Business Law 212 Final Exam study guide
Business Law 212 Final Exam study guide BSL 212 w/ Turner
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This 22 page Study Guide was uploaded by YALIN ZHANG on Monday February 2, 2015. The Study Guide belongs to BSL 212 w/ Turner at University of Miami taught by Ms. Karen Turner in Fall2014. Since its upload, it has received 607 views.
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Date Created: 02/02/15
Business Law Final Exam Study Guide CH 3 Jurisdiction the power of a court to hear and decide a given case A State Court 1 Subject matter Jurisdiction specifically authorized 2 Personal Jurisdiction or In REM J ur a Defendant voluntarily subjects themselves i Forum selection clause ii or iii Defendant fails to challenge court s personal jurisdiction 0139 b Defendant is a resident of the state i Corporation state of Incorp And principle place of Business or c defendant is served With process in the state physical present in the state or d Specific Jurisdiction Tort or e General Jurisdiction defendant has sufficient minimum contacts With the state 3 Federal Jurisdiction a Exclusive Bankruptcy Copyright Federal Crime b Concurrent state court has power as Federal court does i Federal Question J ur ii Diversity Jur A resident or citizen of one state sues a citizenresident from another state AND the money gt75K Ethic Chapter identify two or three different theories to apply on the business case to determine Who to make the decision based on the different theories CH 9 Alternative Theories of Recovery 1 Quasi K 2 Presents unjust enrichment 3 Elements a Plaintiff conferred a Benefit on the defendant AND b Defendant knowingly accepted a benefit AND c Unfair for defendant not to pay 4 Result Defendant pays reasonable value of benefit A Promissory Estoppel 1 Protects Reasonable Reliance 2 Elements a Promisor Defendant makes a promise AND b Promisor should expect Promisee will act in reliance AND c Promisee acts in Reasonable reliance AND d Promisee suffers a detriments 3 Result Defendant pays Reliance Damages B Sources of K A Common Law Real Estate and Services B UCC Domestic Sale of Goods C CISG Internationa1 Sale of Goods CH 10 Offer 1 Offer A Elements 1 Offeror objectively intended to enter a K AND 2 Definite or Reasonably certain as to the Material Terms Parties subject matter consideration quantity AND 3 Communication B Specific Offer Rules 1 Ads are not offers Unless highly specific regarding nature number of goodsservices What offeree must do to accept a Rewards Satisfy exception C Duration Termination of offers a 0139 b Expiration i Terms of offer ii Reasonable Time Revocation i General Rule offeror can revoke their offer any time prior to acceptance Defendant Effective upon receipt 1 Except offers to General Public ii Exceptions A Option offeree pays offeror to keep offer open B UCC Firm Offer Goods K Will revoke after 3mons 90 days i The offer made by a merchant AND ii Written signed AND iii Offers states it Will be hold an open C CISG i Offer indicates it Will be held open ii Offeree acted in reasonable reliance on offer being open D Offer to enter a Unilateral K 1 Once offeree begins Offer is irrevocable for a reasonable amount of time E Promissory Estoppel 1 Promisor made a promise 2 Promisor should expect promisee will act in reliance 3 Promisee acts in reasonable reliance 4 Promisee suffers a detriments 3 Rejection 4 Counter offer Once it countered the previse offer is off 5 Death Terminate 6 Destruction Terminate 7 Subsequent Illegality Terminate II Acceptance A Elements 1 Offeree objectively intended to enter a K AND 2 On the terms of the offer a Common LaW Mirror Imagine Rule material terms Real Estate Services b UCC Battle of the Forms domestic Sale of goods 1 Is there a K Definite Timely expression of acceptance creates a binding K even if it adds or change the offer Unless Acceptance is expressly conditioned on the offeror agreeing to the additionschanges eg clearly say the K is effective only if the offeror agree the conditions 2 What are the terms of the K A Unless both parties are merchants terms of K terms of offer B If both parties are merchants 1 Changed terms are not automatically included in the K 2 Additional terms are automatically included Unless a The offeror