Test 2

offeree

A person to whom an offer is made.

Consideration.

Any promises made by the parties to the contract must be supported by legally sufficient and bargained-for consideration (something of value received or promised, such as money, to convince a person to make a deal).

True

Any time one party's allegedly wrongful conduct causes injury to another, an action may arise under the law of torts.

Torts

Any time that one party's allegedly wrongful conduct causes injury to another, an action may arise under the law

False

Because so much e-commerce involves parties in the United States, the preeminence of U.S. law in this area is not likely to be challenged in the future.

Arrest

Before a warrant for arrest can be issued, there must be probable cause to believe that the individual in question has committed a crime.

double jeopardy

Being tried twice for the same crime

a contract must include the following terms, either expressed in the contract or capable of being reasonably inferred from it:

The identification of the parties. The identification of the object or subject matter of the contract (also the quantity, when appropriate), including the work to be performed, with specific identification of such items as goods, services, and land. The consideration to be paid. The time of payment, delivery, or performance.

Termination by Operation of Law

The power of the offeree to transform the offer into a binding, legal obligation can be terminated by operation of law

Immunity

The privilege against self-incrimination is guaranteed by a clause in the Fifth Amendment to the U.S. Constitution. The clause reads "nor shall [any person] be compelled in any criminal case to be a witness against himself."

plea bargaining

The process by which a criminal defendant and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case, subject to court approval; usually involves the defendant's pleading guilty to a lesser offense and receiving a lighter sentence.

Slander of Quality

The publication of false information about another's product, alleging that it is not what its seller claims, constitutes the tort of slander of quality, or trade libel.

Defenses to Defamation

Truth is normally an absolute defense against a defamation charge. In other words, if a defendant in a defamation case can prove that the allegedly defamatory statements of fact were true, normally no tort has been committed

valid contract

an agreement (offer and acceptance), supported by legally sufficient consideration, made by parties who have the legal capacity to enter into the contract, and a legal purpose.

assignee.

he party receiving the rights is the

Property Crime

in which the goal of the offender is some form of economic gain or the damaging of property.

voidable contract

is a valid contract but one that can be avoided at the option of one or both of the parties.

accord

is the agreement

The Fifth Amendment requirement

no person be required to be a witness against (incriminate) himself or herself.

disaffirmance

or setting aside, of a contractual obligation

Necessity

that a criminal act was necessary to prevent an even greater harm.

delegatee

the party to whom the duties are delegated

Money Laundering

the profits from organized crime and illegal activities amount to billions of dollars a year. These profits come from illegal drug transactions and, to a lesser extent, from racketeering, prostitution, and gambling.

self-incrimination

Giving testimony in a trial or other legal proceeding that could expose the person testifying to criminal prosecution.

invasion of privacy.

Hal posts online secretly recorded videos of Ida and includes her name, address, phone number, and Facebook page. Most likely, Ida could bring a successful tort action against Hal for

The Duty of Landowners

Landowners are expected to exercise reasonable care to protect individuals coming onto their property from harm. In some jurisdictions, landowners may even have a duty to protect trespassers against certain risks.

computer crime

Any violation of criminal law that involves knowledge of computer technology for its perpetration, investigation, or prosecution.

legal obligation can be terminated by operation of law through the occurrence of any of the following events:

Lapse of time Destruction of the specific subject matter of the offer. Death or incompetence of the offeror or the offeree. Supervening illegality of the proposed contract.

defamation.

Dylan applies for a position with Electrical Works LLC. Dylan's previous employer, Federal Circuits Inc., gives Electrical Works a review of Dylan that includes negative statements Federal Circuits knows are untrue. This is

Mistake

Everyone has heard the saying "Ignorance of the law is no excuse." Ordinarily, ignorance of the law or a mistaken idea about what the law requires is not a valid defense. A mistake of fact, however, as opposed to a mistake of law, can normally excuse criminal responsibility if it negates the mental state necessary to commit a crime.

Slander Per Se

Exceptions to the burden of proving special damages in cases alleging slander are made for certain types of slanderous statements. If a false statement constitutes "slander per se," it is actionable with no proof of special damages required.

Revocation may be accomplished by either of the following:

Express repudiation of the offer (such as "I withdraw my previous offer of October 17"). Performance of acts that are inconsistent with the existence of the offer and are made known to the offeree (for instance, selling the offered property to another person in the offeree's presence).

The concept of intention can be further clarified by looking at statements that are not offers and situations in which the parties' intent to be bound might be questionable.

Expressions of opinion. Statements of future intent. Preliminary negotiations Invitations to bid. Advertisements and price lists Live and online auctions.

Methods by Which an Offer Can Be Terminated by Law

Lapse of time Destruction of the subject matter Death or incompetence of the offeror or offeree Supervening illegality

Proximate cause

Legal cause; exists when the connection between an act and an injury is strong enough to justify imposing liability.

True

Liability for injuries based on proportionate negligence is allowed by most states.

False

Like other types of law, contract law is distinct from our social values, interests, and expectations at any given point in time.

Nona promised to pay for the watch.

Macy offers to sell his fitness watch for $50 to Nona. Nona promises to pay Macy the price. Later, they exchange the watch for the funds. A contract was created when

State Crimes

Many states have also enacted laws that punish behavior as criminal without the need to show criminal intent.

nonmonetary aspects of the harm suffered, such as loss of reputation.

Margo is harmed when Nell defames her. If Margo brings a successful tort action against Nell, she may be awarded general damages to compensate him for

an express contract.

Marketing Inc. offers to create a campaign to increase N'Ice Cream Inc.'s online business. N'Ice agrees to pay for the service. These parties have

Inquiries about an Offer

Merely inquiring about the "firmness" of an offer does not constitute rejection.

Password Theft

The more personal information a cyber criminal obtains, the easier it is for him or her to find a victim's online user name at a particular website. Once the online user name has been compromised, it is easier to steal the victim's password, which is often the last line of defense to financial information.

Intention

The first requirement for an effective offer is a serious intent on the part of the offeror.

Criminal Liability

The following two elements normally must exist simultaneously for a person to be convicted of a crime: The performance of a prohibited act (actus reus). A specified state of mind, or intent, on the part of the actor (mens rea).

forgery

The fraudulent making or altering of any writing in a way that changes the legal rights and liabilities of another.

