Final Exam Review Guide
Final Exam Review Guide BADM 4101
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Exam Review Guide Key Concepts Chapter 1 Introduction to the Law Nature of Law 0 De nition of Law quota rule of civil conduct prescribed by the supreme power in a state commanding what is right and prohibiting what is wrong William Blackstone 0 Functions of Law to maintain stability in the social political and economic system through dispute resolution protection of property and the preservation of the state while simultaneously permitting ordered change 0 Laws and Morals are different but overlapping law provides sanctions while morals do not 0 Law and Justice are separate and distinct concepts justice is the fair equitable and impartial treatment of competing interests with due regard for the common good Classi cation of Law 0 Substantive and Procedural o Substantive Law law creating rights and duties 0 Procedural Law rules for enforcing substantive law 0 Public and Private 0 Public Law law dealing with the relationship between government and individuals 0 Private Law law governing the relationships among individuals and legal entities Civil and Criminal 0 Civil Law law dealing with rights and duties the violation of which constitutes a wrong against an individual or other legal entity 0 Criminal Law law establishing duties that if violated constitute a wrong against the entire community Sources of Law Constitutional Law fundamental law of a government establishing its powers and limitations 0 Judicial Law 0 Common Law body of law developed by the courts that serves as precedent for determination of later controversies 0 Equity body of law based upon principles distinct from common law and providing remedies not available at law 0 Legislative Law 0 Treaties agreements between or among independent nanns 0 Executive Orders laws issued by the President or by the governor of a state 0 Administrative Law is created by administrative agencies in the form of rules regulations orders and decisions to carry out the regulatory powers and duties of those agencies De nition of Law Roscoe Pound law has multiple meanings 0 Legal order 0 Aggregate of lawslegal precepts the body of authoritative grounds ofjudicial and administrative actions established in such as society 0 The judicial process Functions of Law 1 Maintain stability in the social political and economic system while simultaneously permitting change 0 Criminal matters Because disputes threaten social stability the law has established an elaborate and evolving set of rules to resolve them 2 Protect the private ownership of property and to assist in the making of voluntary agreements called contracts 3 Preservation of the state 0 Ensures that changes in political structure and leadership are brought about by political action Law and Morals o The part of the morality circle hat does not intersect the legal circle includes moral precepts not enforced by legal sanctions Law and Justice 0 Law and justice represent separate and distinct concepts 0 Without law there can be no justice 0 Law however is not guarantee forjustice Classi cation of Laws 0 Substantive and Procedural Law Substantive law creates de nes and regulates legal rights and duties Procedural law sets forth the rules for enforcing those rights that exist by reason of the substantive law 0 Public and Private Law Public law branch of substantive law that deals with the government s rights and powers and its relationship to individuals or groups Private law branch of substantive law governing individuals and legal entities such as corporations in their relationships with one another 0 Civil and Criminal Law Civil law de nes duties the violation of which constitutes a wrong against the party injured by the violation Commencement of action aggrieved individuals 0 Purpose Compensation deterrence Burden of Proof Preponderance of the evidence 0 Principal Sanctions monetary damages equitable remedies Criminal law establishes duties the violation of which is a wrong against the whole community Commencement of action state or federal government prosecutes 0 Purpose punishment deterrence rehabilitation preservation of peace Burden of Proof beyond a reasonable doubt 0 Principal Sanctions capital punishment imprisonment nes The party bringing a civil action the plaintiff has burden of proof which the plaintiff must sustain by a preponderance greater weight of the evidence The purpose of the civil law is to compensate the injured party not as in the case of criminal law to punish the wrongdoer 0 Sources of Law 0 Constitutional Law fundamental law of a government establishing its powers and limitations Separation of powers 3 branches of government judicial review authority of the courts to determine the constitutionality of legislative and executive acts 0 Judicial Law Common law system relies heavily on the judiciary as a source of law and on the adversary system for settling disputes Adversary system system in which opposing parties initiate and present their cases Civil law system body of law derived from Roman law and based upon comprehensive legislative enactments lnquisitorial system system in which the judiciary initiates conducts and decides cases 0 Common Law 0 Stare decisis to stand by the decisions principle that courts should apply rules decided in prior cases in deciding substantially similar cases does not preclude courts from correcting erroneous decisions or from choosing among con icting precedents o judicial decisions have two uses to determine with nality the case currently being decided to indicate how the court will decide similar cases in the future 0 Equity 0 Body of law based upon principles distinct from common law and providing remedies not available at law quotequity and good consciencequot Decree decision of a court of equity Speci c performance decree ordering a party to perform a contractual duty Injunction decree ordering a party to do or refrain from doing a speci ed act Reformation equitable remedy rewriting a contract to conform with the original intent of the contracting parties Rescission an equitable remedy invalidating a contract Maxim a general legal principle 0 Restatements of Law 0 An orderly restatement of the general common law of the United States including in that term not only the law developed solely by judicial decision but also the law that has grown from the application by the courts of statues that were generally enacted and were in force for many years 0 Legislative Law Uniform Commercial Code prepared under the joint sponsorship and direction of the National Conference of Commissioners on Uniform State Laws and the ALI 0 Increased need for greater uniformity led to the development of a number of proposed uniform laws that would reduce the con icts among state laws Treaties an agreement between or among independentnanns Executive Orders legislation issued by the President or a governor 0 Administrative Law Law dealing with the establishment duties and powers of agencies in the executive branch of government Chapter Two Civil Dispute Resolution Chapter Summary The Court System Federal Courts District Courts trial courts of general jurisdiction that can hear and decide most legal controversies in the federal system Court of Appeals hear appeals from the district courts and review orders of certain administrative agencies The Supreme Court the nation s highest court whose principal function is to review decisions of the federal Court of Appeals and the highest state courts Special Courts have jurisdiction over cases in a particular area of federal law and include the US Court of Federal Claims the US Tax Court the US Bankruptcy Courts and the US Court of Appeals for the Federal Circuit State Courts Inferior Trial Courts hear minor criminal cases such as traf c offenses and civil cases involving small amounts of money and conduct