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LAW 101: Semester Notes

by: Melissa Cirasella

LAW 101: Semester Notes Law 101

Marketplace > Pace University > Law > Law 101 > LAW 101 Semester Notes
Melissa Cirasella
GPA 3.74
Business Law 1
Adrian Armstrong

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About this Document

This includes all chapters covered over the entire semester. Very detailed. Chapters: 1, 2, 4, 9, 12, 13, 14,15, 16, 17, 21
Business Law 1
Adrian Armstrong
75 ?




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This 36 page Bundle was uploaded by Melissa Cirasella on Sunday September 13, 2015. The Bundle belongs to Law 101 at Pace University taught by Adrian Armstrong in Fall 2013. Since its upload, it has received 41 views. For similar materials see Business Law 1 in Law at Pace University.

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Date Created: 09/13/15
Law the order or pattern of rules that society uses to govern the conduct of individuals and their relationships 0 a collection or bundle of rights Right legal capacity to require another person to perform or refrain from performing an act ex tenant has good living conditions to live comfortably Duty an obligation of law imposed on a person to perform or refrain from performing a certain act ex Land lord must provide house with running hot and cold water Individual rights granted by the US Constitution that cannot be taken away or violated by any statutes ordinances or court decisions ex Freedom of speech TheiRight of Privacy Two Aspects 1 The 4th Amendment protects against unreasonable search and seizure by the government gt Exclusionary rule any evidence obtained unlawfully without a search warrant by law enforcement is excluded 2 The protection of individuals against intrusions by others ex women are given the right to choose whether to have an abortion Roe vs Wade prevents banks from giving information about accounts except law enforcement agencies conducting investigations prevents schools from disclosing students grades without their permission FERPA 4Sources of Law 1 Constitution body of principles that establishes the structure of a government and the relationship of that government to the people who are governed gt Combo of the written document and the practiced and customs that develop with the passage of time and emergence of new problems b Each state has a federal and state Constitution gt sets up 3 branches of government 0 Constitutional law is the branch of law that is based on the constitution for a particular level of government 2 Statutes Federal passed by Congress or State laws passed by state legislature 0 Statutory law legislative acts declaring commanding or prohibiting something gt Ordinances local laws passed by a city or town gt Common law rules that have been around for many years even centuries 3 Case Law derived by judicial decisions gt sets precedent a decision of a court that stands as the law for a particular problem in the future gt Stare decisis using precedent and following decisions in similar cases 4 Administrative Regulations rules promulgated by administrative agencies such as SEC FDA FCC FEC If you violate these you can be criminally or civilly punished same force as statutes 0 Private law consist of rules and regulations parties agree to as part of their contractual relationships Coup people take over the government by force Cosmopolitan being worldly autocracy dictatorship 8th Amendment protection against cruel and unusual punishment Uniform State Laws same laws in every state making doing business easier and less expensive ex UCC Uniform Commercial Code regulates the sale and leasing of goods property banking and letters of credit Classifications of Law substantive law law that defines creates and regulates rights and liabilities ex laws that prohibit computer theft laws that grant employees protection against discrimination procedural law specifies the steps that must be followed in enforcing those rights and liabilities ex cannot be expelled from school without getting a hearing first the prosecution of someone for computer theft equity the body of principles that originally developed because of the inadequacy of the rules then applied by the common law courts of England Court a tribunal established by government to hear and decide matters brought before it A court must have jurisdiction the power and authority to hear a case if they do not have jurisdiction they cannot render a decision Criminal court doesn39t have jurisdiction to grant divorce Types of Jurisdiction Subject matter jurisdiction judicial authority to hear a particular type of case 1 Original jurisdiction the trial court or the court with the authority to conduct the first proceedings in the case Authorized to hear the case from the very beginning or start ex Witnesses actually testify documents are admitted into evidence 2 General jurisdiction has broad authority over different types of cases gt Can hear civil breach of contract cases and disputes about leases between landlords and tenants and criminal cases those charged with crimes 3 Limited special jurisdiction can only hear specialized cases ex Juvenile court domestic relations court 4 Appellate jurisdiction has the authority to review the work of trial court made any errors lower court decisions gt Appeal a review of the trial and the decision of the lower court 0 Parties appellantthe appealer appellee the respondent in the appealed case Two Types of Courts 1 Trial court court where witness testify evidence will be presented jury will render verdict 2 Appellate court gt doesn39t hear witnesses or take testimony gt usually a panel of 3 judges who review the transcript and evidence from the lower court and determines if there has been an error 0 Two Types of Error 0 harmless error error that is not prejudicial to a party You would have lost anyway ex judge let nude pictures in court when police searched computer without warrant O reversible error a mistake in applying the law or a mistake in admitting evidence that affected the outcome of the case gt can affirm reverse a lower court decision or remand that decision for another trial or additional hearings gt the party that appeals is called appellant 0 ex loan not paid back court called a breach of contract Decisions of the Court 1 affirm to agree or approve the lower court decision 2 reverse setting aside the lower court decision verdict because of the errors verdict is not valid 3 remand sends the case back to trial court for additional hearings or a new trial A modify they agree with part of the decision and disagree with part they are just changing part of the outcome ex I agree you breeched the contract but you owe 30000 and not 10000 Judges have to write a written decision stating what decision and why they chose that decision Unanimous All 3 judges agree one judge writes a collective decision Majority Dissent disagree with the majority Concurring opinion written by a judge who agrees with majority but for a different reason not a case law doesn39t follow a precedent aw only comes from unanimous or majority opinion The Dual Court System 1 The Federal Court 3 levels 0 Federal District Court general trial court of the federal system can be sentenced to death gt original jurisdiction and general jurisdiction civil and criminal matters 0 Criminal cases in FDC defendant is charged with a violation of federal law b 3 types of civil cases brought to EDC2 0 civil suits in which the US is a party you want to sue them or vice versa 0 parties are from different states and you39re suing for more than 75000 or more 0 cases involvingviolating the US Constitution or federal laws and treaties ex suing pace for violating constitutional rights for 74000 b total of 94 district courts at least one in every state 0 US Court of Appeals gt intermediate court if you lose to a district court you automatically have the right to appeal to the Court of Appeals gt federal districts are grouped geographically into 13 circuits not one in every state 0 each circuit has a panel of 3 who review the case gt en banc decisions are made by the circuit39s full panel of 9 judges all hear the case 0 Supreme Court gt only deals with cases that have great importance ex same sex marriage new heath care law b Appellate jurisdiction gt 9 members they will only agree to take the case if 4 of the 9 members agree called Rule of 4 gt if you lose your case in the Court of Appeals you do not have a right to appeal to the Supreme Court you must file a petition of certiorari If they grant your appeal they will issue a writ of certiorari a preliminary review of those cases appealed to decide whether a case will be heard or allowed to stand as ruled on by the lower courts 0 if 7 out of nine agree write majority