases, punitive damages. -3 main sources of tort liability are: negiligence, misrepresentation, and intential torts
in pari delicto
-a situation in which both parties are equally at fault in an illegal contract - common law even if one party was more at fault than the other -some states have changed to allow the less at fault party to recover restitution of the consideration they paid in an illegal contract
Duress
-a situation in which one party threatens to do a wrongful act unless the other party enters into a contract -contracts must have voluntary assent -if a party has been forced, then assent is not voluntary -such a contract is not enforceable against the innocent party -can be physical duress: someone threatens to physically harm another unless that person signs a contract -doesn't have to be physical harm -if a victim signs the contract it is not enforceable -ex: threat of extortion, threat of criminal lawsuit even if the suit is well founded -threat of civil lawsuits do not count as duress unless the civil suit is frivolous or in bad faith
Dual-Purpose Mission
-a situation that occurs when a principal requests an employee or agent to run an errand or do another act for the principal while the agent is on his or her own personal business -agent or employee is acting partly for himself and partly for the principal -both the principal and agent is liable for the agent's conduct while the agent is on this mission
Time (lapse of time?)
-a stated time period after which an offer terminates -if no time is stated, an offer terminates after a reasonable time, according to circumstances -Reaonable time: stock, minutes; home a week -unless otherwise stated, an offer over phone or face to face ends when the conversation is over -time starts when the offer is received by the offeree
Statute of Limitations
-a statute that establishes the period during which a plaintiff must bring a lawsuit against a defendant -if the lawsuit is not filed during that period, the plaintiff loses his right to sue -begins when the plaintiff has the right to sue -fed and state have SOL for each type of lawsuit -most are 1-4 years
Negligence
-a tort related to defective products in which the defendant has breached a duty of care and caused harm to the plaintiff -plaintiff must prove breach of duty of care/fault -defective: product design, inspection, testing, packaging, failure to warn
Title VII of the Civil Rights Act of 1964
-act made unlawful discrimination against 5 protected classes: 1. race 2. color 3. religion 4. sex 5. national origin -in public accommodations, by state and municipal govs, by gov agencies that receive fed funds, and in employment -Title VII deals with employment -Scope of Title VII 1. employers with 15 or more employees 2. all employment agencies 3. Labor Unions 4. State and local govs and their agencies 5. most federal gov employment -Native American Tribes and tax-exempt private clubs are exempt from coverage -Title VII prohibits discrimination in hiring, decisions regarding promotion or demotion; payment of compensation and fringe benefits; availability of job training and apprenticeship opportunities; referral systems for employment; decisions regarding dismissal; work rules; and any other "term, condition, or privilege" of employment. -any employee under a covered employer, even undocumented immigrants may bring action under title vii -US citizens employed by US-controlled companies in foreign countries are covered -Foreign nationals employed by the US companies are exempt -Title fights against -Disparate-Treatment Discrimination: a form of discrimination that occurs when an employer discriminates against a specific individual because of race, sex, color, national origin, religion and -Disparate-impact discrimination: discrimination against an entire protected class
Affirmative Action Plan
-adopted by employers and provides certain job preferences that will be given to members of minority racial and ethnic groups, females, and other protected class applicants when making employment decisions -plans can be voluntarily adopted, undertaken to settle a discrimination action, or ordered by the courts -to be lawful they must be narrowly tailored to achieve some compelling interest -employment quotas are unlawful -if minority status is only one of many factors considered in an employment decision that decision is lawful
Partially disclosed agency
-agency in which a contracting third party knows that the agent is acting for a principal but does not know the identity of the principal -third party knows the agent's indentity -principal may tell agent not to disclose identity to third party or the agent may just forget - creates a partially disclosed principal -both the principal and the agent are liable on third-party contracts because the third part must rely on the agent's rep and credit because the principal is unidentified -if the agent is made to pay the contract he can sue the principal -the third party and the agent can agree to relieve the agent's liability
Misuse of Confidential Information
-agent acquires confidential information about the principal's affairs -agent cannot disclose or misuse it during or after the agency -principal can recover damages, lost profits, and funds the agent received in exchange for the info -principal can obtain an injunction ordering the third party to return the confidential info and not to use it -agent can use general info, knowledge, or experience during the course of an agency in later employment
Competing with Principal
-agents are prohibited from competing with the principal during the course of the relationship unless the principal agrees -an agent can not complete his duty of loyalty when his interests conflict with the principal's interests -principal may recover profits made by the agent as well as damages caused by the agent's conduct, like lost sales -agent is free to compete after relationship has ended unless they have entered into an enforceable covenant not to compete
