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Intro To Bus Law

by: Dr. Alexandro Mosciski

Intro To Bus Law BSL 212

Dr. Alexandro Mosciski
GPA 3.98

B. Teller

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B. Teller
Class Notes
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This 17 page Class Notes was uploaded by Dr. Alexandro Mosciski on Thursday September 17, 2015. The Class Notes belongs to BSL 212 at University of Miami taught by B. Teller in Fall. Since its upload, it has received 41 views. For similar materials see /class/205777/bsl-212-university-of-miami in Business Law at University of Miami.


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Date Created: 09/17/15
Business Law August 25 2011 CLASSIFICATION OF LAW 1 civil versus criminal a criminal matter i case is brought on by the government through a prosecutor ii must be convinced a crime has taken place iii person charged is guilty iv penalty is jailtime or restitution v standard ofproof beyond a reasonable doubt 1 better a criminal in the world than an innocent person in jail b civil lawsuits i brought by individuals against other individuals ii consequences damages money iii standard ofproof by a preponderance majority of evidence iv a person charged is liable or responsible 2 substantive versus procedural law a substantive law i rights and duties laws b procedural i laws that deal with processes of the court ii jurisdiction 3 federalvs state tracks a federal lawis a smaller area than state law b contracts laws 9 state laws c each state has its particulars SOURCE OF LAWS 1 Constitution a Guarantees rights limits powers bill of rights 2 Statutes a Very little contract law is statutory 3 Regulations 4 Case decisions judicial Case Opinions 9 main source of law a Comes from appeals when a law is tested b Decision of the highest court of the state supreme court of state has precedence Identify plaintiff defendant In appeals appellant v appellee 0 HISTORY OF THE LEGAL SYSTEM 1 US legal system based on England 2 Common law system case opinions take precedence 3 Civil law system statutes civil codes take precedent 1 Civil Dispute Resolutions a jurisdiction i Subject Matter jurisdiction SMI The authority of the court to hear a certain type of case 1 General federal court has juridisction if a Exclusive can only be heard by federal court i Diversity Iurisdiciton 1 Minimum amount in controversy gt 75000 a Depends on forseeble award Complete diversity of citizenship determined by domicile natural parties nonnatural parties a Natural party s domicile determined by where heshe have an indefinite intention of remaining b For non natural parties incorporation amp central nervous system headquarters 3 Encourages commerce between states ii Federal Question requires court to apply or interpret federal law treaty etc b Concurrent can be heard by both federal amp state court ii Personal jurisdiction PI The authority over the parties involved Voluntary submission actual constructive Service of process in forum style Long arm statute In rem jurisdiction court can obtain jurisdiction ifperson has property in that state iii Dismissed with prejudice or without prejudice b Due Process i Procedural 1 Opportunity to be heard ii Substantive due process 1 Minimum purposeful contacts N vFWNH September 10 2011 CHAPTER 9 INTRODUCTION TO CONTRACTS 111 VI State Law takes precedence The Uniform Commerical Code UCC a APPLIES TO THE SALE OF GOODS b Goods de ned as Tangible personal properties 139 not goods 1 employment insurance real estate 2 copyrightable intellectual property 3 stocksbonds 4 services contract eg catering legal accounting etc the CISG Convention for International Sale ofGoods UN Convention 1 governs international disputes and relations what is a contract a Promiseset ofpromises that will be enforced in a court of law b What isn t a contract i A gift a naked promise not enforceable in a court oflaw c Difference between a contract not a contract i Express vs implied 1 Express contract made with words written or spoken 2 Implied through behavior ii Bilateral v Unilateral 1 Bilateral exchange of 2 promises eg bike for 25 2 Unilateral promise in exchange for action washing car for 25 iii Executed vs executory 1 Executed both sides have performed adequately promises fulfilled 2 Executory contract unfinished contract Parts of a contract all 5 must exist Mutual assent offer acceptance Consideration Legality has to be fairjust Capacity ability to enter a contract kids drunks amp crazies Writings sometimes Two NonContractual Remedies a These are exceptions remedies that can be awarded even when there is N 0 CONTRACT 1 ll mocp 1 Skebba was offered 250000 as security money 2 Kasch sold the company years later but no money was given to Skebba 3 Kasch had made a promise and was therefore found liable in the courts 4 Issue can this naked