opinion 0 if 7 agree will write they will not issue the petition they will issue the writ of certiorari 2 NY State Court gt cannot be sentenced to death 0 Trial court criminal misdemeanor housing family a gt State Supreme court has original jurisdiction and general jurisdiction and is a trial court in NY state b If you lose a case in state Supreme Court you can appeal to the appellate division 0 State Appellate court gt appellate jurisdiction gt if case lost in trial court can appeal to this court gt doesn39t hear witnesses or take testimony gt usually a panel of 3 judges who review the transcript and evidence from the lower court and determines if there has been an error 0 Two Types of Error 0 harmless error error that is not prejudicial to a party You would have lost anyway gt ex judge let nude pictures in court when police searched computer without warrant O reversible error a mistake in applying the law or a mistake in admitting evidence that affected the outcome of the case 0 can affirm reverse a lower court decision or remand that decision for another trial or additional hearings O the party that appeals loser is called appellant appellee party who won gt ex loan not paid back court called a breach of contract 0 Court of appeals the highest court in the state of New York Appellate jurisdiction 9 members If 7 agree write unanimous opinion VVVVV If you lose in the court of appeals you can file a petition to appeal to the federal court system Double jeopardy a person cannot be charged twice for the same crime if they were not guilty People in the Court 0 Civil case gt plaintiff party that initiates the proceedings in a court of original jurisdiction gt defendant party charged with a violation 0 Criminal case gt prosecutor party initiating proceedings gt defendant party charged with a violation 0 judge the primary officer of the court either elected or appointed official 7 gt recusal judge can step aside from case if there is a bias or conflict of interest 0 attorney lawyer representative for plaintiff and defendant presents their case 0 jury body of citizens sworn by a court to reach a verdict on the basis of the case presented to them Civil case 0 Bench trial judge decides controversy 0 jury trial and pay the fee Criminal case 0 Bench trial 0 jury trial 0 defendant chooses the trial type because they have liberty due to the 6th amendment Commencement of a Lawsuit 0 Plaintiff has to file summons legal document served to defendant in civil case and complaint contains a description of the wrongful conduct and a request for damages 0 The plaintiff cannot give it to the defendant because we want to avoid violent confrontation Judge will dismiss it if served 0 whoever serves complaint and summons must fill out affidavit swearing they delivered it to correct person 0 two types of services 0 personal service gt defendant receives summons and complaint in hand personally gt has 20 days to respond gt must attempt to reach person twice before substituted service 0 substituted serVice gt must be mailed proof andor put under door left with spouse person of age who lives in house gt defendant has 30 days to respond 0 if defendant does not respond or show up plaintiff will make a motion gt 1 default judgement the right to defend yourself is waved 0 judge wants proof of service before actually issuing judgement Defendants responses 0 Answer complaint gt Motion to dismiss demurrer request to the court to dismiss lawsuit on grounds that even of everything the plaintiff said in compliant were true there still is no right of recovery gt Deny allegations gt Counterclaim ask the court for damages for the underlying dispute 0 inquest one party presents evidence plaintiff and the other party didn39t show up before trial starts parties have rights of discovery requiring each side to name its potential witnesses in advance of the trial avoids problems within the trial cases can be settledresolved O deposition testimony of the a witness taken under oath outside the courtroom orally transcribed by court reporter Each party questions witness O interrogatories party or witness answers written questions under oath 0 physical examination defendant and plaintiff hire doctors to testify to injuries if there is no material facts in dispute and all evidence is out case can be settledresolved no trial is necessary awmotionof summary judgement either party can make this motion parties want judge to render case closed In a breech of contract make sure to sign a promissory note test questions 7 which party can make a motion to dismiss defendant default judgement motion to dismiss can be made anytime before a verdict is made plaintiff why does plaintiff make motion to default judgment defendant failed to show upanswer The Sequence of aiTrial 1 Jury selection O VMre questioning of potential jurors by the lawyers to see if they are fair and impartial gt civil case in New York State court we need 6 jurors gt criminal case in NY state court we need 12 or 6 jurors 0 if top charge is felony we need 12 if it is a misdemeanor we need 6 jurors 0 federal court is always 12 in a criminal case 0 Two ways to exclude potential jurors 1 challenge for cause legal reason to remove jurors who know the parties or have indicated that they formed opinions about guilt or innocence ex person doesn39t speak english bias knows the party 0 Unlimited 2 peremptory challenge an arbitrary challenge that may be used to remove a juror 0 no reason needs to be givenjust dismiss numbers 7 0 limited only have certain amount use them prudently 2 opening statements what case is going to be all about opportunity for parties to present their contentions and quothopefulquot outcome 0 Burden of Proof gt civil case the plaintiff has quotburden of proofquot get first word and last word gt criminal case the prosecutor has quotburden of proofquot 0 Standard of Proof the level of certainty that is required for the party to prevail to establish their burden of proof probable cause gt civil case by a preponderance of the evidence 51 certainty plaintiff has to prove their case gt criminal case prosecutor has to prove defendant39s guilt by beyond reasonable doubt 95 certainty 3 Presentation of evidence 0 Plaintiff is asked by the judge to call first witness because they have burden of proof direct examination when plaintiffs lawyer calls hisher witness to stand and questions them cross examination defendants lawyer questions plaintiffs witness that heshe did not call redirect plaintiffs attorney can again question his witness recross second chance to for defendants attorney to question plaintiffs witness again person you did not call defendant gets chance to call people after plaintiff 0 when lawyer objects he will say overruled judge thinks objection is invalid witness must 0000 0 answer question or sustained question was improper it is stricken from the record agreed with objection 0 leading question suggests an answer gt not permitted on direct examination because it39s your witness and you shouldn39t suggest an answer upon your witness gt can be used during cross examination 0 after plaintiff called all witnesses defendant can make motion for a direct verdict granting a verdict in the plaintiffs favor gt ifjudge denies defendant had opportunity to present evidence 4 closing arguments the last opportunity for lawyers to speak to jury summarize evidence 0 civil case plaintiff gets last word because of burden of proof O criminal case prosecutor gets first and last word 5 judge instructs jury on law explains how they are supposed to deliberate who has burden of proof all legal matters etc 0 before there is a verdict either party can make a motion for a mistrial they are requesting that a trial end before the verdict because of a mistake or error gt grounds for mistrial misconduct judge is ill judge made mistake with allowing certain evidence sua sponte judge takes initiative to end trial without consent of parties Motions 0 motion to dismiss move by defendant to dismiss case based on grounds of lacking recovery 0 direct Judgment Summary Judgement made by any party for the court to render a decision based on law because there is no material issues disputed between the parties 0 Direct verdict mistrial courts declaration that terminates a trial and postpones it to a later date evidence became prejudicial or juror guilty of misconduct 6 jury deliberations O jury can be sequestered jury sequestration jury can be kept together until there is a verdict gt criminal case want them to be kept together so they aren39t affected by others in a criminal case felony case in NYjury 12 jurors must be unanimous if no verdict judge will call mistrial its a hung jury no verdict can be reached criminal cases in Supreme Court must be unanimous 1 death penalty 12 jurors 2 6 memberjury 