Cyberterrorism

The goals of a hacking operation might include a wholesale theft of data, such as a merchant's customer files, or the monitoring of a computer to discover a business firm's plans and transactions.

Rescission and New Contract

The law recognizes that two parties can mutually agree to rescind, or cancel, their contract, at least to the extent that it is executory (still to be carried out)

self-defense.

The legally recognized privilege to protect one's self or property against injury by another. The privilege of self-defense protects only acts that are reasonably necessary to protect one's self or property.

In determining whether the duty of care has been breached, courts consider several factors:

The nature of the act (whether it is outrageous or commonplace). The manner in which the act was performed (cautiously versus heedlessly). The nature of the injury (whether it is serious or slight).

False

The offeror can revoke the offer only be expressing repudiating it.

Under the common law, three elements are necessary for an offer to be effective:

The offeror must have a serious intention to become bound by the offer. The terms of the offer must be reasonably certain, or definite, so that the parties and the court can ascertain the terms of the contract. The offer must be communicated to the offeree.

Termination by Action of the Offeror

The offeror's act of revoking, or withdrawing, an offer is known as revocation. Unless an offer is irrevocable, the offeror usually can revoke the offer, as long as the revocation is communicated to the offeree before the offeree accepts

Bankruptcy Fraud

allows individuals and businesses to be relieved of oppressive debt through bankruptcy proceedings. Numerous white-collar crimes may be committed during the many phases of a bankruptcy action.

search warrant

an order from a judge or other public official authorizing the search or seizure.

battery

an unexcused and harmful or offensive physical contact intentionally performed. Ivan threatens Jean with a gun and then shoots her. The pointing of the gun at Jean is an assault. The firing of the gun (if the bullet hits Jean) is a battery.

The Exclusionary Rule

any evidence obtained in violation of the constitutional rights spelled out in the Fourth, Fifth, and Sixth Amendments generally is not admissible at trial. All evidence derived from the illegally obtained evidence is known as the "fruit of the poisonous tree," and it normally must also be excluded from the trial proceedings.

Formal contracts

are contracts that require a special form or method of creation (formation) to be enforceable. negotiable instruments- include checks, drafts, promissory notes, bills of exchange, and certificates of deposit.

Criminal Procedures

are designed to protect the constitutional rights of individuals and to prevent the arbitrary use of power on the part of the government.

Defenses to Negligence

asserting that the plaintiffs have failed to prove the existence of one or more of the required elements for negligence. Additionally, there are three basic affirmative defenses in negligence cases (defenses that a defendant can use to avoid liability even if the facts are as the plaintiff states): assumption of risk, superseding cause, and contributory and comparative negligence.

Types of Crimes

five broad categories: violent crime (crimes against persons), property crime, public order crime, white-collar crime, and organized crime. In addition, when crimes are committed in cyberspace rather than in the physical world, we often refer to them as cyber crimes.

Federal Crimes

four thousand criminal offenses, many of which do not require a specific mental state. In addition, many of these rules do not require intent.

Business Torts

generally involve wrongful interference with another's business rights.

The Sixth Amendment

guarantees of a speedy trial, a trial by jury, a public trial, the right to confront witnesses, and the right to a lawyer at various stages in some proceedings.

Actus Reus

guilty act

e-signature

has been defined as "an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record."*

The Injury Requirement and Damages

he plaintiff must have suffered a legally recognizable injury. To recover damages, the plaintiff must have suffered some loss, harm, wrong, or invasion of a protected interest.

Recklessness

if he or she consciously disregards a substantial and unjustifiable risk.

punitive damages

in tort cases to punish the wrongdoer and deter others from similar wrongdoing. are appropriate only when the defendant's conduct was particularly egregious (outrageous) or reprehensible (shameful).

Informal contracts

include all other contracts. No special form is required (except for certain types of contracts that must be in writing), as the contracts are usually based on their substance rather than their form.

Intentional Torts against Property

include trespass to land, trespass to personal property, conversion, and disparagement of property.

Licensing Statutes

including physicians, lawyers, real estate brokers, accountants, architects, electricians, and stockbrokers—to have licenses. Some licenses are obtained only after extensive schooling and examinations, which indicate to the public that a special skill has been acquired. Others require only that the applicant be of good moral character and pay a fee.

In determining whether a contract has been formed, the element

intent

transferred intent.

intent can be transferred when a defendant intends to harm one individual, but unintentionally harms a second person.

larceny

involved the unlawful taking and carrying away of someone else's personal property with the intent to permanently deprive the owner of possession.

white collar crime

involves an illegal act or series of acts committed by an individual or business entity using some nonviolent means to obtain a personal or business advantage.

The tort of intentional infliction of emotional distress

involves an intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another.

Criminal Negligence

involves the mental state in which the defendant takes an unjustified, substantial, and foreseeable risk that results in harm. A defendant can be negligent even if she or he was not actually aware of the risk but should have been aware of it.*

contract

is "a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty."

Intoxication

is a condition in which a person's normal capacity to act or think is inhibited by alcohol or some other drug. A contract entered into by an intoxicated person can be either voidable or valid (and thus enforceable).

Release

is a contract in which one party forfeits the right to pursue a legal claim against the other party.

Entrapment

is a defense designed to prevent police officers or other government agents from enticing persons to commit crimes in order to later prosecute them for those crimes. In the typical entrapment case, an undercover agent suggests that a crime be committed and somehow pressures or induces an individual to commit it. The agent then arrests the individual for the crime.

obtaining goods by false pretenses

is a form of theft that involves trickery or fraud, such as using someone else's credit-card number without permission.

Corporate Criminal Liability

is a legal entity created under the laws of a state. corporations cannot be imprisoned, but they can be fined or denied certain legal privileges (such as necessary licenses).

offer

is a promise or commitment to do or refrain from doing some specified action in the future.

counteroffer

is a rejection of the original offer and the simultaneous making of a new offer.

Acceptance

is a voluntary act by the offeree that shows assent (agreement) to the terms of an offer. The offeree's act may consist of words or conduct.

assault

is any intentional and unexcused threat of immediate harmful or offensive contact—words or acts that create a reasonably believable threat.

defenses to intentional torts

is consent. When a person consents to the act that damages her or him, there is generally no liability.

