Notes for intro to bus law
Notes for intro to bus law BSL212
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This 12 page Bundle was uploaded by Jordan Tolson on Monday February 2, 2015. The Bundle belongs to BSL212 at University of Miami taught by Dr. Teller in Fall. Since its upload, it has received 68 views. For similar materials see Business Law in General at University of Miami.
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Date Created: 02/02/15
Jordan Tolson Introduction to Business Law BSL 212 124 1 1 Civil Law Individuals vs other individuals You win by preponderance and are rewarded with damages andor money Stare Decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions Civil Law RomanFrench legal system statutes vs Common Law UKUS system Judicial Opinion 6 Viewpoints Teleologv 1 Egoism what the individual would want for themselves 2 Utilitarian greatest good for the greatest number of people cost benefits pro and cons 3 Deontology everybody has a right to their body more ethical if any damage should not do it if it interferes with alienable rights 4 Relativism derives ethical behavior through a group opinion E g employees in a company or if small business look at other businesses What should one do 5 Virtue Ethics approaches a dilemma with a conventional morality through a mature good person 6 Justice looks at the process and makes it fair Gives everyone a chance to show his or her information communication Civil Dispute Resolution Chap 3 Plaintiff pi v Defendant delta Plaintiff files a complaint the lawsuit Inside of a complaint there are causes of actionlegal rules and followed by facts of what happened What court do you go to Federal vs State Court Federal 0 US District Courts Trial Courts fact finding courts jury lowest level 0 US Courts of Appeals If the loser feels like they were prejudice they go to appeal court 0 US Supreme Court Can choose what they feel is a con ict with the 12 other court of appeals that are similar but with different outcomes State 0 Municipal Court Justice of the Peace Court 9 superior Court Tax Court court of Appeals 9 Supreme Court Jurisdiction Power and Authority of a court to hear a case Two types of J urisdiction Subject matter and In Personam A court has to have both to hear a case Subject Matter pg48 Which goes to which Admiraltysea bankruptcy copyrighttrademarkspatents federal crimes kidnapping male fraud counterfeiting lawsuit against the US These go to FEDERAL COURT everything else goes to state court 1261 1 Concurrent either federal or state Jurisdiction 9 1 Federal Question legal claim arising under constitution federal statute or treaty or 2 Diversity no plaintiff and no defendant are from the same state amp Over 75000 If it fits then it can go to either one Companies are from Where their headquarters and place of incorporation Briefing a Case Studying aide 19 Issue what s the question R9 Rule of Law What is the rule that comes out of the case A9Application apply rule of law to the facts C9 Conclusion 1281 1 Legal Rules 9 1 Federal Courts have exclusive subject matter jurisdiction over Admiralty bankruptcy fed crimes copyrightTMpatents and against the US 2 Federal court and state courts9 Concurrent jurisdiction over federal questions see 12611 mater arising Const Treaty 3 Concurrent jurisdiction over diversity and over 75000 Example question Junior at a university expelled for calling the president of the US a p brain doufus Sues in Kentucky state court for constitution amendment 1 freedom of speech Put in rule of laW9 Federal and state courts have concurrent jurisdiction over federal questions Application 9The issue here is Which court should this case be taken to federal or state In Personam IP Jurisdiction Which State Plaintiff AK v defendant FL over a car that explodes AK sues FL in OK FL says not fair because it does not have minimum contacts 1 soliciting business 2 advertising 3 representatives in the state properties 4shipped goods to a state a Residents b IncorporationsHQs c submits to agreement d Regularly e minimum contacts Who hears the case Judges and Jury Jury listens to the facts Judge states the laW that needs to be applied to the facts that the jury listens to Discovery stage is Where the Lawyers rise pretrial notions 1311 1 Pretrial motion for summary judgment 9 one side says the judge can make the decision Without even going to trial because the facts are not disputed voir dire9 questions to the jury to make sure they re not crazy Peremptory challenges cannot get rid of jury based on race but can remove all the jury people The Appeal9 the law can be appealed not the facts of the case Chapter 9 Introduction to Contracts Restatement of Contracts9 written by law professors Basically the book off laws The Uniform Commercial Code UCC 9 is a statute that every state has accepted in he union sales of goods tangible personal property NOT NONGOODS aka services Non goods go to common law NOT the UCC NonUCC contracts governed by the common law9 Insurance contracts the sall of lsnd houses CISG international sales of goods9international 221 1 A contract is a bonding promise that a court will enforce When can you sue somebody for a promise The 5 Basic Requirements of Contracts Mutual Assent offer and acceptance Consideration Chapter 11 Legality Capacity when can a person enter