3 all federal cases civil case in NY 5 out of 6 is required for verdict mistrial will occur if less than 5 agree will be a hung jury when jury disregards the law jury finds defendant not guilty but defendant is clearly guilty jury nullification 0 Judge cannot do anything in a criminal case judge can do nothing if verdict is not guilty 0 jury found defendant guilty but judge disagreed he can throw out verdict and make sure innocent person doesn39t go to jail in a civil case whatever the juries verdict judge always has the authority to throw out verdict 0 if he throws out verdict you can appeal to another court depending if you39re in a federal or state court 0 Motion for judgement not withstanding the verdictcourt can grant if verdict is clearly wrong as a matter of law poll a jury lawyers have right to askjuries if thats their verdict judgement is just a piece of paper that is valid for 20 years after that time you would have to go back to court to get it renewed O Execute a judgment force a judgement if someone doesn39t want to pay gt common ways to execute 1 garnishment a common method of satisfying a Judgment take paper to defendants employer employer must take out 15 percent from salary until judgement is paid gt judgment creditor judgement debtor try to hide all their assets 2 freeze their bank account bank notifies judgment debtor that they cannot release account and will give money to creditor 3 lien on property certain property is subject to collection car house someone is claiming interest on property a marshall would take care of all of this instead of litigating in court hiring a lawyer having a trial 0 alternative common dispute resolution methods 1 arbitration arbitrators one person is designated or there is a panel they will hear all the evidence from both parties have more discretion they are experts in the field of the dispute after hearing all the evidence they decide who prevails the decision is binding final 0 voluntary the decision is final do not get opportunity to go to court 0 mandatory the loser can sue in court you can proceed to trial in court trial de novo 2 mediation mediator listens to both sides individually after all evidence is heard will suggest resolution parties don39t have to agree with mediator Has no authority to to make decisions 0 The constitution created the federal system of government 0 The first constitution was the articles of confederation turned out to be very weak no executive branch of government 0 The constitution was drafted in 1787 The 7 Articles of the Constitution 0 Article 1 the Legislative branch 0 535 members of Congress 0 bicameral legislature twohouse gt 435 members of the House of Representatives 0 Members are popularly elected for a term of 2 years gt 100 members of the US Senate 0 Members are popularly elected for a term of 6 years 0 Two Senators per state States that have high population have more members of senators Must have at least 1 member gt The function of this branch is to enactwrite the laws Need the senate and house to agree bill in order for it to become a law Would not be come law unless president signs it gt This branch is Parliament in England 0 Article 2 the Executive branch 0 Has the power to enforce the laws 0 To be a member of Congress gt House of Representatives 0 you must be a citizen in US for at least 7 yrs and must be at least 25 yrs old gt US Senate 0 Must be at least 30 yrs old and must be a citizen US for at least 9 yrs 0 The President serves a 4 yr term and is eligible for reelection for a second term cannot serve more than two terms 0 requirements to be President are must be natural born citizen and at least 35 yrs old 0 This branch is Prime minister in England 0 Obama is 44th president 0 Article 3 the Judicial branch 0 only created one court the US supreme court 0 The function of this branch is to interpret the laws 0 Judges are nominated by the president with the approval of the US Senate by majority vote 0 There are no qualifications age requirements etc 0 Article 4 Full Faith and Credit Clause FFCC 0 Requires states to honor the rulings from the other states Ex If you get sued in NY and you move to Florida you can take judgment to Florida and have it enforced Doma 0 Article 5 Provision to amend the Constitution 0 Procedure gt two step process of proposal congress must pass by 23 vote and ratify 34 of state legislature must pass Then it will become an amendment to the constitution Since 1791 the Constitution only had 27 amendments Bill of rights first ten amendments 0 Article 6 the Supremacy clause 0 has superiority over all other laws 0 any federal laws that are made according to the Constitution are the supreme laws That means that state laws that go against federal laws are not valid 0 Even state courts must follow federal law before state law 0 Article 7 the process to ratify constitution 0 913 colonies needed to approve constitution 0 Law of torts permits individuals and companies to recover from other individuals and companies for wrongs committed against them 0 Tort law civil or non criminal wrongs that are not breaches of contract 0 Tort Latin term 39tortus39 an interference with someone39s person or property 0 Tort of defamation causing someone39s character to be questioned is a wrong against the person 0 Private wrong with the exception of a breech of contract harm person sues Difference between Torts and Crimes 0 Crime a wrong that arises from a violation of a public duty that is against society gt Serious nature that the appropriate level of government steps in to prosecute and punish the wrongdoer to deter others from engaging in the same type of conduct 0 Tort a wrong that arise from a violation of a private duty gt Person who experiences direct harm 0 When same act is both a crime and a tort the government may prosecute the wrongdoer for a violation of criminal law and the individual who experiences the direct harm may recover damages 3 Types of Torts O Intentional torts occur when wrongdoers engage in intentional conduct that caused a wrong gt Le Striking someone in the face because you don39t like what they said to you tort and crime 0 Negligence person who is responsible for careless actions or actions taken without thinking through their consequences gt number one tort in civil realm gt Le Running red light hitting another car and injuring that person acting carelessly O Strict absolute liability imposes liability without regard to whether there was any intent to harm or any negligence occurred imposed without regard to fault will punish a person or company regardless if they didn39t intentionally cause damages or injuries gt Le Storage of flammable materials Types of Intentional Torts gAssault civil someone is engaged in intentional conduct that threatens a person with a fear of imminent harm with the capability to carry out the threat of harm gt Le Saying quotI39m going to kick your assquot and moving aggressively toward them with the intent of carrying out the action gt As long as someone puts you in fear and were planning on carrying it out you can sue for assault 0 Batte ry the intentional wrongful touching of another person without that person39s consent gt There can be a battery without an assault because you might have not seen the imminent harm that placed you in fear gt if you push a person it is not battery unless it was intentional gt If you know whether there can be a battery no assault gt Assault and battery hypothetical gt Assault no battery 0 False imprisonment the intentional conduct detaining a person without that person39s consent nglt J No specific period of time against one39s will is required cy ibgb if f person wants to leave class early professor tells him to sit class is not over student 39 qu can sue professor for false imprisonment gt Often called shopkeeper39s tort because so much liability has been imposed on store owners for unreasonable detention of customers suspected of shoplifting 0 Shopkeeper39s privilege permits the store owner to detain a suspected shoplifter based on reasonable suspicion for a reasonable time without resulting liability for false imprisonment to the accused customer 0 Have to prove39all 3 gt 1 Reasonable suspicion to detain gt 2 Detaintreat in a reasonable manner gt 3 Reasonable time they will investigate 0 Form of privilege or protection for store owners 0 Privilege applies if the store owner was wrong about the customer being a shoplifter as long as store owner acted based on reasonable suspicions and treated accused shoplifter is a reasonable manner 0 Privileges do not protect store owner from liability for unnecessary physical force or for invasion of privacy gt Le Requiring customer to sit in manager39s office or not allowing a customer to leave the store 0 Threaten 0 False arrest 0 Physical restrain l o