Cyber Fraud

is fraud committed over the Internet.

False imprisonment

is intentional confinement of restraint of another's person's activities without justification.

Real property

is land and things permanently attached to the land, such as a house.

void contract

is no contract at all.

Statute of Limitations

the government must initiate criminal prosecution within a certain number of years. If a criminal action is brought after the statutory time period has expired, the accused person can raise the statute of limitations as a defense.

Bargained-for Exchange

the item of value must be given or promised by the promisor (offeror) in return for the promisee's promise, performance, or promise of performance.

Browse-Wrap Terms

the offeror authorizes a particular method of acceptance, but the offeree accepts by a different means. In that situation, the acceptance may still be effective if the substituted method serves the same purpose as the authorized means.

Substitute Method of Acceptance

the offeror authorizes a particular method of acceptance, but the offeree accepts by a different means. In that situation, the acceptance may still be effective if the substituted method serves the same purpose as the authorized means.

Communication of Acceptance

the offeror must be notified of the acceptance depends on the nature of the contract. In a unilateral contract, the full performance of some act is called for.

tortfeasor

the one committing the tort) must intend to commit an act, the consequences of which interfere with another's personal or business interests in a way not permitted by law.

assignor

the party assigning the rights to a third party

Burden of Proof

the plaintiff must convince the court that based on the evidence presented by both parties, it is more likely than not that the plaintiff's allegation is true.

Intentional torts

the result from the intentional violation of person or property (fault plus intent). as the term implies, requires intent

shrink-wrap agreement

the terms are expressed inside the box in which the goods are packaged

express contract

the terms of the agreement are fully and explicitly stated in words, oral or written.

Statement of Fact versus Opinion

the tort of fraudulent misrepresentation occurs only when there is reliance on a statement of fact. Sometimes, however, reliance on a statement of opinion may involve the tort of fraudulent misrepresentation if the individual making the statement of opinion has superior knowledge of the subject matter.

Cyber Theft

thieves are not subject to the physical limitations of the "real" world. A thief can steal data stored in a networked computer with Internet access from anywhere on the globe.

Compensatory Damages

to compensate or reimburse the plaintiff for actual losses the goal is to make the plaintiff whole and put her or him in the same position that she or he would have been in had the tort not occurred.

Purpose of Tort Law

to provide remedies for the violation of various protected interests

Causation in fact

An act or omission without ("but for") which an event would not have occurred

False

Contracts entered into by mentally incompetent persons are not valid under any circumstances.

True

Crimes are offenses against society as a whole.

delegator,

The party delegating the duties

wrongs and compensation

Two notions serve as the basis of all torts

record

"information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable [visual] form."*

criminally liable.

Kohl receives from Lily a camera stolen from Mark. Kohl knows that the camera is stolen, and he intends to keep it. Kohl is

Malware

a term that refers to any program that is harmful to a computer or, by extension, a computer user.

actionable

(capable of serving as the ground for a lawsuit), the act must be extreme and outrageous to the point that it exceeds the bounds of decency accepted by society.

agreement

A meeting of two or more minds in regard to the terms of a contract; usually broken down into two events—an offer by one party to form a contract, and an acceptance of the offer by the person to whom the offer is made. Ordinarily, agreement is evidenced by two events: an offer and an acceptance.

Fraudulent Misrepresentation

A misrepresentation leads another to believe in a condition that is different from the condition that actually exists. Although persons sometimes make misrepresentations accidentally because they are unaware of the existing facts,

crime

A wrong against society proclaimed in a statute and punishable by society through fines and/or imprisonment—or, in some cases, death.

True

An illegal act committed by a business using nonviolent means to obtain a business advantage is a white-collar crime.

Insider Trading

An individual who obtains "inside information" about the plans of a publicly listed corporation can often make stock-trading profits by purchasing or selling corporate securities based on this information.

Superseding Cause

An intervening force or event that breaks the connection between a wrongful act and an injury to another; in negligence law, a defense to liability.

Destruction, Death, or Incompetence

An offer is automatically terminated if the specific subject matter of the offer (such as a smartphone or a house) is destroyed before the offer is accepted.

Definiteness of Terms

An offer must have reasonably definite terms so that a court can determine if a breach has occurred and give an appropriate remedy.* The specific terms required depend, of course, on the type of contract.

Lapse of Time

An offer terminates automatically by law when the period of time specified in the offer has passed.

option contract.

An option contract is created when an offeror promises to hold an offer open for a specified period of time in return for a payment (consideration) given by the offeree.

Requirements of a Valid Contract

1. Agreement 2. Consideration 3. Contractual Capacity 4. Legality

Requirements for Implied Contracts

1. The plaintiff furnished some service or property. 2. The plaintiff expected to be paid for that service or property, and the defendant knew or should have known that payment was expected. 3. The defendant had a chance to reject the services or property and did not.

Agreements that lack consideration

1. preexisting duty 2. past consideration 3. illusory promises

A reasonable expectation of privacy exists if

1. the individual actually expects privacy 2. the person's expectation is one that society as a whole would consider legitimate

indictment

A charge by a grand jury that a reasonable basis (probable cause) exists for believing that a crime has been committed and that a trial should be held.

implied contract

A contract formed in whole or in part from the conduct of the parties (as opposed to an express contract)

privity of contract.

A contract is a private agreement between the parties who have entered into it, and traditionally these parties alone have rights and liabilities under the contract

executed contract.

A contract that has been completely performed by both parties.

executory contract

A contract that has not yet been fully performed.

False

A contract that only one of the parties can enforce in a court is not valid.

unilateral contract.

A contract that results when an offer can be accepted only by the offeree's performance.

reformation

A court-ordered correction of a written contract so that it reflects the true intentions of the parties.

Cyber Crime

A crime that occurs online, in the virtual community of the Internet, as opposed to the physical world.

information

A formal accusation or complaint (without an indictment) issued in certain types of actions (usually criminal actions involving lesser crimes) by a law officer, such as a magistrate.

grand jury

A group of citizens that decides whether there is sufficient evidence to accuse someone of a crime.