Rescission
-an action to rescind(undo) a contract -available if 1. material breech of contact 2. fraud 3. duress 4. undue influence 5. mistake
Persons who can engage in Agency Relationship
-any person who has contractual capacity to hire another to act on his behalf -insane and minors cannot unless the court appoints representatives to aid these types of people, and the reps can contract on their behalf with court approval -agency can only be formed to do a lawful purpose -agencies cant be against public policy (ie: unlicensed professionals)
insane but not adjudged insane
-being insane but not having been adjudged insane by a court or an administrative agency -insane person has the option to void (voidable contract) -some states hold that the contract is void -Alternating periods of insanity: contracts made during lucid times are enforceable -person who has dealt with an insane person must place that insane person back to status quo is the contract is either void or voided -persons who did not know they were dealing with insane placed on status quo and voidance of the contract -insane persons in a quasi contract are to pay reasonable value for the necessaries of life they receive
Bilateral and unilateral contracts
-bilateral: exchange of promises of both parties; "promise for a promise" -no act of performance necessary -any contract ambiguity, then the contract is said to be bilateral -unilateral: a contract in which the offeror's offer can be accepted only by the performance of an act by the offeree; "promise for an act" ex: bi: P1: I promise to pay 3k if you paint my store by July 1, P2: i promise ex: uni: P1: I promise to pay 3k if you paint my store by July 1, p2: doesn't paint, no acceptance of contract and P1 cannot sue -uni: offer cannot be revoked if the offeree has begun or substainally comlteed work
Unemployment Compensation
-compensation paid to workers who are temporarily unemployed -Federal Unemployment Tax Act: employers are required to pay unemployment contributions (taxes) -tax rates change; not paid by employees -state govs have their own guidlines based on fed guidelines -states have their own eligibility requirements and duration of benefits to recieve benefits must: be able to work, available to work, and actively seeking employment -workers let go because of bad conduct or who voluntarily quit without just cause are not eligible
Concurring/Dissenting Opinion
-concurring: a justice agrees with the outcome of case but not the reasoning -dissenting opinion: a justice does not agree with the outcome
Formal and Informal Contracts (Contracts under Seal)
-contracts that require a special form or method of creation 1. Negotiable instruments. Negotiable instruments, which include checks, drafts, notes, and certificates of deposit, are special forms of contracts recognized by the UCC. They require a special form and language for their creation and must meet certain requirements for transfer. 2. Letters of credit. A letter of credit is an agreement by the issuer of the letter to pay a sum of money on the receipt of an invoice and other documents. Letters of credit are governed by the UCC. 3.Recognizance. In a recognizance, a party acknowledges in court that he or she will pay a specified sum of money if a certain event occurs. 4. Contracts under seal. This type of contract is one to which a seal (usually a wax seal) is attached. Although no state currently requires contracts to be under seal, a few states provide that no consideration is necessary if a contract is made under seal -informal contracts: all contracts that do not fit the criteria for a formal contract -they are still enforceable and can sue if breeched -inform becasue no special procedure to create them -any words can be used to express their terms -majority of contracts are informal
Landmark Law: Civil Rights Act of 1866
-enacted after the Civil War -Section 1981 states that all persons have the same right to make an enforce contracts as is enjoyed by white persons -Section 1981 expressly prohibits racial and national origin discrimination -it covers employment decisions because those are contractual -most employment discrimination is brought up against Title VII, but they can be brought against Section 1981 if 1. private plaintiff brings an action w/o the procedural processes of Title VII 2. there is no cap on the amt of damages under Section VII
Promissory Estoppel
-equity doctrine that permits a court to order enforcement of a contract that lacks consideration, aka detrimental reliance -permits court to enforce oral contracts that should have been in writing aka equitable estoppel
Minimum Wage
-established by the Fair Labor Standards Act -Managerial, administrative, an professional employees are exempt -FLSA requires that most US employees be paid the fed min wage for all hours worked -set by congress and can be changed -2014: $7.25 per hour -Dept of Labor permits less pay to students and apprentices -employer can reduce min wage by an amount equal to the reasonable cost of food and lodging provided to employees -tipped employees: can be paid $2.13 per hour if that amount plus tips= min wage -but, employer must make up the difference -state laws have set a higher min wage than fed rate -cities have also enacted living wage laws
Crimes
-felony: most serious -mala in se: inherently evil -punishable by imprisonment -most crimes against people or businesses -murder, rape, embezzlement, bribery, or breaking statutes -misdemeanor: less serious -not inherently evil, but prohibtted by society: mala prohibita -fines or 1 yr or less of jail -robbery, burglary, and less serious violation of statutes -Violations: least serious -fined usually, maybe 1 day of jail -ex: traffic violations
