Legal Environment of Business
Legal Environment of Business BLAW 3400
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BLAW Ch 18 J What is required to be a professional corporation A corporation is a legal entity created and recognized by state law This business entity can have one or more owners and it operates under a name distinct from the names of its owners 5 Do companies have a perpetual existence in most states Yes because of their registration they have a perpetual existence in most states What is the most important function of the first organization meeting Creating the Bylaws 53 What is a defecto corporation A de facto corporation is one that is recognized based on 1 A statue exists under which the corporation can be validly incorporated 2 The parties have made a good faith attempt to comply with the statue 3 The parties have already undertaken to do business as a corporation 3 What are the implied powers of a company necessary for These powers are assumed powers within a corporation that may not clearly be listed in the Bylaws 6 What body governs a company Board of Directors elected by shareholders are the governing body 2 How is the board of directors elected The Board of Directors are chosen in the bylaws and serve at least a one year term then are nominated and voted on by shareholders What is the right to participate This states that llAll board members have the right to be notified ofall meetings in regard to the corporation and have the right to participate in those 39 meetingsquot LO V What is a quorum The number of people required to be present before a meeting can conduct business 10 Can the board of directors delegate some of its functions to its officers Yes under the Duty of Care board members are expected to pass down tasks to the officers who will then distribute those tasks to be completed 11 What is the business judgment rule A corporate director or officer will not be liable to the corporation or to its shareholders for honest mistakes ofjudgment or bad decisions 12 From what source do the payments of dividends come from A dividend is a distribution of corporate profits or income ordered by the directors and paid to the shareholders in proportion to their respective shares 13 Is a company created by state law or federal law A corporation is authorized by state law 14 What is a nonprofit organization A nonprofit organization is one whose main goal is to gain a profit but to create income for a certain objective 15 What is an Scorporation A designated corporation that can avoid imposition of income taxes at the corporate level while retaining many of the advantages of a corporation 16 What is a close corporation A closely held corporation is a corporation whose shares are not publically traded 17 What are some of the items likely to appear in the articles of corporation The Articles of Incorporation will include name number of shares issued address of corporation and address of incorporator 18 When are the bylaws usually adopted The Bylaws are generally adopted in the first organizational meeting 19 What is De Jure Existence States that the secretary of state s filing of the articles of incorporation is conclusive proof that all mandatory statue provisions have been met 20 When would llPierce the Corporate Veil likely be allowed When a party is tricked or misled into dealings When a corporation is too thinly capitalized A corporation is formed to evade an existing legal obligation When statutory corporate filings are not followed When personal and corporate interest are comingled 21 Which body is responsible for the policy decisions of a company The Board of Directors will manage all policy decisions 22 Recognize a director s breach of loyalty 2 Duty of loyalty is defined as faithfulness to one s obligations or duties 23 Are agreements among shareholders to devote their shares in a certain manner valid and enforceable Yes this is known as a proxy 24 What might cause a court to order the directors to declare dividends If the shareholders request a review under failure to declare dividend and the criteria are met BLAW Ch 19 1 What is the key factor in determining whether someone is an employee How much control does the employer exercise over the detail of the work 2 What is agency by agreement An expressed or implied agreement that the agent will act for the principal and that the principal agrees to have the agent so act 3 Recognize an employer s duty of cooperation to an employee compensation cooperation reimbursement and safe working conditions What is Right of Identification 5 Business Law Test Five Chapters 1213 Chapter 12 l 2 3 4 5 6 O D ll D ID D ID I UIbUJNt O39 NHHHH oxoooxlcx NNN LAND i What is the signi cance of whether a shove is a battery Must a defamatory statement be false What is an invasion of privacy What is an appropriation What is a wrongful interference with a business relationship 2 If a land owner asks a guest to leave her property and she refuses which tort is committed What is conversion What would cause a seller to be liable to a customer who slips and falls on the seller s wet oor What is the standard of care for a doctor Recognize the cause in fact of an accident Must there be an injury for there to be negligence Recognize an example of an assumption of risk What is negligence per se How does the Good Samaritan