Intentional infliction of emotional distress Must prove all 3 1 Intentional conduct of defendant 2 must have been outrageous behavior exceeding all bounds of decency 0 Le Going to someone39s job and outing them that they owe money 3 The plaintiff suffered mental anguish need doctor to prove gt Debt collectors always get sued for this gt Le Nurse gives wrong baby to mother she could sue for negligence not intentional infliction of emotional distress O Defamation 4 elements that must all be proved 1 Person made untrue statement not opinions about person39s or corporation39s honesty integrity or reputation 2 Must be directed at a person or the company 3 Must be publication the untrue statement was heard by a third person 0 Le On speaker and professor accused person of cheating depends if professor knows he39s on speaker 4 There was harm or injury 0 Le Kicked out of school divorce lose your job gt Public figures have to prove fifth element because they have access to the media to correct h 0 Malice person made the untrue statement knowing that it was untrue O Prove gt Person said or wrote untrue statement but didn39t even check to see if it was true or not but printed it anyway gt Know the information is false or reckless disregard of truth they said it anyway gt Defenses to defamation 0 Truth if it39s true statement but harmful to victim cannot be defamation 0 number one defense to defamation 0 Absolute privilege cannot under any circumstances be sued have immunity 0 Le members of Congress when they are debating issues only on the House or Senate floor and saying defamatory things cannot be sued 0 Le Witness in courtroom for mistaken identity cannot be sued 0 Qualified privilege the media cannot be sued for defamation if they can prove if information released contained no malice and information is corrected when notified gt Some defamation is not protected by 1st amendment pornography kkk etc gt Not all untrue statements are defamation because they don39t know the person39s honesty integrity or reputation gt 2 types of defamation 0 Slander spoken or verbal defamation 0 Libel written or broadcast defamation 0 Le On media 0 Wrongful interference with contracts person is culpable when they encourage a person to break an existing contract gt You have to know that the other person has an existing contract the person in an existing contract doesn39t have to know you have to know if you39re breaching the contract 4 liements of Negligence 1 Duty of care there is general duty of care imposed to act as a reasonably prudent person would in similar circumstances gt Le Drive responsibly gt Malpractice professional negligence accountant doctor engineer 0 the professional must perform his or her skill in the same manner as and at the level of other professionals in the same field 2 Breach of duty of care imposed by statute or by the application of the reasonable person standard you did not act reasonable under circumstances gt Le Driving 49mph in a 50mph and hit someone you can be sued because the weather could be bad and you shouldn39t go that fast 3 Causation the element that connects the duty and the breach of duty to the injuries of the plaintiff the plaintiff39s injury must be related to the breach of the duty of care gt Once the cause in fact is established the plaintiff must establish proximate cause the harm suffered by the injured person was a foreseeable consequence of the defendant39s negligent actions gt The jury must answer if the person was negligent or was the injury caused by breach of duty of care gt Most trials are unified meaning one trial to determine liability and damages gt Bifurcated trial two trial first trial to determine negligence if party was not negligent don39t go on to the second trial of determining the damages 4 Damages The plaintiff in a personal injury negligence lawsuit must establish the actual losses caused by the defendant39s breach of duty of care and is entitled to compensation gt Two Types 0 Compensatory damages compensate plaintiff for injury or harm 0 Past and future pain and suffering mental anguish 0 Past and future loss of earnings 0 Past and future medical expenses 0 Punitive damages award to a plaintiff to punish the defendant because the defendant intentionally engaged into conduct fraud 0 Not generally awarded in a negligence case Defenses to Negligence O Ajury can find that the defendant was negligent but the plaintiff can also be negligent gt The defendant is 80 responsible gt The plaintiff is 20 responsible O Contributory negligence a complete defense the plaintiff can39t recover any money ifjury finds the plaintiff 1 or more responsible for the accident gt Plaintiff will get 0 recovery money 0 Comparative negligence divides the liability between the parties a defense that permits a negligent plaintiff to recover some damages but only in proportion to the defendant39s degree of fault gt Two types 0 Pure plaintiff can recover even ifjury found plaintiff responsible they will reduce plaintiffs recover by their level of fault 0 Partial the plaintiff can recover only if the plaintiff is 50 or less responsible for own injuries the defendant is not liable to pay recovery is reduced by level of fault If they were more than 50 responsible they get nothing gt NY state is pure comparative meaning the plaintiffs reward is reduced based on their level of fault Based on statutes of the states 0 Assumption of the risk defendant is saying the plaintiff should not recover because plaintiff engaged in certain activity that they could be injured 0 recreational activities gt Can be contributory or comparative negligence gt It39s a complete defense plaintiff will not prevail meaning a complete bar to recovery contributory negligence 0 Strict Liability 0 liability without fault gt Because you were in an ultra hazardous activity you will be liable 0 Le Transporting of biomedical materials radioactive materials or the disposing of these materials you are strictly liable dynamite gt Very few defenses are available for strict liability recovery gt The result is that the company or person who has caused the injury or damages by the conduct will be required to compensate for those damages in an absolute sense Contract an enforceable agreement between parties 6 Elements inaa Contract 1 There must be an agreement between the parties gt There must be an offering and acceptance in order for an agreement 2 Competent parties gt Must have contractual capacity 0 If you39re drunk it depends on the level of inebriation of the person to enter a contract 0 Person knows they are entering into contract and know the general meaning of the contract has contractual capacity 3 Genuine assent gt Has to be real no threats no force 0 If you sign a contract under duress it doesn39t count 4 Consideration is exchanged gt Quid pro quo an exchange of favors for something in return 5 Lawful purpose 6 Must be in proper form gt Some must be in writing or can be oral gt Most oral contracts are enforceable Contracts can made for performance of personal services contracts of employment transfer ownership of property house Parties of Contracts 0 Offeror party that makes offer 0 Offeree party that the offer was made to gt Only the offeree can accept contract unless offeror tells you you can tell others Classification of Contracts 0 Express contract manifested in writing or verbal O Implied contract not in writing and there was no oral agreement but court is going to impose a contract on the parties based on their conduct 0 Valid every element has been met it39s enforceable and binding gt Once your signature is on the contract you are bound to the terms of the contract gt Due diligence doing all research before you sign 0 Void if the agreement contemplates a crime or a tort the contract is not enforceable O Voidable the agreement is otherwise binding but one of the elements is missing gt One of the parties could get out of the contract based on specific circumstances 0 Ex Minors enter a contact they aren39t a competent party 0 nebriated person mental illness 0 Other classifications O Executed contract that has been fully completed by the obligations of the parties everything has been performed 0 Executory contract where it hasn39t been fully completed one or both of the parties didn39t fulfill their responsibility O Bilateral contract where there is a promise in exchange for another promise O Unilateral contract where there is one promise exchanged for a performance 0 Option contract where parties hold open a contract for a period of time giving one party the right to optinto the second contract gt Ex After two years a company has to pay you if they let you go because you have the op on gt If the company has the option they can exercise their option gt Allows one of the parties to enter into another