Misdemeanors

A lesser crime than a felony, punishable by a fine or imprisonment for up to one year in other than a state or federal penitentiary

the tort of fraudulent misrepresentation (fraud), involves intentional deceit for personal gain. The tort includes several elements:

A misrepresentation of material facts or conditions with knowledge that they are false or with reckless disregard for the truth. An intent to induce another party to rely on the misrepresentation. A justifiable reliance on the misrepresentation by the deceived party. Damages suffered as a result of that reliance. A causal connection between the misrepresentation and the injury suffered.

Invasion of Privacy

A person has a right to solitude and freedom from prying public eyes—in other words, to privacy.

offeror

A person who makes an offer.

Negligence

A person who slips and falls at a retail store may sue the company results from the breach of a duty to act reasonably (fault without intent).

Insanity

A person who suffers from a mental illness may be incapable of the state of mind required to commit a crime. Thus, insanity may be a defense to a criminal charge.

promise

A person's assurance that he or she will or will not do something.

Assumption of Risk

A plaintiff who voluntarily enters into a risky situation, knowing the risk involved, will not be allowed to recover

False

A promise made in return for an act or event that has already taken place is fully enforceable.

Legally Sufficient Value

A promise to do something that one has no prior legal duty to do. The performance of an action that one is otherwise not obligated to undertake. The refraining from an action that one has a legal right to undertake (called a forbearance).

Mailbox Rule

A rule providing that an acceptance of an offer becomes effective on dispatch.

Statute of Frauds.

A state statute under which certain types of contracts must be in writing to be enforceable.

In most states, the following four types of declarations are considered to be slander per se:

A statement that another has a "loathsome" disease (such as a sexually transmitted disease). A statement that another has committed improprieties while engaging in a profession or trade. A statement that another has committed or has been imprisoned for a serious crime. A statement that a person is unchaste or has engaged in serious sexual misconduct. (This usually applies only to unmarried persons and sometimes only to women.)

Supervening Illegality

A statute or court decision that makes an offer illegal automatically terminates the offer.

Contributory Negligence

A theory in tort law under which a complaining party's own negligence contributed to or caused his or her injuries. Contributory negligence is an absolute bar to recovery in a minority of jurisdictions.

comparative negligence

A theory in tort law under which the liability for injuries resulting from negligent acts is shared by all parties who were negligent (including the injured party) on the basis of each person's proportionate negligence.

objective theory of contracts

A theory under which the intent to form a contract will be judged by outward, objective facts as interpreted by a reasonable person, rather than by the party's own secret, subjective intentions. Objective facts might include what a party said when entering into the contract, how a party acted or appeared, and the circumstances surrounding the transaction.

intended beneficiary

A third party for whose benefit a contract is formed; an intended beneficiary can sue the promisor if such a contract is breached.

bilateral contract.

A type of contract that arises when a promise is given in exchange for a promise.

Wrongful Interference with a Contractual Relationship

A valid, enforceable contract must exist between two parties. A third party must know that this contract exists. This third party must intentionally induce a party to the contract to breach the contract.

Online Offers

Acceptance of terms. Payment. Return policy. Disclaimer of liability. Limitations on remedies. Privacy policy. Dispute resolution

a misdemeanor.

Andy causes a disturbance at Brew Pub. He is arrested and charged with disorderly conduct, a crime punishable by imprisonment up to one year. This crime is

Conversion

Any act that deprives an owner of personal property or of the use of that property without the owner's permission and without just cause

Contracts to Commit a Crime

Any contract to commit a crime is in violation of a statute.

Accounting Requirements

All companies must keep detailed records that "accurately and fairly" reflect their financial activities. Their accounting systems must provide "reasonable assurance" that all transactions entered into by the companies are accounted for and legal.

click-on agreement

An agreement that arises when a buyer, engaging in a transaction on a computer, indicates his or her assent to be bound by the terms of an offer by clicking on a button that says, for example, "I agree"; sometimes referred to as a click-on license or a click-wrap agreement.

Agreement

An agreement to form a contract includes an offer and an acceptance. One party must offer to enter into a legal agreement, and another party must accept the terms of the offer.

Covenant Not to Sue

An agreement to substitute a contractual obligation for some other type of legal action based on a valid claim.

False ( punitive are intentional not cases of negligence)

An award of grossly excessive punitive damages is normally available in a suit involving gross negligence.

Trial

At a criminal trial, the accused person does not have to prove anything. The entire burden of proof is on the prosecutor (the state). The prosecution must show that, based on all the evidence, the defendant's guilt is established beyond a reasonable doubt. If there is reasonable doubt as to whether a criminal defendant committed the crime with which she or he has been charged, then the verdict must be "not guilty." Returning a verdict of "not guilty" is not the same as stating that the defendant is innocent. It merely means that not enough evidence was properly presented to the court to prove guilt beyond a reasonable doubt.

Contractual capacity.

Both parties entering into the contract must have the contractual capacity to do so. The law must recognize them as possessing characteristics that qualify them as competent parties

Usury

Charging an illegal rate of interest.

monetary losses, such as medical expenses.

Ciera is injured when a roofing tile breaks free, falls from the roof of a building, and strikes her. If Ciera brings a successful tort action against the building's owner, she may be awarded special damages to compensate her for

To succeed in a negligence action, the plaintiff must prove each of the following:

Duty. The defendant owed a duty of care to the plaintiff. Breach. The defendant breached that duty. Causation. The defendant's breach caused the plaintiff's injury. Damages. The plaintiff suffered a legally recognizable injury.

the following types of contracts are generally required to be in writing or evidenced by a written memorandum or electronic record:

Contracts involving interests in land. Contracts that cannot by their terms be performed within one year from the day after the date of formation. Collateral, or secondary, contracts, such as promises to answer for the debt or duty of another and promises by the administrator or executor of an estate to pay a debt of the estate personally—that is, out of her or his own pocket. Promises made in consideration of marriage. Under the Uniform Commercial Code, contracts for the sale of goods priced at $500 or more.

Mental Incompetence

Contracts made by mentally incompetent persons can be void, voidable, or valid. If a court has previously determined that a person is mentally incompetent, any contract made by that person is void—no contract exists.