promise be enforced ii Promissory Estoppel detrimental reliance 1 Noncontractual doctrine where a Promise noncontractual b Plaintiff relies on the promise reasonably c Defendant induced or could have forsoon plaintiff s reliance Plaintiff harmed Does it seem unfair meet all criteria amp you can get relief in court very iii Unjust Enrichment Quasi Contract 1 A noncontractual remedy in which reliefis granted when 3 elements are met a Benefits conferred granted upon defendant Ryan received a lot of information from Tackberry i Itemize Eg expenses property identified income etc carnqu b Benefits knowingly accepted amp not refused turned down c Unfair to leave uncompensated d reliefin the form ofmonetary damages despite lack of contract CHAPTER 10 MUTUAL ASSENT I offer acceptance a a valid offer is a definite proposalundertaking made by a person 11 the offers essentials a communicated as intended by offeror offeror makes offer i what is communicated 1 In a manner intended by offeror not secretary finds contract on desk without having been told first As authorized by offeror not relayed message from unauthorized person Usually in words a Exception silent offer finger for margarita b manifest intent to enter into a binding contract i not jokes auctions general advertisements excited utterances preliminary negotiations ii specific advertisements are exclusions they are valid offer 1 Le ltowitz v Great Minneapolis Surplus Store 2 Advertisement constituted offer bc it was specific quotleft nothing open for negotiation c definite certain i general common law rule subject matter price quantity quality and time ofperformance N W UCC Rule applies to the sell of good does not require things to be totally clearspecific Quantity is required but other terms like price can be understood through quotcourse of dealing ii39 1 2 Good faith defined as honesty in fact in the conduct or transaction concerned Commercial reasonableness standard determined in terms of the business judgemnet of reasonable persons familiar with the practices customary in the type of transaction involved amp circumstances of case Special cases output amp requirement contracts 1 Output contract agreement of a buyer to purchase a seller s entire output for a stated period no specified quantity 2 Requirement contact agreement of a seller to supply a buyer with all his requirements for certain goods 111 How long do offers last a Until acceptance b Lapse of reasonable time i Offer only open for a specific time ii The offer can terminate after a reasonable time question of fact or nature of the contract C 1 Revocation i Offers freely revocable until accepted ii Exceptions 1 Rejection 2 W F Eg perishable goods offer s reasonable time would be shorter than offer to sell undeveloped real estate Option contrcact down payment made my offeree to hold offer firm for specified amount of time UCC Exception to Revocation Rule 5 stipulations a Merchant s firm offer irrevocable offer involves goods seller must bbe a merchant has special eXperise or deals in goods ofa particular kind writing signed by merchant offer open for no more than 3 months Irrevocable offers on unilateral contracts promise for act a If performance of the requested act necessarily requires offeree to eXpent time and effort offeror obligated to keep offer open offeror must know of the efforts though CISG rule for irrevocable offers oralwritten promise is enough between international parties only Counteroffers rejection new offer conditional acceptance i Refer to case Gianetti v Cornillie Death or incompetency of either party Destruction of subject matter Subsequent illegality IV The Acceptance a Offer must be communicated bilateral or acted upon unilateral b Parties agree acceptance will be silent inactioncommunication of contrary interpreted as tacit consent V Timing a Offers counteroffers revocations amp rejections are effective when received b Acceptances are effective upon dispatch quotThe Mailbox Rule i Exceptions to mailbox rule 1 Offer specifies acceptance not effective until received 2 Method ofacceptance is specified ampofferee accepts in anotherunreasonable way 3 An acceptance that follows a prior rejection VI Variant Acceptances a What if the offer acceptance does not match 7 b Common Law The Mirror Image Rule c UCC Battle of the Forms i Boiler plate terms on back ii Both merchants terms in 2 101 form acceptance effective unless 1 Terms in 2 101 form materially alter the terms of the agreement 2 The new terms are objected to by the offeror in a reasonable time 3 The offer itself limits acceptance to its exact term iii If at least one party s not amerchant 1st form governs CHAPTER 11 CONDUCT INVALIDATING ASSENT I assent must be voluntary amp knowing II EXCEPTIONS a Duress wrongful or unlawful act or threat that overcomes the free will of the party i Physical duress 9 contract is void