a valid contract Writing when does it need to be in writing Express v implied Express 9 I will sell you this bike for 10 Implied 9 bartender knowing what drink you want without words being said Bilateral v Unilateral Bilateral 9 I will sell my car for 2000 I will buy your car for 2000 Unilateral 9 I will pay you 20 to wash my car to kid Kid a day later washes it contract Executed v Executorv Executed means done executory is in the process of being done U PP Ni NONCONTRACT Two noncontractual remedies 9 Promissory EstoppelDetrimental Reliance If u can prove noncontractual promise reasonably relied on by plaintiff induced reliance meant to make someone rely on youforeseen harmloss and injustice then you have a case on the promise and damages have to be paid 24 1 1 Weichert Co Realtors v Ryan 1 benefit conferred 2 defendant ryan knowingly received bene tdidn t prevent from happening 3 unfairunjust to keep the benefit without paying quasi contract Hypothetical9 sprinkler system installed in lawn with the defendant not knowing about it APPLICATION the issue is this case because 29 1 1 Chapter 10 Offer and Acceptance Mutual Assent Offer Acceptance If you have a valid offer and an acceptance then you have a contract Definition of Offer 1 Offeror offers the offer Offeree listens to the offer 1 communication 2 manifest intent if offeree 3 definite and certain Communication a as intended ex leave an offer on a desk and secretary sees it and signs it asap NOT AN OFFER b authorized by the offeror ex snookie told situation that going to sell clothes to jwow Situation tells jwow about the offer and she accepts NOT A CONTRACT c can be inferred by behaviorconduct ex candy bar line Intent a Reasonable person stande jokes don t equal an offer excited utterances are not valid intent ex heat are doing so bad I ll sell this seat for 10 dollars 9 excited utterance b Ads are not offers But ads with a class of persons then it can be an offer ex 1 dollar for first 3 people to show up will get a 100 dollar rug The first 3 people who wants to buy if in a contract with the person 0 Rewards are contract agreement ex if you see a cat poster to find it will win 100 dollars it is a contract But if someone oblivious to the poster and just finds the cat and later finds out about the reward it is not a contract no money will be issued d Auctions offers are the bids acceptance is the gavel hitting the wood Option giving consideration by paying money Merchant s firm offer sale of goods 1 Offer made by merchant 2 In writing 3 Signed by merchant 4 Held open no more than 3 months Mailbox Rule exceptions 1 Offer specifies no acceptance until received 2 Completely unauthorized and totally unreasonable means of communication of the acceptance 3 Acceptance following a prior rejection Battle of the Forms Common Law mirror image rule An acceptance must perfectly mirror the offer New and additional terms in the acceptance the second form are in the contract unless 1 The new terms materially alter the contract OR 2 Offeror objects to new terms in a reasonable time OR 3 Offer limited acceptance to exact terms 22111 Chapter 11 Conduct Invalidating Assent Voluntary and knowing for contracts Void no legal force Voidable capable of being made void by a party 4 situations 1 Duress a b Physical compulsion gun by head sign this contract is VOID Improper threat no reasonable alternative but to enter in the contract is VOIDABLE by innocent party sick tenant landlord says you must pay Or a threat of criminal means I will call the police saying you beat me if you don t sign the contract 2 Undue in uence voidable by innocent party9have to prove all 3 elements a 1 Unfair persuasion of a person 2 By a party in a dominate position 3 Based on con dential relationship Doctor patient parent child etc 3 Fraud 2 types a Fraud in the Execution VOID 9 goes to the very nature of the contract football player signs autograph for a fan but it was a contract for something Fraud in the Inducement when you hide something e g someone who turns back the odometer on a car 9 voidable by the innocent party i 5 Elements have to get all 5 1 False representation miss representation actively hiding the truth9 painting over mold walls Silence is not a false representation unless a fact is known disclosure would correct a mistake as to a basic assumption and bad faith not to disclose Known Latent Defect dying dog that doesn t show Of a fact is an event or thing NOT an opinion9unless an expert gives the opinion a party with superior knowledge e g a diamond person tells a person this is a great diamond NOT puffery 9sales talk best knife ever NOT a prediction in the future That is material important not trivial 9important things that will induce the person to manifest assent Scienter9made with knowledge of its falsity and the intention to deceive When the defrauded justifiably relied on by plaintiff 4 5 4 Mistakes 5 a b Mutual both parties mistakes of a fact NOT values render the contract voidable unless he assumes a risk One sided mistakes are not voidable EXCEPTION 9 if expert knows that the buys is making a mistake Mistake of the term VOID e g how much is that necklace 3250 seller means 3250 the buyer is thinking 3250 2281 1 Chapter 12 Consideration What makes a contract different from a gift Gratuitous Promises are NOT contracts Gifts