Statute worldapply Would an intemet service provider be liable for a defamatory statement sent by one of its customers What must be shown for a public figure to recover from defamation What is malicious prosecution What is required to prove the tort of fraud Is it a complete defense to trespass on land for a meter reader What is trespass to personal property What is the reasonable person standard Recognize an example of aproximate clause What is the effect of contributory negligence BLAW 3400 Horace Johns Chapter 1 Business and Its Legal Environments Sources of American Law a Constitutional Law found in Appendix A 0 Statutory Law 0 Administrative Law a Case Law I Common Law Tradition o Doctrine of Stare Decsis precedentbased Questions 1 What is the function ofjudges a A judge presides over court proceedings 2 What are the sources of laW a Constitutional Law iLaws expressed in the US and state constitutions b Statutory Law iLaws passed by Congress state legislatures or local governing bodies c Administrative Law iRegulations created by administrative agencies d Case Law iRules of law announced in court decisions 3 Can a state law that violates the US Constitution be enforced by anyone a No 4 What kind of remedy is Specific Performance a Specific Performance is a remedy which orders a party to perform an agreement as promised 5 How are common law rules developed a They are appointed by a court when a remedy is needed 6 What is a remedy a The legal means to enforce a right or redress a wrong 7 What is rescission a The cancellation of a contractual obligation 8 What are damages a An amount given to a party whose legal interests have been injured 9 What is a plaintiff a The suing party One who initiates a lawsuit 10 How does the Doctrine ofoar Decisis work a Once a court has set forth a principle of law as being applicable to a certain set of facts that court and lower courts within the same jurisdiction must adhere to that principle and apply it in future cases involving similar fact patterns 11 What is the final authority regarding the Constitutionality of a LaW39 a The US Supreme Court 12 What is laches The equitable doctrine that bars a party s right to legal action if the party has neglected for an unreasonable length of time to act on his or her rights Chapter 2 The Court System Jurisdiction Power to hear and decide a case n The Federal Court System a US District Courts 0 US Courts of Appeal 0 US Supreme Court Stages of a Lawsuit o Pleadings Complaint vs Answer 0 Discover a Trial 0 Appeal Terms 0 Plaintiff vs Defendant 0 Appellant vs Appellee dont worry about this one Proving a Case Burden of Proof 0 Civil Case Preponderance of the Evidence 0 Criminal Case Beyond a Reasonable Doubt Questions 1 What does it mean to have jurisdiction because of a substantial enough connection with the state a The defendant must have enough connection to the state for the judge to conclude that it is fair for the state to exercise power over the defendant 2 Is the US Supreme Court required to hear a case a No 3 What does a complaint include a A complaint contains a statement alleging the facts showing ithe court has jurisdiction iithe facts establishing the plaintiff s basis for relief iiithe remedy the plaintiff is seeking 4 What does Serviceof Process provide a A service of process provides proof that the defendant was notified of the lawsuit 5 What is a countereclaim a A claim made by a defendant in a civil lawsuit that in effect sues the plaintiff 6 What is a motion todismiss a A pleading in which a defendant asserts that the plaintiff s claim fails to state a cause of action that is has no basis in law or that there are other grounds on which a suit should be dismissed 7 What is a motion for Summary Judgment a A motion requesting the court to enter a judgment without proceeding to trial The motion can be based on evidence outside of the pleadings and will be granted only if no facts are in dispute 8 What does the discovery39 phase include a The discovery phase includes gaining access to witnesses documents records and other types of evidence 9 What is a motion fora new trial a A motion asserting that the trial was so fundamentally flawed because of error newly discovered evidence prejudice or other reason that a new trial is n cessary to prevent a miscarriage ofjustice 10 What do pleadings consist of a The complaint of the plaintiff and the answer of the defentant 11 Before atrial can one partly obtain all relevant documents in the other party s possession relating to a contract a Yes 12 What is deposition a The testimony of a party to a lawsuit or a witness taken under oath before a trial 13 What is V01 dire a Voirdire is the process ofjury selection 14 What is Judgment NOV a Judgement Non Obstante Veredicto is a motion for the judge to pass judgment after setting aside the jury s verdict Comment 1 Nigel Lange lChapter 3 Alternative Dispute quot Negotiation direct talk it out sort of thing 21334235 same berm quot W 3quot o Mediation 3rd party attempts to help compromise o Arbitration an arbitrator dictates what will happen ADR are sememem oPuons39 0 Most law suits settled before court civil and criminal C39ause39 aquotimp quotaquot l aquot a39ega39 mums that has assumed a signi cant amount of o ADR are settlement options importance 0 Clause an important part of a legal