ii Improper threats 9 contract is voidable 1 Economic social coercion 2 Victim has no quotreasonable alternative 3 Threats of criminal prosecution b Undue in uence9 contractis voidable i Unfair persuasion by a person in a dominant position ii Confidentialrelationships 1 Guardianward trusteebeneficiary agentprincipal spouses parent child attorney client physician patient and cleryparishioner iii Rea vs Paulson Fraud i Fraud in the execution 9 void 1 Person unaware of the nature of the contract signed ii Fraud in the inducement 9 voidable O 1 False representation misleading conduct or assertion not in accord with the facts a Lies denial of truth halftruths active concealment b Silence is not usually false representation i Arms length transaction parties acting out of selfinterest c Exceptions to nondisclosure Latent Defects Known to the party Disclosure of fact would correct a basic assumption Failure to act in good faith in accordance with reasonable standards of fair dealing ii39 2 Fact not opinion not a future event not predictions not sales talkpuffery 3 Materiality relevance a Would be likely to induce a reasonable person to manifest assent b Maker is aware of said induction Only fraudmateriality can damages fraud itself only makes contract voidable 4 Scienter intent or knowledge ofwrongdoing false knowledge can be a Actual knowledge b Lack ofbeliefin the statement s truthfulness c Reckless indifference towards truth 5 Iustifiable reliance a Person not entitled to relief unless there was reliance on the misrepresentation b There are safeguards against defraudment d Nonfraudulent misrepresentation i Misrepresentation made without scienter ii Negligent misrepresentation 1 False representation without care in ascertaining truthfulness 9 voidable iii Innocent misrepresentation 1 False representation made without knowledge of falsity but with due care 9 voidable 0 e Mistake i Belief that is not in accord with the facts ii Adversely affected party can avoid reform contracts iii Mutual mistake 1 Both parties are mistaken on the same set of facts 2 Voidable by adversely affected party 3 Market conditions amp financial situations are not considered basic assumptions iv Unilateral mistake 1 One of the parties is mistaken court hesitant to grant relief V Assumption of risk of mistake 1 Partiesc can agree to bear the risk of mistakes 2 Eg ships selling uncut diamonds vi Effect of fault upon mistake 1 Mistakes do not prevent party from avoiding contract quotunless his fault amounts to a failure to act in good faith and fair dealing 2 Signature authorizes all written agreement vii Mistake in meaning of terms 1 Peerless case a 2 ships named Peerless buyer amp seller had different ships in mind b restatement no mutual assent where the parties attach materially different meanings to their manifestations CHAPTER 12 Consideration 111 Back amp forth quid pro quo that makes a contracts different from a gift i Gifts are not enforceable ii Contract is legally binding iii The quotmojoquot of the contract special sauce IV Elements of consideration i Legally sufficient 1 Detriment the giving up of something you have a legal right to donot do eg smoking to the promissee ii Bargained for iii Courts usually don t look at the adequacy of the consideration as long as it is legally bargained for unless it is a clear and utter sham b Special Elements consideration challeneged i Illusory Promises 1 quotpromise bonuses as it deem fit 9 promise is entirely up to one party unenforceable No legal remedy because there is no consideration 2 do not form binding contracts because there lacks consideration 3 performance is 100 optional 4 but output amp requirement contracts are ok quotall I require require is governed by good faithfair dealing 5 conditional contracts are ok quotbonus ifyou meet sales criteria ii preeXisting obligations 1 basic assumption to abide by the law required employment eg jobs 2 Denney v Reppert iii Modification ofa preeXisting contract 1 If u need to change something in the contract before performance it is a breach of contract 2 If formal modifications are to be made the other person has to give something up too 3 Negotiating in advance means you have to take a risk 4 Common law rule exception substantial unforeseen events arise amp not in the contemplation ofparties 5 Ucc additionally consideration not necessary as long as it is made in good faith 6 New England Rock Services Inc v Empire Paving Inc CHAPTER 13 ILLEGAL BARGAINS III Contracts that violate regulatory licenscing laws a Regulatory license designed to protect public form unqualified practitioners i Cannot recover for professional services b Revenue license serves simply to raise money i Eg plumbing service Gambling contracts unless by state a Parties with contract based on bets are unenforceable Usurious Contracts A loan Of money Repayable absolutely