are not contracts Detriment money act forbearing of the Promisee makes the consideration of the contract 1 Legal Sufficiency Detriment to the Promisee if it is illegal it is not a contract eg I ll give you 10000 if you stop smoking weed 2 Bargain for exchange Unilateral Contract Promise 9 Act A promises to pay 25 to B if B washes car A s promise is binding only if the act is performed 6 Situations in which Consideration is missing No Contract 1 Gratuitous Promise 2 Illusory Promises behavior is completely optional Lacking consideration all I want or if I so want but reguirements agreement to buy all of one s needs from a single producerand output contracts agreement to sell all of one s production to a single buyer are NOT illusory 3 PreExisting Duty law or employment9 bully stops beating up child for 10 but parent never pays bully and bully says breach of contract It is NOT a contract because it is not legal for the bully to beat up the kid a To obey the law b Employment bank robbery and the employees have to tell them what they look like c Contract obligations 4 Modification of an existing Contract has no consideration unless there is a detriment to the Promisee additional consideration being given General rule for common lawrestatement No modification of an existing contract without additional consideration EXCEPTION UCC allows parties to agree to modify a contract without new consideration a New unforeseeable arise i Substantial ii And outside the contemplation of the parties when forming the contract 5 Settlement of an Undisputed Debt amount earned on a contract no consideration e g after the performance client wants to play less cannot do that a BUT settlement of a disputed debt has consideration e g payment of a lesser sum of money to discharge a disputed debt one whose existence and amount are not contested is legally sufficient consideration 6 Past consideration is no consideration e g a person working for a company likes her for the work she did and promised a gift to him if it happens after the fact it is not binding promise gift Financial problems are undisputed depts 371 1 Chapter 13 Illegal Bargains These 8 situations are unenforceable 1 Licensing Statutes a If the provider needs a regulatory license you do not have to pay for the expenses Unlicensed practitioner cannot recover Regulatory licenses are designed to protect the public from unqualified practitioners Doctors Dentist Lawyers and Contractors need license b Exception Revenue raising license holders can recover money for services performed while unlicensed Plumber taxi drivers and beauticians 2 Gambling Contracts a Has to be permitted 3 Usurious Contracts a Usury charging a high interest rate on a loan beyond statutorily allowed rate 4 Noncompetitions 9 Covenant not to compete Employment Agreements amp Sale of a Business Unenforceable unless 1 Protect a legitimate business or property interest 2 The restraint is reasonable and no more extensive than necessary geographical range and time no more than 2 years 5 Exculpatory Clauses Anderson case pg 251 a Release of liability wave releases of liabilities Intentional and reckless behavior not the release enforceable Negligent behavior can be enforceable For it to be enforceable look at 2 things disparity of power and essential service only gymanything in the city Excuses a party from their own tortious behavior 6 Unconscionable Contracts overwhelmingly unfair agreements Arbitration clauses are unenforceable a Procedural Unconscionability and substantive unconscionable situations are unenforceable 7 Tortious Contracts Unenforceable civil harm 8 Bribery Unenforceable Chapter 14 Minor s contract is voidable at option of minor To void a contract by a minor means to disaffirm Majority of states minors can return the product for money back Minority of states pays a reasonable amount for the damages KOBE signs an agreements to get into a contract with In re The Score Board Inc tries to disaffirm it but he ratified the contract by signing autographs after turning 18 year sold Minors can t disaf rm necessities food shelter clothes for a reasonable amount The UCC protects good faith purchaser for value 10yr old kid sells baseball to joe who sells it to a collecter Incompetent Persons Adjudicated Mentally Incompetent guardian who becomes the ward for the mental person So contracts need to go through the Guardian for it to be a contract If Mentally Incompetent but not prescribed by the judge people can avoid contracts Trad Cognitive Ability can t comprehend the subject of the contract its nature and its consequences Restatement 9 Can t act reasonably can t control behavior Intoxicated Persons voidable if other party has reason to know drunk is unable to understand nature of his actions Small disaffirm period with drunks 3211 1 Chapter 15 Statute of Frauds The Statute of Frauds 6 categories that have to be in writing to be enforceable My Legs stands for marriage year land executor goods and suretyship 1 Suretyship Provision Guarantee If he doesn t pay you I will a The guarantee paper has to be in writing but the original contract with the debtor does not have to be Has to be to the creditor b EXCEPTION Main Purpose rule when surety gets an economic benefit no writing is required E g owner pays a contractor who hires a subcontractor for the tile