LEGL 2700 Exam II Notes
LEGL 2700 Exam II Notes LEGL 2700
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This 12 page Study Guide was uploaded by Jessica Su on Monday October 3, 2016. The Study Guide belongs to LEGL 2700 at University of Georgia taught by Lara Grow in Fall 2016. Since its upload, it has received 54 views.
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Date Created: 10/03/16
● Property- the legal right to exclude others from resources that others may need or want ○ Benefits of such system: ■ Collateral security interests- when taking out a loan, you use your capital as collateral ● Ex. Home Equity Loan: say your house has a $400,000 fair market value, you owe the bank $100,000, that means you are sitting at $300,000 equity. ● Then when you are taking out a loan from the bank, you can take out a $300,000 home equity loan ■ Increases incentives to take better care of the house ○ Types of Property ■ Real estate ■ Personal property- all other types of movable resources, tangible and intangible property ○ Methods of acquiring property ■ Through money ■ Through possession ● Rule of First Possession- unowned item goes to the first person who possess ● Abandonment ○ Lost: if the item is found on the ground, it is lost ○ Mislaid: if the item is found on the table, it is mislaid. Mislaid property goes to the owner of the premises where the property was mislaid, meaning the $100K goes back to the bank instead of the person who found it ■ Adverse Possession- obtain ownership of land belonging to another through continuous possession, must be… ● Open and notorious ● Actual and exclusive (it needs to be you who has been using it) ● Continuous ● Wrongful (without permission) ○ The clock stops once you got the permission ● Last for the prescribed period of time (20 yrs in GA) ● (if A has been possessing a land for 10 years and sells the land to B, the 10 years can be added to B) ■ Acquisition through gift ● Donor- t he person giving the gift ● Donee- the person receiving the gift ● A valid i nter vivos (in life) gift must have donor’s intent + delivery ● Testamentary gift- a gift made through a will ● Intestate- die without a will; the govt will take power of who to give the property ○ Type of ownership of real property ■ Fee simple absolute: best and most common ownership ■ Fee simple defeasible (has a condition) ● Also called “at a will” ● The condition is attached to the land, not to the person ● The land will be taken away if the condition was not met ■ Life estate ● That person does not own the property, he cannot write a will and give it to other people ■ Leasehold estate ○ Easement- reserves a particular use of land ■ Affirmative easement ● Actually doing something on your land ● Have to be in writing and recorded in the office ● Apply to all future owners; may depreciate parcel two’s property value ■ Negative easement ● Smith is selling part of the property to Snyder, but he cannot build anything that blocks the view of the beach; applies to all future owners ● Usually paid money for someone to have a negative easement ■ If someone breaches an easement, the owner sues ○ Nuisance- a use of property that interferes with others legal rights by causing damage, annoyance, or inconvenience ■ Public nuisance: affects the whole community, such as pollution ■ Private nuisance: affects only a small amount of people; a barking dog ● Zoning ○ Purpose:cut down the nuisance complaint and separate divisions into commercial and private use ○ Variance- an exception to zoning ordinance ○ Case ■ Kelo v. City of New London, Connecticut (2005) ■ The city wanted to relocate the water facility and offered money to the people. But Kelo, said he did not think the case was for public use. The city argued that the land was not simply to benefit a certain group of people, but for economic development (increase job, upgrade property, and generate more taxes) ■ Went to court, split decision, but the city won, bc economic development is for public use ● Intellectual Property ○ Trade secret- valuable commercial information unknown by competitors ■ It is a federal civil crime to steal it ■ Companies cannot assume employees know something is a trade secret, they must specifically state so ■ If someone spent years to come up with the same recipe as Coke’s, Coca Cola cannot sue that person if he successfully created one ○ Patent- an invention or improvement on an existing item ■ Application must include… ● An explanation of how to make and use the invention ● An explanation of why the invention is different from the prior art ● An identification of which specific aspects of the invention deserve to be patented- laim ○ Make each claim as narrow as possible bc that person has to violat ll parts of the claim to get sued ● Can’t patent something previously described in a publication or in public use nywhere in the worl) ○ You have a one year grace period, meaning you can patent your invention within one year after you started using it ● Case: Apple v. Samsung ○ Apple sued Samsung for copying Apple’s design and programs ○ Apple assessed the damage costed couple millions of dollars ■ After patents expire, they will go to the public domain, meaning everyone can use the invention for free ■ Cannot renew ■ Requirements for Patentability (Utility patents) ● Machine ● Process: Amazon’s “1-click checkout” ● Composition of matter: chemicals ● Improvement of any of the above ■ There is no patent police of the FBI to enforce the patent, usually pure civil and the patent holders ● File in the Federal District Court, ● Courts frequently invalid a patent, bc they think patent should not be granted in the first place ○ Trademark- distinctive design, picture, emblem, logo, or wording identifying the manufacture of the product ■ Cannot mark very descriptive words ● Ex. “Incredible Towel” you cannot own the word “towel” ■ Criminal enforcement- govt enforcement against counterfeit products ● Ex. selling a fake Gucci purse ● The another brand needs to confuse consumers and cause the business to lose revenue ■ Trademark dilution- prevent use of a similar trademark to dilute the significance, reputation, or goodwill ● Sue for this reason if failed with trademark infringement ■ Gives you the r with the circle around it ● Not a trademark infringement bc the name and design are different ● Not a trademark dilution bc Chewy Vuiton did not cause LV to lose revenue ■ Collective mark- a mark used to represent membership in an organization or association ● Ex. CPA, NFL ■ Trade dress- color, designs, or shapes associated with a certain product or service ● Need to register ● Think of the packaging ● Sweetener’s packaging was too similar to Splenda and confused the customers ○ Violated trade dress ● Needs to be related good product ● Did not violate trade dress bc even the design was very similar, but they are two different products ○ Copyright- a literary, musical, dramatic, or artistic work ■ Fair use: criticism, p comment, news reporting, teaching, scholarship, or research ■ Parody work does not have to be humorous ■ Case: “Wind Done Gone” ● Gone with the Wind is the original work ● Wind Done Gone flipped the perspective of the work ● The book fell under fair use, did not infringe copyright ■ Class copyright infringement examples: ● Marvin Gaye vs. Robin Thicke ○ Robin’s song was too similar to Marvin’s ● Viva La Vida vs. If I Could Fly ■ Copyright Millennium Copyright Act- created in the digital age since copyright infringement was uncommon back then, make it illegal to create a platform for others to violate copyright infringement Trade secret Patents Trademark Copyright Original Caselaw, not U.S. Constitution Federal statute U.S. Constitution authority from the U.S. Article 1, Sec.8 Article 1, Sec.8 Constitution Examples Secret recipe, -Process, The yellow m for Creative, artistic -Machines, (types) Upcoming McDonald’s works: music, design that has -Chemical -Logos film, paintings, been composition, -Brand identifier etc. -Improvement Duration Forever as long 20 years from Forever, Your lifetime + 70 years as you keep it a your filing date renewable secret Ownership can be transferred to heirs How to obtain - The owner -Go to the PTO -Register with -Register in the office and file an must have taken application PTO copyright office, reasonable -Needs to be get the c with a measures to -Explain how to distinctive, circle around it keep it secret use it meaning words -Show creativity -Define claims -Have economic (what do you want and design - Originaly value to own) cannot be -Fixed and -Explain how it is similar to any tangible different from prior other products medium, -A new idea, -Used in meaning a song cannot be interstate must be recorded, published before can’t be in your -Not obvious commerce head Infringement -Independent -Non-infringement -Too generic and - Fair use defenses creation (I didn’t (I didn’t do it) not distinctive; ex.- Not similar to Usually Zipper, Aspirin steal it) intentionally and The brand the original work -The owner did not take patents are becomes so obvious, therefore popular that ppl reasonable this excuse is not start using the measures to valid brand name to keep it as a -Obvious describe the thing invention, saying -Fair use, secret the idea already exception: parody, existed, don’t teaching, understand why it scholarship, was patented comparison, etc. - Unenforceability, bribed the officer to get the patent ● Uniform Commercial Code (UCC)- standardize all states’ contract law, only for a certain type of contract ○ Contracts of tangibl OODS have to follow UCC (Article 2) ● Common Law involves contracts for real property or ervice ○ Ex. employment, performance contracts, personal service (moving yard) ● Elements of a Valid Contract ○ Offer- a specific promise and demand ■ “I want to buy a coffee for $4” Promise to give $4, demand for a coffee ■ Offeror makes an offer to the offeree ■ Offeree has the power to accept the offer or not, if any changes are