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by: Zohar Peleg
Zohar Peleg
GPA 3.5
Preventative Law
Dr. Segal

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About this Document

Detailed and colorful notes covering all material for Quiz 4. Cases are included and explained.
Preventative Law
Dr. Segal
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This 25 page Bundle was uploaded by Zohar Peleg on Thursday February 12, 2015. The Bundle belongs to BSL485 at The American University of Rome taught by Dr. Segal in Spring2015. Since its upload, it has received 127 views. For similar materials see Preventative Law in Business Law at The American University of Rome.

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Date Created: 02/12/15
01132015 Zhapter and Chapter 2 aspects of legal system 0 contingency hiring lawyers class action lawsuit punitive damages lawsuit agreement dispute arises to sue or not sue Of cial sources of law Statutes congress legislatures Previous cases 0 Local laws dispute situations 0 walk away settle 39 SUE civil vs criminal 0 civil private litigates money at stake state burden of proof greater way to the evidence juries 6 people decision majority vote litigants have to testify right to appeal no public defender 0 forum non convenience criminal o statefed vs 00000000 0 lifefreedom at stake 0 state burden of proof beyond a reasonable doubt o juries 12 people 0 decision must be unanimous o criminal D s don t have to testify only voluntarily because of the 5th amendment 0 if D is guilty he can appeal But if state loses then state cannotappeal 0 public defender advantagesdisadvantages of suing in civil law suits costly winning party doesn t automatically recover attorney s fees 0 a win 0 setting precedent change society 0 time consuming no guarantee you re gonna win valuable business relationships 0 state can locate and sieze any assets in the name of the defendant in case of unsatis ed judgement Preventative law method 0 Anticipatory thinking Dempsey vs NCL Case 0 Cruise ticket is a K o D was injured on cruise 0 Filed lawsuit within 3 year limit but outside one year successful defense statute of limitations didn t sue on time Arbitration o Advantage it s private Attorney39s fees clause 0 Must be stated in K Whoever wins gets attorney s fees Statutes of limitations clause 0 Forum selection clause 0 Deals with location of where the trial will be tried Choice of law clause 0 States that you must include in K what law will be used 0 Ex UCC and warranty Bilateral form contract 0 Parties exchange promise for promise Unilateral form contract o Promise in exchange for an action Rewards cases Express contract 0 All the details are spelled out verbally or in writing 0 Need to know subject matter time price terms delivery location Implied contract 0 Missing facts are implied from surrounding circumstances Quasi contract Negligent mistake happens that bene ts the other person Key unjust enrichments unfair bene ts Could you reasonably have prevented the mistake Legal cause of action is called quantum meruit Promissory estoppel K 0 Based on detrimental reliance Person makes you a promise under circumstance he knows you will rely on it Valid offer o Intention o De nite terms 0 Communication Auction rules a With reserve a Without reserve 0 Aka absolute auction 0 Bid is acceptance and thus a valid offer Revocation rule 0 Create an option UCC transaction 0 Must involve a sale of goods Cases on Quiz Matching name of case with de nition Everett Case NCL Case 0 Hawaii case Landlordtenant case 0 Florida bank case 0 Bank bought promissory notes 0 NIL says to be owner you have to have notes properly transferred to you Endorsement doc has to be stapled to note 0 Bank sues investors California Bank case 0 Midnight deadline rule Pact and Shelbv case ChZB Acceptance Elements of valid acceptance 0 Mirror image rule 0 Counter offer 0 Mailbox rule aka reasonable medium rule Mirror image rule 0 States that the acceptance must mirror the offer in order to be valid 0 So any major variations in the deal will cause a rejection and create a new counteroffer Mailbox rule 0 An acceptance of a mailed offer could be legally effective when mailed IF stamped addressed and Reasonable medium rule 0 Acceptance is legally effective when sent IF method of communication used is reasonable 0 What s reasonable 0 Speci ed by offeror o Is the same way the offer was sent 0 Arrives as fast as the offer Battle of the Forms 0 An exception to the mirror image rule 0 A UCC concept It s a battle bc the reverse of the forms violate the mirror image rule Asks 2 questions 0 Did the parties agree on all basic terms if yes we have an agreement 0 Which form will govern as a general rule General rule First form will