Tile contractor stops until payments owner pays subcontractor 2 ExecutorAdministrator Provision a Promise of an executor to personally pay for the duty of a decedent must be in writing Jose paying local doctor for helping ill aunt who died 3 Marriage Provision a Dowries promise to give you this acre of land if you marry have to be in writing to be enforceable b Prenuptial agreements have to be in writing 4 Land Contract Provision a Leases for more than a year has to be in writing Mortgages have to be in writing Easements use someone else s land for something but you don t own it have to be in writing Ownership of land has to be in writing b EXEPTION building on land Workrenovations Leases less than 1 year Insurance i Full performance by seller ie seller delivers deeds to buyer Can t use statue of frauds as a defense ii Partial performance by the buyer deposits and improvements started on land 5 OneYear Provision final favorite a All contracts that cannot possibly by their terms be performed with one year from the making of the contract M be in writing If impossible to do the job within a year has to be in writing If it can possibly be done in within a year then it does not have to be in writing Write down the dates 11106 b EXCEPTION full performance by one part full payment upfront Contracts for life no writing required 6 Goods a UCC law of the sale of goods Contract for a sale of goods of 500 or more has to be in writing b EXCEPTIONS Specially manufactured goods and substantial beginning of manufacture Partial delivery is accepted or partial payment made 325 1 1 What must writing contain Common Law non UCC nongoods 9 Several documents together is okay specify parties subject matter of contract and essential terms The document must be signed by the party to be charged the defendant More loose fewer requirments as to partiessubj ect matter Do need guantity Signed by party to be charged Signed by party to be charged EXCEPTION 2 MERCHANTS Quiz write down the main rule of the question first Chapter 16 Third Parties Parties to a contract have both Rights Things that are to be received and Duties Things that are to be M E g sell of a car Rights to receive Duties deliver car Rights Receive car Duties Pay 1 3rd party Beneficiaries a The contract itself when it is made promises that performance will be rendered to a third party b Only intended beneficiaries get rights under a contract incidental beneficiaries do not As a 3r party beneficiary one can sue if the benefits direct benefits however small were not delivered to them 2 Assignments obligor assignor assignee a Assignments are a transfer of rights to receive something under a contract Usually although not always the thing that is transferred is the right to receive money the assignment is made after the contract is made b Once the assignment is transferred to the assignee from the assignor the assignor terminates all its rights to the assignee c What is assignable i ALL RIGHTS except ii Assignments that materially increase the burden to the obligor E g apartment owner and painter Apartment owner says go paint my sons Mansion instead NOT VALID iii Assignment of personal rights e g assignment to marry someone else Assign their country club membership to your friend iv Prohibited by law 3 Delegations Delegator delegatee Obligee a A transfer of duties to do something under a contract Occur after the contract is formed but before completely performed limo driver breaks leg ask another limo driver friend to drive limousine for someone b Unless there is a novation contract among the parties in which the obligee agrees to substitute performance of delegatee for the delegator in a delegation transfer of duty to do something under a contract the delegator and the delegatee are liableresponsible for performance 4 General prohibition of assignments or transfers in a contract does not prohibit assignments it only prohibits delegations Chapter 17 Performance Conditional Contracts obligation or duty to perform only arises if a condition is met 1 Satisfaction Contract I will perform if I am satisfied a Two groups of satisfaction contracts i Subjective taste opinion sensibility art employment food music Standard9 Has to prove honesty in good faith ii Objective Mechanical Utility e g dishwasher bolts irons etc Standard9Would a reasonable person be satisfied 2 Adequate Performance of a Contract a Common Law i Substantial performance is OK it does not excuse the other party s performance Breach 9 allows damages but other party still has to pay e g brown suit black buttons needs brown buttons so person who is buying suit still has to pay and the seller has to give money to replace buttons ii Material breach 9 the other party s performance is wrong 44 XXL instead of 34 M and they get a right to damages Innocent party does not have to pay at all and damages are rewarded b UCC i Perfect Tender Rule 9 Anything less than perfect is a material breach Innocent party has an excuse not to pay or perform Can get damages for the difference between the products 3 Anticipatory Repudiation9 they can wait to see if someone will perform or sue at that time when the person says they are not going to perform 4 Objective Impossibility subjective impossibility is no excuse a No one could perform then the performance is excused i Subject