preliminary hearings in more serious criminal cases Trial Courts have general jurisdiction over civil and criminal cases Special Trial Courts trial courts such as probate courts and family courts which have jurisdiction over particular area of state law Appellate Courts include one or two levels the highest court s decisions are nal expect in those cases reviewed by the US Supreme Court Jurisdiction Subject Matter jurisdiction De nition authority of a court to decide a particular kind of case Federal Jurisdiction 0 Exclusive Federal jurisdiction federal courts have sole jurisdiction over federal crimes bankruptcy antitrust patent trademark copyright and other special cases o Concurrent Federal jurisdiction authority of more than one court to hear the same case state and federal courts have concurrent jurisdiction over 1 federal question cases cases arising under the Constitution statutes or treaties of the United States which do not involve exclusive federal jurisdiction and 2 diversity of citizenship cases involving more than 75000 0 Exclusive State jurisdiction state courts have exclusive jurisdiction over all matters to which the federal judicial power does notreach jurisdiction over the Parties 0 De nition the power of a court to bind the parties to a suit 0 In Personam jurisdiction jurisdiction based on claims against a person in contrast to jurisdiction over property 0 In Rem jurisdictionjurisdiction based on claims against property 0 Attachment jurisdiction jurisdiction over a defendant s property to obtain payment of a claim not related to the property 0 Venue geographic area in which a lawsuit should be brought Civil Dispute Resolution Civil Procedure 0 The Pleadings series of statements that give notice and establish the issues of fact and law presented and disputed o Complaint initial pleading by the plaintiff stating his case 0 Summons notice given to inform a person of a lawsuit against her 0 Answer defendant s pleading in response to the plaintiff s complaint 0 Reply plaintiff s pleading in response to the defendant s answer 0 Pretrial Procedure process requiring the parties to disclose what evidence is available to prove the disputed facts designed to encourage settlement of cases or to make the trial more efficient o judgment of Pleadings a nal ruling in favor of one party by the judge based on the pleadings 0 Discovery right of each party to obtain evidence from the other party 0 Pretrial Conference a conference between the judge and the attorneys to simplify the issues in dispute and to attempt to settle the dispute without trial 0 Summaryjudgment nal ruling by the judge in favor of one party based on the evidence disclosed by discovery 0 Trial determines the facts and the outcome of the case o jury Selection each party has an unlimited number of challenges for cause and a limited number of peremptory chaHenges 0 Conduct of Trial consists of opening statements by attorneys direct and crossexamination of witnesses and closing arguments o Directed Verdict nal ruling by the judge in favor of one party based on the evidence introduced at trial 0 jury lnstructionsjudge gives the jury the particular rules of law that apply to the case 0 Verdict the jury s decision based on those facts the jury determines the evidence proves o Motions Challenging Verdict include motions for a new trial and a motion forjudgment notwithstanding the verdict 0 Appeal determines whether the trial court committed prejudicial error 0 Enforcement plaintiff with an unpaid judgment may resort to a writ of execution to have the sheriff seize property of the defendants and to garnishment to collect money owed to the defendant by a third party Alternative Dispute Resolution 0 O Arbitration nonjudicial proceeding in which a neutral third party selected by the disputants renders a binding decision award Conciliation nonbinding process in which a third party acts as an intermediary between the disputing parties and proposes solutions for them to consider Mediation nonbinding process in which a third party acts as an intermediary between the disputing parties and proposes solutions for them to consider MiniTrial nonbinding process in which attorneys for the disputing parties typically corporations present evidence to managers 0 the disputing parties and a neutral third party after which the managers attempt to negotiate a settlement in consultations with the third party Summary Jury Trial mock trial followed by negotiations Negotiation consensual bargaining process in which the parties attempt to reach an agreement resolving their dispute without the involvement of third parties Chapter 3 Introduction to Contracts Development of the Law of Contracts 0 Common Law most contracts are primarily governed by state common law including contracts involving employment services insurance real property land and anything attached to it patents and copyrights The Uniform Commercial Code UCC Article 2 of the UCC governs the sales of goods 0 Sale the transfer of title from seller to buyer 0 Goods tangible personal property personal property is all property other than an interest in land De nition of a Contract 0 Contract binding agreement that the courts will enforce o Breach failure of properly perform a contractual obligation Requirements of a Contract 0 Mutual Assent the parties to a contract must manifest by words or conduct that they have agreed to enter into a contract The usual method of showing mutual assent is by offer and acceptance 0 Consideration Each party to a contract must intentionally exchange a legal bene t or incur a legal detriment as an inducement to the other party to make a return exchange Legality of Object The purpose of a contract must not be criminal tortious or otherwise against public policy 0 Capacity The parties to a contract must have contractual capac y Classi cation of Contracts 0 Express and Implied Contracts 0 Implied in Fact Contract contract in which the agreement of the parties is inferred from their conduct 0 Express Contract an agreement that is stated in words either orally or in writing Bilateral and Unilateral Contracts 0 Bilateral Contract contract in which both parties exchange promises o Unilateral Contract contract in which only one party makes a promise Valid Void Voidable and Unenforceable Contracts 0 Valid Contract one that meets all of the requirements of a binding contract 0 Void Contract no contract at all without legal effect Voidable Contract contract capable of being made void 0 Unenforceable Contract contract for the breach of which the law provides no remedy Executed and Executory Contracts 0 Executed Contracts contract that has been fully performed by all of the parties 0 Executory Contracts contract that has yet to be fully performed Promissory Estoppel 0 De nition a doctrine enforcing some noncontractual promises 0 Requirements a promise made under circumstances that should lead the promisor reasonably to expect that the promise would induce the promise to take de nite and substantial action and the promise does take such action 0 Remedy a court will enforce the promise to extent necessary to avoid injustice Quasi Contract 0 De nition an obligation not based upon contract that is imposed by law to avoid injustice also called an implied in law contract 0 0 Requirements a court will impose a quasi contract when 1 the plaintiff confers a bene t upon the defendant 2 the defendant knows or appreciates the bene t and 3 the defendant s retention of the bene t is inequitable o Remedy the plaintiff recovers the reasonable value of the bene t she conferred upon the defendant Chapter 4 Mutual Assent Offer Essentials of an Offer De nition indication of willingness to enter into a contract Communication offeree must have knowledge of the offer and the offer must be made by the offeror or her authorized agent to the offeree Intent determined by an objective standard of what a