Final Exam Study Guide
Final Exam Study Guide BSL 212
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This 15 page Study Guide was uploaded by Blair O'Brien on Monday February 2, 2015. The Study Guide belongs to BSL 212 at University of Miami taught by Glen Waldman in Fall2014. Since its upload, it has received 176 views. For similar materials see Introduction to Business Law in Business Law at University of Miami.
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Date Created: 02/02/15
Chapter 1 Intro to Business Law Types of Law Law Procedural Law Substantive Law Public Law Private Law Constitutional Law Torts Agency Criminal Law Contracts Partnerships Administrative Law Sales Corporations Commercial Paper Property Trial Level 0 Plaintiff person who is suing someone pi symbol 0 Defendant person who gets sued triangle 0 Plainti v Defendant Appelate Level 0 Appellant person who is doing the appealing o Appelle the other person 0 Appellant v Appelle Trial Level gt Appelate Court gt Florida Supreme Court gt US Supreme Court Sources of Law 1 US Federal Constitution 2 State Constitution In our Supreme Court 0 9 Supreme Court Justices 1 Chief Justice John Roberts and 8 Supreme Court Justices Our judicial system is an adversarial system you have to do all the questioning and do all the work to find witnesses etc Common Law case lawjudgement law Staris Decisis looking at previous cases with similar facts on similar grounds so you can look at what the possible outcomes will be 0 Almost always looking for Equity let39s do what39s fairright sometimes money isn39t enough 0 Speci c Performance give me the painting give me the cow etc 0 To Stop Something From Happening get an injunction seX lotion story 0 Looking for someone to have to do something or stop doing something you want justice Criminal Case 0 In a criminal case who is the plantiff the state 0 What is the burden of proof in a criminal case Beyond reasonable doubt has to be 100 no doubt at all The state must prove 100 that they did it 0 You are talking about someones liberty so it makes sense that you have to prove without a doubt Civil Case 0 Greater weight of the evidence have to have more that 50 Our civil system deals with cases of equity and common law which was not the case back in the day Kinds of Law 0 Case Law 0 Legislative Law our Senators Congressmen all of our basic laws either come from the US Senate Federal or State Senate 0 Uniform Commerical Code UCC a uniform code for all of the states where it provides you with rules in how people are going to transact business Treaties our President enters into with other countries Executive Orders orders written by the President of the United States the President has the right to pardon people quotget out of jail free passquot eX Gerald Ford pardoned Richard Nixon Vietnam War a lot of people went to Canada so that they could avoid the draft they were criminals when Jimmy Carter became President he pardoned all of those people 0 Administrative Law eX when you want to go get a Passport it tells you what you need to bring to get itbe eligible for itetc Court System Federal m Highest Level US Supreme Court 3rd Level US District Court of Appeal Florida Supreme Court 2nd Level Federal Trial Courts District Courts of Appeal 1st Level Trial Court Chapter 3 Civil Dispute Resolution Midiatrion Arbitration Jurisdiction Diversity Chapter 6 Individual Factors Moral Philosophies and Values 1 Teleology morally rightacceptable O Stipulates that acts are morally right or acceptable if they produce some desired result such as realization of selfinterest or utility 2 Egoism rights actions that maximize a person s selfinterest as de ned by an individual 0 De nes right or acceptable actions as those that maximize a particular person s selfinterest as de ned by the individual 3 Utilitarian greatest good for greatest amount 0 De nes right or acceptable actions as those that maximize total utility or the greatest good for the greatest number of people 4 Deontology preservation of individual rights and intentions rather than consequences 0 Focuses on the preservation of individual rights and on the intentions associated with a particular behavior rather than on its consequences 5 Relativist evaluates ethicalness on basis of individual or group experiences 0 Evaluates ethicalness subjectively on the basis of individual and group experiences 6 Virtue Ethics What a mature person with a good moral character would deem appropriate 0 Assumes that What is moral in a given situation is not only What conventional morality requires but also What the mature person with a good moral character would deem appropriate 7 Justice basis of fairness gt distributive procedural and interactional O Evaluates ethicalness on the basis of fairness distributive procedural and interactional Chapter 9 Introduction to Contracts gt quot Know Article 2 Commercial Code Sale of Goods Contract a binding agreement that the courts will enforce Forms of Contracts Can be on a napkin Can be multiple pages long Oral contracts Certain contracts must be in writing 4 Requirements for a Contract 1 Mutual Assent both parties have to agree either by words or actions you have to manifest say or do by words or conduct that you enter