Delegations

Contractual duties in a bilateral contract that are delegated to a third party

Intention

Conversion can occur even when a person mistakenly believed that she or he was entitled to the goods. In other words, good intentions are not a defense against conversion.

Failure to Return Goods

Conversion is the civil side of crimes related to theft, but it is not limited to theft. Even when the rightful owner consented to the initial taking of the property, so no theft or trespass occurred, a failure to return the property may still be conversion.

Liability of the Corporate Entity

Corporations are normally held liable for the crimes committed by their agents or employees within the scope of their employment. Corporations can be criminally liable for failing to perform specific duties imposed by law.

Organized Crime

Crime is conducted by groups operating illegitimately to provide illegal goods and services, such as narcotics. Organized crime may also include money laundering and racketeering.

True

Crimes are sometimes prosecuted by crime victims rather than by a public official.

Criminal Sanctions

Criminal Sanctions

delegated

Duties are not assigned

any of the choices.

Hometown Bank posts on its website an offer of a reward for information leading to the apprehension of a certain criminal. This offer could normally be terminated by

a district attorney or an attorney general. (crime of theft)

Hua is arrested at a warehouse in Industry Park and is charged with the crime of theft. Hua will be prosecuted by

Abusive or Frivolous Litigation

If a party initiates a lawsuit out of malice and without a legitimate legal reason, and ends up losing the suit, that party can be sued for malicious prosecution. Abuse of process can apply to any person using a legal process against another in an improper manner or to accomplish a purpose for which the process was not designed.

Causation

If a person breaches a duty of care and someone suffers injury, the person's act must have caused the harm for it to constitute the tort of negligence.

Unforeseen Difficulties

If during performance of a contract, extraordinary difficulties arise that were totally unforeseen at the time the contract was formed, a court may allow an exception to the rule.

Termination by Action of the Offeree

If the offeree rejects the offer—by words or by conduct—the offer is terminated. Any subsequent attempt by the offeree to accept will be construed as a new offer, giving the original offeror (now the offeree) the power of acceptance.

larceny.

Kim takes off her ring and places it on her desk while she works. Without her knowledge or consent, her coworker Lum picks up the ring, puts it on, and walks away. Lum has likely committed

True

In a criminal case, the state must prove its case beyond a reasonable doubt.

slander.

In a phone call to Lou, Mia makes statements about Nye that injures Nye's reputation. If Nye can prove all of the elements of defamation and Mia cannot assert a sufficient defense, Mia is most likely liable for

False (restored to original)

In a successful tort suit, an individual is awarded compensatory damages to put him or her in a better position than the party who committed the tort.

False (general does not include corporations)

In a tort action, a business firm can recover general damages equivalent to the actual value of damage sustained.

Mode and Timeliness of Acceptance

In bilateral contracts, acceptance must be timely. The general rule is that acceptance in a bilateral contract is timely if it is made before the offer is terminated. Problems may arise, though, when the parties involved are not dealing face to face.

revocation.

In contract law, the withdrawal of an offer by an offeror. Unless an offer is irrevocable, it can be revoked at any time prior to acceptance without liability.

Petty offenses

In criminal law, the least serious kind of criminal offense, such as a traffic or building-code violation

False ( there is a cap in place of damages awarded)

In most states, a plaintiff can obtain an unlimited amount of noneconomic general damages in a tort action.

Civil Liability

In the event of a RICO violation, the government can seek not only criminal penalties but also civil penalties. The government can, for instance, seek the divestiture of a defendant's interest in a business or the dissolution of the business. (Divestiture refers to forfeiture of the defendant's interest and its subsequent sale.)

Indictment or Information

Individuals must be formally charged with having committed specific crimes before they can be brought to trial.

Invasion of Privacy under the Common Law

Intrusion into an individual's affairs or seclusion.-Invading someone's home or searching someone's briefcase or laptop False light.- Publication of information that places a person in a false light is also an invasion of privacy. Public disclosure of private facts.- This type of invasion of privacy occurs when a person publicly discloses private facts about an individual that an ordinary person would find objectionable or embarrassing. Appropriation of identity - sing a person's name, picture, likeness, or other identifiable characteristic for commercial purposes without permission is also an invasion of privacy.

Courts Ask Two Questions

Is there causation in fact? Did the injury occur because of the defendant's act, or would it have occurred anyway? If the injury would not have occurred without the defendant's act, then there is causation in fact. Was the act the proximate, or legal, cause of the injury? Proximate cause, or legal cause, exists when the connection between an act and an injury is strong enough to justify imposing liability.

False

It is not a crime to use income obtained from racketeering activity to buy an interest in a legitimate enterprise as long as the deal is otherwise legal.

assumption of risk, which requires two elements:

Knowledge of the risk. Voluntary assumption of the risk.

robbery.

Niles enters Omelet Café and points a gun at the cashier Pico. Niles forces Pico to open the register and give him all the money. Niles will most likely be charged with

Statement-of-Fact Requirement

Often at issue in defamation lawsuits (including online defamation) is whether the defendant made a statement of fact or a statement of opinion. The statement "Lane cheats on his taxes," if false, can lead to liability for defamation. The statement "Lane is a jerk" cannot constitute defamation because it is clearly an opinion.

embezzlement.

Olinda, an employee of People's Bank, deposits into her account checks entrusted to the bank through its ATM system by customers to deposit into their accounts. This is

third party beneficiary

One for whose benefit a promise is made in a contract but who is not a party to the contract.

Phishing

Online fraud in which criminals pretend to be legitimate companies by using e-mails or malicious websites that trick individuals and companies into providing useful information, such as bank account numbers, Social Security numbers, and credit-card numbers.

an ad, not an offer.

Pastries Inc. sends Rollo its catalogue showcasing a variety of baked goods for certain prices. This is

Defenses to Criminal Liability

Persons charged with crimes may be relieved of criminal liability if they can show that their criminal actions were justified under the circumstances. In certain situations, the law may also allow a person to be excused from criminal liability because she or he lacks the required mental state. We look at several defenses to criminal liability here

The Duty of Professionals

Persons who possess superior knowledge, skill, or training are held to a higher standard of care than others. Professionals—including physicians, dentists, architects, engineers, accountants, and lawyers, among others—are required to have a standard minimum level of special knowledge and ability.