objects to the additional terms or b original offer limited Acceptance to its terms C CISG Battle of the Forms 1 Definite timely expression of acceptance creates a binding K even if it adds changes terms Unless a Acceptance is expressly conditioned on offeror agreeing to the additional changes Or b Offeror objects to additions changes Or c Offer limited acceptance Or d Additions changes are material 111 Communication A Method i Offeror is the master of their offer Or ii Reasonable method B When effective i Offeror is the master of their offeracceptance is effective When offeror received Or ii Mail Box Rule Domestic Timely acceptance Which is property dispatched via stipulated reasonable method is effective upon dispatch Or iii CISG acceptance effective When received C Silence is not Acceptance Unless 1 Offeree imposes the duty to response Communicate With the offeor says the duty Eg I Will response you on Friday 2 Course of dealing CH 11 Duress Fraud Misrepresent I Duress wrongful coercion A Physical Duress Void Agreement B Business Social Economic Duress Voidable K 1 Improper Threat a To commit crime tort Or b to File criminal charges Or c to breach a K AND 2 No Reasonable Alternative II Undue In uence wrongful persuasion A Relationship Fiduciary parents business partners shareholders lawyer and client Dependence housekeeper AND B Unfair Persuasion III Misrepresentation represent about a fact that isn t true A Innocent or Fraudulent B Elements 1 Untrue Assertion of Fact Past of Existing Fact NOT include prediction a Affirmative Statements Or b Concealment hiding Or c Non Disclosure if i Fiduciary Relationship Or ii Failure to old likely cause deathserious injury Or iii Hidden Defects which Materially affect the value AND 2 Fact was Material a Important to any reasonable person Or b Party making assertion knew it would be important AND 3 Actual Justifiable Reliance IV Mistake A Mutual 1 Basic Assumption past existing fact Identity quantities existence AND 2 Material effect on Agreed upon Exchange If value is about the same it cannot be cancel AND 3 Party seeking to cancel did not bear the risk of the mistake a As is If you offer a car for sell let the buyer check and give an offer price buyer might be a better price b Conscious Awareness you don t know all the fact Party bear risk can t cancel B Unilateral 1 Basic Assumption AND 2 Material Effect AND 3 Party seeking to cancel did not bear the risk of the mistake AND 4 a Non mistaken party caused or knew of the mistake b Unduly harsh to enforce the K eg if the K harsh the mistake party to have bankruptcy CH 12 Consideration Something Legal Sufficient Which was Bargained for and given in exchange for promise A Legal Sufficiency l Promisee promises to do or does something they had no prior duty to do ask the promisee do sth Or 2 Promisee promises not to or refrains from doing something they have the right to do give up promisee s right not to do sth B Courts don t care about Adequacy of Consideration courts don t care what the promisor asked for It is what it is C Illusory promises are not consideration 1 Unlimited right to cancel a K makes that party s promisee illusory a Any limitation on the right to cancel saves promises from being illusory payment circumstances inotice time 2 Promise is not illusory even though it may not be absolute or may be somewhat unclear a Output Ks Requirement Ks are enforceable 1 one party resell their output to another party 2 One party agrees to buy all their products they needed from another party i Parties must continue to producepurchase a quantity not unreasonable disproportion requirement for similar period b Conditional Ks are enforceable i Duty of Good Faith requires best efforts to make condition occur D Pre Existing Obligations public duty provide duty 1 K Modification a Common Law Real Estate and Services Modification must be supported by new consideration new K has to have exchange i Exception Unforeseeable Extraordinary Circumstances b UCC CISG No consideration required to support a modification Unless B ad Faith find the fact to support 2 Debt Settlement Agreements DSA a Undisputed Debt i DSA must supported by new consideration b Disputed Debt i DSA is always enforceable E Past Consideration is not consideration F Exceptions to Consideration