into a contract Ex quotpaint my house for 50quot responds quotokquot BUZZWORDS offer and acceptance 2 Consideration there has to be something that each side gets one side gets something the other side gives something money is typically a consideration if theres nothing going both ways you don39t have consideration 3 Legality contract has to be legal can39t make a contract about something that39s not legal ie killing drugs etc 4 Capacity both parties have to have capacity if you can prove that you39re shitfacedlegally declared insane then you don39t have the capacityabilityauthority to enter into a contract Expressed Contracts when something is done expresslyquotyes I39ll paint your housequotsome af rmative act that says you39re going to do it BY WORDS Implied Contracts by conductthe way he she acts BY CONDUCT Bilateral Contracts both parties have duties ex if you help me study for the test I39ll give you 50 Unilateral Contracts one party has duties Valid Contracts Void Contracts something that is not valid because it39s illegal has no force or affect Voidable Contracts one of the parties can void the contract Unenforceable Contracts statute of limitations none for murder lawsuit has to be filed within that time in Florida you have 5 years to sue for breach of contract for written contracts Car Accidents 4 years statute of limitation Malpractice on Lawyers 2 years statute of limitation Medical Malpractice 1 year statute of limitation Statute of Frauds if a contract is going to be over a year it has to be in writing Executed Contracts they39re over finished though he paints your house you pay him done Executory Contracts a contract that is still going Promissory Estoppel baseball example Quasi Contract unjust enrichment Chapter 10 Mutual Assent BUZZWORDS Offer details Acceptance Termination of Contract the issue Application Offer Needs 0 Reasonable Standard if you communicate an offer and it doesn39t seem ridiculousit seems real the court will look at it to see quotwhat the reasonable manwoman would doquot does it reasonably seem that the offer was reasonable 0 Objective what the reasonable person from afar would think 0 Subjective what you think Must Include 0 Communication of the offer 0 Single intent to enter into a contract 0 De niteness and certainty Parties Subject Matter Price Quantity Quality Time of Performance Duration Termination of Offer 0 Lapse of TIme O Revocation o Reject O CounterOffer gt change in the terms that becomes the new offer constitutes for rejection of the original offer DeathIncompetencies Destruction of Subject Matter 0 Contract becomes Illegal A proposal does NOT constitute an offer If you want my computer give me an offer not an offer just a proposal what do you think about buying my house for 100000 gt just a proposal NOT an offer quotI mightquot gt not an offer Advertisements quotcome on into so and so Toyota and we39ll buy any junk car forquot blah blah blah gt these are offers to make an offer gt NOT something you can hold them to Unless they are quotwe have 3 toyota camery39s VIN they must go nowquot then yes this is an offer Called quotBate and Switchquot Acceptance It may be in any format unless speci ed ex you must respond by email you then cannot accept by just saying quotI acceptquot or sending and signing a letter you must accept in that format gt quot It is only good When it is recieved by the offeror gt if I am selling a bail of weed to Megan and then she sends the letter accepting it it comes to me on Friday but on the Thursday night before I received the letter 1 email her saying NVM then it is revoked and it is a void offer Huge dij rence between MA Y and SHALL MAY quotyou may accept by emailquot that means it is just one of the ways you can accept SHALLMUST quotyou shall accept it by notarized letterquot that means you have no Wiggle room you have to send it that exact way Conditional Acceptance quotI will accept you offer if I also get your other red tiequot counter offer that doesn39t perfectly mirror the original offer Chapter 11 Conduct in Validating Assent 5 Situations Where it is NOT Binding 1 Duress 0 Physical Compulsion O Improper Threat gt Explicit or Conduct Undue In uence Fraud Negligent Misrepresentation NonFraudulent 9599 Mistake gt When you put in the contract that you put in the offer that you ll do it for 1000 When you meant 100000 gt you can take it back if you can prove o Bilateral O Unilateral Chapter 12 Consideration 1 Legally Sufficient O Detriment and Benefit 2 Bargain for Exchange 0 Offer and Acceptance 3 Adequacy Illusory Promise gt I want I wish I desire Conditional Promise gt IF PreExisting Obligations Third Parties Promissory Estoppel gt relying on something 0 When you don t have all of the elements for a breach of contract claim 0 The person made a promise typically without consideration and as a result of that you relied upon them and then didn t follow through Ex The guy was going to buy the twinshe was gonna sue then they said don t sue the next time a team is available you can get it 4 years later when they next team was for sale he didn t get to buy it and he tried to sue but since there was no contract he sued on the fact of promissory estoppel and he got damages Ex I m renting from someone and