govern Cases 0 Oscar Meyer 0 Who pays sales tax on hot dog casings 0 Was a battle of the forms issue Ch3 Consideration a current exchange of both sides each party receives something of value 0 current mutual bargained for 0 Ex Segal goes to the cooler and gets a diet coke and pays 2 for it Enforceable because bene t is coke detriment is cost from Segal s point of view Adequacy rule Courts don t inquire as to how much the deal was as long as there s no duress Cases 0 Martin Luther King 0 MLK sent BU a letter saying he ll give them a gift 0 BU advertised this giftpromise detrimental reliance promissory estoppel o BU won bc of promissory estoppel bc of their detrimental reHance Uncle Jeeves not in text 0 Makes a reward promise to his nephew that if he acts nicely he ll give him 0 Uncle doesn t actually pay him 0 Nephew wins bc of detrimental reliance Skydiving case o Lawyer gives up skydiving legal right for 0 Elvis Presley Case 0 Elvis made gift promise to his soon to be wife s mom saying he will pay her house mortgage 0 After his death his estate refused to honor his promise and she sued 0 She didn t win bc there wasn t any detrimental reliance o How she could have won Create exchanged detriment Create a promissory estoppel Newman v Schiff o Schiff was a tax rebel advocated that individuals don t have to le income tax returns only companies need to advocated this nationwide lots of people followed his advice he went live on TV IRS targeted him for not ling taxes so he went to federal prison promised to be good through plea bargain but then went on live tv and announces a reward situation whoever calls and proves me wrong I ll pay you 0 Newman is a lawyer who doesn t call live bc he sees the show the next day so he calls the next daysends a letter claiming the reward and demanding the money Schiff denies liability o Schiff wins bc Newman39s conduct didn39t t into the parameters of Schiff39s offer to call during the show which he was the master of and allowed him to escape liability Schiff was indicted again and went to prison again and had a plea bargain granted again and then moved to FL the wording is critical 0 State Farm 0 The jaguar renewal wasn t delivered in a timely manner 0 Win State Farm bc an acceptance is effective when MAILED Past consideration 0 So there s no consideration Bc there s no current exchange for bene t and detriment Preexisting duty Agreed modi cation of a preexisting K Roofer example Promises are unenforceable bc in exchange for a new promise you re doing past consideration There s NO CURRENT exchange 0 3 exceptions O O 0 0 create current detriment by doing something new or different task unforeseen dif culty substituting K cancel old promise and erase preexisting duty UCC merchant promise Merchant promises to pay a higher amount Debt settlement Debtor pays less than the agreed amount a conspicuous wording Check is cashedaccepted There has to be a prior good faith dispute Anticipatory thinking approach method used in reasonable medium rule is stating quotacceptance of this offer is not legally effective until receivedquot Silence is not acceptance rule Exceptions 0 Book of the month memberships 0 Prior dealings between parties 0 Quasi K s Purchase order offer PO offer form 0 States all negotiated terms Order acknowledgement form OA form 0 The seller s acceptance form 0 Includes quotall sales are nalquot quotarbitration is the sole remedyquot 3 day right to rescind states that consumers can withdraw their acceptances within 72 hours of purchase Fair Trade Commission FTC Goal is to protect the public from impulse buying during high pressure sales 0 Cash purchase is NOT protected here Boilerplate provisions 0 Located on reverse of order forms 0 Deal w nancial consequences 0 Include o Remedy choices 0 Laws that ll apply in case of default 0 Forum that must hear such disputes lllusory promises Lack mutuality Force majeure Allows K price to be modi ed upwards if speci ed outside events cause delays Avoiding and Contract Liability by Defendant Legal capacity 0 Incapacity due to legal impairment Self impairment will NOT allow you to void a K 2 Exceptions u If party that wants to enforce the drink caused the impairment like drugging the other party 0 Ex Borga ring contract lady s beauty would cause men to get quotdruggedquot n Obvious impairment 0 A person is obviously drunk etc o Minor s underage contract Anyone under the age of 18 A minor has the absolute right to cancel his K up to age 18 plus a reasonable time after Adult s duty pay back full restitution to minor Minor s duty return what he received in full in its existing condition FLORIDA IS MAJORITY RULE n 2 exceptions age misrepresentation such as using fake ID necessity vs luxury 0 needs to be luxury 0 Acceptance