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BSL Notes

by: Ashlhea Louis

BSL Notes 212

Ashlhea Louis
GPA 3.58
Intro to Business Law
Martin Segal

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Notes from the beginning of the semester until 4/8/15.
Intro to Business Law
Martin Segal
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This 20 page Bundle was uploaded by Ashlhea Louis on Thursday April 9, 2015. The Bundle belongs to 212 at University of Miami taught by Martin Segal in Spring 2015. Since its upload, it has received 124 views. For similar materials see Intro to Business Law in General at University of Miami.


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Date Created: 04/09/15
Chapters 1 and 3 01142015 I Typical Business Dispute Template 0 Agreement to buy or sell goods or services Dispute arises because someone thinks they made a bad deal 0 Offer Acceptance Agreement o If its legally enforceable its called a CONRACT 0 To Sue or Not to Sue 3 things you can do legally Walk away especially if the law is against you a Winning party in a law suit usually does not collect their lawyers fees from the loosing party unless its in a contract or a law states it Settle best option a Arbitration is the agreement to just dispute and settle out of court 0 Even appears in contracts quotIn the event of a dispute arbitration will be usedquot Unbiased party hears from both sides Faster cheaper and private than litigation Sue worst option a Remedy Usually Monetary Damages 2 NonMonetary Damages 0 Speci c Performance Speci cally ask the other party to perform the obligation ex Selling of painting 0 Injunction or Restraining Order Stop unlawful conduct 0 Where to Sue o Jurisdiction of Courts Plaintiff gets to choose where the case is brought to court state or federal 0 Liability and Damages Sate Federal judges are More complicated elected disputes because Faster judges have more Cheaper expertise judges elected for life Takes a long time o Jurisdiction Over the Person I Papers must properly be served over the party being sued Corporation or legal entity gets served by a designated party ie process servers u If there is a defect the papers can be served again Over Subject Matter Is the proper court choses a Federal Court Amount being sued for must exceed 75000 AND there has to be diversity of citizenship p 46 D No matter what the federal jurisdiction is there are VENUE RULES Where the defendant resides or where the dispute occurs a Federal Question Jurisdiction Concerns the constitutionality of a federal law so it has to be argued in Federal Court 0 Possible removal from state to federal court 0 Discovery Period All evidence from both sides is made known to each party 90 of disputes never see a trial everything gets gured out in deposition Always ask for a jury trial if the plaintiff doesn t want it there is a bargaining chip ll Sources of Law judicial 0 Prior cases are good sources of law 0 Legislative o Statutes Uniform Commercial Code Most Important Source of Law Statutory Law El Uniform law that applies to the sale of goods not services Goods are tangible items Warranty Protection Guarantee by the seller that the goods will perform properly 0 Most transaction are mixed goods and services Louisiana law is based on a French Model Law as opposed to the rest of the nations English Common Law and even they have adopted the UCC Advantages Predictability of the outcome of disputes State Constitution Bill of Rights 0 Local laws lll Differences between Civil and Criminal Law 0 Civil law is Between private parties he she or it Civil law defendant has to be available to testify Usually money damages Preponderance balance of the evidence Right to appeal Jury vote is majority vote 0 Criminal law is Brought by the state or federal government lnnocent until proven guilty Burden of proof If the state looses they can t appeal CA v Simpson Jury vote must be unanimous IV Advantages and Disadvantages of Suing 00000 000000 0 Advantages Disadvantages No Guarantee of Success Stressful Insomnia headaches etc Expensive Winning party doesn t automatically get lawyers fees back from loosing party Time consuming Damages business relationships Assets can be seized if a judgment payment isn t paid 0 State assesses interest every yea r 0 Money judgments are good for 20 years V Mixed Transactions Transactions of both sales and goods 0 A UCC Situation needs to happen with a transaction of goods 0 Object of Standard What is reasonable under the circumstances what would a reasonable say most popular under the law 0 Subject of Standard How it is personally viewed Allocate a majority of the price to goods just in case there is a dispute so that the UCC can come into effect Vl State and Federal Governments 0 Trial Court Level Appellate Court 0 Can t hear new testimony or evidence 0 Review record of trial court to see if there were any major errors of law 0 Reverse the decision 0 Sometimes they remand for a new trial 0 Absolute right to appeal but not the absolute right to have the case heard by the Supreme court 0 Supreme Court Vll Trial 0 Jury selection 0 3 uncontested challenges 0 All assets are subject to being seized to pay damages on a case 0 A bond can be taken out if assets can t be sized ID Areas of Law Theories of Ethics Rules of Law in Ethical Disputes Set