Intereste rate is higher than allowed by law Usury statute law establishing a maximum rate ofinterest Contracts that restrain trade a Covenant not to compete agreement to refrain from entering into a competing trade profession and business b Sale ofa business i Enforceable ifit is reasonable 1 Reasonable such as time period location of competing business hardship for the promisor c Employment contracts i No competition while under employment ii However non competition after release from employment contract is subjected to stricter standards of reasonableness for enforcement 1 Restriction is necessary to protect employer s interest trade secrets customers list d Payroll Advance v Yates 39 Payroll Advance entered contract of noncompetition with Yates After being fired Yates obtained employment from competing firm Check Please ii39 Payroll sues Yates for 1 using clientele 2 breaching contract iv Iudgment in favor onates 99969 i i39 VI VII VIII V judgment quotparty attempting to force noncomp Clause has to demonstrate 1 necessity to protect the claimant s legitimate interest and 2 the agreement is reasonable as to time and space Contracts with over reaching exculpatory clauses a Exculpatory excuses a party from liability under a contract b Enforceable to disclaim or excuse liability for negligent act but not for reckless or intentional acts c Mental states worse to bad i Intent to cause harm ii Reckless Gross negligence eg txting while on valet duty iii Negligence d ANDERSON V MCOSKAR ENTERPRISES 39 Exculpatory clause quotwaive release Curves from any responsibility from injuries that arise amp negligence from employees i39 Lady joins gym neck hurts ends up getting surgery iii Lady sues gym for trainer negligence careless about her injury iv Decision towards Curves no intent no recklessness Unconscionable Contracts rare a Contracts that shocking to the conscience unscrupulous unprincipled b Huge disparity in power terms are really one sided c Sanchez v Western Pizza Enterprises i Pizza delivery employees sign contract of employment saying quotany claim against company must go to arbitration company also gets to pick arbitrator therefore arbritator hired by company always favors the company rather than employee ii Contract deems unenforceable Certain Adhesion Contracts a Adhesion Contracts quottake it or leave it agreements generally unread by consumers drafted by one party usually nonnegotiable usually involves exculpatory clauses iii can be enforceable given strict scrutiny iv eg quotdo u agree with these terms software updates Tortious Contract a Contract to commit a civil wrong eg steal money defame someone Contracts that corrupt Public Officials a Contract to accept bribe pay off public official unenforceable h l CHAPTER 14 CONTRACTUAL CAPACITY Minors a Individual who has not reached the age of 18 nearly all jurisdictions b Alost always voidable at guardian s option minor has advantage of disaffirming or enforcing contract C Disaffirmance power of avoidance i ii39 Can exercise disaffirmance after reasonable time of coming of age 1 Reasonable time afte a Nature of transaction b Which party caused delay c Extent of injury to both parties Can be expressimplied as long as it shows intention not to be bound 1 Courts argue over minor s responsibility some states require payment on use of property or to make up for depreciation value Person with voidable title has power to transfer valid title to a good faith purchaser for value Berg vs Traylor Mishiel and Craig Traylor being sued for breach of contract Mishiel adult signed contract agreeing to pay 15 percent commission to Berg NH 3 Sept 11 Mishiel announced she was no longer paying 4 Decision favors Berg judgment against Mishiel 5 Mishiel was held obligated under the contract although Craig is not liable and has the power to disaffirm Law designed to shield minors from their own improvidence amp design of others Fquot d Ratification voluntary choice of enforcement after legal age is reached e i ii Occurs through 1 express language implied conduct failure to make a timely disaffirmance In Re The Score Board Inc 1 Bryant entered into contract with Score Board to make personal appearances and sign autographs After turning 18 he accepted the 10000 check and began signing autographs After a year he grew reluctant and tried to pull out of the contract intending to use his power of dissafirmance Decision favored Score Board His actions imply ratification signing autographs accepting 10000 dollarsmaking personal appearances W N 0quot Liability for necessaries ii39 Necessities clothes medicine food shelter other personal needs Question of quotnecessaryquot can be debatable Eg textbook legal advice Some states includes articles properties and services required by the minor to earn money to provide for himselfdependents Most states limit necessities to items