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by: Mrs. Elfrieda Ratke


Mrs. Elfrieda Ratke
Texas State
GPA 3.63

A. Stokes

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A. Stokes
Class Notes
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This 8 page Class Notes was uploaded by Mrs. Elfrieda Ratke on Wednesday September 23, 2015. The Class Notes belongs to BLAW 2361 at Texas State University taught by A. Stokes in Fall. Since its upload, it has received 68 views. For similar materials see /class/212758/blaw-2361-texas-state-university in Business Law at Texas State University.

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Date Created: 09/23/15
TEST 2 STUDY GUIDE Required elements of defamation 7 Our right to free speech is constrained by the duty we owe each other to refrain from making false statements Orally breaching this duty is slander breaching it in print or media is M Basis of defamation is the publication of a false statement that holds an individual up to hatred contempt or ridicule in the community publication requires communication to a third party Required elements of negligence 7 Duty of Due Car 7 The defendant owes duty to protect Plaintiff from foreseeable risks that defendant knew or should have known about Breach of Due Care 7 The defendant breached duty of care or failed to meet legal obligation Factual Cause 7 Did the injury occur because of the defendant s act or would the injury have occurred anyway Proximate Cause 7 An act is the proximate cause of the injury when the casual connection between the act and injury is strong enough to impose liability foreseeability of injury is an important factor has to be unbroken chain of events Damage The plaintiff has actually been hurt or has actually suffered a 39 39 loss y damages 39 39 plaintiff for actual losses punitive damages designed to punish the tortfeasor and deter others from wrongdoing usually only available in gross negligence cases Negligence per se 7 Occurs when defendant violates statute that causes injury to plaintiff statute sets standard of care plaintiff is member of class intended to be protected by statute Assumption of risk A person who voluntarily enters a situation that has an obvious danger who willingly engages in the act anyway cannot complain if she is injured Comparative negligence Both the plaintiff s and the defendant s negligence are considered and damages are apportioned accordingly Contributory Negligence 7 If the plaintiff is even slightly negligent they recover nothing Superseding Cause 7 An unforeseeable intervening act that occurs after Defendant s act that breaks the casual relationship between Defendant s act and Plaintiff s injury thus relieving Defendant of liability Wrongful interference with a contractual relationship 7 Defendant knows about contract between A and B intentionally induces either A or B to breach the contract and Defendant benefits from breach Wrongful interference with a business relationship 7 Established business relationship and defendant tortfeasor using predatory methods causes relationship to end and Plaintiff suffers damages Fraudulent misrepresentation 7 Intentional deceit for personal gain Elements Misrepresentation of material facts or conditions with knowledge that they are false or with a reckless disregard for the truth intent to induce another to rely on that misrepresentation justifiable reliance by innocent party damages as a result of reliance casual connection between misrepresentation and injury suffered Appropriation Use of another s name likeness or other identifying characteristic for commercial purposes without the owner s consent Commercial misappropriation 7 when a person takes and uses the property of another for the sole purpose of capitalizing unfairly on the goodwill of reputation of the property owner Regulation of cyber torts Trespass to land 7 occurs when a person without permission physically enters onto above or below the surface of another s land or causes anything to enter onto the land or remains or permits anything to remain on the land Landowner has reasonable duty to trespasser Trespass to personal property 7 Intentional interference with another s use or enjoyment of personal property without consent or privilege Conversion 7 taking or using someone s personal property without consent Assault and battery 7 ASSAULT is an intentional unexcused act that creates a reasonable apprehension or fear immediate harmful or offensive contact No contact necessary BATTERY 7 Completion of the assault intentional or unexcused Has to be harmful offensive or unwelcome physical contact Business owners duties to invitees Abnormally dangerous activities which may justify strict liability 7 Activities are so naturally dangerous that the law places an especially high burden on anyone who engages in them