of facts a judge is asked to evaluate it and if it judged not to be good or ethical then there is liability plus damages lack of ethical behavior Asked to evaluate conduct of people did someone do right or wrong 0 The higher the ethical conduct the higher the damages 0 Punishment in money damages 0 Rules of Law 0 Maximize pro ts at all costs 0 Do good and make a pro t be socially responsible o Moral MinimumCombine the two points above Contracts 4 Types 0 Express Contract All details are spelled out verbally or in writing 0 Price 0 Terms 0 Quantity 0 Delivery 0 Rarely litigation attached to express contracts 0 lmplied In Fact 0 Don t have all the facts must imply or infer from surrounding circumstances no price location terms quantity delivery etc o quotImplied in Factquot 0 UCC will ll the gap given what s reasonable under the circumstances QuasiContract o Unjust enrichment unfair bene t Examples n Watching someone pave your driveway for free you could have stopped that that is quasi contract n You weren t home to watch your driveway get paved for free 0 In any deal people want full market price o If you could have prevented it you could be held liable 0 Case by case basis Promissory Estopple 0 Based on detrimental reliance o A promise is made but because of some other rules of law the promise isn t legally enforceable o OfferAcceptaceAgreement if agreement is legally enforceable it s a contract 0 Consideration Both sides bargain for exchange of bene t and detriment Gift promise Not legally enforceable There is not detriment to the promisee o Create current detriment so that its legally enforceable o A promise under circumstances where you know its going to be relied on A promise is made under the circumstances Bilateral and Unilateral Contracts Unilateral Promise and exchange for an action 0 Completion of the action must be ful lled 0 But under unilateral once the person begins work and the offer cannot be revoked as long as the person is proceeding in good faith 0 A void agreement violates a law 0 A voidable agreement is legal 0 Le making a contract while mentally impared o Exepincutory contract not nished yet Elements of a Valid Offer 0 Offer 0 Intent 0 De nite terms 0 Communication Must be well received by the other party 0 Special Rules 0 Advertisements Advertisements are not offers Reasonable people would need to believe that its an offer 0 Auctions With reserve Without reserve 0 Rewards You are allowed to accept the rewards if they are fairly offered to you Revocation o Disputes 0 Make the Deal lrrevocable p 192193 If you don t return within the allotted time frame the deal goes away But if you return during the time frame the offer must still hold UCC Firm offer I Must be in writing a Merchant Business involves the goods one that gives you the time frame a Max Time 90 Days Unilateral offers Promissory Estoppel Detrimental Reliance Acceptance 0 Must mirror the offer 9mirror image rule o If not even if someone calls it an acceptance its not really an acceptance 0 The offeror either makes or revokes the offer after communication with o Offerie Accept Reject Counteroffer Asking for more time inquiry not legally binding 0 Communication only effective if received Direct In person on the phone lndirect Mailing an offer Can be effective when offeree not necessarily received it it if its sent the same way the offer was sent or if it was sent a faster way or time Acceptance is effective if sent by a reasonable means of communication quotAcceptance of this offer is only valid when I receive itquot Battle of the Forms 0 Standard Sellers Form Everything we sell is as is no warranty 0 Violates mirror image rule but it s a UCC concept UCC Asks 2 Questions a Are the front of the forms identical They usually are If front of forms are not identical violates mirror image rule Quiz 1 question about offer 1 question about acceptance RealConsent Duress and Coercion Acceptance is procured by force 0 Economic Duress Strong party exploits the weak party and takes unfair advantage Weak party is stuck and has no other options Hard to prove because if someone makes bad deal they always want to get out of it Hard bargaining is not economic duress There s a winner and a looser in most business deals 0 Rescission rescind is the legal terminology for revocation Undue ln uence and Persuasion 0 Legal Fiduciary Relationship Attorneyclient doctorpatient priest etc A special relationship with law and con dence 0 Undue in uence usually involves 1 Special Relationship legal duciary relationship 2 Transfer of Assets 0 If an undue in uence is won the contracts will be voided and the courts will put the money back into the estate 0 Mistake 0 Mutual Bilateral Mistake of a material fact Either one can cancel cancelable Mistake about the identity of what you re buying or selling Or the existence of it Car example mutual mistake The problem is the opinion as to the value of a business deal 0 Unilateral Mistake One person only Cant cancel unless its an obvious mistake expert mistake Fraud 0 Misrepresentation With knowledge of falsity Reasonable reliance Damages Paid too much Prediction Rule Can Silence be Fraud Car example yes there was a duty to speak because the hidden facts could affect a persons health or safety As a general rule silence is not fraud unless the defendant has a duty to