amp Offer 0 Acceptance maybe effective when sent if satis ed the reasonable medium rule 0 quotAcceptance of this offer is only effective when receivedquot Legality of Void Contracts 0 Regulatory law Laws the regulate profession Violation of this law means that contracts relating to this profession are void illegal and unenforceable 0 Lending laws If violated these laws are punitive Usudousloan u If you exceed the loan rates dictated by the state Florida s Law a For loans up to 500000 the max interest rate 18 per year a If loan exceeds 500000 the lender can try 25 interest per year a Penalty if loan exceeds lender for ts interests but can collect the principal Texas Law a Penalty if loan exceeds lender collects both interest and principal Offshore gaming sites a Are illegal contracts a Strategy pull out winnings as they occur regularly never let big balances accumulate o Releases of liability Are valid amp enforceable EXCEPT in case of negligence Ex parking garage has to provide reasonable security 0 Noncompete agreement 2 types a employment non competes reasonable as to each of 3 areas 0 time should not exceed time of hire 0 area prohibited area should be reasonably limited 0 scope must be speci c a purchase of a business non competes must guarantee enough time to not compete with the other business to gain enough customers 0 same 3 areas 0 time 0 area 0 scope real consent 0 duress economic duress a strong party and weak party Strong party perceives an opportunity to exploit the weak pa y n Weak party is stuck has no reasonable alternative I So they make a bad nancial deal a Ex young contractor Doesn t received check from FPL He won bc of he was under economic duress Hard bargaining is NOT economic duress Improper persuasion n Ex Ms Lee is in her 90 s and physically frail Has a lawyerphysician aka FIDUCIARY RELATIONSHIP She dies and her inheritance is claimed to belong to her lawyer Prove 3 things duciary relationship exists 0 special relationship 0 transfer of assets to the duciary person mistake o mutualbilateral mistake both parties make a mistake Either party can cancel ex precious stone case 0 unilateral mistake one party makes a mistake Can t cancel 0 remedy for both recision fraud 0 fraud in the execution sign a document intending to be something and it turns out to be something else ex Brad Pitt case 0 fraud in the inducement 4 elements a misrepresentation of a material fact I intend to deceive El El 0 Rules opinions are NOT fraud unless stated by experts future predictions are NOT fraud Silence is NOT fraud UNLESS you have a duty to speak Cases Hedgepeth v Home Savings amp Loan Association 0 Lady signs a K for her son to take out a mortgage loan for her Lady is adjudicated incompetent 0 She was not impaired when she signed her K o Lucid interval test Impairment Sinai Bank v Hyland 0 Dad borrowed from bank over 15 years Signed and paid back promissory note Never indicated that he was impaired Son borrowed but didn t pay back 0 Dad co signs then states that he s a habitual alcoholic So when he co signed he was not legally capable of understanding K 0 Win Bank bc it does not pass the test of impairment Dodson v Shrader o 16 year old buys a truck Wants to have it repaired then it blows up 0 Made K with car dealer when he was 16 and for luxury 0 TN court decides for minority rule and allow the adult seller to deduct from what is to be paid the reasonable cost of repair 0 Since car is totaled seller does not have to pay back anything The Score Board Kobe Bryant 0 BBall case marketing Kfor 10000 0 Marketing company goes into bankruptcy so puts K in auction 0 Koby turns 18 and accepts 10000 He doesn t cancel this K until he s 195 0 Win against Koby because he rati ed the K Hydrotech Systems v Oasis Waterpark 0 Contract to build sur ng pool in California o contractor was not licensed in Cali which violated a regulatory law 0 win hydrotech because K was unenforceable due to violation of a regulatory law Dunham v Burns 0 Borrowerlender transaction Loan of 35000 0 Terms loaning of money must pay back within 6 months plus extra 0 Win borrower Borrower didn t have to pay back because interest was usurious Double click 0 Hire is too long o If youre evaluating employment non compete you must be more restrictive in terms of time Polson pg115 0 Old lady has health problems One of the sons moves in with her and makes her sign over her bank accounts and her house 0 Win the other kids Undue in uence by the son duciary relationship transfer of assets Pg126 Clipack 0 Old man who owns a condo His lawyer Clipack starts dating him Man makes a life estate deed to hand over his condo to her after he dies His heirs wanted the estate 0 Win heirs Clipack should ve known better to have witnesses there when he