document that has assumed a significant amount of importance A forum makes a decision 0 A party can pull out ofADR methods at any time A forum makes a decision and 90 com Notes a Most law suits settled before court civil and criminal a ADR are settlement options 0 Clause an important part of a legal document that has assumed a significant amount of importance A forum makes a decision a A party can pull out ofADR methods at anytime and goto court Questions 1 Are most cases dismissed or settled before a trial a Yes 2 What is negotiation a In regard to dispute settlement a process in which parties attempt to settle their dispute without going to court with or without attorneys to represent them 3 What is a summary jury trial a A method of settling disputes in which a trial is held but the jury s verdict is not binding The verdict acts only as a guide to both sides in reaching an agreement during the mandatory negotiations that immediately follow the summary jury trial 4 What is the least expensive method of ADR a Negotiation 5 What is an award What does award mean a The final decision of an arbitrator 6 What is the effect of an arbitrationclau se in a contract a A clause in a contract that provides that in the event of a dispute the parties will submit the dispute to arbitration rather than litigate the dispute in court 7 On whom is an award in a GOurtAnnexed Arbitration Proce eding binding a No one Both parties can reject an award 8 What is a minitrial a A private proceeding in which each party to a dispute argues its position before the other side and vice versa A neutral third party may be present and act as an adviser if the parties fail to reach an agreement 9 Is Online DispUte39Resolution ODR a form of ADR a Yes 10 What is the purpose of ICANN lhte r net Cd r tion ofAs dNames and Numbers The purpose of ICANN is to oversee the distribution of domain names 11 Do online forums apply general universal legal principals a Yes 12 Can an appeal of an online forum be made by either party at any time a Yes 13 Must the arbitration clause provide that the arbitrator be a third party a lChapter 4 Ethics and Business Decision Makinql Approaches to Ethical Reasoning o Dutybased Ethics 0 Utilitarianism Notes 0 Ethics always has gray areas a Businesses usually use the Utilitarianism approach when actually they care about ethics Questions 1 Would a corporation be acting in an ethical manner by trying to get good publicity only to make a profit Comment 2 Nigel Lange Ethics always has gray areas Businesses usually use the Utilitarianism approach when actually they care about ethics N9Q WN 9 What is the essence of DutyBasedApproach to Ethical Reasoning What is the Principal of Rights Theory What does the Categorical Imperative require What are questions of corporate social responsibility concerned with NVhat are the characteristics of Utilitarianism Exam les Who are the various parties that an ethical decision by a corporation s could affect What are at least 3 ways that a corporation can demonstrate a commitment to ethical behavior Comment 3 Nigel Lange quot WORTH 4 ON AMm EX Business Law Chapter 56 Test Questions Chapter 5 9 N 9gt0 N Lo N osoooNpgtcnagtwrxgt cgt39 NNNN boom s Chapter 6 9 N 9gt0 N Lo N QL N gt Hgt9 N9039 NNNN boom s Can an agency get access to the records ofa business through consent What kind of industries can agencies conduct warrantless searches Can a law that con icts The Constitution be imposed by anyone What are police powers Which branch of Government makes laws What is the Full faith and Credit Clause What are checks and balances Does the Commerce Clause involve interstate commerce What is the Supremacy Clause Does federal law preempt state law What rights does the 1St Amendment guarantee On what objectives can congress spend revenues Under the 1St Amendment is corporate political speech protected What would a court likely decide about a law that bas he distribution of all printed materials on city streets What would a court decide about a law that bans advertisements because it s in bad taste Is the dissemination of obscene materials a crime under both federal and state laws What kind of searches does the 4 h Amendment protect against What is substantive due process Who are considered legal persons under The Constitution2 What is Procedural Due Process Right Recognize an example of a violation of a person s right to privacy Under The Constitution do the national and state governments share sovereign power Under the 1St Amendment are advertisements given less protection than noncommercial speech Is a lawthat bans the sale of child pornography likely constitutional under the 1St Amendment Does the 1St Amendment protect speech that is considered Fighting wordsquot that would incite violence How would the court decide about a law that allows only a few street vendors to operate in certain areas to reduce traf c What is enabling legislation What does it accomplish What is the nature of independent regulatory agencies with respect to the executive branch What does it mean for an agency decision to be arbitrary and capricious What is published in the Federal Register What is the rst step for an agency to create a new rule What is a legislative rule Is a legislative rule as binding as a law passed by congress What happens during the noticeandcomment rulemaking periodphase