reasonable offeree would have believed De niteness offer s terms must be clear enough to provide a court with a basis for giving an appropriate remedy Duration of Offers Lapse of Time offer remains open for the time period speci ed or if no time is stated for a reasonable period of time Revocation generally an offer may be terminated at any time before it is accepted subject to the following exceptions 0 Option Contracts contract that binds offeror to keep an offer open for a speci ed time o Firm Offer a merchant s irrevocable offer to sell or buy goods in a signed writing that ensures that the offer will not be terminated for up to three months 0 Statutory lrrevocability offer made irrevocable by statute o Irrevocable Offer of Unilateral Contracts a unilateral offer may not be revoked for a reasonable time after performance is begun o Promissory Estoppel noncontractual promise that binds the promisor because she should reasonably expect that the promise will induce the promise offeree to take action in reliance on it Rejection refusal to accept an offer terminates the power of acceptance Counteroffer counterproposal to an offer that generally terminates the original offer Death or lncompetency of either the offeror or the offeree terminates the offer Destruction of Subject Matter of an offer terminates the offer 0 Subsequent lllegality of the purpose or subject matter of the offer terminates the offer Acceptance of Offer Requirements 0 De nition positive and unequivocal expression of a willingness to enter into a contract on the terms of the offer 0 Mirror Image Rule except as modi ed by the Code an acceptance cannot deviate from the terms of the offer Communication of Acceptance 0 General Rule acceptance effective upon dispatch unless the offer speci cally provides otherwise or the offeree uses an unauthorized means of communication 0 Silence as Acceptance generally foes not indicated acceptance of the offer 0 Effective Moment generally upon dispatch o Stipulated Provisions in the Offer the communication of acceptance must conform to the speci cations in the offer 0 Authorized Means the Restatement and the Code provide that unless the offer provides otherwise acceptance is authorized to be in any reasonable manner 0 Unauthorized Means acceptance effective when received provide that it is received within the time within which the authorized means would have arrived 0 Acceptance Following a Prior Rejection rst communication received by the offeror is effective 0 Defective Acceptance does not create a contract but serves as a new offer Chapter 5 Conducting lnvalidating Assent Duress 0 De nition wrongful act or threat that overcomes the free will of a party 0 Physical Compulsion coercion involving physical force renders the agreement void 0 Improper Threats improper threats or acts including economic and social coercion render the contract voidable Undue In uence 0 De nition taking unfair advantage of a person by reason of a dominant position based on a con dential relationship 0 Effect renders contract voidable Fraud 0 Fraud in the Execution a misrepresentation that deceives the other party as to the nature of a document evidencing the contract renders agreement void 0 Fraud in the lnducement renders the agreement voidable if the following elements are present 0 False Representation positive statement or conduct that misleads 0 Fact an event that occurred or thing that exists 0 Materiality of substantial importance 0 Knowledge of Falsity and Intention to Deceive called scienter and includes 1actua knowledge 2 lack of belief in statement s truthfulness or 3 reckless indifference to its truthfulness o justi able Reliance a defrauded party is reasonably in uenced by the misrepresentation Nonfraudulent Misrepresentation 0 Negligent Misrepresentation misrepresentation made without due care in ascertaining its truthfulness renders agreement voidable Innocent Misrepresentation misrepresentation made without knowledge of its falsity but with due care renders contract voidable Mistake 0 De nition understanding that is not in accord with existing fact 0 Mutual Mistake both parties have a common but erroneous belief forming the basis of the contract renders the contract voidable by either party Unilateral Mistake courts are unlikely to grant relief unless the error known or should be known by the nonmistaken party Assumption of Risk of Mistake a party may assume the risk of a mistake Effect of Fault upon Mistake not to a bar to avoidance unless the fault amounts to a failure to act in good faith Chapter 6 Consideration Consideration 0 De nition the inducement to enter into a contract 0 Elements legal suf ciency and bargainedfor exchange Legal Suf ciency of Consideration De nition consist of either a bene t to the promisor or a determent to the promise 0 Legal Bene t obtaining something to which one had no prior legal right 0 Legal Determent doing an act one is not legally obligated to do or not doing an act that one has a legal right to do 0 Adequacy of Consideration not required where the parties have freely agreed to the exchange Illusory Promise promise that imposes no obligation on the promisor the following promises are not illusory 0 Output Contract agreement to sell all of one s production to a single buyer 0 Requirements Contract agreement to buy all of one s needs from a single producer 0 Exclusive Dealing Contract grant to a franchisee or lincensee by a manufacture of the sole right to sell goods in a de ned market 0 Conditional Contract a contract in which the obligations are contingent upon the occurrence of a stated event Preexisting Public Obligations public duties such as those imposed by tort or criminal law are neither a legal detriment nor alegalbene t Preexisting Contractual Obligation performance of a preexisting contractual duty is not consideration 0 Modi cation of a Preexisting Contract under the common law a modi cation of a preexisting contract must be supported by mutual consideration under the Code a contract can be modi ed without new consideration 0 Substituted Contracts the parties agree to rescind their original contract and to enter into a new one rescission and new contract are supported by consideration 0 Settlement of an Undisputed Debt payment of a lesser sum of money to discharge an undisputed debt one whose existence and amount are not contested does not constituted legally suf cient consideration 0 Settlement of a Disputed Debt payment of a lesser sum of money to discharge a disputed debt one whose existence or amount is contested is legally suf cient consideration Bargainedfor Exchange 0 De nition a mutually agreedupon exchange 0 Past Consideration an act done before the contract is made is not consideration Con tracts without Consideration Promises to Perform Prior Unenforceable Obligations o Promise to Pay Debt Barred by the Statute of Limitations a new promise by the debtor to pay the debt renews the running of the statute of limitations for a second statutory period 0 Promise to Pay Debt Discharged in Bankruptcy may be enforceable without consideration 0 Voidable Promises a new promise to perform a voidable obligation that has not been previously avoided is enforceable o Moral Obligation a promise made to satisfy a preexisting moral obligation is genrally unenforceable for lack of consideration 0 Promissory Estoppel doctrine that prohibits a party from denying his promise when the promise takes action or forbearance to his determent reasonably based upon the promise Contracts under Seal where still recognized the seal acts as a substitute for consideration 0 Promises Made Enforceable by Statute some gratuitous promises have been made enforceable by statute the Code make enforceable 1 contract modi cations 2 renunciations and 3 rm offers Chapter 7 Contracts in Writing Statute of Frauds Con tracts within the Statue of Frauds Rule contracts within the