that are not provided for the minor Zelnickvs Adams 1 Parents never married grandfather left trust 2 Adams mom solicits legal services from Zelnick to make Ionathan son a trustee P 0 9 5 Zelnick is promised 13 commission and successfully makes Ionathan a trustee Ionathan later pleas infancy to disaffirm contract with Zelnick so as to not pay him Trial courts favored Ionathan later decision reversed The right to his trust was necessary to maintain his position in society Contracts for legal services relating to protecting liberty security and reputation considered neccesarry some states include property rights f Liability for misrepresentation of age i Some states do not allow disaffirmance ii States who do allow 1 2 Requires minor to restore party in precontract condition Allow defrauded party to recover damages against minor in tort iii Keser vs Chagnon 1 2 Chagnon 20 lied about age to buy a car for 995 2 months after 215tbday he returned car amp asked for money back Keser sues and court orders a repayment of 665 Courts decide that minor is still allowed power of disaffirmance despite fraudulation in this case court subtracts a quotdamage price from the original sum g Liability for tort connected with contract i Court generally does not hold minor liable for torts 1 Eg minor wrecks rental vehicle minor is immune from prosecution 2 However if minor uses car for unauthorized purposes and then wrecks vehicle the original tort is independent of contract 11 Incompetent persons a Person under guardianship i Person under guardianship by court order 9 all contracts void 1 Guardian appointed by court to preserve amp control property of the wardadjudicated incompetent ii Party can recover the fair value of necessities provided to incompetent iii Contracts can be ratified by ward b Mental illnessdefect i Mentally incompetent 9 voidable ii Cognitive ability test 1 2 3 Unable to comprehend subject of the contract Nature Probablle consequences III ii39 Mentally incompetent person can disaffirm despite other party s knowledge of given condition iv Other types ofmentality perosns capacity to act in reasonable or rational manner 1 Contract grossly unfair 9 voidable 2 Contract is fair and other party did not suspect the incompetent must restore other party to original state V Liable for necessaries furnished recovery depends on reasonable value of goods and services Intoxicated Persons a b O m1 Contract entered with other party s knowledge of intoxication 9 voidable Courts are stricter due to its voluntary nature Courts generally require that to avoid contract intoxicated person after gaining capacity must promptly disaffirm contrac and restore furnishments Medicationinvoluntarily intoxicated treated as incompetent First State Bank of Sinai v Hyland 39 Randy unable to pay notes enlisted Mervin father as a cosigner Mervin has always been prompt in paying his notes Randy gets the 1st one signed but Mervin refuses to sign for 2 101 note Randy then goes bankrupt and thus liability falls on cosigner iv Mervin pleas intoxication to avoid v Courts favor bank saying that once mental capacity is regained the person should promptly disaffirm contract vi Mervin not only received notices from the bank of overdue payment but also paid off an interest implied ratification i39 ii39 H CHAPTER 15 CONTRACTS IN WRITING oralvs written I mocp clarify terms brings light to problems otherwise not foreseen permanent vs recollection contract is final unchangeable contracts can still be argued when terms are ambiguousdifferent interpretations Statute of frauds certain types of contracts that are only enforceable through writing must comply with requirements a b C Category is to prevent fraud Proof or evidence ofa contract 6 types of contracts governed by said statute i promises to answer for the duty of another 1 Suretyship provision surety promises creditor to perform the obligations ofa third person principle debtor if the third person does not perform a Collateral promise promisor is not primarily liable b 3 parties 2 contracts primary contract between principal debtor and creditor collateral contract is between surety and creditor 2 Original Promise surety promises to become primarily liable 9 statute is no longer effective a creditor may only look to the promisor alone for payments 3 Main Purpose Doctrine aka Leading Object Rule Main Purpose Doctrine exception to the suretyship provision a When main purpose of the promisor is to obtain economic benefit for himself that did not exist previously this becomes an exception to statute b Surety received slight or indirect consideration for his promise is not sufficient 4 Rosewood Care Center inc v Caterpillar Inc a Cook suffers work related injury while working for Caterpillar is then subsequently admitted into Rosewood for treatment b Secretary received phone authorization from Caterpillar