I m behind in my rent and they say don t worry I won t kick you out for 6 months then you go and buy new curtains and paint some and then they kick you out 2 months later gt you can sue on the basis of promissory estoppel for money damages Chapter 13 Illegal Bargains They are UNENFORCEABLE 1 9 89 Violation of Statutes ex gambling 2 Bribery it s illegal 3 4 Usury Statutes ex interest rates Licensing Statutes ex hiring a General Contractor who doesn t have their license 0 Judge can do one of 3 things i 1 gt Wipe out the debt ii 2 gt They can say no interest iii 3 gt Reduce interest rate to highest allowed by law Violation of Public Policy ex noncompete Exculpatory Clause ex skydiving Unconscionable Contracts ex hurricane Tort Contracts ex stage an accident Chapter 14 Contractual Capacity 1 2 Minors 18 except in Alabama it is 19 Incompetent Persons insane 0 They need to be able to UNDERSTAND and APPRECIATE the consequences of what they re doing 3 Intoxicated People Drunks and Druggies o Disaffirm Immediately BUZZWORDS o Disaffirmation I don t want to anymore 0 Rati cation doing something to indicate you accept the contract 0 1 gt Express Language I agree to do this 0 2 gt Implied by Conduct ex cashing a check 0 3 gt Lapse in Time 1 year Chapter 15 Contracts in Writing Applications of the Statute of Frauds 1 Answer for the Duty of Another like a guarantor a EXCEPTION Main Purpose Rule 2 Executor Administrator Provision has to do with wills U Marriage Provision must be consideration 4 Land Contract Provision all real estate contracts MUST be in writing a EXCEPTION if you partially paid and done something to improve on the land then an oral contract can be enforced 5 One Year Provision a Is it possible to be performed within one year b Time computation starts when the contract is entered into ON QUIZ gt If both parties fully performed then the Statute of Frauds doesn t get you out of the contract d Contracts that are not in writing have to be able to be performed in one year or less If they can t be performed in a year or less it MUST BE IN WRITING if it isn t then it is not a valid contract 6 Promissory Estoppel What you agree to in writing is what the parties agree to gt if it is in writing that is supposed to be the nal expression of what you agree to Parol Evidence Rule is in place to stop people from bringing in a testimony saying I didn t mean that 0 If you have a clear written contract the courts prevent people from bringing testaments of what they wanted the contract to mean 0 Prohibits evidence of prior negotiations or contemporist negotiations 0 Oral negotiations at the time you sign it or something before if it s in writing you are stuck to what is in the contract on it s face 0 Integration Clause means this is the nal agreement there are no changes to be made Situations where you can get around the Parol Evidence Rule not to vary the terms but to understand why the person shouldn t be bound by this 1 Partially written partially oral gt where you write in the written agreement that there is some oral agreements as well 2 Clerical or typographical error 3 Lack of Contractual Capacity gt whether the person would be allowed tohad the capacity ability to enter the contract 4 Fraudulent MisrepresentationFraudDuressUndue In uenceetc can all go in gt these types of situations courts will typically allow the evidence to come in and give a testimony O Saying I did this because I was told that bushell example 5 Condition Proceedings gt if I get into UM then I will purchase your books 6 Subsequent Modi cation gt if you agreed to a modi cation after the contract even if it is done orally the contract overrides the previous contract 7 gt quotquotM Ambiguous Terms gt that is the situation where the court will allow oral testimony to determine what the hell it is that you agreed to 0 Ex Last Will and Testament of Milton Grant 0 pg 295 gt an entire list of situations where testimonies are allowed when we re talking about ambiguous contracts Chapter 16 Third Parties to Contracts 1 Assignment of Rights 0 Assignor person who under a contract has something coming to them 0 Assignee gets bene ts of the assignment 0 Does not need consideration 0 If there is NOT consideration given you CAN revoke the assignment IF no performance has begun When Rights Are N OT Assignable o Materially increases risk to obligor 0 Highly Personal 0 If expressly prohibited 0 Prohibited by law 2 Delegation of Duties O Obligor owes duties 0 Obligee duties owed to 0000 0 Can t delegate personal or unique duties Can t if there is any material difference NOVATION gt original obligor isn t responsible anymore Delegator Delegatee 3 Express Terms of a Contract to the 3rd Party 0 Third Party Bene ciaries i Contract itself promises that performance Will be rendered to a third party ii Only INTENDED beneficiaries get rights under contract incidental beneficiaries do not 0 Types of 3rd Party Beneficiaries i Donee Beneficiaries ii Creditor Beneficiaries Ex Julian owes 100k to Glen for his house Julian Oligor Glen Obligee Glen enters into an agreement with Neil that he will pay Glen 50k today and then Glen is the assignor Neil is the assignee Neil will now receive the I 00k from Julian over I 0 years Julian is still the obligor