statute of frauds must be evidenced by a writing to be enforceable 0 Electronic Records full effect is given to electronic contracts and signatures 0 Suretyship Provision applies to promises to pay the debt of another o Promises Must Be Collateral promisor must be secondarily not primarily liable 0 Main Purpose Doctrine if primary object is to provide an economic bene t to the surety then the promise is not within the statute ExecutorAdministrator Provision applies to promises to answer personally for a duty of the decedent 0 Marriage Provision applies to promises in consideration of marriage but not to mutual promise to marry 0 Land Contract Provision applies to promise to transfer any right privilege power or immunity in real property 0 One Year Provision applies to contracts that cannot be performed within one year 0 The Possibility Test the criterion is whether it is possible not likely for the agreement to be performed within one year 0 Computation of Time the year runs from the time the agreement is made 0 Full Performance by One Party makes the promise of the other party enforceable under majority view 0 Sale of Goods a contract for the sale of goods for the price of 500 or more must be evidenced by a writing or record to be enforceable o Admission an admission in pleadings testimony or otherwise in court makes the contract enforceable for the quantity of goods admitted o Specially Manufactured Goods an oral contract for specially manufactured goods is enforceable 0 Delivery or Payment and Acceptance validated the contract only for the goods that have been accepted or for which payment has been accepted 0 Modi cation or Rescission of Contracts within the Statute of Frauds oral contracts modifying existing contracts are unenforceable if the resulting contract is within the statute of frauds Methods of Compliance 0 General Contract Provisions the writings or record must 0 Specify the parties to the contract 0 Specify the subject matter and essential terms 0 Be signed by the party to be charged or by her agent 0 Sale of Goods provides a general method of compliance for all parties and an additional one for merchants o Writings or Records must 1 be sufficient to indicate that a contract has been made between the parties 2 be signed by the party against whom enforcement is sought or by her authorized agent and 3 specify the quantity of goods to be sold 0 Written Communication between merchants a written con rmation that is suf cient against the sender is also suf cient against the recipient unless the recipient gives written notice of his objection within ten days Effect of Noncompliance 0 Oral Contract within Statute of Frauds is unenforceable 0 Full Performance statute does not apply to executed contracts 0 Restitution is available in quasicontract for bene ts conferred in reliance on the oral contract 0 Promissory Estoppel oral contracts will be enforced where the party seeking enforcement has reasonably and justi ably relied on the promise and the court can avoid injustice only by enforcement Parol Evidence Rule and Interpretation of Contracts The Parol Evidence Rule 0 Statement of Rule when parties express a contract in a writing that they intend to be the nal expression of their rights and duties evidence of their prior oral or written negotiations or agreements of their contemporaneous oral agreements that vary or change the written contract are not admissible 0 Situations to Which the Rules Does Not Apply 0 A contract that is not an integrated document Correction of a typographical error Showing that a contract was void or voidable Showing whether a condition has in fact occurred Showing a subsequent mutual rescission or modi cation of the contract 0 Supplemental Evidence may be admitted 0 Course of Dealing previous conduct between the parties 0 Usage of Trade practice engaged in by the trade or industry 0 Course of Performance conduct between the parties concerning performance of the particular contract 0 Supplemental Consistent Evidence Interpretation of Contracts 0 De nition the ascertainment of the meaning of a promise or agreement or a term of the promise or agreement 0 Rules of Interpretation include o All the circumstances are considered and the principal purpose of the parties is given great weight 0 A writing is interpreted as a whole OOOO Commonly accepted meanings are used unless the parties manifest a different intention Wherever possible the intentions of the parties are interpreted as consistent with each other and with course of performance course of dealing or usage of trade Technical terms are given their technical meaning Speci c terms are given greater weight than general language Separately negotiated terms are given greater weight than standardized terms or those not separately negotiated The order or interpretation in express terms course of performance course of dealings and usage of trade Where a term has several possible meanings the term will be interpreted against the party who supplied the contract or term Written provisions are given preference over typed or printed provisions and typed provisions are given preference over printed provisions If an amount is set forth in both words and gures and they differ words control the gures Chapter 8 Contract Remedies Monetary Damages Compensatory Damages contract damages placing the injured party in a position as good as the one he would have held had the other party performed equals loss of value minus loss avoided by injured party plus incidental damages plus consequential damages 0 O 0 Loss of Value value of promised performance minus value of actual performance CostAvoided loss or costs the injured party avoids by not having to perform Incidental Damages damages arising directly out of a breach of contract Consequential Damages damages not arising directly out of a breach but arising as a foreseeable result of the breach Reliance Damages contract damages placing the injured party in as good a position as she would have been in had the contract not been made Nominal Damages a small sum awarded when a contract has been breached but the loss is negligible or unproved Damages for Misrepresentation o OutofPocket Damages difference between the value given and the value received 0 Bene toftheBargain Damages difference between the value of the fraudulent party s performance as represented and the value the defrauded party received Punitive Damages are generally not recoverable for breach of contract Liquidated Damages reasonable damages agreed to in advance by the parties to a contract Limitations on Damages o Forseeability of Damages potential loss that the party now in default has reason to know of when the contract was made 0 Certainty of Damages damages are not recoverable beyond an amount that can be established with reasonable certainty o Mitigation of Damages injured party may not recover damages for loss he could have avoided by reasonable e o Remedies in Equity Availability only in cases in which there is no adequate remedy at law Types 0 Speci c Performance court decree ordering the breaching party to render promised performance 0 Injunction court order prohibiting a party from doing a speci c act 0 Reformation court order correcting a written contract to conform with the intent of the contracting parties De nition of Restitution restoration of the injured party to the position she was in before the contract was made Availability 0 Party Injured by Breach if the other party totally breaches the contract by nonperformance or repudiation 0 Party in Default for any bene t conferred in excess of the loss caused by the breach 0 Statute of Frauds where a contract is unenforceable because of the statute of frauds a party may recover the bene ts conferred on the party in reliance on contract o Voidable Contracts a party who has avoided a contract is entitled to restitution for any bene t conferred on the