Employment-Related Injury
-for an injury to be compensated under worker's comp, the claimant must prove he was harmed by an employment-related injury -injuries that arise out and in the course of employment are compensable -worker's comp covers injuries related to stress and mental illness that is work related
Highest state court
-hears appeals from intermediate appellate courts and certain trial courts -state supreme court in some states -no new evidence or testimony -present lower court's ruling for review -parties file legal briefs and are granted a brief oral hearing -ruling is final unless question of law that is appealable to US SC
Supreme Court of the US
-in DC -9 justices nominated by the president and confirmed by the senate -highest court in US -President appoints one justice as Chief justice of the US Supreme Court who does court admin -other 8 called Associate justices of the US Supreme Court
Parties to a Criminal Action
-in a criminal lawsuit -the government(not a private party) is the plaintiff -the gov is represented by a lawyer called the prosecutor or prosecuting attorney -the accused, usually an individual or business, is the defendant -represented by a defense attorney -sometimes they hire a private attorney, but the gov provides one if can't afford -the gov's defense attorney is named the public defender
Fraud
-intentional misrepresentation/ fraudulent misrep: when one person consciously decides to induce another person to rely and act on a misrepresentation - when fraud is used to get someone to get into a contract the innocent party's assent is not genuine and he can void the contract -options 1. rescind (cancel) the contract and obtain restitution(take back something) 2. enforce the contract and sue for contract damages To prove Fraud: 1. misrepresentation of material fact 2. intent to deceive 3. reliance on the misrep 4. injury to the innocent party
Internal Union Affairs
-internal union rules: regulate the operation of the union, acquire and maintain union relationships, etc. -Title I of the Landrum-Griffin Act (LMRD) (Labor's Bill of Rights): gives each union member equal rights and privileges to nominate candidates for union office, vote in elections, and participate in membership meetings; makes things more democratic -guarantees union members free speech rights and due process, and permits union members to initiate judicial or admin action Unions can discipline 1. walking off the job in a non-sanctioned strike 2. working for wages below union scale 3. spying on an employer 4. unauthorized activity that has adverse economic impact on the union -members can't be punished for testifying against the union in court
Forum-Selection and Choice of Law Clauses
-issue arrises when parties from different states or countries have a legal dispute -which jurisdiction?? -sometimes an agreement is made that stipulates what state, federal, or country court will have jurisdiction -forum-selection clause: (choice of forum): in a contract a provision that designates a certain court to hear any dispute concerning nonperformance of a contract -choice-of-law clause: in a contract, designates a certain state or country's law that will be applied in any dispute regarding nonperformance of a contract
Res Ispa Loquitur
-latin for the thing speaks for itself -tort in which the presumption of negligence arises because 1.) the defendant was in exclusive control of the situation 2.) the plaintiff would not have suffered injury but for someone's negligence -the burden switches to the defendant to prove he was not negligent making it easier for the plaintiff
Ordinance
-law enacted by local government bodies, such as cities and municipalities, counties, school district, and water districts -state legistaltures often delegate lawmaking to local gov bodies -local gov empowered to adopt ordinances -they are codified -ex: asethic laws, zoning, building codes, and sign restrictions
Usury Law
-law that sets an upper limit on the interest rate that can be charged on certain types of loans -limits vary from state to state -lenders who charge higher than the limit are guilty of usury -protects borrowers from loan sharks and places that charge too high rates -states have criminal and civil penalties for making usurious loans -some states require lenders to remit(cancel) the difference between interest rate charged and the usury rate -some states prohibit collection of any interest -some states say the contract is void and no interest or principal has to be paid -usury laws have exemptions to certain types of lenders and loans involving legimate businesses -ex: loans made by banks/fin. institutions, loans above a certain dollar amount, or loans made to corporations or other businesses
Express Agency
-most common form of agency -agent has the authority to contract or act on the principal's behalf, as expressly stated in the agency agreement -when a principal and an agency expressly agree to enter into an agency agreement with each other -can be oral or written depending on the UCC Statute of Frauds -exclusive agency contract: principal cannot hire any agent other than the exclusive agent -if principal does so agent can recover damages -if not exclusive the principal can employ more than one agent -power of attorney: formal express agency agreement that gives an agent the power to sign legal documents on behalf of the principal -in this case, agent is called attorney-in-fact -must be written and usually notarized -general POA: broad; agent can act in any matters on principal's behalf -special POA/limited POA: limited; agent can only perform those powers enumerated by the agreement
4th Amendment