but now Neil is the obligee Then Julian delegates it to Gabriella Julian Delegator Gab Delegatee If Gab runs o to Brazil her and Julian are both still on the hook to pay Neil back unless NOVATION was signed Chapter 17 Conditions Express Conditions explicitly set forth in the contract typically have to be fully performed before the duty to do something occurs Ex 1 I Will buy your house if you qualify for financing in 30 days Ex 2 You have to pay me before I give you my house If that doesn t happen you don t have to give them your house 1 Has to be done to the satisfaction of one of the parties in good faith 2 If it says it has to be good workqualityetc gt it is an objective standard 3 To the satisfaction of the third party ex construction contract Implied Condition not in the contract just implied 1 Implied in Fact ex gt his custom suit example 2 Implied in Law a Ex 1 gt I Will buy a dog for 1000 so at some point I Will have to show up and do the deal b Ex 2 gt I say I ll cut your grass but I wait until the 1st snowthat isn t right It is implied in laW that you would cut the grass before it snows Conditions Preceding an event that must occur before the deal can happen 0 EX gt I will buy your house if I qualify for mortgage 30 days beforehand no one has to do anything until I do that 0 Typically express conditions Conditions Subsequent a situation where you have a 30 day money back guarantee gt doesn t happen very often 0 EX you pay the money upfront if you decide in 30 days you don t want it it s not what you thought it was that would be a condition after the fact and you can return it and you get your money back 0 Return policy on clothing are an example of conditions subsequent Discharge by Breach if the other person doesn t do their job then you don t have to do your part 0 Material Breach gt materiality is important they have to matter 0 Perfect Tender Rule gt worried about substantial performance 0 Substantial Performance Discharge by Agreement 0 Mutual Rescission 0 Substitute Contract Chapter 18 Damagg Money Damages you need 3 things to happen 1 Foreseeable 2 Reasonable Degree 3 Not Avoidable For a lawsuit you need to have DAMAGES and LIABILITY Kinds of Damages O Compensatory Damages gt bring equilibrium compensate gt to be made whole not to give you a windfall but to get you back to where you would have been 0 Punitive Damages gt to punish in fraudmisrepresentationnegligence cases gt cannot get it in breach of contract cases 0 Liquidated Damages gt usually in construction contractscases gt something that is in the contract agreed to by the parties because it is hard to determine how much the cost would be if the building was late 0 Penalty gt if liquidated damages are too high Limited Damages gt there is a relationship between what happened and the damages Mitigation Damages Remedies in Equity 0 Speci c Performance gt so unique that money won t cover it 0 Injunction gt requires someone to not do something 0 Restitution gt returning what you get from the contract 0 Loss of Power of Voids gt once you affirm the contract by behaviortaking 33 you can t void it Chapter 21 Transfer of Title and Risk of Loss When someone transfers ownership of something you want title gt signi es you own it possess it no one can take if from you Transferring Title of what goods are 1 Identification gt go to an art dealership and say I want THAT painting go to a used car lot I want that yellow camaro 0 Only one of that item 2 Fungible gt go to Best Buy and say I want a 60 inch Sony TV 0 There are multiple of them that are exactly the same Security Interest 0 Whenever someone sells you something ie a bank loans a car dealership to buy a bunch of cars the security interest is an interest on all the things you have on the property contbank loans 5 million to Joe s dealership they have a bad month and can t pay the interest if they default they could come and take all the cars 0 EX bank loans money to a business Joe s Best Buy if he ever defaults on the loan they can come take everything 0 UCCl gt means the bank has a lean on everything that business has filed in public records Insurable Interest 0 If you have title you can insure it When Does Title Pass 1 Look to Intentions of the Parties gt eX you pay for delivery of a TV they hit a pothole and it cracks the TV they have to replace it 2 Physical Movement of Goods gt moving from one warehouse to another the title transfers when the seller is done with performance Shipment Contracts gt there are no specifics that you have to deliver it to a speci c destinationyou have to ship but it doesn t give you a requirement of delivering to a particular place Destination Contracts gt requires to deliver to a speci c place ie delivery must be made to my warehouse so until delivery is made to that speci c place it is not my responsibilityproduct Void Title gt Cannot transfer title under any circumstance ex stolen goods Voidable Titles gt when there is a mistake fraud duress undue in uence etc Person who gave it up can get it back Good Faith Purchaser l Acts Honestly 2 Gives Value 3 gt quot Take the good without knowledge of any defect in title gt clueless gt quot If you are in a voidable situation and the third party is a good faith purchaser they get the