Justifiable Use of Force

Probably the best-known defense to criminal liability is self-defense. Other situations, however, also justify the use of force: the defense of one's dwelling, the defense of other property, and the prevention of a crime

Past Consideration

Promises made in return for actions or events that have already taken place are unenforceable. These promises lack consideration in that the element of bargained-for exchange is missing.

Public Figures

Public figures are regarded as "fair game." False and defamatory statements about public figures that are published in the media will not constitute defamation unless the statements are made with actual malice.* To be made with actual malice, a statement must be made with either knowledge of its falsity or a reckless disregard of the truth.

Foreseeability

Questions of proximate cause are linked to the concept of foreseeability because it would be unfair to impose liability on a defendant unless the defendant's actions created a foreseeable risk of injury.

The Duty to Warn Business Invitees of Risks

Retailers and other business operators who explicitly or implicitly invite persons to come onto their premises have a duty to exercise reasonable care to protect these business invitees.

Methods by Which an Offer Can Be Terminated

Revocation Rejection Counteroffer

release the defendant from partial or full liability for the tortious act.

Rita brings a tort action against Santo and proves all of the elements of the claim. Santo's successful defense will

prove beyond a reasonable doubt that Rosa committed every essential element of an offense.

Rosa, who operates a Street Tacos restaurant in her apartment, is charged with criminal violations of the local health and building codes, state license regulations, and federal environmental statutes. To obtain a conviction, the prosecution must

Uniform Electronic Transactions Act (UETA)

Sets forth rules for entering into an enforceable contract using electronic means.

sent.

Shep offers to make digital copies of Reliable Company's business conference videotapes, CDs, DVDs, and other media for $500. Under the mailbox rule, Reliable's acceptance by e-mail will be considered effective when

Obvious Risks Provide an Exception

Some risks are so obvious that an owner need not warn of them. For instance, a business owner does not need to warn customers to open a door before attempting to walk through it.

Contracts Contrary to Statute

Statutes often set forth rules specifying which terms and clauses may be included in contracts and which are prohibited.

an offer and an acceptance.

Steel Mill Inc. makes an offer to Teri to enter into a contract to work as an metallurgical engineer for a certain salary for one year subject to a five-year renewal based on his performance. Teri accepts the offer. This is a valid contract because it includes

The Computer Fraud and Abuse Act

The Computer Fraud and Abuse Act

Theft of Trade Secrets and Other Intellectual Property

The Economic Espionage Act* makes the theft of trade secrets a federal crime. The act also makes it a federal crime to buy or possess another person's trade secrets, knowing that the trade secrets were stolen or otherwise acquired without the owner's authorization.

Scope of Warrant

The Fourth Amendment prohibits general warrants. It requires a specific description of what is to be searched or seized. General searches through a person's belongings are impermissible. The search cannot extend beyond what is described in the warrant.

Reasonable Expectation of Privacy

The Fourth Amendment protects only against searches that violate a person's reasonable expectation of privacy.

Robbery

The act of forcefully and unlawfully taking personal property of any value from another; force or intimidation is usually necessary for an act of theft to be considered a robbery.

assignment.

The act of transferring to another all or part of one's rights arising under a contract

A release generally will be binding if it meets the following requirements

The agreement is made in good faith (honestly). The release contract is in a signed writing (required in many states). The contract is accompanied by consideration.

As a general rule, all rights can be assigned. Exceptions are made, however, under certain circumstances, including the following:

The assignment is prohibited by statute. The contract is personal. The assignment significantly changes the risk or duties of the obligor (the person contractually obligated to perform). The contract prohibits assignment.

the Duty of Care and Its Breach

The basic principle underlying the duty of care is that people are free to act as they please so long as their actions do not infringe on the interests of others. When someone fails to comply with the duty to exercise reasonable care, a potentially tortious act may have been committed.

The Publication Requirement

The basis of the tort of defamation is the publication of a statement or statements that hold an individual up to contempt, ridicule, or hatred. Publication here means that the defamatory statements are communicated (either intentionally or accidentally) to persons other than the defamed party.

Broad Application of RICO

The broad language of RICO has allowed it to be applied in cases that have little or nothing to do with organized crime. RICO incorporates by reference thirty-five separate types of federal and state crimes.* If a person commits two of these offenses, he or she is guilty of "racketeering activity." Under the criminal provisions of RICO, any individual found guilty is subject to a fine of up to $25,000 per violation, imprisonment for up to twenty years, or both. Additionally, any assets (property or cash) that were acquired as a result of the illegal activity or that were "involved in" or an "instrumentality of" the activity are subject to government forfeiture.

Termination of Offer

The communication of an effective offer to an offeree gives the offeree the power to transform the offer into a binding, legal obligation (a contract) by an acceptance. This power of acceptance does not continue forever, though.

Legality

The contract's purpose must be to accomplish some goal that is legal and not against public policy.

bribery

The crime of bribery involves offering to give something of value to a person in an attempt to influence that person in a way that serves a private interest. Three types of bribery are considered crimes: bribery of public officials, commercial bribery, and bribery of foreign officials.

Establishing defamation

The defendant made a false statement of fact. The statement was understood as being about the plaintiff and tended to harm the plaintiff's reputation. The statement was published to at least one person other than the plaintiff. If the plaintiff is a public figure, she or he must also prove actual malice, discussed later in the chapter.

beyond a reasonable doubt.

The standard used to determine the guilt or innocence of a person criminally charged. To be guilty of a crime, one must be proved guilty "beyond and to the exclusion of every reasonable doubt." A reasonable doubt is one that would cause a prudent person to hesitate before acting in matters important to him or her.

Communication

The third requirement for an effective offer is communication—the offer must be communicated to the offeree.

Delegation

The transfer of a contractual duty to a third party. The party delegating the duty (the delegator) to the third party (the delegatee) is still obliged to perform on the contract should the delegatee fail to perform.

For the promissory estoppel doctrine to be applied, the following elements are required:

There must be a clear and definite promise. The promisor should have expected that the promisee would rely on the promise. The promisee reasonably relied on the promise by acting or refraining from some act. The promisee's reliance was definite and resulted in substantial detriment. Enforcement of the promise is necessary to avoid injustice.