additional contract 0 Right of first refusal contract make the first offer to the party waiting for their acceptance or refusal before executing another contract gt Le When I do sell my business I will first offer it to you if you think it39s too much then I can sell it on the open market gt The only way to enter into this is if there is consideration 0 Quasi contract quotalmost not complete quot the court is going to impose an agreement between the parties gt Purpose to prevent unjust enrichment 0 Unjust to not pay plaintiff for work he did 0 If they painted your house without you knowing it39s not unjust gt When you sue for breach of contract they are entitled to whatever the agreement was gt When you prevail under quasi contract you are entitled to less recovery reasonable value of services Agreement 0 Offer manifestation or willingness of offeror to enter into a bargain or contract to justify another person gt It39s an objective standard based on facts free from bias judgement determined by what another reasonable person would do under similar circumstances gt If someone accepts an offer it39s an agreement all 6 elements of contracts must be evident in order for it to be enforceable 0 If it is enforceable the contract is valid all elements have been established gt Offers made in jest anger or undo excitement are not enforceable 0 A reasonable person would not regard that as willingly entering into a binding agreement gt Preliminary negotiaticms are not offers because they are not fully completed gt Advertisements for goods are not offers because the customer is the offeror in a store and is not bound unless ad is specific to certain good gt Offers must be 0 specific in amount to be paid price 0 Specific in quantityquality of good or service 0 definite and certain 0 Specific in type of service or performance 0 Exception to definitenesscertainty r Output contract contract of a producer to sell entire production or output to a given buyer 0 Seller has to sell entire production to one given buyer 0 Buyer is responsible for purchase of all items from seller but could also purchase those items from another seller 0 Binding contract even though exact quantity of goods being bought or sold is not specified gt Requirements contract the buyer must purchase all the requirements from the seller and cannot purchase those items from another seller The seller is not limited to who they can sell to have to make sure they meet the requirements of the buyer gt An offer must be communicated to the offeree and only offeree can accept unless 0 Offeror makes decision to tell offeree to pass details about the offer on to other people 0 Once offer is terminated an offeree cannot accept 0 If offeree accepts the offeror cannot terminate once we have a valid acceptance still have to determine if it39s enforceable by the elements of agreement 6 Ways to Terminate Offers 7 1 Revocation offeror can revoke offer any time before an acceptance if something is given in return consideration contract is valid gt Not valid until it is communicated to the offeree phone call read email in person 0 Direct 0 Indirect when offeree learns from 3rd person when subject matter of offer has been revoked 0 Le f offeree gave consideration and time had not lapsed he would prevail and could accept offer gt sell car to you give you until Friday but on Thursday I sold car to someone else if no consideration was given there was no agreement gt If I change price I must say that before offeree says I accept gt You can revoke anytime if consideration is not given 2 Rejection if offeree rejects offer the offer is terminated gt Le If you reject then change mind offer is still invalid 3 Counteroffer offeree attempts to accepts the offer but don39t accept exactly what is being offered Mirror image rule acceptance has to be exactly the same as what was offered The offeror cannot reject the offer they can revoke an offer Offeree can not revoke an offer they reject an offer 4 Lapse of time if offeror give offeree certain time to accept and it expires offer is terminated gt Le Give until October 30 to buy car and I sold it on the 29th no breach of contract there has been no acceptance gt Clock doesn39t start until offer is received mail or verbal give person until 30th to buy car or not and you give consideration on 27th person sold vehicle to other person third person told offeree saw car and bought it On 29th he calls person and wants to accept person said he indirectly told him Is there is an agreement because the offeror cannot sell the vehicle to someone else before the date that was agreed to Because the offeree gave consideration and accepted before lapse of time and agreed time the acceptance occurred t39s enforceable 0 If parties do not agree on the amount of time to decide lapse of time will depend on parties previous exchanges Be reasonable 5 Death or disability of offeror or offeree if one of the parties dies before the acceptance offer has been terminated If one of parties suffered mental disability not physical before acceptance offer is terminated gt If offeree dies after acceptance there is an agreement that is enforceable 6 Subsequent illegality before an acceptance the terms of acceptance become illegal the offer is terminated Statute of limitation period of time following an incident that gives rise to a lawsuit for prosecution O Intentional torts year 0 Most fellonies are 5 yrs 0 No statute for murder or a few sexual offenses O negligence 3 yrs 0 breech of contract 6 yrs Acceptance O The offeree does not need to say quotI acceptquot for the agreement to be accepted 0 Offeror makes terms on how to accept gt If offeror says acceptance must be put in writing the offeree must put it in writing or it is not valid 0 The offeror cannot accept an offer they make offers offerees can accept offer gt Only offeree can accept no one else the offer was only made to them 0 The acceptance must be unequivocal without an doubt gt Le Unsure about accepting offer gt If offeree is equivocating there is no acceptance gt Mirror image rule acceptance must be exactly like the offer material change 0 quotI accept offer but paint car redquot not an acceptance 0 Offeree must communicate acceptance to offeror O Mailbox rule gt An acceptance is effective when it39s placed in the mailbox or given to the custody of postal service with a properly address gt Revocation letter is not effective when it is received gt Person makes offer on oct I offeree is given ten days on oct 4 offeror sends letter revoking on oct 6 offeree sends letter accepting offer on oct 7 offeree receives revocation on oct 30 receives acceptance letter 0 Valid offer because of mailbox rule gt Doesn39t apply when rejection letter was placed in mail first 0 Electronic commerce act When you send acceptance through email the actual notification is not required but the message needs to be accessed in order to be communicated gt If revoke offer after email is available it would not be valid 0 Acceptance for bilateral contract offeree accepts by promising gt Unilateral contract accepts by performing 0 You are not entitled to the reward if you didn39t know Auctions 0 With reserve auction in which the seller has the right to refuse the highest bid and get item back gt The bidder is the offeror they are making an offer gt The seller is the offeree they have the right to accept the offer 0 Without reserve the seller expressly gives up right to withdraw goods from sale and must accept the highest bid gt The seller is the offeror Contractual Capacity the ability to understand that a contract is being made and understand its general meaning 0 If someone enters a contract and lacks contractual capacity the contract is voidable they can get out of the contract gt Minors or persons with mental conditions drugs alcohol illness age Minors 0 under 18 based on their status lack contractual capacity 0 Disaffirm gt A minor can disaffirm a contract at anytime up until they turn 18 or a reasonable time after 0 if minor doesn39t disaffirm contract once 18 or after the lapse of reasonable time contract is affirmed or ratified and cannot be avoided gt If minor still has item received from other party must return it to owner 0 If item received from other party was spent destroyed used or damaged minor can still disaffirm contract but must return whatever remains 0 The other party must return money received to minor 0 Le If they want to buy a car from you but are under age shows dad and he is angry minor can get out of contract 0 Even if parent co signs contract the minor can still get out but parent is still responsible for upholding contract 0 Emancipated minors cannot get out of a contract only if minor voluntarily leaves home 0 Contracts for necessaries things absolutely necessary for human life gt Le Contract