title Risk of Loss 0 You have to look to see who has done what and what is fair 0 If they were stolen had they been delivered yet were they destroyed enroute gt who should bear the loss 0 Nonconforming goods the good wasn t what you ordered If the goods are conforming and the buyer says they don t want them anymore the risk of loss is on the buyer 0 You have to look to who has the greatest control over the goods to see who was better able to prevent the loss 1 Trial Sales when you get it and if you don t like it you can give it back 30 day trial if you don t like it get it back gt the risk of loss remains with the seller until the time period is up or until the buyer says I m good I like it I m keeping it 0 Possession passes to buyer but seller still has title 2 Sale or Return you can buy it but if you want to return it you re allowed to return it 90 day money back guarantee BUT YOU BOUGHT IT 0 Title is now in your name but you have the option to return it 0 Risk of loss is on the buyer because they have the title until they return it 3 Consignment you deliver the possession to the person and that is regarded as a sale so at that point the person who holds it is responsible risk of loss is on the person who has iteX the person who you gave the dress to Chapter 22 Product Liability Warranties and Strict Liability Waranty a duty on the part of the seller that the good he is selling will conform to gt Hey this car actually drives it has a motor 4 wheels it will work Warranties of Title if the person is warranting that if they are giving you the title to the house they actually have it gt if they are giving you the title you are actually getting the title free and clear ie they didn t steal it gt there are no liens etc Express Warranties an explicit undertaking with respect to the quality 0 Occurs with a promise gt tell you straight out this lawn mower will cut grass up to 3 ft high a promise af rmation of fact describing the goods 0 Ex I go into a store we just had a hurricane you don t want to have the same problem again you say you want hurricane proof windows gt they say these windows here will withstand 100 mph winds GUARANTEED gt if the windows break at 50 mph winds then it breaks the express warranty and then you can sue 0 Critical that the undertaking has to be relevant to the particular product that you are buying Can be created ORALLY or in WRITING CRITICAL POINT gt OPINION aka puffery IS NOT A WARRANTY I think that will be a great lawn mower for you is not the same thing as saying that lawn mower will cut 4 ft of grass Representations af rmative statements DO Implied Warranties 0 Not found in the language of the sales contract not on the materials of the goods not promised o Implied Warranty of Merchantability it does what it s supposed to do reasonably t for the ordinary purpose for which they are used nobody told you and it wasn t said on the box but you re buying a lawn mowerit s supposed to cut grass 0 Implied Warranty of a Fitness for a Particular Purpose if at the time of contracting the seller has reason to know the buyer39s particular purpose for buying it the speci c purpose you want it for and the buyer relies on the seller to provide to particular product ex lawn mower that cuts 4 ft grass gt you need to know what it is you re getting How do you weasle out gt DISCLAIMERS how people try to get out of warranties 0 They have to have 4 things 0 1 gt has to be explicit O 2 gt has to be unequivocal ie can t be confusing must be able to be understood easily O 3 gt has to be conspicuous ie needs to be out in the open 0 4 gt has to be positive ie has to be speci c 0 Express warranties are very hard to disclaim usually disclaimers relate to implied warranties 0 When you have implied warranties of merchantability gt in the disclaimer you have to have the word MERCHANTABILITY 0 As is or without any fault gt you want to buy it you take all risk BUYER BEWARE you are not getting any warranties at all Limitations of Warranties 0 They can limit the responsibility Strict Liability personal injuries or property damages for selling a product that is unreasonably dangerous to the customer 0 It doesn t matter how much you screwed up it just matters that whoever sold it You re absolutely liable you have no defenses or very few You are looking at a very dangerous product If something is unreasonably dangerous you don t have very many defenses You are liable NO MATTER WHAT KEY the plaintiff doesn t have to prove a darn thing just that the damage happened Obstacles to Recovery 0 Assumption o 1 gt plaintiff has to know the risk 0 2 gt voluntary encounter the risk even though you know it was unreasonably dangerous 0 3 gt decides to encounter the risk anyway 0 If you misuse or abuse the product you can get out of the strict liability O Alteration or misuse of the product gt If you setup the product eX the crib wrong Always looking for punitive damages in Strict Liability cases gt they put a limit on the amount that you can sue for Statute of Repose gt a product isn t supposed to last forever 0 There is a certain period of time that the product is good for so if the product says its good for 10 years then you can t due in year 11
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