other party Limitations of Remedies 0 Election of Remedies if remedies are not inconsistent a party injured by a breach of contract may seek more than one remedy 0 Loss of Power of Avoidance a party with the power to avoid a contract may lose that power by 0 Af rming the contract 0 Delaying unreasonably in exercising the power of avoidance 0 Being subordinated to the intervening rights of third parties Chapter 9 Intentional Torts Harm to the Person 0 Battery intentional in iction of harmful or offensive bodily contact 0 Assault intentional in iction of apprehension of immediate bodily harm or offensive contact 0 False Imprisonment intentional con ning of a person against her will 0 ln iction of Emotional Distress extreme and outrageous conduct intentionally or recklessly causing severe emotional distress Harm to the Right of Dignity Defamation false communication that injures a person s reputation o Libel written of electronically transmitted defamation o Slander spoken defamation 0 Invasion of Privacy 0 Appropriation unauthorized use of a person s identity 0 Intrusion unreasonable and highly offensive interference with the seclusion of another 0 Public Disclosure of Private Facts highly offensive publicity of private information 0 False Light highly offensive and false publicity about another 0 Misuse of Legal Procedure torts of malicious prosecution wrongful civil proceeding and abuse of process that protect an individual from unjusti able litigation Harm to Property 0 Real Property land and anything attached to it o Trespass to Real Property wrongfully entering on land of another o Nuisance a nontrespassory interference with another s use and enjoyment of land Personal Property any property other than land 0 Trespass to Personal Property an intentional taking or use of another s personal property 0 Conversion intentional exercise of control over another s personal property Harm to Economic Interests Interference with Contractual Relations intentionally causing one of the parties to a contract not to perform Disparagement publication of false statements about another s property or products Fraudulent Misrepresentation a false statement made with knowledge of its falsity intended to induce another to act Chapter 10 Negligence and Strict Liability Negngnce Breach of Duty of Care De nition of Negligence conduct that falls below the standard established by law for the protection of others against unreasonable rise of harm Reasonable Person Standard degree of care that a reasonable person would exercise under all the circumstances 0 0 Children must conform to conduct of a reasonable person of the same age intelligence and experience under all the circumstances Physical Disability a disabled person s conduct must conform to that of a reasonable person under the same disability Mental Disability a mentally disabled person is held to the reasonable person standard of a reasonable person who is not mentally de cient Superior Skill or Knowledge if a person has skills or knowledge beyond those possessed by most others these skills or knowledge are circumstances to be taken into account in determining whether the person has acted with reasonable care Emergencies the reasonable person standard applies but an unexpected emergency is considered part of the circumstances Violation of Statute if the statute applies the violation is negligence perse in most states Duty to Act a person is under a duty to all others at all times to exercise reasonable care for the safety of the others person and property however except in special circumstances no one is required to aid another in peril Duties of Possessors of Land 0 Second Restatement a land possessor owes the following duties 1 not to injure intentionally trespassers 2 to warn licensees of known dangerous conditions licenses are unlikely to discover for themselves and 3 to exercise reasonable care to protect invitees against dangerous conditions land possessor should know of but invitees are unlikely to discover Third Restatement adopts a unitary duty of reasonable care to all entrants on the land except for agrant trespassers a land possessor must use reasonable care to investigate and discover dangerous conditions and must use reasonable care to eliminate or improve those dangerous conditions that are known or should have been discovered by the exercise of reasonable care 0 Res lspa Loquitur permits the jury to infer both negligent conduct and causation Factual Cause and Scope of Liability 0 Factual Cause the defendant s conduct is a factual cause of the harm when the harm would not have occurred absent the conduct 0 Scope of Liability Proximate Cause liability is limited to those harms that result from the risks that made the defendant s conduct tortious o Foreseeability excludes liability for harms that were sufficiently unforeseeable at the time of the defendant s tortious conduct that they were not among the risks that made the defendant negligent o Superseding Cause an intervening act that relieves the defendant of liability Harm 0 Burden of Proof plaintiff must prove that defendant s negligent conduct caused harm to a legally protected interest Harm to Legally Protected Interest courts determine which interests are protected from negligent interference Defenses to Negligence o Contributory Negligence failure of a plaintiff to exercise reasonable care for his own protection which in a few states prevents the plaintiff from recovering anything 0 Comparative Negligence damages are divided between the parties in proportion to their degree of negligence applies in almost all states Assumption of Risk plaintiff s express consent to encounter a known danger some states still apply implied assumption of the risk Strict Liability Activities Giving Rise to Strict Liability 0 De nition of Strict Liability liability for nonintentional and nonnegngntconduct 0 Abnormally Dangerous Activity strict liability is imposed for any activity that 1 creates a forseeable and highly signi cant risk of harm and 2 is not one of common usage 0 Keeping of Animals strict liability is imposed for wild animals and usually for trespassing domestic animals Defenses to Strict Liability 0 Contributory Negligence is not a defense to strict liability Comparative Negligence some states apply this doctrine to some strict liability cases Assumption of Risk express assumption of risk is a defense to an action based upon strict liability some states apply implied assumption of risk to strict liability cases Chapter 11 Product Liability Warranties and Strict Liability Warranties Types of Warranties De nition of Warranty an obligation of the seller to the buyer or lessor to lessee concerning title quality characteristics or conditions of goods Warranty of Title the obligation of a seller to convey the right of ownership without any lien in a lease the warranty protects the lessee s right to possess and use the goods Express Warranty an af rmation of fact or promise about the goods or a description including a sample of the goods which become part of the basis of the bargain Implied Warranty a contractual obligation arising out of certain circumstances of the sale or lease imposed by operation of law and not found in the language of the sales or lease contract 0 Merchantability warranty by a merchant seller that the goods are reasonably t for the ordinary purpose for which they are manufactured or sold pass without objection in the trade under the contract description and are of fair average quality 0 Fitness for Particular Purpose warranty by any seller that goods are reasonably t for particular purpose if at the time of contracting the seller had reason to know the buyer s particular purpose and that the buyer was relying on the seller s skill and judgment to furnish suitable goods Obstacles to Warranty Action Disclaimer of Warranties a negotiation of a warranty 0 Express Warranty usually