to admit Cook in hospital c Caterpillar refuses to pay bill claiming surety promises must be in writing d Judgment for rosewood due to preexisting debt rule 5 Promise Made to Debtor a Excludes promises made to debtor instead of creditor can be orally enforceable ii Executoradministrator promises 1 promises of an executor to answer personally for a duty of the decedent whose funds he is administering 2 promises of an executor ofa decedent s willadministrator of the estate in the lack ofa will to answer personally for duty of a decedent 3 provision does not apply to promises to pay debts of the deceased out of assets of the estate 4 exceptions of suretyship provision apply to this provision 5 Rob promises to pay for dead mom s debt 9 must be in writing iii consideration of marriage 1 does not apply to mutual promises to marry 2 promise to marry is made in consideration for some other promise other than mutual promise to marry 3 Adam s promise to give farm to Barnes ifBarnes accepts proposal of marriage iv transfer of an interest in land 1 covers promises to transfer any interest in land right privilege power immunity promises to transfer buy or pay for land N excludes contracts to transfer an interest in personal property shortterm leases lt1 year building contracts working on land contracts building insurance contracts A part performance oral contracts enforceable if party seeking enforcement has reasonably relied on the contract standard of reliance party must 1 paid portion or all of purchase price AND either 1 taken possession or 2 made valuable improvements 4 oral promise by purchaser is enforceable ifseller fully performs v agreements not to be performed within one year 1 all contracts that cannot be fully performed with a year must a be in writing 2 Possibility Test Court asks whether performance is possible in 1 year Calculated based on terms of contracts not on probalities or subsequent events Contracts of indefinite duration is excluded Iacono vs Lyons a b 99 i ii39 Lyons accompanies Iacono on the trip after she is convinced that she had a dream about winning in Las Vegas Lyons gives plaintiff the money to gamble they end up with a jackpot of 1 million dollars to be paid over 20 years Lyons refused to pay citing that this 20 year payout classifies that it must be a written agreement under oneyear provision Court judges in favor of Iacono saying the terms are possible to fulfill within a year eg one time payout 3 Computation of Time a Time begins when agreement is made vs beginning of performance 4 Full Performance by One Party If one party has fully performed within a year it is enforceable even if the other cannot perform within a a year vi sale of goods UCCgoverned by Article 2 1 sale of goods greater than 500 dollars needs to be in writing where goods are moveable personal property 2 exceptions a Admission i Party for whom enforcement is sought from admits that there was a contract enforcement is only limited to quantiy of goods he admits ii Performance over period of time alludes to an implicit admittance of the contract b Specially Manufactured Goods i Goods especially manufactured for a buyer evidence must indicate goods were specific to the buyer ii Seller has to show substantial beginning of the manufacture before receiving notice of repudiation detrimental because cannot resell iii Kalas V Cook 1 Kalas printed yers for Simmons but stored extras in his print shop 2 Kalas agrees to ship extra material to Simmons but he dies beforehand 3 Cook the executor of Simmon s estate claims agreement is unenforceable bc no written contract 4 Court finds that the goods fall into category of quotspecially manufactured goods and judges in favor of Kalas c Delivery or Payment and Acceptance i Delivery and acceptance ofpart of the goodspayment and acceptance of part ofprice 9 contract enforceable but only for goods which have been acceptedpaid for d states varies on which contracts must be in writing some states require written contracts for will authorization for real estate e Electronic Records i Uniform Electronic Transactions Act 1999 1 Applies to parties who has agreed to conduct transactions by electronic means Sec 7 guarantees signature full effect of contract 3 Sec 14 allows contract to be formed by interaction of electronic agents computersautomated means 4 Exclude wills codicils and testamentary trusts all articles of the UCC except articles 2 amp 2a ii Electronic Signatures in Global and National Commerce 2 000 1 Electronic records amp signatures valid across US for transactions in or affecting interstate and foreign commerce 2 Broader than the wording ofUETA 3 Electronic record defined as a contract communicated through electronic means electronic signature defined as sound symbol process that is intended to sign the record Equot


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