Requirements for strict liability 7 lThe product must be in a defective condition when the defendant sells it 2 The defendant must be normally engaged in the business of selling that product 3 The product must be unreasonable dangerous to the user or consumer because of its defective condition 4 The plaintiff must incur physical harm to self or property by use or consumption of the product 5 The defective condition must be the proximate cause of the injury or damage 6 The goods must not have been substantially changed from the time the product was sold to the time the injury was sustained Theories and elements of product defect liability Manufacturing 7 occurs when a product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product Product unsafe glitch made during manufacturing phase Warning 7 A product may be defective because of inadequate warnings or instructions Liability bases on foreseeability that proper instructionslabels would have made the product safe to use Design 7 Foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative and the omission of the alternative design renders the product not reasonably safe Required elements of a contract 7 Agreement Offer and Acceptance Once an agreement is reached if the other elements of a contract are present a valid contract is formed Consideration 7 value of your promise Contractual Capacity Legality Required elements of a valid offer Offeror s serious intention Contract is judged by what a reasonable person in the Offeree s position would conclude about the offer Offers made in anger jest undue excitement expressions of opinion statements of intention and preliminary negotiations are not offers Advertisements Catalogues Price Lists and Circulars are treated as invitations to negotiate and not as offers Definiteness of terms 7 Terms Expressed or Implied Identi cation of the parties object or subject matter of the contract consideration to be paid time of payment delivery or performance Communication to Offeree 7 Offeree s knowledge of the offer directly by the offer use of agents When revocation of an offer isis not permitted 7 Offer can be withdrawn anytime before offeree accepts the offer effective when the offeree or offeree s agent receives it Exceptions 7 Irrevocable offers option contract promise to hold an offer open for a speci ed period of time in return of consideration When an offer is terminated 7 An offer may be terminated prior to acceptance by either action of the parties or operation of law Rejection of the offer by the offeree rejectopm by the offeree expressed or implied terminates the offer effective only when it is received by the offeror or offeror s agent Lapse of Tim 7 offer terminates by law when the period of time specified in the offer has passed if no time period for acceptance is specified the offer terminates at the end of a reasonable period of time Destruction of the subject matter death or incompetence of the offeror or offeree supervening illegality of the proposed contract When acceptance of an offer is effectivewhen it is invalid 7 Acceptance is the voluntary act expressed or implied by the offeree that shows assent agreement to the terms of an offer Silence doesn t constitute acceptance acceptance of services by silence sometimes offeree has a duty to speak silence can be acceptance if there are prior dealings solicited offers the offeree has a duty to reject Mailbox Rule 7 Acceptance becomes effective on dispatch providing that authorized means of communication is used Offeree accepts by using the stipulated means of acceptance Offeror specifies how acceptance should be made effective when dispatched When it is invalid 7 If acceptance is not properly dispatched by the offeree if offeror specifies that acceptance will not be effective until it is received if acceptance is sent after rejection whichever is received first is given effect Unauthorized means of acceptance 7 not effective until is received by the offeror If timely sent and dispatched it is considered to have been effective on its dispatch Bilateral V unilateral contracts 7 Whether a contract is bilateral or unilateral depends on what the offeree must do to accept the contract Bilateral 7 Offeree must only promise to perform a promise for a promise Both parties are obligated to perform Unilateral 7 Offeree can accept the offer only by completing the contract performance a promise for an act Irrevocable Offer cannot be revoked once substantial performance has been completed Rules for interpreting contracts 7 Ambiguous Terms If terms are ambiguous court will attempt to interpret contract in a reasonable lawful effective manner Contracts are interpreted as a whole Terms negotiated separately given greater weight Ordinary common meaning given Specific wording given greater weight than general language Handwritten or typewritten