for shelter food clothing gt Minor can disaffirm contract but minor must pay the reasonable value of necessaries O Minors cannot disaffirm contracts that are gt Student loans gt Approved by a court legal proceeding gt Made while running a business 0 A parent is not liable on a contract made by a minor unless the parent uses the child to act as an agent in entering a contract using child to disaffirm contract 0 Cosigner agrees to be bound by the terms of the contract ultimately responsible for all payments if the person they are cosigning for breeches the contract Mentally Incompetent Persons 0 Person with mental disorder that is so significant can lack capacity to make a contract mentally incompetent gt The key what was the mental state and status of the person when they actually entered into the contract 0 Must demonstrate at the time of the agreement was made you were suffering from a mental defect that rendered you incapable of comprehending the nature of the contraction gt Le Doctors note medical support 0 A mentally incompetent person may ordinarily disaffirm contract similar to a minor b Upon becoming competent the formerly incompetent person can disaffirm or ratify the contract 0 If person was ejudicated and enter into a contract contract is void but if they enter into a contract before judge says they are mentally incompetent the contract is voidable O Guardian ad litem person who handles affairs of incompetent person Intoxicated Persons 0 Can lack contractual capacity depending how intoxicated person is can be also be drugs 0 If degree of intoxication is extreme to the point that person does not know that contract is being made the contract is voidable as long as they disaffirm once they sober up or a reasonable time after To disaffirm you can call person or mail letter Genuine Assent parties must agree freely with no pressure placed on them to enter in a contract 0 Deception person was deceived or mislead into entering into a different contract gt Fraud The making of a material misrepresentation of false information of fact 0 4 elements must be proven 1 Material misrepresentation of fact false statement gt Opinions do not count it39s not statement of fact 0 Sales pitches gt Opinion supported with phony facts is considered fraud 2 Person has knowledge of its falsity or they didn39t know it was false reckless indifference of the truth didn39t check gt If they know it was false but said it anyway 3 Person said false statement with intent that the listener will rely on it gt Element of trust 4 The listener did rely on it gt If victim knew facts were false because truth is commonly known they cannot rely on false statement 5 Harm the consequence the the listener is harmed gt Loss of money 0 Le Buy a watch on canal street guy says it worth 10000 but selling for 100 you buy it It39s fraud 0 Undue influence one person takes advantage of another persons mental emotional or physical weakness and unduly persuades that person to enter into a contract based on a relationship between two parties you do not use this to get of contract with strangers b Two parties 0 Dominant has more control over the other party 0 Le doctor 0 When enter into a part with servient there is a presumption that there is undue in uence gt Can overcome presumption by making sure servient party had documented independent legal advice 0 Servient 0 Le Patient gt Duress when one party threatens to do a wrongful act unless the other party enters into a contract 0 Two forms 0 Physical threat of physical harm to person or property gt Didn39t sign freely 0 Economic threat of financial loss gt One party of a contract refuses to perform contractual obligations unless the other party pays an increased price or enters into a second contract with the party gt Le Contract for supply of goods for a whole year after nine months we are not going to supply for the second year you need those items 0 If a person is under a lot of stress or pressure they cannot argue duress because there must be a threat gt They do not lack contractual capacity unless doctor proof 0 If a person is depressed they cannot argue duress there was no threat Financial analysis wants to know about company but analysis doesn39t think and says good investment but on tv company is losing money analysis tells guy that company will turn aroundt a week later company files for bankruptcy you loose all money it39s not fraud because the person didn39t rely on the radio because the news If he relied on analyst he could successfully sue A person can engage in fraud even if they didn39t know information was false because they didn39t even check to see 3 hypothetical One or two shot answer definitions 45 mult Consideration fourth element of a contract what each party to a contract gives up to the other in making their agreement 0 Must have in order to be enforceable O Mustglm gainedfor exchange between parties gt Consideration only exists if something of value is given or promised in return for the promise or performance of the other e money services property Gifts 0 Promises to make a gift are unenforceable there is a lack of consideration because there is no bargainedfor exchange there was nothing given in exchange for the gift gt Exception if a person pledges to give a giftdonation church college charity and then changes their mind the giftdonation is binding they will not get it back because it was already transferred Adequacy of Consideration 0 Making sure each side gets a fair return O Courts are not concerned with this gt Exception must establish that there was fraud or some other misconduct duress undue influence in order for the court to look at case gt You cannot sue based on inadequate consideration gt Le Sell Rolex that is worth 10000 but you sell it for 2000 Forbearance 0 refraining from doing something that a party or person has a legal right to do 0 Considered consideration 0 Enforceable contract 0 Le If you hit my car you know you were negligent I can sue for negligence 15000 in damages told him wouldn39t call insurance company can sue if does not pay because consideration was offered 0 Le Will give you 5000 if you won39t go to race track for six months He upholds his side but you don39t give him money He would win case and 5000 because there was forbearance because he has a legal right and refrained from going 0 Le Drinking problem 24 yrs if you don39t drink for two months I39ll pay 2000 I didn39t pay him after two months I didn39t pay him He will win case because has a legal right 0 Le 17 yr old smokes told him if you stop for one month I39ll give you 1000 He will win because he refrained from doing something he had a legal right to do Have to be 18 to buy but any age to smoke NOT CONSIDERED TO BE CONSIDERATION Preexisting Legal contractual Obligation 0 Doing or promising to do something when someone is already under a legal obligation to do is not consideration e firefighter police officer 0 Le Contractor requested extra money in order to complete renovation on time homeowner agree to pay extra money because he wanted the job to be completed in a timely manner Contractor will lose case if homeowner sues because the contractor is obligated to complete renovation in timely manner without asking for additional money unless an additional service pool was added to the contract gt Exception 0 Good Faiththe contractor will win if they can prove 1 the second promise was enforceable that there were extraordinary circumstances 2 unforeseeable difficulties 3 increase was reasonable 0 Le Natural disaster coup 0 If prices increasedecreases it doesn39t count as good faith 0 Le If you owe American Express 10000 you both agree so you send 7000 but they sue for 3000 it depends on whether it was liquidated debt not in dispute or unliquidated debt debt wherethere is a dispute about how muchis owed you will lose if American Express sues you because you had a preexisting legal obligation if it was for liquidated If they sue for unliquidated debt you will win because the debt was in dispute and there was no pre existing legalonga on gt If a creditor agrees to accept a lower amount the entire debt depends on if it39s liquidated or unliquidated debt 0 Le Mike the homeowner enters into a contract for a dream house costing 1 million dollar t39s two floors and has regular generic glass windows Mike wants to change the windows to be bullet proof glass instead The contractor will change them for 15 million dollars instead Mike agrees and the house has bulletproof windows Mike only pays contractor 1 million dollars because he doesn39t think he needs to pay more The contractor sues for the 5 million dollars remaining that mike agreed to Contractor will win case because consideration was given money in exchange for bullet proof windows 0 Le Arnold owed Ben 500 No dispute A will