not possible to disclaim 0 Warranty of Title may be excluded or modi ed by speci c language or by certain circumstances including judicial sale or a sale by a sheriff executor or foreclosing Henor o Implied Warranty of Merchantability the disclaimer must mention merchantability and in the case of a writing must be conspicuous in a lease the disclaimer must be in writing and conspicuous o Implied Warranty of Fitness for a Particular Purpose the disclaimer must be in writing an conspicuous o Other Disclaimers of Implied Warranties the implied warranties of merchantability and tness for a particular purpose may also be disclaimed 1 by expressions like quotas isquot quotwith all faultsquot or other similar language 2 by course of dealing course of performance or usage of trade or 3 as to defects an examination ought to have revealed where the buyer has examined the goods or where the buyer has refused to examine the goods 0 Federal Legislation Relating to Warranties of Consumer Goods the MagnusonMoss Warranty Act protects purchasers of consumer goods by providing that warranty information be clear and useful and that a seller who makes a written warranty cannot disclaim any implied warranty 0 Limitation or Modi cation of Warranties permitted as long as it is not unconscionable 0 Privity of Contract a contractual relationship between parties that was necessary at common law to maintain a lawsuit 0 Horizontal Privity doctrine determining who bene ts from a warranty and who therefore may bring a cause of action the Code provides three alternatives 0 Vertical Privity doctrine determining who in the chain of distribution is liable for a breach of warranty the Code has not adopted a position on this 0 Notice of Breach if the buyer fails to notify the seller of any breach within a reasonable time she is barred from any remedy against the seller Plaintiff39s Conduct 0 Contributory Negligence is not a defense 0 Voluntary Assumption of the Risk is a defense Strict Liability in Tort Requirements of Strict Liability in Tort 0 General Rule imposes tort liability on merchant sellers for both personal injuries and property damages for selling a product in a defective condition unreasonably dangerous to the user or consumer 0 Defective Condition 0 Manufacturing Defect by failing to meet its own manufacturing speci cations the product is not properly made 0 Design Defect the product though made as designed is dangerous because the design is inadequate 0 Failure to Warn failure to provide adequate warning of possible danger or to provide appropriate directions for use of a product 0 Unreasonably Dangerous contains a danger beyond that which would be contemplated by the ordinary consumer Obstacles to Recovery 0 Contractual Defenses defenses such as privity disclaimers and notice generally do not apply to tort liability o Plaintiff39s Conduct 0 Contributory Negligence not a defense in a majority of states 0 Comparative Negligence most states have applied the rule of comparative negligence to strict liability in tort 0 Voluntary Assumption of the Risk express assumption of risk is a defense to an action based upon strict liability some states apply implied assumption of risk to strict liability cases 0 Misuse or Abuse of the Product is a defense 0 Subsequent Alteration liability exists only if the product reaches the user or consumer without substantial change in the condition in which it is sold 0 Statute of Repose limits the time period for which a manufacturer is liable for injury cause by its product 0 Limitations on Damages many states have limited punitive damages that a plaintiff can collect in a product liability lawsuit Restatement Third of Torts Products Liability 0 General Rule one engaged in the business of selling products who sells a defective product is subject to liability for harm to persons or property caused by the defect 0 Defective Conditions 0 Manufacturing Defect a seller is held to strict liability when the product departs from its intended design 0 Design Defect a product is defective when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design 0 Failure to Warn a product is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings Chapter 12 Relationship of Principal and Agent Nature of Agency 0 De nition of Agency consensual relationship authorizing one party the agent to act on behalf of the other party the principal subject to the principal s control 0 Scope of Agency Purposes whatever business activity a person may accomplish personally he generally may do through an agent 0 Other Legal Relationships 0 Employment Relationship one in which the employer has a the right to control the manner and means of the employee s performance of work 0 Independent Contractor a person who contracts with another to do a particular job and who is not subject to the other s control over the manner and means of conducting the work Creation of Agency Formalities though agency is a consensual relationship that may be formed by contract or agreement between the principal and agent agency may exist without consideration 0 Requirements no particular formality is usually required in a contract of agency although appointments agents for a period of more than one year must be in writing 0 Power ofAttorney written formal appointment of an agent Capac y 0 Principal if the principal is a minor or an incompetent not under a guardianship his appointment of another to act as an agent is voidable as are any resulting contracts with third parties 0 Agent any person able to act may act as an agent as the act of the agent is considered the act of the principal Duties of Agent to Principal Duty of Obedience an agent must act in the principal s affairs only as actually authorized by the principal and must obey all lawful instructions and directions of the principals Duty of Good Conduct within the scope of the agency relationship an agent must act reasonably and refrain from conduct that is likely to damage the principal s interests Duty of Diligence an agent must act with reasonable care competence and diligence in performing the work for which he is employed Duty to Inform an agent must maintain and provide the principal information material to the affairs entrusted to her Duty to Account an agent must maintain and provide the principal with an accurate account of money or other property that the agent has received or expended on behalf of the principal an agent must not mingle the principal s property with any other person s property Fiduciary Duty an agent owes a duty of utmost loyalty and good faith to the principal it includes 0 Con icts of Interest SelfDealing Duty Not to Compete Misappropriation Con dential Information Duty to Account for Financial Bene ts OOOOO Duties of Principal to Agent Contractual Duties 0 Compensation a principal must compensate the agent as speci ed in the contract or for the reasonable value of the services provided if no amount is speci ed 0 Reimbursement the principal must pay the agent for losses the agent incurred while acting as directed by the principal o Indemni cation the principal must pay the agent for losses the agent incurred while acting as directed by the principal o Tort and Other Duties include 1 the duty to provide an employee with reasonably safe conditions of employment and 2 the duty to deal with the agent fairly and in good faith Termination of Agency 0 Acts of the Parties 0 Lapse of Time 0 Mutual Agreement of the Parties 0 Revocation ofAuthority o Renunciation by the Agent 0 Operation of Law 0 Death of either the principal or the agent 0 lncapacity of either the principal or the agent 0 Change in Circumstances lrrevocable Powers a power given as security including an agency coupled with an interest is irrevocable Chapter 13 Relationship with Third Parties Relationship of Principal and Third Persons Contract Liability of Principal Types of Principals o