-people are free from unreasonable searches and seizures by the government -reasonable searches are ok, usually have a.. -search warrant: issued by court that authorizes the police to search a designated place for specified contraband, articles, items, or documents. MUST be based on probable cause and usually have a designated place and scope -warrantless searches are ok if: 1. incident to arrest 2. evidence is in plain view 3. exigent circumstances (ex: if it is likely the evidence will be destroyed)
defamation of character
-people are protected until death -false statements made by one person about another -plaintiff must prove 1) defendant made an untrue statement of fact about the plaintiff -2)the statement was intentionally or accidentally published to a third party (can be heard or seen doesn't have to involve books, magazines, etc) - libel: false statements that appear in writing (movies, video, photo, book, paper) -slander: oral defamation of character -opinions are ok, just not false statments that are untrue being presented as facts
Plaintiff's Case Redirect
-plaintiff bears the burden of proof to persuade the trier of fcat of the merits of the case 1-direct examination: plaintiff attorney questions the witnesses after they have been sworn in -then the defandants attorney can cross-examine only about subjects brought up in the direct examination the the plaintiff attorney asks more questions called re-direct examination
Implied Agency
-principal and agent do not expressly create an agency -the agency is implied from the parties' conduct -extent of agent's authority is determined from the circumstances of a particular situation
principal's duty to indemnify
-principal owes a duty to the agent for any losses the agent suffers because of the principal's conduct -usually arises when the agent is held liable for the principal's misconduct
Negotiation
-procedure whereby the parties to a legal dispute engage in discussions and bargaining to try to reach a voluntary settlement of their dispute
Rebuttal and Rejoinder
-rebuttal: after the defendant's attorney has finished calling the witnesses, the plaintiff's attorney can call witnesses and put forth evidence to rebut the defendant's case -rejoinder: defendant's attorney can call additional witnesses and introduce other evidence to counter the rebuttal
Immigration Law and Employment
-since 1921 there have been immigration quotas -U.S. Citizenship and Immigration Services: part of Dept of Homeland Security, empowered to enforce immigration laws, process visas, and process naturalization petitions -immigrants must take the Oath of Citizenship -Work Visas for Foreign guest workers: 1. H-1B: limited, bring family and spouse under H4 visa(can remain in US but cannot work), stay max 3 years, then can be extended for 3, employer can sponsor for the employee to obtain a green card, if not they must leave after 6 years 2. EB-1: more limited, people who posses exceptional qualifications for certain types of employment, these people can become citizens usually after 5 years
Consideration
-something of legal value given in exchange for a promise (bargained for exchange) -supports a contract and a contract is not enforceable with no consideration -common form: tangible payment -can be performance of an act, forbearance of legal right( accepting out of court settlement in exchange for dropping the lawsuit), or noneconomic forms (refraining from drinking or swearing for a specified time) -parties can voluntarily agree to perform a contract without consideration, but they cannot assert lack of consideration to undo contract performance -promissory estoppel: an equity doctrine that permits a court to order enforcement of a contract that lacks consideration - written contracts are presumed to be supported by consideration, but the presumption can be overcome with sufficient evidence -some states say that contracts made under seal cannot be challenged for lack of conderation
Preexisting Duty
-something that a person is already under obligation to do and thus a promise lacks consideration if a person promises to perform a preexisting duty -the promise is unenforceable because no new consideration has been given -in the private sector, this arises when one of the parties seeks to change the terms of the contract during the course of its performance -these changes are unenforceable -parties have a preexisting duty to perform under the original terms of the contract -when a party modifies the existing contract due to unforeseen difficulties, these modifications are enforceable even though they do not support by new consideration
Unconscionable Contracts (contracts of adhesion)
-sometimes a dominant party takes control in a contract -contracts of adhesion: preprinted forms whose terms the customer cannot negotiate and that they must sign in order to obtain a product or service -lawful even though there is disparity of power -doctrine of unconscionability: contract is so oppressive or unjust -contracts under this doctrine are called unconscionable contracts: contracts the courts refuse to enforce in part or at all because it is so oppressive or unfair as to be unjust -there is no single definition of unconscionability, the courts have substantial discretion when determining this
Settlement of Claims
-sometimes one of the parties of a contract believe that he or she did not receive what he or she was due -this party may attempt to reach a compromise with the other party -a settlement of claim is reached when the two parties agree to the compromise -accord: a settlement agreement whereby the parties agree to accept something different in satisfaction of the original contract -this is called accord and satisfaction or compromise -if the accord is not satisfied the other party can sue to force the accord -the accord is enforceable even without new consideration -if the accord is not satisfied, the nonbreaching party can choose to enforce the original contract