pay 500 if Ben repaints Arnold39s car 500 is given but his car is not painted f Arnold sues for breach of contract he would not win because it was liquidated debt and there was a preexisting contract because Arnold already owed Ben 500 0 Part payment checks gt When there is a goodfaith dispute about original amount of debt and person sends check and states quot paid in fullquot but amount on check is less than full amount owed there is consideration and the debt is discharged 0 If debtor writes payment in full on partial payment check the creditor can cash check by writing under protest accepting but not full payment then you can sue for the remaining balance 0 If original amount of debt was liquidated debt not in dispute there is no consideration and original amount of debt stands Past Consideration 0 Something that has been performed in the past and cannot be consideration for a promise made in the present 0 not a form of consideration 0 Money services product property forbearance can be exchanged 0 Consideration must be based on right now or something in the future 0 Le Tutor for 2 hours get a on exam you promise to pay 500 for great service once you get money Tutor was never paid but loses case because it was in the past 0 Le Roommate is thankful for help with carrying boxes will pay for helping 0 Le Walking down street cat is stuck n tree old woman asks you for help You ask for 100 in order to get cat down You negotiate for 75 and you get cat down If you don39t get money you can sue and win because Moral Obligation O is not consideration and therefore not enforceable O Considered a gratuitous promise 0 Le Husband promises wife 10000 for love and affection Not enforceable because love and affection is a moral obligation 0 Death bed promise is a moral obligation you feel like you need to say yes 0 An agreement is illegal either when it contemplates a crime or tort or when it39s contrary to public policy or unconscionable Illegal Contracts 0 If a contract is illegal it39s void 0 The parties are not entitled to aid of courts gt Le Liqueur store owner cannot sell liqueur on credit 0 If the illegal agreement has not been performed neither party has the right to sue the other to obtain performance or damages 0 If the agreement has been performed neither party can sue the other for damages or set the agreement aside gt Exception if party can prove they were in pari delicto equally guilty they cannot successfully sue 0 If you didn39t know person was in pari delicto under no circumstances will the person without a license they win if they sue for breech of contract 0 Le f suspended doctor botches surgery you paid 8000 you have to go to another doctor to correct mistakes if you sue suspended doctor will you win Patient loses it was a legal agreement and they were in pari delicto Agreements Affecting Public Policy 0 Agreements that are harmful to public welfare and contrary to public policy are not enforceable Regulation of Business gt If a license is required to protect the public from unqualified persons a contract made by an unlicensed person is unenforceable Restraint of Trade gt Monopoly party or parties try to corner market where there is no competition Noncompetition Agreements O In the absence of a valid restrictive covenant the seller of a business may compete with the buyer or an exemployee may solicit customers of the former employer gt A noncompetition clause or valid restrictive covenant in sale of business can be valid 0 Invalid due to vagueness concerning duration and geographic scope of restriction 0 If clues says you cannot compete time has to be reasonable 0 If the restriction is reasonable it is valid gt Le Someone buys your Chinese restaurant and the next day you open another Chinese restaurant a cross the street from the one you previously owned The restaurant you sold makes no money because everyone is coming to your new business across the street If there was no agreement the former employee can work for a competitor at anytime gt Caveat emptor 0 Employment contracts gt Strictly construed in favor of freedom of action of the employee gt 3 elements to prove in order to be valid 1 Consideration O Bargainedfor exchange you39re not going to compete against former employer 0 Le You been working in business for 5 yrs and you are told to sign noncompetition clause 0 Atwillemployee employee that doesn39t have a contract a can be fired at anytime n on comptwq ah39mr discim stormur s M on d 0 You can si one when they are going to fire you and they don39t want you working o wwigampany 2 Noncompetition clause must be necessary to protect legitimate interest of employer 0 Le The former employee shares trade secrets unless it39s public information gt Learn profession lawyer accountant all sign non competition clause bc they are very skilled gt janitors can woke wherever they don39t have 3 Restriction of employee must be reasonable in terms of the duration and scope and time 0 You cannot work with competitor within 2 yrs and 25 miles 0 The duration and geographic scope must be looked at together 0 Le Person works for competitor within 1 yr and 50 miles 0 If person works next day for a competitor 2000 miles say he is not violating non competition clause When a business is sold that person cannot go back for a period of time or area 0 Some companies don39t have geographic scope because they are international 0 If geographic scope is vague it39s not enforceable Usurious Agreements the lending of money with rate of interest that is higher than allowed by law 0 Violate civil and criminal law 0 Protect against scrupulous O 300 lowest credit score 850 higher credit score 0 O Prevaricator liar 0 Le you borrow 20k and in 6 months you agree to pay back 40k t39s usurious agreement O In some states you recover just principal loan rate other states you are entitled to the principal loan and lawful rate of state In NYC if usurious you get nothing back it39s void gt The maximum rate of interest that exceeds 16 percent it is civilly usurious and void 0 If it exceeds 25 percent it is criminally usurious efelony facing four years 0 Validity of Oral Contracts 0 In an absence of law or statute requiring writing oral contracts are enforceable 0 Certain contracts must be evident by writing in order to be legally enforceable gt Statute of frauds law enacted to prevent fraud by use of perjured testimony requires that certain kinds of transactions be evident in writing in order to be enforceable binding 0 Defense to a breech of contract 6 Contracts that Require Writing Under Statute of Frauds 0 Either the contract itself must be in writing and signed by both the parties or there must be sufficient written memorandum of the oral contract signed by the person being sued for breach of contract 1 Agreement that cannot be completed within one year after the contract is made gt The contract is not enforceable under statute if it cannot be completed within one year gt Le Person goes to bank and makes an oral agreement to get supplied a line of credit loan you take out over the course of a few months for two years contract is not enforceable because it will be longer than 1 year It must be in writing gt The year runs from the time the oral agreement was made not the date the performance began 0 Part performance exception validates oral agreements not performed within one year gt Le Contractor builds dream home that will take ten months agreement made 10113 doesn39t get finished until 11114 Sues for 300 k Contractor wins because the house could have been completed in a year because he showed portfolio gt Le Contractor says it will take ten months on 10113 will start building 2114 finished on 11114 House costs 500k owner only pays 200k The oral agreement is not enforceable because the clock starts to run at the time when the agreement was made Even though it was completed at the day of the start it took a total of 13 months gt When no time for performance is specified by oral contract statue of frauds is not applicable 2 Contract for the sale of land gt Agreement to sell house land or mortgage leases must be in writing gt Le Offer to sell house for 250k go to inspect house and accept offer 3 weeks after agreement someone offers to buy for 300k and you accept before the closing so you revoke offer There was no proper form so if you sued specific performance owner you39d lose gt Exception 1 Possession and substantial improvements were made 0 Change electrical system take down walls substantial improvement 2 Possession and partial payment was given 0 Give seller money if seller accepted dollar then you win in court gt If you took possession and payed gt The buyer is responsible for the reasonable value sue for quasi contract not breach of contract 3 Suretyship contracts gt Person promises to pay the debt of