added, then it is a counteroffer ■ Termination of an offer ● By revocation (the offeror retracts the offer before the acceptance) ● By provision in the offer ● By rejection of counteroffer ● Offeree fails to accept by a deadline ● Before accepting the offer, the offeree died ● By destruction of subject matter ● Change of law made something illegal now, ex. prohibition ○ Acceptance ■ Mirror Image Rule (only for common law contracts!) ● In order to accept an offer, cceptance must exactly match the offer ● If any term is changed or added, it’s a counteroffer NOT an acceptance ● If the offeror does not like the counteroffer, he can walk away without saying anything and will not get in trouble for breaching the contract ○ Consideration- in order for a contract to be valid, both parties need to exchange something of value ■ Act ■ Promise to do something ■ Promise to not do something ■ Do not take equivalent value into consideration ● Ex. It does not matter that $50 is a bad deal for mowing the yard. The court only takes in consideration of both parties took in consideration of the act ■ Not binding promises (no consideration) ● Past consideration ○ “In consideration of your 15 years of faithful service, we will issue you $25,000 worth of company stock in honor of your retirement.” ○ If the company says it will issue you $25,000 stock if you work for another week, then it is now a contract ○ “You agree to paint my house for $500. Halfway through painting, you tell me you need an extra $200 to finish the job. I said ok” I only owe you $500, not $500+$200 bc the painter is painting the house the same way ● Future consideration ● Gifts ○ Both parties have to give each other something ○ Capacity- a person’s ability to know they are entering a contract ■ Individuals who lack capacity: ● Minors, unless those promises involve necessaries of life (food, clothing, etc.) ○ Example: Sam buys a used car from Miami Motors for $5000 and crashes it on his way home. He can disaffirm and get his $5000 back, bc… ■ Miami could’ve checked Sam’s ID when selling him the car ■ He was a minor when he bought the car ■ He disaffirmed (declared void) before reaching age 18 ● In some states, the person can get the money back even he disaffirmed after age 18 ■ He didn’t intentionally cause the accident ■ Even he has nothing to return (car totaled) ■ If Sam was mentally ill or intoxicated, then he will not get his money back. Bc it is more difficult for Miami to know if Sam is mentally ill or intoxicated when selling him the car ● Intoxicated persons ● Mentally incompetent persons ○ Lawful purpose, meaning a “contract” to murder someone is not enforceable in a court ● Bases to void a contract ○ Fraud- someone knew statement was false or uncertain if true ○ Innocent Misrepresentation- n o intent to mislead ■ Both fraud and misrepresentation need to have… ● Statement of facts, NOT opinion ● Verification of factual statements, such as accident history ● Major, not something minor ■ Both have the same results ■ In order for them to become a crime, the other party needs to actually rely on the false statement to their detriment ○ Duress- physical force to someone to sign do something, if not, it would cause serious personal injury or damage to property ■ “Sign the contract or else!” ○ Undue influence- taking advantage of another party’s illness or health condition to force and sign the contract ● Third-party beneficiaries- contract’s original parties intend for the agreement to benefit a third party ○ Intended beneficiaries h ave the right to enforce the contract ■ Ex. Carl owes Terry $10,000 for work Terry already performed. Also Carl works for Chris and contracts to have Chris to pay Terry. Terry is a creditor beneficiary and have the right to force Chris to give the money ○ Incidental beneficiaries have NO rights to enforce the contract ● Assignment of Contract- third party has can transfer rights under a contract from one party to a non-party ○ Not at the moment of the contract, but some time afterwards ○ Assignor- the original contracting party who assigns its rights or duties ○ Assignee- non-party who gains rights or duties ○ Obligor- non-assignment party, the one who did not change sides ○ Ex. Landlord leases an apartment to a tenant. The tenant left and gave the lease to another subtenant. ■ Landlord = obligor, tenant = assignor, subtenant = assignee ○ Contract rights can be transferred except… ■ Contracts prohibited transferring ■ Illegal or against public policy, ex. Cant assign child support payment ■ Involves a unique skill; ex. Letting someone else to paint ■ Would substantially change the obligor’s rights or duties under the contract ● A contracts to paint a 2-story house for B. B cannot assign her rights to her friend, C, who has a 3-story house. ● Homeowner is getting a mortgage from BOA, BOA asks WellsFargo to pay the mortgage instead. As long as the homeowner is paying the same amount of interest, there is no violation of the contract ○ Contracts can