Requirements UCC CISG PP Pi Firm Offer UCCCISG K modification Public Policy Charitable subscription Promissory Estoppel 1 2 3 4 Promisor made promises Promisor expect promisee will act in reliance Promisee acts in Reasonable Reliance Promisee suffers detriments CH 13 Illegality I A II 1 AND Agreements that Violate Statues Specifically declared Unenforceable by statutes Usury Statutes Violates Public Policy behind a statute Are agreements With unlicensed parties enforceable No not enforceable Regulatory licensing law i Purpose Protect public ii Requirements Fee Substantive tests education training experience Revenue Raising Licensing Law Yes it s enforceable i Purpose raise for government ii Requirements fee procedural eg fish licensing raise money to protect ocean eg Occupational License Agreements that Violate Public Policy A Agreements not to compete Are enforceable if 1 Must protect a legitimate property interest 2 Must be reasonable in area timescope AND Depends on the fact blueline enforce 3 No Undue Hardship B Exculpatory Agreements relieves a party from tort liability 1 9 Cannot relieve liability for Reckless or Intentional Reckless serious Negligence medium Intentional on purpose Cannot relieve liability of a party performing an essential public service Common Carries airline rail roads Show the reckless or Intentional Doctors hospitals Cannot relieve liability by statute Must be knowingly Voluntarily entered into C Unconscionable Ks Procedural Unconscionability B argaining power Fine print High pressure Legalistic Language Choice Hidden terms AND 2 Substantive Unconscionability unfair treatment CH 14 Capacity Voidable Disaffirm Ratify I Minor s Ks 18 A Right to Disaffirm 1 Explicitly or Implicitly 2 Prior to Reasonable time after 18 B Ratification 1 Only after 18 2 Explicitly Implicitly Waiting too long C Duties Upon Disaffirmance 1 Future obligations are cancelled 2 Adult s Duty Put minor in position they were prior to the K give back everything minor had paid or given 3 Minor s Duty a Traditional Rule Return consideration in its current condition only need to return the product Exception Minor must pay reasonable value of any Necessaries received 1 Essential for existence welfare And 2 Parent Guardian unwilling or unable to provide or b Modern Rule return consideration and pay for use depreciation return the product pay for the used D Effect of Misrepresentation of Age 1 Traditional Rule No effect 2 Modern Rule If K is fair Reasonable to believe Minor is 18 They can t cancel II Mental Incapacity A Declared Mentally Incompetent by a court Subsequent Ks are void B Unable to understand nature effect of transaction Voidable K 1 Right Disaffirm 2 Ratification 3 Duties Upon Disaffirmance a Future obligation cancelled b Capacitated party CP Adult s Duty give back the money c Incapacitated Party i If CP knewhad reason to know return consideration in current ii If CP did not know have reason to know return the consideration pay use depreciation III Intoxication A Unable to understand nature effect of the transaction AND B other party lnew pr had reason to know AND C must be able to put other party in position they were before the k have to have the original product to return CH 15 Ks in writing I Statue of Frauds SOF no sof under CISG minimize the other party lies on the Ks Executory Ks A Ks Covered by SOF if its not evidence by writing its not enforceable 1 0139 9 Collateral K one party agrees to pay a debt that a 2rld party owes to a 3rd party if the 2rld party fail to pay 3nd party agree to pay for the 2nd party Has to be in writing a Exception Main Purpose Rule If the main purpose is benefit themselves it not covered by statue of Frauds It will be enforceable K to buy or sell Real Estate Has to be in writing a Exception need to prove the verbal K firstly i Seller s full performance ii Buyer s Full Partial performance payment AND Action in clear Reliance A substantial Improvements improve the property pain the house or B Took Possession buyer moveon with seller s permission PreNuptial Agreement One year Provision Ks that cannot be fully performed within a year of formation a Once one party fully performs SOF no longer applies b Possibility Test the agreement its possible to perform within a year i Ks for indefinite period of time are