Disclosed Principal principal whose existence and identity are known 0 Unidenti ed Partially Disclosed Principal principal whose existence is known but whose identity is not known 0 Undisclosed Principal principal whose existence and identity are not know Authority power of an agent to change the legal status of the principal 0 Actual Authority power conferred upon the agent by actual consent manifested by the principal to the agent 0 Actual Express Authority actual authority derived from written or spoken words of the principal communicated to the agent 0 Actual Implied Authority actual authority inferred from words or conduct manifested to the agent by the principal o ApparentAuthority power conferred upon the agent by acts or conduct of the principal that reasonably lead a third party to believe that the agent has such power Delegation of Authority is usually not permitted unless actually or apparently authorized b y the principal if the agent is authorized to appoint other subagents the acts of these subagents are as binding on the principal as those of the agent Effect of Termination of Agency on Authority ends actual authorty 0 Second Restatement if the termination is by operation of law apparentauthority also ends without notice to third parties have actual knowledge or when appropriate notice is given to third parties actual notice must be given to third parties with whom the agent had previously dealt on credit has been specially accredited or has begun to deal all other third parties as to whom there was apparent authority need only be given constructive notice 0 Third Restatement termination of actual authority does not itself end any apparent authority held by an agent apparentauthority ends when it is no longer reasonable for the third party with whom an agent deals to believe that the agent continues to act with actual authority Rati cation affirmation by one person of a prior unauthorized act that another has done as her agent or as her purported agent Fundamental Rules of Contractual Liability 0 Disclosed Principal contractually bound with the third party if the agent acts within her actual or apparent authority in making the contract on the principal s behalf o Unidenti ed Partially Disclosed Principal contractually bound with the third party if the agent acts within her actual or apparent authority in making the contract on the principal s behalf 0 Undisclosed Principal contractually bound with the third party if the agent acts within her actual authority in making the contract on the principal s behalf Tort Liability of Principal 0 Direct Liability of Principal a principal is liable for his own tortious conduct involving the use of agents 0 Authorized Acts ongent a principal is liable for torts that she authorizes another to commit or that she rati es o Unauthorized Acts ongent a principal is liable for failing to exercise reasonable care in employing agents whose unauthorized acts cause harm 0 Vicariously Liability of Principal for Unauthorized Acts of Agent 0 Respondeat Superior an employer is liable for unauthorized torts committed by an employee in the scope of his employment 0 Agent Acts with Apparent Authority a principal is liable for torts committed by an agent in dealing with third parties while acting within the agent s apparent authority 0 Independent Contractor a principal is usually not liable for the unauthorized torts of an independent contractor Criminal Liability of the Principal Authorized Acts the principal is liable if he directed participated in or approved the acts of his agents 0 Unauthorized Acts the principal may be liable either for a criminal act of a managerial person or under liability without fault statues Relationship of Agents and Third Persons Contract Liability of Agent 0 Disclosed Principal o Authorized Contracts the agent is not normally a party to the contract she makes with a third person if she has actual or apparent authority or if the principal rati es an unauthorized contract 0 Unauthorized Contracts if an agent exceeds her actual and apparent authority the principal is not bound but the agent may be liable to the third party for breach of warranty or for misrepresentation 0 Agent Assumes Liability an agent may agree to become liable on a contract between the principal and the third party Unidenti ed Partially Disclosed Principal an agent who acts for a partially disclosed principal is a party to a contract with the third party unless otherwise agreed Undisclosed Principal an agent who acts for an undisclosed principal is personally liable on the contract to the third party Nonexistent or Incompetent Principal a person who purports to act as agent for a principal whom the agent knows to be nonexistent or completely incompetent is personally liable on a contract entered into with a third person on behalf of such a principal Tort Liability of Agent Authorized Acts the agent is liable to the third party for his own torts Unauthorized Acts the agent is liable to the third party for his own torts Rights of Agent against Third Parties Disclosed Principal the agent usually has no rights against the third party Unidenti ed Partially Disclosed Principal the agent may enforce the contract against the third party Undisclosed Principal the agent may enforce the contract against the third party Chapter 14 Nature and Formation of Corporations Nature of Corporations Corporate Attributes Creature of the State a corporation may be formed only by substantial compliance with a state incorporation statues 0 Legal Entity a corporation is an entity apart from its shareholders with entirely distinct rights and liabilities 0 Limited Liability a shareholder s liability is limited to the amount invested in the business enterprise 0 Free Transferability of Corporate Shares unless otherwise speci ed in the charter 0 Perpetual Existence unless the charter provides otherwise Centralized Management shareholders of a corporation elect the board of directors to manage its business affairs the board appoints of cers to run the daytoday operations of the business 0 As a Person a corporation is considered a person for come but not all purposes 0 As a Citizen a corporation is considered a citizen for some but not all purposes Classi cation of Corporations 0 Public or Private 0 Public Corporation one created to administer a unit of local civil government or one created by the United States to conduct public business 0 Private Corporation one founded by and composed of private persons for private purposes has no government duties 0 Pro t or Nonpro t 0 Pro t Corporation one founded to operate a business for pro t a Nonpro t Corporation one whose pro ts must be used exclusively for charitable educational or scienti c purposes 0 Domestic or Foreign 0 Domestic Corporation one created under laws of a given state 0 Foreign Corporation one created under the laws of any other state orjurisdiction it must obtain a certi cate of authority from each state in which it does intrastate business 0 Publicly Held or Closely Held 0 Publicly Held corporation whose shares are owned by a large number of people and are widely traded o Closely Held corporation that is owned by few shareholders and whose shares are not actively traded o Subchapter S Corporation eligible corporation electing to be taxed as a partnership under the Internal Revenue Code 0 Professional Corporation corporation form under which duly licensed individuals may practice their professions Formation of a Corporation Organizing the Corporation a Promoter person who takes the preliminary steps to organize a corporation 0 Promoters Contracts promoters remain liable on preincorporoation contracts made in the name of corporation unless the contract provides otherwise or unless a novation is effected o Promoters Fiduciary Duty promoters owe a duciary duty among themselves and to the corporation its subscribers and its