another person almost like a guarantor cosigning gt Le Student owes five thousand dollars professor goes to company and says he will pay it for student Company video tapes audio tapes agreement Professor doesn39t want to pay debt anymore because student fails his final company sues professor but professor will win because oral agreements are not enforceable gt Main Purpose Exception when the main purpose of the promisor39s promise to pay the debt of another is to benefit themselves that statute is not applicable and the oral promise to pay the debt is binding 0 Le Corporation defaults on paying you the sole shareholder will pay You will be responsible because you are the sole shareholder 0 Le Homeowner enters into contract with contractor halfway done with construction but funding is low Call creditor and agree to take outstanding debt Will be enforceable Because it was selfish for them to finish house 4 Administrator or executor agrees to pay the decedents person who died debt out of personal funds gt When someone dies with a will they died testate the will is going to name a person to administer the estate gt Intestate person dies without a will the court will appoint an administer to distribute assets if there are any gt Le Loan decedent money 5 Any promise made in consideration of marriage gt Le Promised house in southern France if you married Get married but no house in France You sue for breach of contract not enforceable because it39s oral gt Prenuptial agreements are entered into by the parties before marriage and must be in writing 0 Agreement between what property rights and obligations will be divided among the parties should they get divorced 0 Not all prenups are valid in order for them to be valid 0 Must be complete disclosure of assets and liabilities in order to be enforced 0 One party has a lot going into marriage and not the other the person with no assets must have independent legal council 0 Some are being videotaped to make sure no one is be conversed 0 Court will not enforce prenup if it will leave one of the spouses destitute even if they got independent legal advice 6 Contract for sale of goods that exceeds 500 dollars must be in writing under UCC Uniform Commercial Code Two Types of Property 0 Real property land houses condos etc and things embedded in the land such as oil tanks and things attached to earth buildings trees and their rights 0 Personal property property that is movable tangible books furniture or intangible trademark patents copywrite or rights in such things Obtaining Personal Property 0 Purchase 0 Inheritance 0 Gift no bargainedfor exchange 0 No title is acquired by theft it39s only in person39s possession even if that person who stole item sells it to someone else who was unaware item was stolen item is still only in possession of new person No one can obtain title to stolen property ifts title to an owners personal property may be transferred voluntarily without receiving anything in exchange 0 Because gifts aren39t consideration they are not enforceable contracts 0 Donor person making the gift 0 Donee receiver of gift Types of Gifts Inter vivos gift a regular ordinary gift made between two living people gt Le Give you my textbook after final you accept Cannot sue because there was not consideration or bargain of exchange gt Donor cannot get gift back once given to donee gt In order to be effective donor 1 Must express intent to transfer title 2 Must be delivery 0 If you have one without the other the donee is not entitled to gift 0 Le f person dies before delivery the administrator or executor can39t give item to you gt An oral agreement to loan 5000 agreement could be enforceable once gift is transferred 2 Gift causa mortis the donor contemplates imminent and impending death delivering personal property to donee in event that donor dies gt Le Donor calls you to death bed and offers to give you his car hands the keys over and title 0 Donor is entitled to get gift back if Donor revokes gift anytime before death 2 Donor doesn39t die 3 Donee unexpectedly dies before donor gt Donee dies intestate with will and leaves car to Donees son but donor wants car back and is entitled to get car back 0 Donor can allow Donees son to keep car but also has option to get gift back 3 Conditional Gifts inter vivos gt If a condition is placed on gift or is not satisfied and the condition is not met donor can get gift back b Two types 0 Condition precedent condition must be satisfied before any gift or transfer takes place 0 Le I39m going to give you a car when you graduate from college Ten years later you graduate Donor said you took too long so no car There was no consideration If donee sues he will win because there was a condition that was met he did graduate 0 Condition subsequent the gift is given before any condition is satisfied but gift can be taken back if condition is not met 0 Le Donor says here is the car for you to drive to school but if you drop out you have to give the car back 0 Le Engagement ring gt If marriage is broken off must give ring back unless in state of Texas you can make arguments based on who was at quotfaultquot 0 Le Starting new job 60 miles away this car is yours so you can commute Make me proud and do a good job a month later you are fired I want my car back can I get it back No because the conditions were not clear You can39t just say do a good job it39s too vague Obtaining Unclaimed Property 0 Escheat when a person the owner of the property dies intestate without a will and there are no heirs to the property the unclaimed property transfers to the state government Multiple Ownership of Personal Property 0 Severalty when all rights to a property is owned by one person 0 Cotenancy when two or more persons hold concurrent rights and interests in the same property gt 4 Types 0 Tenancy in common form of ownership between two or more people 0 Anyone of the owners can sell transfer or leave property in their will at which case the taker becomes a tenant in common with the others 0 Le A 50 b25 c25 gt A wants to sell interest to D but is a terrible person Can B and C do anything about it No because any party can transfer sell leave in will the inheritance of the property gt Can B and C do anything now that they are stuck with D Yes they can force a sale and sue for a partition the lawsuits brought to property to request court to divide or sale of property not for a specific performance gt If A dies testate and gives property to D in will ad would have 50 percent 0 Joint tenancy form of ownership between two or more people but has a right of survivorship if one of the joint tenants dies then the interest and the property of the deceased goes to the surviving owners regardless of what will says 0 Le If A B and C own property with right of survivorship and A dies testate and wants D to have share A and B will each get 50 percent of A39s interest The will is disregarded O The last surviving joint tenant takes the property as a holder in severalty gt Le A75 b25 own prop A dies testate and left in will for C and D for 375 each B owns property 100 now in severalty because will is irrelevant 0 If owner transfers or sells interest in property to third person the joint tendency is no longer and the remains joint tenant becomes a tenant in common with the third person gt Le A sells property to D but B dies a month later and leaves property to E all with a right of survivorship Who owns property now The joint tenancy is no longer because once a transferred to D it39s a tenancy in common the right of survivorship is gone D50 B25 C25 0 Parties that are buying house together can decide what type of tenancy they want if nothing is specified the transfer of property to two or more persons is a tenancy in common 0 Only established if different owners have equal shares 0 Tenancy by entirety when property is transferred between legally married partners 0 There is a right of survivorship and one spouse cannot transfer or sell interest in property without the permission of other spouse gt If permission is granted it would be a tenancy in common 0 Le A and B own property but A dies testate and leaves property to mistress39s son C B would own all property because of right of survivorship gt If A did get permission before death B and C would own property but it would be a tenancy in common 0 Community property any property that has been obtained by spouses during there marriage must be split 5050 0 NY is not a community property state it39s equitable distribution state meaning each spouse is entitled to whatever they contributed to the marriage and what each will need to move forward Prose litigant you are representing yourself Creditor can force sale of interest if in Tenacy in common or joint Tenacy


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