signed the deed appearance of impropriety Precious stone 0 guy nds a precious stone Friend offers to buy stone There s an agreement The stone turns out to be a diamond Guy wants to get back his stone based on MUTUAL MISTAKE upon the identity of the subject matter stone 0 Win guy bc of mutual mistake South beach 0 Brad Pitt walks in and signs a promissory note by accident 0 Win Pitt bc of fraud in the execution he was just signing autographs and didn t know he was signing a promissory note 0 Pg 125 Re vs King 0 P buys house from D a family got murdered in that house P has no idea about the murders when she buys the house She nds out and sues D for fraud 0 Win P bc of fraud Nyack NY haunted house 0 P buys house from seller D the house is widely reputed to have ghosts in it P nds out and sues to cancel the transaction 0 Win P o Ch4 DF Writing requirement Verbal agreements are enforceable Statute of frauds lf agreement falls within 4 categories it must be in proper writing 0 Real estate K 0 Guarantee debt of another 0 Fixed termyear of serviceemployment K 0 Sale of goods of 500 or more 0 Special situations o If agreement does NOT fall within these requirements it does not need to be in writing 5 Categories that must be in writing 1 Real estate K Lease agreement of 1 year or more must be in writing 0 Exception part performance 2 Guarantee debt of another 0 quotif he doesn t pay you I willquot Verbal guarantee promise is unenforceable Exception bene t to guarantee 3 Fixed term one year or more Verbal term is unenforceable Must be in proper writing 0 Exception for life K s 4 Sale of goods of 500 or more 0 Nonsigner exception 0 both parties are merchants of the same business 0 merchant received writing from other merchant and does not object within 10 days to the K but does not sign it 0 both parties are bound exception special manufactured goods 5 special situations 0 promises to make a will inheritance marriage service agreements Exceptions to 5 Categories 1 part performance exception to real estate 0 2 types 0 agreed deposit 0 taking possession and making improvement 3 for life contract 0 state that verbal is enforceable 0 except NY and Michigan for life hiring contracts are within statute of frauds and must be in writing 4 special manufacture goods 0 if goods of 500 or more AND have been worked on 0 ex custom car proper writing 0 can be written on anything 0 actual writing can be any form of inkpencil signature can be either formal name nickname initials who must sign 0 has to be signed by quotparty to be chargedquot the defendant paro evidence rule 0 you cannot modify the terms of a clear written K to bring in evidence of what happened before exception unclear K bring in outside evidence Stands in shoes rule 0 The assignee investor stands in the shoes of his assignor and takes subject to any and all transactional defenses Unplugging stands in shoes rule NIL states that if satisfy 2 requirements then buyer of the paper can collect from the obigor even if there were any transactional defenses o 2 requirements 0 paper is in negotiable form 0 holder in due course you pay something for paper and did NOT know about product defect third party bene ciary K s life insurance policy 0 if you are an intended bene ciary you have legal rights 0 if you are an incidental bene ciary you have no legal rights conditional precedent person is not legally bound until condition occurs condition subsequent person is legally bound currently but may be excused in the future if the speci ed event occurs 0 ex renting a textbook from UM bookstore you re legally bound unless the UM bookstore ceases to exist engagement ring 0 are based on condition precedent bc man gives temporary possession of the ring UNDER the CONDITION of her marriage to him Cases Caracas case 0 quotif he doesn t pay you I willquot verbal agreement 0 Medina says verbal agreement is unenforceable 0 Win Medina bc of secondary promise it s verbal and unenforceable Keonard Lines 0 0 Company bought Queen Mary ship Made deal with city of Long Beach 0 Win Long beach bc of intention of ship to be used as real estate and has achieved legal status as xture Redlands O O O 0 Poor farmer enters into verbal K to buy acres Owner will allow buyer to take possession of the property and renovate it Real estate agent o ers owner even more for the acres and tells farmer to leave Win farmer bc of estopped to deny Polk County FL 0 O 0 Polk has K with Health Services to provide health services for inmates An inmate has chronic alcoholism and is taken to in rmary operated by health services and dies there His widow sues claiming that she s 3rd party bene ciary Win Health services bc widow is incidental 3rd party bene ciary


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