not covered c Ks for definite period of time might be covered i Definite time period gt 1 year covered ii lt 1 year might be covered A Computation of Time 1 compare date of formation to date will be fully performedgt 1 year covered 5 Ks for sale of Goods 500 or more B Compliance with SOF 1 Writing Requirement writing evidence a Written Memorandum in writing email paper i indicates agreements was made explicit or implicit AND ii Contains material terms parties subject matters quantity AND iii signed by party against whom agreement is being enforced email sign b Combination of Documents t i if documents clearly relate to each other the same deal 2 Additional Ways of Satifying SOF under UCC Ks for sale of goods gt 500 have to prove verbal agreement firstly a confirmatory Memorandum between merchants within reasonable time One merchant sends a confirmatory Memo to the other merchant who does not object within 10 days of receipt enforceable against recipient b Specially Manufactured Goods make for the particular buyers enforceable once seller has make a substantial beginning II Parol Evidence Rule A PE prior or contemporaneous statements not contain in a written K B PER PE is not admissible to add to alter or contradict the terms the terms of a written K that qualifies as a integration intended as a full Final statement 1 Merger Integration Clause This is it there is nothing else or 2 Highly Detailed C Situations to PER does not apply 1 No Integration Partial Integration 2 Subsequent Statement 3 Ambiguity unclearly confusing eVidence being introduced 4 To establish a defense to enforceability the K is not enforceable void 5Clerical Errors print error CH 16 Third Parties I Transfer K Rights or Duties A Assignment transfer of K right 1 Terms obligor owes a duty oblige has a right to oligor s performance assignor party who transfer right Assignee 3rd party to whom a right is transferred 2 All rights can be Assigned Unless a Materially increase the risks duties or bordens of obligor Or b Personal K based on a personal relationship or a unique skill judgment characteristic of oblige training tutor Or c Explicitly Specific Anti Assignment Clause under the common Lawreal estate and serVices Or d Prohibited by law 3 Rights of Assignee a Steps into shoes of Assignor 4 Assignor s Liability a Implied warrantly If Assignment is supported by consideration Assignor implicitly warrants that K With obligor is enforceable Or b Express Warrantly Assignor warrants that if obligor doesn t pay Assignor Will pay 5 Importance of Notifying Obligor a if obligor performs a K before receiving notice they have no liability to the assignee 6 Successive Assignment Assignor assign the same assignment to more than one assignee a Majority American Rule 1St in time 1st in right b Minority Rule 1st to give notice B Delegation transfer of K Duty payment 1 Terms Delegator Delegatee 2 All Duties can be transferred Unless a Anti Transfer or Delegation Clause UCC or Common Law or b Personal K obligee has a substantial interest in having obligor service artist skill 3 Effect of Delegation a Delegatee s liability is triggered by their Assumption of Duties b Delegator remains liability Until Delegatee performs Unless obligee gave a Novation I obligee release delegator substitues delegate in their place II 3rd Party Benefitiaries 3rd PB A Incidental 3rd Bs do not have right under a K B Intended 3rd Bs do have right under a K 1 Parties Promisee entered a K With specific intent of benefiting the 3rd party named performance rendered to 3rd party 2 Subject to defense promisor has If Mary sue Ben if Ben has defense can against Mary 3 Rights against promisee a Donor 3rd PB NO gift b Creditor 3rd PB yes owes support by consideration CH 17 Discharge duties I Unconditional vs Conditional Duties A Unconditional Duty Absolute B Conditional Duty Depends on something else Failure of condition is a defense 1 Condition Precedent Future event the occurrence of Which gives rise to a duty to perform a Express Condition Precedent of Personal Satisfaction one party s duty is satisfied When another party performs duty i objective test A Reasonable person B Mechanical fitness suitable for a purpose ii subjective test A Actual Person B Taste aesthetics comfort opinion 2 Concurrent Condition 3 Condition