speak Duty to speak when hidden facts adversely affect someone s health or safety Study Guide Haunted House Case 00000 Consideration Exchange of Value 0 Consideration is whether or not its legally enforceable CURRENT mutual bargained for exchange of bene t and detriment both sides get and give up something 0 Current mutual bargain for 0 Exchange of bene ts and detriment 0 Both sides receive something of value 0 Gift promises as a general rule are not legally enforceable because there is no detriment to the promisee Create current detriment o Adequacy Rule Courts don t typically involve themselves with the value of the deal Values don t equal 0 Pre Existing Duty Promises Just like gift promises as a general rule they are not enforceable because of the problem behind gift promise situations gift promises aren t enforceable because someone doesn t incur detriment n Exceptions O 0 Make a new contract Create a substituting contract by making a new contract for the new terms UCC Merchant Promise O O Merchants are held to a higher standard If the person who tells you it s a higher amount is a merchant and it s a sale of goods the UCC Merchant Promise applies Unforeseen Difficulty O 0 If the facts t unforeseen difficulty preexisting duty promises works Unforseen or unanticipated problem that has increased your cost problem fee signi cantly Natural disaster hurricane ice storm etc Reasonably unanticipated things that aren t normal or don t typically happen Would reasonable people have anticipated it There are difficulties and unforeseen difficulties Ice Storm in Quebec Typical Hurricane in Florida Typical 0 quotPast consideration is no considerationquot Strategy is when promise is made to create current detriment Past services activities is not CURRENT detriment Must continue to create current detriment o Promissory Estoppel Unenforceable promise made by someone Like a gift promise but if the facts t PE that unenforceable gift promise becomes enforceable Ex Elvis Presley Case Study Guide Alden v Presley Promissory Estopple a Promise is made under which one party relies a Promise is relied on under detriment 0 Debt Settlement Pay less than agreed amount Payment is marked as paid in full or similar wording Prior to issuance of the check there is a good faith dispute of debt with the other party Dispute amount being changed a Evidence of a prior good faith dispute n The other party may not relent but at least there has been an effort to settle the debt Acceptance check is cashed Say that bank wants a quotclean checkquot no quotpaid in fullquot written on it Fairness Doctrines Illegality Void Contracts 0 A void contract is when the subject matter is illegal o A Voidable contract means one of the parties may choose to avoid rescind or cancel the contract If you re a minor If you re mentally incapable of making a contract lllegality and Illegal Contracts There are no fairness doctrines ln void and voidable contratcs lllegal Contracts 0 Violate a law 0 Violate public policy Void Contracts n A void contract is when the subject matter is illegal I A Voidable contract means one of the parties may choose to avoid rescind or cancel the contract o If you re a minor o If you re mentally incapable of making a contract 0 Gambling 0 Illegal as a general rule 0 Online gaming is a billion dollar business All gaming sites are offshore because the US says it s illegal but the US tries to make it more difficult to open an account send money There s no pushback from the government they just won t enforce it US keeps making it harder to wire money to overseas accounts Sometimes what the US does as a deterrent on these offshore sites is they go after the biggest site at the time The offshore sites legally don t have to pay you becauseiFsiHegal Pull out winnings leave enough in your account to cover depos 0 Licensing Laws 0 Revenue Raising Law Has nothing to do with competence if you get an occupational license you don t have to take an exam to prove your competence Violation of these does not render contracts invalid n Occupational license Gives the ability to open up an office Violation of a revenue raising law does not void the contract its not violation of the regulatory law 0 Regulatory Law Usury Regulates professions a You need a license to practice Must take exams be certi ed because you re protecting the public Violation of a regulatory laws would render the contract invalid o A lender has extracted more than the allowable rate of interest 0 Never charge the maximum rate of interest There are always other types of fees other than the interest you pay 0 Public Policy 0 Releases of Liability Cannot release liability to negligence of staff a If damage has been as a result of negligence defending party can be held responsible n Negligence Dutyfailure to maintain a certain level of care 0 Has a duty Breaches the duty Suffers monetary damages 0 Parking garage w attendant example n In the event of a claim for medical malpractice I agree not to go to court and use arbitration o NonCompetes 1 Employment u quotIf you leave the business for any reason you agree not to compete with us but not opening a competing business or work for a competing business during a certain period of time in a particular geographic area within the same scope of workquot I Must be reasonably related within