Prohibition against the Bribery of Foreign Officials

This part of the act prohibits the bribery of most officials of foreign governments if the purpose of the payment is to motivate the official to act in his or her official capacity to provide business opportunities

To curb the entry of organized crime into the legitimate business world (RICO)

Use income obtained from racketeering activity to purchase any interest in an enterprise. Acquire or maintain an interest in an enterprise through racketeering activity. Conduct or participate in the affairs of an enterprise through racketeering activity. Conspire to do any of the preceding activities.

probable cause

To obtain a search warrant, law enforcement officers must convince a judge that they have reasonable grounds

property crime.

Traditionally, the hundreds of thousands of acts defined as criminal in federal, state, and local laws have been grouped into broad categories, including

Foreign Corrupt Practices Act

U.S. law regulating behavior regarding the conduct of international business in the taking of bribes and other unethical actions.

Preexisting Duty

Under most circumstances, a promise to do what one already has a legal duty to do does not constitute legally sufficient consideration. The preexisting legal duty may be imposed by law or may arise out of a previous contract.

Good Samaritan Statutes

Under these statutes, someone who is aided voluntarily by another cannot turn around and sue the "Good Samaritan" for negligence. These laws were passed largely to protect physicians and medical personnel who volunteer their services in emergency situations to those in need, such as individuals hurt in car accidents.

Defenses to the Enforceability of a Contract

Voluntary consent. The consent of both parties must be voluntary. For instance, if a contract was formed as a result of fraud, undue influence, mistake, or duress, the contract may not be enforceable. Form. The contract must be in whatever form the law requires. Some contracts must be in writing to be enforceable.

The theory is that a party's intention to enter into a legally binding agreement, or contract, is judged by outward, objective facts.

What the party said when entering into the contract. How the party acted or appeared (intent may be manifested by conduct as well as by oral or written words). The circumstances surrounding the transaction.

Embezzlement

When a person who is entrusted with another person's property fraudulently appropriates i

slander of title

When a publication falsely denies or casts doubt on another's legal ownership of property, resulting in financial loss to the property's owner

As a general rule, any duty can be delegated. There are, however, some circumstances in which delegation is prohibited:

When special trust has been placed in the obligor. When performance depends on the personal skill or talents of the obligor. When performance by a third party will vary materially from that expected by the obligee (the person to whom an obligation is owed) under the contract. When the contract expressly prohibits delegation by including an antidelegation clause.

Trespass to Personal Property

Whenever any individual wrongfully takes or harms the personal property of another or otherwise interferes with the lawful owner's possession and enjoyment of personal property,

Mixed Contracts

a contract may contain some express terms and some implied terms.

accord and satisfaction

a debtor offers to pay, and a creditor accepts, a lesser amount than the creditor originally claimed was owed.

Promissory Estoppel

a person who has reasonably and substantially relied on the promise of another may be able to obtain some measure of recovery.

Privileged Communications

a person will not be liable for defamatory statements because she or he enjoys a immunity.

Privileged communications are of two types

absolute and qualified

Gross negligence

can be defined as an intentional failure to perform a manifest duty in reckless disregard of the consequences of such a failure for the life or property of another.

Contact

can be harmful, or it can be merely offensive (such as an unwelcomed kiss) If the plaintiff shows that there was contact, and the jury (or judge, if there is no jury) agrees that the contact was offensive, then the plaintiff has a right to compensation. A plaintiff may be compensated for the emotional harm or loss of reputation resulting from a battery, as well as for physical harm.

Preliminary Agreements

can constitute a binding contract if the parties have agreed on all essential terms and no disputed issues remain to be resolved.

General damages

compensate individuals (not companies) for the nonmonetary aspects of the harm suffered, such as pain and suffering. physical or emotional pain and suffering, loss of companionship, loss of consortium (losing the emotional and physical benefits of a spousal relationship), disfigurement, loss of reputation, or loss or impairment of mental or physical capacity.

Special Damages

compensate the plaintiff for quantifiable monetary losses, such as medical expenses and lost wages and benefits (now and in the future).

Personal property

consists of all other items, including cash and securities (such as stocks and bonds).

Advance Fee and Online Auction Fraud

consumers order and pay for items, such as automobiles or antiques, that are never delivered.

Discriminatory Contracts

contracts in which a party promises to discriminate on the basis of race, color, national origin, religion, gender, age, or disability are contrary to both statute and public policy.

Liability of Corporate Officers and Directors

corporate officers and directors are personally liable for crimes either they or their agents commit under the "responsible corporate officer" doctrine

Strict Liability and Overcriminalization

crimes are offenses that do not require a wrongful mental state to establish criminal liability. criminal laws argue that they are necessary to protect the public and the environment. crimes are particularly common in environmental laws, laws aimed at combatting illegal drugs, and other laws affecting public health, safety, and welfare.

public order crimes

crimes include public drunkenness, prostitution, gambling, and illegal drug use. These crimes are sometimes referred to as victimless crimes because they normally harm only the offender.

libel

defamation Breaching this duty in writing or another permanent form (such as a digital recording) involves

slander

defamation Breaching this duty orally involves the tort of slander.

Duress

exists when the wrongful threat of one person induces another person to perform an act that he or she would not otherwise have performed. In such a situation, duress is said to negate the mental state necessary to commit a crime because the defendant was forced or compelled to commit the act.

Unenforceable Contract

is one that cannot be enforced because of certain legal defenses against it A contract exists, but it cannot be enforced because of a legal defense.

licensee

is one who is invited (or allowed to enter) onto the property of another for the licensee's benefit.

Liquidated Debts

is one whose amount has been ascertained, fixed, agreed on, settled, or exactly determined.

Hacking

is someone who uses one computer to break into another.

Gambling

is the creation of risk for the purpose of assuming it.

. Satisfaction

is the performance

Negligent Misrepresentation

is whether the person making the misrepresentation had actual knowledge of its falsity. Negligent misrepresentation requires only that the person making the statement or omission did not have a reasonable basis for believing its truthfulness.