be transferred to anyone at anytime, but needs to notify the obligor. Do not need to get his permission ○ Novation- a 3-way agreement which if the assignee did not fulfill the promise, it will not affect the assignor ● Written vs. Oral contracts ○ Statute of frauds- specifies that a certain types of contracts must be written and signed ■ Involves interest of land; ex. Mortgage, easement, etc. ■ Pay the debt of another ■ Need longer than one year to perform ■ Sale of goods of $500 or more ■ Purpose: prevent fraudulent oral contract; even you have eye witnesses or recorded it, if you did not write and sign the contract, the court cannot enforce the promise ● Remedies for breaching the contract ○ Compensatory damage: I want money for my damages ■ Liquidated damage clause- putting up front of the punishment if breaching the contract ● Ex. If coming to work late, then deduct $ ○ Specific performance, NEVER in personal service contracts ■ You cannot get a replacement ■ You are asking the court to make the defendant to do what they promised ■ The court will not force the person who is supposed to sing at the wedding ○ Nominal damages- a damage is issued by a court but there was no financial loss ■ The plaintiff will be rewarded $1 or 2 ○ Straight-forward damages, no emotional damage, and can be estimated ■ Ex. There is a written contract for painting the house for $1,000. The painter did not show up nor provide a valid excuse. Homeowner now have to hire another painter who charges $1,500. Homeowner sues the painter for breaching the contract. The painter has to pay $500 extra not $1,500 ● Bc it is not the painter’s fault that the owner could not find a cheaper deal ● Excuses for nonperformance ○ Impossibility ■ Death of an essential party ■ Subsequent illegality- a new law that made the performance illegal now (ex. Trade embargo) ■ Destruction of essential materials ○ Waiver: party intentionally gives up the the right to enforce the contract ■ Ex. Landlord waives the right to charge you late fee ○ Release- party announces to the other that they don’t have to perform ○ Force Majeure Clause- when event make the contract impossible to perform ● Criminal law- government punishment of wrongs committed against society ○ Must prove… ■ Criminal intent (mens rea), defendant must have ac illfully or knowingly ■ A criminal act ○ White collar crime- a crime in a business or professional setting committed to achieve a personal or business advantage ■ Usually fraud, requires, ● False statement, material fact, and intend to defraud ■ Ex. Mail and wire fraud (federal, got your money without shipping your item), securities fraud (lying about the return on an investment), bankruptcy fraud (hiding assets from the bank) embezzlement (saying you worked more hours than you did) ○ Conspiracy ■ Intent to enter agreement ■ Intent to pursue unlawful objective ■ Even if you did not successfully go through the act, as long as you acted, you are charged of a conspiracy ○ Aiding and abetting ■ Either before or after the crime ■ Ex. helping the bank robber to run away Felonies Misdemeanors Definition Punished by fine or Punished by fine or imprisonment of less imprisonment of more than a than a year year Ex. speeding ticket, prosecution Initiating a By a grand jury indictment By the government filing a charge, criminal case (to determine if the prosecutor typically called an information has enough evidence to charge this person) Both - will have an rraignment (the accused person answers the charge made against him before the court - Pleas: - guilty, then go straight to sentencing - not guilty - no contest (not admitting I am guilty) - Trial- prosecutor must show defendant’s guilt beyond a reasonable doubt ● Fourth Amendment- illegal search and seizure ○ Police need to have a search warrant before search a person, premises, or other property ■ Courts require robable cause in order to issue a search warrant, meaning police needs to have some kind of evidence that the person has committed the crime ○ Exceptions ■ Consent to search ■ Following arrest, search of a person and their immediate area ■ Evidence likely to be destroyed ● Chasing after you in case you flush the evidence into the toilet ■ Evidence in plain view ● Ex. The police knocked on your door and saw there are illegal drugs on the counter. He has the power to seize them. ● Fifth Amendment- self incrimi protects individuals (NOT businesses) from being compelled to testify against themselves ○ If the police asks about your friends, you have to reveal ○ Double jeopardy- citizens cannot get charged against after proving innocent, even with new evidence ● Sixth Amendment ○ Right to a speedy and public trial ○ Right to a trial by jury ○ Right to be informed of the charge against you ○ Right to confront your accuser ○ Right have an attorney ○ Miranda rule- right to remain silent and talk to a lawyer ● Eighth Amendment- prohibits cruel and unusual punishment
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