Subsequent Future event the occurrence of Which discharges a duty to performance Occurrence of condition defense 4 Express or Implied II Must literally completely occurred Discharge of K Duties A By performance or Tender B By Agreements Always get it in writing 1Mutual Recission 2 Substituted K explicitly cancels takes the place of a prior K 3 Novation 4 Accord Satisfaction Debt Settlement Agreement C By operation Law 1 Impossibilityobjective a Death of Promisor under Personal SerVices K Specific serVice the personal serVice discharges b Subsequent Illegality c Destruction of subject matter under the Common LaWReal Estate d Commerical Impraticability Impediments Beyond Control i Unforeseeable Extraordinary Event AND ii Performance is rendered extremely difficult harsh 2 Statues of Limitation time limited 3 Bankruptcy D By other Party s Material Breach 1 Non Material Breach does not discharge K duties party Who breach first a substantial performance under the Common LaWReal Estate and SerVices b Failure to perfume on time can t discharge Unless i Time is of the Essence Explicit or Implicit If time is the key Or ii Delay is unreasonable 2 Material Breach does discharge K duties a Failure to substantial Performance Under the Common LaWReal Estate and SerVices b Failure to perform on time if i Time is of the Essence Explicit or Implicit If time is the key Or ii Delay is unreasonable c Any substantial defect under UCCsale of goods d Anticipatory Repudiation Breach 2 e Substantial Interference with prevention of performance CH 18 K Remedies plaintiff wins 1 Monetary Damages Legal Remedies A Compensatory Damages give Plaintiff benefit of the bargain 1 Loss of Value different between K price market pricevalue Economic Loss 2 Incidental Damages cuts associated with obtaining substitute performance 3 Consequential Damages the defendant breach the K caused consequential damages a Must be Foreseeable i breacher knew had reason to know that if they breached non breacher would suffer these special damages b can be limited by K B Reliance Damages costs losses incurred prior to breach in reliance on K Nominal Damages Punitive Damages Limitations on Award of Monetary Damages 1 Must be Foreseeable 2 Must be Proven with Reasonable Certainty a can t recover Speculative losses F Liquidated Damages If the mall doesn t open pay me 500 per day 1 Must be reasonably relate to what actual losses might have been F100 11 Equitable Remedies A Specific Performance court orders defendant to perform subject matter must be unique 1 Real Estate presumed unique 2 Goods must be proven unique 3 Not for Personal Services B Injunction orders defendant not to do something 1 show irreparable harm will occur eg stop opening restaurant stop corporation C Reformation rewrite the K rewrites K eg blue penciling CH 21 TitleT and Risk of Loss ROL under the UCC I Passage of Title Risk of Loss A Dictated by Parties K 1 Explicit Stipulation 2 No Explicit Stipulation a Shipment L T ROL pass when goods are delivered to the carries 3rd party UPS Fedx i Shipment K or ii FOB seller s location Free on Board b Destination Delivery K i Destination Delivery T ROL pass when goods are delivered to B ii FOB buyer s Location c Buyer will pick up Goods from seller i Title A When document of T properly transferred Legal document no matter where the goods are or B Seller s responsibilities completed packed separate Buyer s own the title ii ROL A Merchant seller when goods pick up B Non merchant when goods tendered Seller s tendered eg you can come pick up the goods seller has ROL until they tendered after tendered no more ROL B Conditional Ks 1 Sale on Approval a TROL pass when Buyer accepts i Explicit or Implicit 2 Sale or Return K a TROL pass when Buyer receives the goods 11 Power to transfer Tittle A Types of Title 1 Good Title absolute ownership 2 Voidable Title buy from Minor or misrepresentation 3 Void Title stolen goods B Buyer gets no better title than what seller had Void Title Void 1 Seller had voidable title can pass good title to a Good Faith Purchaser for Value 2 Entrustment Rule if owner entrusts possession of goods to a Merchant merchant can pass good title to a GOOD FAITH purchaser for VALUE Owner vs Purchaser Purchaser Win law protected
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