Receiving Stolen Goods

it is a crime to receive goods that a person knows or should have known were stolen or illegally obtained

intent

means only that the person intended the consequences of his or her act or knew with substantial certainty that specific consequences would result from the act.

e-contracts,

must meet the same basic requirements (agreement, consideration, contractual capacity, and legality) as paper contracts.

reasonable person standard

n determining whether a duty of care has been breached, the courts ask how a reasonable person would have acted in the same circumstances.

unliquidated debt

s the opposite of a liquidated debt. The amount of the debt is not settled, fixed, agreed on, ascertained, or determined, and reasonable persons may differ over the amount owed.

trespass to land

occurs when a person, without permission, does any of the following: Enters onto, above, or below the surface of land that is owned by another. Causes anything to enter onto land owned by another. Remains on land owned by another or permits anything to remain on it.

Disparagement of Property

occurs when economically injurious falsehoods are made about another's product or property rather than about another's reputation (as in the tort of defamation). Disparagement of property is a general term for torts that can be more specifically referred to as slander of quality or slander of title.

Unintentional Torts—Negligence

occurs when someone suffers injury because of another's failure to live up to a required duty of care.

Identity Theft

occurs when the wrongdoer steals a form of identification—such as a name, date of birth, or Social Security number—and uses the information to access the victim's financial resources. Millions of Americans are victims of identity theft each year.

Defamation

of character involves wrongfully hurting a person's good reputation. The law imposes a general duty on all persons to refrain from making false, defamatory statements of fact about others.

Prosecuted by the State

offenses against society as a whole and violate statutes, they are prosecuted by a public official, such as a district attorney (D.A.) or an attorney general (A.G.), not by the victims.

Authorized Means of Acceptance

offer specifies (expressly or impliedly) how acceptance should be made -no acceptance if authorized means is not used

covenant not to compete

or a restrictive covenant (promise). A covenant not to compete may be created when a merchant who sells a store agrees not to open a new store in a certain geographic area surrounding the old business.

Violent Crime

or crimes against persons, because they cause others to suffer harm or death. Murder is a violent crime. So is sexual assault, or rape

puffery

or seller's talk, must be involved. Fraud exists only when a person represents as a fact something he or she knows is untrue.

Mens rea ,

or wrongful mental state, also is typically required to establish criminal liability.

The Fifth Amendment

prohibition against double jeopardy (trying someone twice for the same criminal offense).*

The Eighth Amendment

prohibitions against excessive bail and fines and against cruel and unusual punishment.

The Fourth Amendment

protection from unreasonable searches and seizures.

What damages are punitive damages? intentional or negligence?

punitive damages are available in intentional tort actions and only rarely in negligence lawsuits

Damage

refers to harm or injury to persons or property,

Damages

refers to monetary compensation for such harm or injury

Outrageous Conduct

repeated annoyances (such as those experienced by a person who is being stalked), coupled with threats, are enough. Limited by the First Amendment When the outrageous conduct consists of speech about a public figure, the First Amendment's guarantee of freedom of speech also limits emotional distress claims.

The Fourth Amendment requirement

requirement that no warrant for a search or an arrest be issued without probable cause

mirror image rule

requires the offeree's acceptance to match the offeror's offer exactly—to mirror the offer. Any change in, or addition to, the terms of the original offer automatically terminates that offer and substitutes the counteroffer.

Silence as Acceptance

silence cannot constitute acceptance, even if the offeror states, "By your silence and inaction, you will be deemed to have accepted this offer." An offeree should not be obligated to act affirmatively to reject an offer when no consideration (nothing of value) has passed to the offeree to impose such a duty.

Tort law

society compensates those who have suffered injuries as a result of the wrongful conduct of others

consideration is broken down into two parts:

something of legally sufficient value must be given in exchange for the promise, and there must be a bargained-for exchange.

Theft

state statutes consolidate the crime of obtaining goods by false pretenses with other property offenses, such as larceny and embezzlement (discussed shortly), into a single crime called simply "theft." Under such a statute, it is not necessary for a defendant to be charged specifically with larceny or obtaining goods by false pretenses. Petty theft is the theft of a small quantity of cash or low-value goods. Grand theft is the theft of a larger amount of cash or higher-value property.

Felonies

such as arson, murder, rape, or robbery—that carries the most severe sanctions, usually ranging from one year in a state or federal prison to the forfeiture of one's life.

statute of limitations

that establishes the time limit (often two years from the date of discovering the harm) within which a particular type of lawsuit can be filed. After that time period has run, the plaintiff can no longer file a claim.

reasonably believes

that imminent death or grievous bodily harm will otherwise result.

The Miranda Rule

that individuals who are arrested must be informed of certain constitutional rights.

commission

that is, a person must do something in order to be accused of a crime

Agreements to Agree

that is, agreements to agree to the material terms of a contract at some future date—were not considered to be binding contracts

Minors

the age of majority (when a person is no longer a minor) for contractual purposes is eighteen years.* In addition, some states provide for the termination of minority on marriage. Minority status may also be terminated by a minor's emancipation

arson

the criminal act of deliberately setting fire to property

Racketeering

the criminal action of being involved in an organized effort to engage in illegal business transactions

Consumer Protections

try to protect consumers against such schemes by providing warnings about deceptive sellers or offering various forms of insurance.

Illusory Promises

uncertainty of performance that the promisor has not definitely promised to do anything, the promise is said to be illusory—without consideration and unenforceable. A promise is illusory when it fails to bind the promisor.

Dram Shop Acts

under which a bar's owner or a bartender may be held liable for injuries caused by a person who became intoxicated while drinking at the bar. The owner or bartender may also be held responsible for continuing to serve a person who was already intoxicated.

Consideration

usually is defined as the value given in return for a promise (in a bilateral contract) or in return for a performance (in a unilateral contract). It is the inducement, price, or motive that causes a party to enter into an agreement.

burglary

was defined as breaking and entering the dwelling of another at night with the intent to commit a felony.

Restatement (Second) of Contracts,

which is a compilation of common law contract principles, states that parties may agree to a contract "by written or spoken words or by other action or by failure to act."*

malpractice

which is essentially professional negligence.

exculpatory clauses,

which release a party from liability in the event of monetary or physical injury no matter who is at fault.

Contractual Capacity

—the legal ability to enter into a contractual relationship. Courts generally presume the existence of contractual capacity, but in some situations, as when a person is young or mentally incompetent, capacity may be lacking or questionable.