given greater weight than preprinted Ambiguous terms interpreted against the drafter Trade usage prior dealing course of performance NF V39PP P Express V implied in fact V implied in law contracts 7 Express words oral or written the parties intended to contract and agree on explicit terms Impliedinfac 7 Conduct creates and de nes the terms of the contract Ex 1 Plaintiff furnished good or service 2 Plaintiff expected to be paid and defendant knew plaintiff expected to be paid 3 Defendant had chance to reject service or property and didn t Implied law 7 fictional contracts created by courts Imposed on parties for the interest of fairness and justice equitable remedies quantum merit as much as he deserves Quantum merit 7 A possible remedy for an injured plaintiff in a case with no valid contract 1 The plaintiff gave some benefit to the defendant 2 The plaintiff reasonably expected to be paid for the benefit and the defendant knew this 3 The defendant would be unjustly enriched if he did not pay Formal V informal contracts 7 Formal 7 require special form or method of formation to be enforceable e g 7 a contract under seal Informal 7 Simple contracts Good luck Business Law 2361 Prof Alexis Stokes Spring 2012 Exam 1 Review Strategies I encourage you to do the following to prepare for Exam 1 which will be given in class on Wednesday February 15 1 Read Chapters 15 very carefully As you read think of realworld examples of each concept 2 Review the Power Point presentations and your class notes 3 Peruse the online learning resources on your textbook s website which is noted on your syllabus 4 Review the problems at the end of each chapter 6 Attend the optional review session time and place TBA 7 Email me or stop by my office with any questions In addition you should at a minimum be able to apply the following concepts please note that this is not an allinclusive list Stare Decisis 7 judge made law Schools of jurisprudence especially natural law and positivism al law an unjust law is no law at a 0 Legal positivism 7 law is what the sovereign says 0 Legal realism 7 who enforces the law counts more than what is written Personal jurisdiction 7 power over the people in the lawsuit 0 mi imum contracts test Subject matter jurisdiction 0 a limitation on the types of cases a court can hear Federal question jurisdiction 0 the rights of obligations of a party are created or defined by a federal law Diversity jurisdiction 0 Dispute is between citizens of different states AND 0 The amount is greater than 75000 In rem jurisdiction 7 jurisdiction over property Personal or intellectual property 0 Court has in rem jurisdiction over any property situated within its geographical borders Original jurisdiction versus appellate jurisdiction 0 original 7 where the case is first brought to trial 0 appellate hears the appeals from lower courts Venue appropriate location for the trial roper venue is where the injury occurred or where the defendant resides Standing sufficient stake in the controversy 0 Requires there be a live justifiable controversy I You must have either suffered a legal injury or be eminently threatened by a legal issue Identification of parties in a lawsuit plaintiff defendant appellant appellee The structure of the federal court system 0 Jury s decide questions of fact The stages of the litigation process what happens when 0 Plea in s I File petitioncomplaint I ourt acquires jurisdiction over subject matter I Facts 7 who what where how I What law applies to this dispute I Prayer what relief party seeks from the court I Due process rights I 20 days to answer to claim made against you I answer defendant s response to the allegations stated in the plaintiffs complaint Must admit or deny each allegation in complaint 0 Discovery 7 parties obtain info from the opposing party prior to trial 0 Pretria I Litigation I Mediation I Arbitration I Disposition wo trial I Default judgments I Dismissa s I Summary judgment I settlement 0 Trial I Voir Dire o Posttrial and Motions I File motion for new trial I INOV 0 Enforcement and Collection of Judgment I Defendant is legally required to comply with its terms I Defendant who will no voluntarily comply is compelled to do so by seizure and sale of hisher assets settlement may occur at any of these stages The burden of proof in a civil lawsuit 0 The plaintiff has the burden of proof I Plaintiff must convince the jury that its version of the case is correct I Defendant is not obligated to disprove the allegations By preponderance of the evidence and a majority of jurors must agree on verdict The types of relief a court may award monetary damages equitable remedies etc o Damages money 0 Injunction 7 order to stop doing something 0 Specific performance 7 order to do something 0 Rescission 7 cancellation of contractual obligations An appellate court s scope