matter of contract destroyed through no fault ii Death or incapacity personal service iii Subject matter illegality 5 Frustration of Purpose 9 have to have these four elements to excuse performance a Entire purpose of the contract was frustrated b Not the party s fault that the nonoccurrence to take place c Goes to a basic assumption d Neither party assumed the risk of nonoccurrence 6 Commercial Impracticability a Unforeseen unjust hardship makes the performance outrageously expensive and difficult andor dangerous b Not the party s fault that the nonoccurrence to take place c Goes to a basic assumption d Neither party assumed the risk of nonoccurrence Chapter 18 Remedies 1 Contract Remedies a Legal Remedies damages i Expectation Interest make the innocent party whole Deliver benefit of bargain NOT to punishment b Theory of Efficient Breach i Foreseeable to the breaching party at the time the contract is made the widget is used for an underlying reason but doesn t tell the other party they are not liable for that damage ii Calculable able to be made certain iii Damages have to be mitigated made less by the innocent party Formula Loss of Value Cost Avoided or Mitigated Incidental Damages traveling cost bus fare Consequential Damages only if they are foreseeable iv Innocent party must cover under the UCC c ClauseTermProvision in a Contract i If there is a breach the nonbreaching party is entitled to damages is in the amount of ii RULE Liquidated Damages provisions are enforced 1 Not a penalty unreasonable amount of money 2 Have a reasonable relationship to the actual contract d Specific Performance Party is ordered to perform i Under equitable contract Only when damages are insufficient ii LandReal Estate House sale etc iii Unique goods Antiques art one of a kind things NEVER regular goods or personal services Chapter 21 Sale of Goods UCC 1 Title Rightful Ownership a The Rule A seller with good title transfers good title A seller with void title transfers void title So if goods are stolen no one down the chain of sale gets a good title b Exception for voidable title Voidable title results from a voluntary transfer that was marred by mutual mistake of fact duress by threat fraud undue in uence or dealing with a minor The Rule A good faith purchaser for value acquire good title when the person who sold him the goods had voidable title So the GFP for V can keep the goods Ex minor sells to a buyer a voidable contract who then sells it to a GFP of V GFP of V can keep the goods c Mutual mistakes of fact render a salecontract voidable 2 Entrustment a The Rule A merchant who is entrusted with goods has the power to transfer title in those goods to a buyer in the ordinary course of business BITOCOB even if he does so mistakenly and the rightful owner does not authorize the sale Ex the merchant mistakenly sells an item to a BITOCOB then the BITOCOB can keep the item b Exception If the person entrusting the goods is a thief or got the goods from a thief the Entrustment Rule does not protect the BITOCOB and the rightful owner reclaim the goods Ex Bernie owns a Rolex 9 tom steals watch 9 tom feels remorseful and gives it to church 9 Church gives it to mark who gives it to entrustment merchant Majors Jewelers 9 sells it to parker a BITOCOB Bernie can get the Rolex back 3 Risk of Loss a Shipment Contract Risk of loss passes upon delivery to carrier b Destination Contract Risk of Loss passes upon delivery to address provided c Buyer PickUp from a Merchant Seller Risk of loss passes when buyer takes possession of the goods d Buyer PickUp from a nonMerchant Risk of loss passes upon tender made available to buyer of the goods Chapter 22 Warranties 1 Warranties a Express Warranty words specifications 2 Implied Warrantyof Merchantability unspoken unwritten arise automatically Reasonably t for ordinary purposes of fair or average quality Can sue for breach of warranty E g toaster doesn t toast 3 Implied Warranty of Fitness for a Particular Purpose a Any seller does not have to be a merchant can make this warranty b But only arises if i Seller knew or had a reason to know the buyer had a particular purpose for goods ii Seller knows buyer is relying on the seller s expertise 4 Product Liability a Strict Liability Tort 6 elements i Merchant sellers are strictly liable for personal injuries and property damage that result from the sale of products that are defective and unreasonably dangerous ii Harm iii Defect had to exist when left the manufacture s hands iv Cause 9 meaning defect caused harm b Defective Condition Defect i Manufacturing Defect not made according to specifications or Design Defect the design is hazardous 1 Defense If design is state of the art defect if non safer product is on the market then no court will find manufacture liable c E g L tryptophan case an amino acid dietary supplement People got sickdied and harm struck All the L tryptophan were traced back to Showa Denko a Japanese manufacture The case Merchant Showa Denko was in the business of selling LT Defect probably a design defect problems arose when manufacturing process was changed Unreasonably Dangerous in normal doses caused EMS When it left hands of manufacture all traced back to SD Harm illness death Causation proven by epidemiological evidence
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