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Law And Business I

by: Kenyon Herzog

Law And Business I BUL 3320

Kenyon Herzog
GPA 3.58

Robert Welker

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About this Document

Robert Welker
Class Notes
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This 2 page Class Notes was uploaded by Kenyon Herzog on Wednesday September 23, 2015. The Class Notes belongs to BUL 3320 at University of South Florida taught by Robert Welker in Fall. Since its upload, it has received 28 views. For similar materials see /class/212624/bul-3320-university-of-south-florida in Business Law at University of South Florida.


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Date Created: 09/23/15
Chapter 11 Concealment 7 fraudulent failure to disclose a material fact or an action that is taken to keep another from learning a fact can form the basis of fraud Duress 7 Unlawful constraint exercised upon a person whereby he is forced to do some act against his will or a wrongful act or threat that overcomes the freewill of the party leaving the victim with no reasonable alternative Physical duressc0mpulsi0n is coercionwhen a party compels another to manifest assent involving physical force or the threat of physical force It renders the agreement void Improper threats 7 duress by means of improper threats or acts including economic social coercion it make the contract voidable by the coerced party More common then physical duress The threat may be explicit or inferred The test for duress is subjective Fact 7 an event that took place or a thing that happened Fiduciary 7 a person or institution that manages money or property for another and whom must exercise in such management activity a standard of care imposed by law or contract eg Executor in a will receiver in a bankruptcy trustee Fraud in the execution 7 misrepresentation that deceives the other party as to the nature of a document evidencing the contract Extremely rare renders the contract void Fraud in the inducement 7 intentional misrepresentation regarding the subject matter or material fact of a contract by one party that induces the other party who consents to enter into the contract in justifiable reliance on the misrepresentation When this happens it is a voidable contract at the option of the defrauded party Five requisite elements for fraud are as follows I alse representation 7 positive statement or conduct that misleads silence doesn t count unless in the case of a fiduciary who owes a dut I Fact 7 must be a misrepresentation of a material fact statements only count here if they were made by an expert a statement of fact is distinguished from a prediction of the future Representations of law are considered opinions Materiality 7 if it would be likely to induce a reasonable person to act to manifest his assent amp the maker know that it would have this affect Knowledge of Falsity amp Intent to Deceive misrepresentation must have been know to the maker to be false contain the intent to deceive which can consist of actual knowledge lack of belief in its truthfulness reckless indifference for its truthfulness Justifiable Reliance 7 person is not entitled to the relief unless this existed no fraud if there were in no way in uenced by the misrepresentation Improper threats 7 duress by means of improper threats or acts including economic social coercion it make the contract voidable by the coerced party More common then physical duress The threat may be explicit or inferred The test for duress is subjective Innocent misrepresentation 7 misrepresentation made without knowledge of its falsity but with due care Misrepresentation any manifestation in words or other conduct by one person to another that under the circumstances amounts to an assertion not in accordance with the facts A misrepresentation that justifies the rescission of a contract is a false statement of substantial fact or any conduct which leads to a belief of a substantive fact material to proper understanding of the matter at hand Fraudulent misrepresentation 7 false statement made with knowledge of its falsity and intent to mislead Mistake is an understanding that is not in accord with existing fact Mutual mistake 7 where the common but erroneous belief of both parties forms the basis of the contract if the mistake relates to the basic assumption of the contract and has a material effect on the agreed exchange then it is voidable by the adversely affected party unless he bears the risk of the mistake Negligent misrepresentation misrepresentation made without due care in ascertaining its truthfulness Opinion 7 belief in the existence of a fact or a judgment as to value Prediction 7 different from a statement of fact not part of the definition of fraud Puffery 7 sales talk that is considered general bragging or overstatement Scienter 7 Latin Knowingly or Deliberately Subjective test to take something into perspective interns of a reasonable person Undue in uence 7 terms refer to conduct by which a person through his power over the mind of a testator makes the latter s desires conform to his own Thereby overm astering the volition of the testator A transaction induced by undue in uence by the dominant party is voidable Unilateral mistake 7 erroneous belief on the part of only one of the parties to a contract relief will be granted only when the nonmistakng party knows or reasonable should know or where the mistake was caused by the fault of the nonmistakng party Void Null ineffectual nugatory having no legal force or binding effect39 unable in law to support the purpose for which it was intended This difference separates the words void and voidable void in the strict sense means that an instrument or transaction is nugatory and ineffectual so that nothing can cure it39 voidable exist where an imperfection or defect can be cured by the act or confirmation of the person who could take advantage of it Frequently the word void is used and construed as having the more liberal meaning of voidable Voidable 7 capable of being made void Assumption of Risk of Mistake a party who had undertaken the contract to bear the risk of mistake will be unable o avoid the contract Even if a mutual or unilateral mistake would have allowed for such


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