defect in packaging
-strict liability -a defect that occurs when a product has been placed in packaging that is insufficiently tamperproof -drug manufacturers have a duty to make the drugs child-proof
Parties who can recover for strict liability
-strict liability applies even if the injured party had no contractual relations with the defendant -COD is liable to any purchaser or user of the product -users include: buyer, family member, guest, anyone who passively enjoyed the benefits of the product (car passenger) -the everyone in the COD is liable to 3rd party bystanders; they have the same rights as the buyer -bystanders and nonusers do not have the opportunity to inspect products for defcets that have caused their injury
lease
-term used to indicate a contract for the lease of goods and a contract for the rental of real property
Ratification
-the act of a minor after the minor has reached the age of majority by which he or she accepts a contact entered into when he or she was a minor -if the minor does not disaffirm a contract either during the period of minor or reasonable time after adult the contract is considered ratified -the right to disaffirm is not there anymore -and any attempt the minor made to disaffirm can be voided -ratififcation can be written words or implied from conduct(not disaffirming the contract)
Arson
-the malicious or willful burning of the dwelling of another person -penal codes have expanded this to include burning of all types: private, commercial, and public buildings
offer
-the process of reaching an agreement begins when one party makes an offer to another party -prior to entering the contract the parties engage in preliminary negotiations: price, time, etc. -offeror: the person who makes the offer -offeree: the party to whom an offer has been made, accepts the offer -def: the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it -3 elements of an effective offer 1.) offeror must objectively intend to be bound by the offer 2.) terms of the offer must be definite or reasonably certain 3.) the offer must be communicated to the offeree -offer not effective until recieved by offeree
Strict Liability
-tort meaning liability without fault -participant in a covered activity will be held liable for any injuries caused by the activity even if he is not negligent 1.)certain activities that place the public at risk of injury even if responsible care is taken 2.)the public should have some means of compensation if such injury occurs -used with abnormally dangerous activities: crop dusting, blasting, fumigation, burning of fields, storage of explosives, and the keeping of animals and pets
Proximate Cause
-under law, a negligent party is not neccessarily liable for all damages set in motion by his or her negigligent act -the law establishes a point on the damage chain after which the negligent party is no longer responsible for his or her actions -general test is foreseeability -have to have both actual cause and proximate cause
Secondary Boycott Picketing
-union tries to bring pressure against an employer by picketing employer's suppliers or customers -only lawful when it is directed against an employer's product not the nuetral employer -Example Union members go on strike against their employer, a toy manufacturer. The union members picket retail stores that sell the manufacturer's toy products. They carry signs announcing their strike and request that consumers not buy toy products manufactured by their employer. This is lawful secondary boycott picketing. -Example Union members go on strike against their employer, a toy manufacturer. The union members picket retail stores that sell the manufacturer's toy products. They carry signs requesting that consumers not shop at the retail stores. This is unlawful secondary boycott picketing.
Unilateral Mistake
-when one party is mistaken about the material fact regarding the subject matter of the contract -most cases, the mistaken party is not permitted to rescind the contract; the contract is enforced Contracts may not be enforced if... 1. one party makes a unilateral mistake of fact, and the other party knew or should have known a mistake was made 2. mistake was due to a mathematical/clerical error, not gross negligence 3. the mistake is so serious that enforcing the contract would be unconscionable (not right)
interrogatories
-written questions submitted by one party to a lawsuit to another party -Qs can be very detailed -certain documents may be attached to answers -must be answered in writing within a stipulated time -an attorney usually helps with the answers -answer under oath
Elements of a Contract
1. Agreement: agreement between the parties, requires an offer by the offeror and an acceptance of the offer by the offeree, must be assent by both parties 2.Consideration: promise must be supported by a bargained-for consideration that is legally sufficient money, property, services 3. Contractual Capacity: parties must understand that a contract is being made and its general nature 4. Lawful object: contracts with an illegal object are void
strict liability (manufacturing)
A tort doctrine that makes manufacturers, distributors, wholesalers, retailers, and others in the chain of distribution of a defective product liable for the damages caused by the defect, regardless of fault. -liability without fault
Motion for Judgement on the Pleadings
a motion that alleges that if all the facts presented in the pleadings are taken as true, the party making the motion would win the lawsuit when the proper law is applied to these asserted facts -in deciding this motion, the judge cannot consider any facts outside the pleadings