the three scopes n Sometimes the contract is too broad If the contract is too broad the agreement may be rendered invalid If you are the employer and you make your scope too broad you invalidate your own agreement 0 The time of the noncompete cannot exceed the time of employment Ex The noncompete can t be for 2 years when the person only worked for 1 2 Purchase sale of a going business El Contractual Capacity 0 Mental Impairment o lmpairment A way to avoid a contract but selfimpairment will not let you out of the deal 0 Exceptions If a nonimpaired party caused the impartment of the other part If it is an obvious impairment 0 Minors Underage Contracts 0 Can cancel any time up to age 18 and a reasonable time thereafter maybe a day or two depends on the facts and case ex 6 months is excessive o Majority of states 26 States Including FL Adult cannot receive restitution if still within the appropriate time constraint Minor has limited duty of restoration Return what was bought in it s existing condition even if it has wear and tear abuse depreciation doesn t matter Contract is rati ed approved when the cancellation time expires o Minority of States 24 States Adult can deduct from the amount that he gives back to the minor reasonable coast of use repair wear and tear etc restore the status quo 0 Exception Situations Minor cannot cancel and must be treated like everyone lese both minority and majority states Minor misrepresented his age can only misrepresent the age if minor is asked about age What was purchased was a necessity of life food shelter water not a luxury Contracts in Writing 0 Get all agreements in writing Verbal agreements are legally enforceable but are very dangerous 0 Always send a con rming form of communication o If other party does not reject in a reasonable time during a dispute they have less of a ground to stand on o 4 Categories of Verbal Agreements o If agreement falls within the state of frauds you have to get it in writing proper writing is required Real Estate any interest in land property etc a Mortgages n Brokerage u If the verbal agreement is for a lease agreement for 1 year or more is within the statute of frauds and must be in writing Debt Guarantee I Must be in proper written form n The promise to pay the debt of another secondary responsibility ie cosigning a loan Fixed Term 1 year or more services contract I Must be in proper written form Sale of goods 500 or more I Proper Writing If someone wants to enforce the deal they need to prove it was in proper written form Signature initials nickname anything that displays that you intended to be bound Must be signed by the party to be charged 0 The person against who you seek to enforce the agreement always the defendant 0 Exception NonSigner Rule Only applies to this category Normally if the person hasn t signed you cannot enforce it against them If both parties are merchants if the dispute if over the area of one s business Dispute is over a sale of goods 1 person signs it and sends it to the other person who receives it and doesn t object it within ten days after he receives it he is legally bound to the agreement Merchants are held to a higher standard Fairness Situations that are outside the Statute of Frauds 0 Will make a verbal agreement enforceable Part Performance Real Estate I Pure Fairness Situation Bene t to the Guarantor Debt Guarantee a Commercial bene t a Guarantor receives bene t Contracts for Life need to be in writing Fixed Term n A quotfor life contractquot is outside the statue of frauds so verbal is enforceable because its not a xed de nite time of a year or more a New York and Michigan Require a writing for quotfor lifequot contracts Special Manufactured Goods Sale of Goods u If it is special manufactured it can t be sold to anyone else Parole Evidence Rule 0 You cannot bring in outside evidence to alter a written agreement 0 You can only bring in outside evidence if the agreement is unclear 0 Third Party Rights 0 An outsider to the contract claims enforceable rights 0 Seller Buyer Accounts Receivable Financing 0 Accounts receivable non cash asset Stands in Shoes rule 0 The assigned stands in the shoes of the assignor and takes subject to any defenses that may be good against his assignor in the basic transaction 0 Most basic defense is the device is defective Negotiable Instruments Law 0 Requirements Must be in negotiable form Person that wants to collect it must he a holder in due course HIDC a You must pay value for it to be a HIDC and without knowledge of any underlying contract Consent of obligor is not necessary unless there is hardship Bene ciary o Enforceable rights 0 Ex Life Insurance 0 Fall out bene t non enforceable rights Anticipatory Repudiation Conditions 0 Condition Precedent I agree to do something if so long as etc Ex I agree to buy your car provided that I passes a satisfactory inspection from my expert 0 Condition Subsequent Already legally bound and quotwill do so untilquot 0 All satisfaction contracts are conditions precedent I agree to pay a certain amount of money as long as I m satis ed Personal And Subjective Items n Customized jewelry plastic surgery etc o If someone is personally not satis ed they don t have to pay Objective Test Industry Standard a Commercial repair work etc


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