initial shareholders Subscribers persons who agree to purchase stock in a corporation 0 Preincorporation Subscription an offer to purchase capital stock in a corporation yet to be formed which under many incorporation statues is irrevocable for speci ed time pedod o Postincorporation Subscription a subscription agreement entered into after incorporation an offer to enter into such a subscription is revocable any time before the corporation accepts it Formalities of lncorpora tion 0 Selection of Name the name must clearly designate the entity as a corporation 0 lncorporators the persons who sign the articles of incorporation Articles of Incorporation the charter or basic organizational document of a corporation 0 Organizational Meeting the rst meeting held to adopt the bylaws and appoint of cers 0 Bylaws rules governing a corporation s internal management Recognition or Disregard of Corporateness Defective lncorpora tion 0 Common Law Approach 0 Corporation dejure one formed in substantial compliance with the incorporation statue and having all corporate attributes o Corporation de Facto one not formed in compliance with the statute but recognized for most purposes as a corporation 0 Corporation by Estoppel prevents a person from raising the question of a corporation s existence 0 Defective Corporation the associates are denied the bene ts of incorporation 0 Statutory Approach the ling or acceptance of the articles of incorporation is generally conclusive proof of proper incorporation 0 Revised Model Business Corporation Act RMBCA liability is imposed only on persons who act on behalf of a defectively formed corporation knowing that there was no incorporation 0 Model Business Corporation Act MBCA unlimited personal liability is imposed on all persons who act on behalf of a defectiver formed corporation Piercing the Corporate Veil General Rule the courts may disregard the corporate entity when it is used to defeat public convenience commit a wrongdoing protect fraud or circumvent the law 0 Application most frequently applied to o Closely Held Corporations 0 Paren tSubsidiary Corporations Corporate Powers Sources of Corporate Powers 0 Statutory Powers typically include perpetual existence right to hold property in the corporate name and all powers necessary or convenient to effect the corporation s purposes Purposes a corporation may be formed for any lawful purposes unless its articles of incorporation state a more limited purpose Ultra Vires Act 0 De nition of ultra Vires acts any action or contract that goes beyond a corporation s express and implied powers 0 Effect of ultra vires acts under the Revised Acts ultra vires acts and conveyances are not invalid o Remedies for ultra vires acts the Revised Act provides three possible remedies Liability for Torts and Crimes 0 Torts under the doctrine of respondeat superior a corporation is liable for torts committed by its employees within the course of their employment 0 Crime a corporation may by criminally liable for violation of statues imposing liability without fault or for an offense perpetrated by high corporate officer or its board of directors Chapter 15 Management Structure of Corporations Role of Stakeholders Voting Rights of Shareholders Management Structure of Corporations Shareholder Meetings shareholders may exercise their voting rights at both annual and special shareholder meetings 0 Quorum minimum number necessary to be present at a meeting in order to transact business 0 Election of Directors the shareholders elect the board at the annual meeting of the corporation 0 Straight Voting directors are elected by a plurality of votes 0 Cumulative Voting entitles shareholders to multiply the number of votes they are entitled to cast by the number of director for whom they are entitled to vote and to case the product for a single candidate or to distribute the product among two or more candidates 0 Removal of Directors the shareholders may by majority vote remove directors with or without cause subject to cumulative voting rights 0 Approval of Fundamental Changes shareholder approval is required for charter amendments most acquisitions and dissolution 0 Concentrations of Voting Power 0 Proxy authorization to vote another s shares at a shareholder meeting 0 Voting Trust transfer of corporate shares voting rights to a trustee o Shareholder Voting Agreement used to provide shareholders with greater control over the election and removal of directors and other matters 0 Restrictions on Transfer of Shares must be reasonable and conspicuously noted on stock certi cate Enforcement Right of Shareholders 0 Right to Inspect Books and Records if the demand is made in good faith and for a proper purpose 0 Shareholder Suits 0 Direct Suits brought by a shareholder or a class of shareholders against the corporation based upon the ownership of shares 0 Derivative Suits brought by a shareholder on behalf of the corporation to enforce a right belonging to the corporation 0 Shareholder39s Right to Dissent a shareholder has the right to dissent from certain corporate actions that require shareholder approval Role of Directors and Of cers Function of the Board of Directors 0 Selection and Removal of Of cers 0 Capital Structure 0 Fundamental Changes the directors have the power to make amend or repeal the bylaws unless this power is exclusively reserved to the shareholders Dividends directors declare the amount and type of dividends Management Compensation Vacancies in the Board may be lled by the vote of a majority of the remaining directors Exercise of Directors Functions Meeting directors have the power to bind the corporation only when acting as a board Action Taken without a Meeting permitted if a consent in writing is signed by all of the directors Delegation of Board Powers committees may be appointed to perform some but not all of the board s functions Directors39 Inspection Rights directors have the right to inspect corporate books and records Of cers Role of Of cers officers are agents of the corporation Authority of Of cers 0 Actual Express Authority arises from the incorporation statute the charter the bylaws and resolutions of the directors 0 Actual Implied Authority authority to do what is reasonably necessary to perform actual authority 0 ApparentAuthority acts of the principal that lead a third party to believe reasonably and in good faith that an officer has the required authority 0 Rati cation a corporation may ratify the unauthorized acts of its officers Duties of Directors and Of cers Duty of Obedience must act within respective authority Duty of Diligence must exercise ordinary care and prudence Duty of Loyalty requires undeviating loyalty to the corporation Business Judgment Rule precludes imposing liability on directors and officers for honest mistakes in judgment if they act with due care in good faith and in a manner reasonably believed to be in the best interests of the corporation Indemni cation a corporation may indemnify a director or officer for liability incurred if he acted in good faith and was not adjudged negligent or liable for misconduct Liability Limitation Statutes many states now authorize corporationswith shareholder approval to limit or eliminate the liability of directors for some breaches of duty Format of the Final Exam Part One Identi cation 23 sentence identi cation of key concepts in the course eg quotelements of a contract Part Two Matching Linking of two concepts that are similar alternative dispute resolution and arbitration Part Three Short Essays Comparison and contrast of key concepts Common law and statutory law with an example Part Four Cases 2 short cases answered with the IRAC methodolody l facts an issue R relevant rule of law Jurisdiction Contract Torts Nature of corporation A compare facts to rule C does the rule apply why if not another rule
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