of review Discovery tools in a lawsuit 0 Depositions and interrogatories 0 Requests for admissions Electronic discove 0 Requests for examinations 0 Production of documents objects and entry upon land How the contingency fee system operates Directed verdicts summary judgment and judgments nov 0 Summary judgment 7 ruling by the court that no trial is necessary bc some essential facts are not in dispute 0 o Directed verdict 7 ruling that the plaintiff has entirely failed to prove some aspect of her case I A dv is permissible only if the evidence so clearly favors the defendant that reasonable minds could no disagree on it 0 Judgment Non obstante veredicto notwithstanding the jury s verdict I Asking the judge to over turn the jury s verdict Iurys decision went against all of the evidence Case law citations 0 Arbitration Regulation of commercial speech howwhen are such restrictions valid 0 Restrictions must Implement substantial gov interest I Directly advance that interest I Go no further than necessary 0 Bad Frog Brewery Commerce Clause 0 authorizes the national gov to regulate virtually any business enterprise including internet 0 Power to regulate interstate commerce Gibbons v Ogden 0 US v Lopez guns at schoo s Supremacy Clause Supreme law of the land 0 Direct conflict between the state and federal law state law is invalid Privileges and Immunities Clause 0 state governments can t discriminate against out of state residents We want to encourage in out of state relations Full Faith and Credit Clause 7 o a contract in one state must be honored in another state Equal Protection Clause 0 Gov must treat ppl equally 0 l43911 amendment I minimal scrutiny economic and social relations intermediate scrutiny gender 0 strict scrutiny involving race ethnicity or fundamental rights Due Process Clause 0 no personal shall be deprived of life liberty or property without due process of law The Tenth Amendment 0 provides that powers the US constitution does not give to the federal government are reserved for the states Constitutional basis for blue laws 0 designed to enforce religious standards particularly the observance of Sunday as a day of worship or rest and a restriction on Sunday shopping Procedural versus substantive due process 0 Procedural due process is required whenever the gov attempts to take liberty or property 0 Substantive due process analysis presumes that any economic or social regulation is valid and presumes invalid any law that infringes upon a fundamental right speech privacy religion The law governing searches and seizures 0 4 amendment requires warrant with probable cause I warrantless exceptions exist for evanescent evidence 0 Marshall v Barlow s o 53911 amendment Kelo v City of New London The types of protected speech under the First Amendment 0 peec o Symbolic speech 0 Commercial speech Ethical duties owed by corporate officers and directors Models of ethical decisionmaking The goldren rule Intuition ethic 7 if it feels good do it Positive law model obey the law Stakeholder model Andersen s 7 step 7 facts ethical issues alternatives stakeholders ethics screen of alternatives practical constraints decision long process 0 Newspaper testdisclosure rule 7 would you be willing to see it immediately described by an informed and critical reporter on the front page of his local paper there to be read by his spouse children and friends 0 Mirror test 7 will you be able to look at yourself tomorrow 0 Professional ethic do only that which can be explain before a committee of your professional peers o Kant s categorical imperative 0 Rights principle 7 what effect will the action have on the rights of others 0 Utilitarianism 7 an action is ethical if it provides the greatest good for the greatest number of people 0 O O O I Ways companies can foster ethical workplaces 0 Ethical codes of conduct 0 Corporate compliance programs 0 Training in crosscultural business practices I Foreign Corrupt Practices Act 0 Prohibits us businesspersons from bribing foreign officials to secure beneficial contracts 0 Okay to grease the wheels 7 tipping low level employees in other countries I The differences between common law administrative law and statutory law Good Luck 0 Common law judge made law I Predominates in tort contract and agency law I Courts of law monetary relief I Courts of equity nonmonetary relief 7 notions of justice and fair dealings I Damages money I Injunction 7 order to stop doing something I Specific performance 7 order to do something Rescission 7 cancellation of contractual obligations 0 Administrative law provide unique expertise in complex areas ommerce clause and interstate commerce clause I Administrative procedure act 0 Statutory law each level of government has legislative body I Proposed statutes are called bills


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