Will a court usually defer to the interpretation of an agency with respect to the facts and law of the case What is the purpose of a subpoena Must the documents requested by the IRS be relevant Can someone appeal the order of an administrative lawjudge to the full commission represents What s the purpose of the GovernmentintheSunshine Act Which branch of Government are agencies apart of Is there a delegation of legislative powers from congress to agencies What is the Exhaustion Doctrine Are the courts usually reluctant to review questions of fact determined by an agency Is the outcome of an agency dispute usually a negotiated settlement ls adjudication a function ofan agency Can hearsay evidence be admitted into an administrative hearing What must a person do to get information under the Freedom of Information Act When are closed meetings of an agency permitted Business Law Test Eight Chapters 1920 Chapter 19 1 Can a corporation be owned by either arti cial or natural persons 2 What are the characteristics of a closely held corporation 3 What is the rst step in the incorporation procedure 4 What is the most important function of the rst organizational meeting of a 9 89 O NHHHHHHHHHH OWOONONUIALANHO39 NNN LAND I N 4 corporation What is De Jure existence What is the implied power of a corporation Which body ofpeople is responsible for the policy decisions Does a director have the right to selfdealing Which body of people hires the of cers Is a director considered a duciary Which body of people must approve the amending of the bylaws What is a proxy Does a shareholder lose his ownership if he loses his stock certi cate Does a shareholder have a right to compensation What is a publicly held corporation What is an scorporation What is a professional association What is a corporation by estoppel What could be a reason to pierce the corporation veil What is a directors right to indemni cation Is the right to participation the most important right of a director Is an of cer considered to be a duciary Recognize a director s breach of his duty of loyalty Which body of people must approve of a merger 25 What is a quorum Chapter 20 HHWW QM eE Nf Recognize an example of an agent who has authority Recognize an example of an employee Can an agency relationship be created for a legal purpose only Recognize an agency s breach of its duty of loyalty to the principal What is a right of indemni cation What is the principal s duty of reimbursement 11 What is express authority What is apparent authority Recognize a contract that is enforceable because of rati cation Can a principal be liable by all the actions performed by an electronic agent Can a third party rescind from either the principal or the agent in an accident cause by the agent Business Law Test Seven Chapters 1718 Chapter 17 908994P N What is a sole proprietorship Is a sole proprietorship s liability unlimited What is a franchise What is a franchisor What is a franchisee What is a manufacturing franchise Can a franchisor specify the business organizational form of afranchise May a franchisor require the franchisee to pay a percentage of the annual salesvolume of business to the franchisor 9 What can a franchisor do if it wishes to standardize the pricing practices of its franchisees 10 For purposes of suing and being sued is a partnership treated as an entity 11 When would a partnership agreement be legally binding only if it s in writing 12 Recognize an example of a partnership that dissolves because of the action of the government 13 Is greater organizational exibility an advantage of a sole proprietorship 14 What s the best way for a sole proprietorship to obtain additional business capital 15 Are franchise relationships governed by contract law 16 What would a franchisor have to disclose to someone who is interested in buying a franchise from it 17 What s the function effect of the Federal Trade Commission s franchise rule 18 When can a franchise be terminated if the franchise agreement doesn t specify a time for it to terminate 19 May a franchise agreement require the Franchisee pay a percentage of the franchisor s advertising costs 20 What does the franchisor likely charge a franchisee for a franchise license 21 What is a passthrough entity 22 When can a partnership be terminated if the partnership agreement doesn t specify a certain time 23 Unless the partnership agreement states otherwise is a partnership entitled to compensation as opposed to just a percentage of the profits 24 Is any partner entitled to inspect all of the partnerships books and records 25 What is a dissolution Chapter 18 1 Will a LLC usually be taxed as a partnership unless it chooses otherwise 2 Do LLC laws apply in all states 3 For purposes of suing and being sued is an LLC a legal entity apart from the owners 4 Is an LLC member considered an owner of the LLC Business Law Chapters 89 Test Questions Chapter 8 908994P N KO D ID Ib ID ID ID ID ID ID ID I OOONONUIAUJNt IO39 20 Is there a power to enforce international law within the boarders of all nations What is multilateral agreement What is a bilateral agreement What is Principle of Comity 3 What is The Act of State Doctrine 2 What is an agency relationship What is direct exporting What is indirect exporting What is the legal effect of wholly owned subsidiary 2 What can congress do to restrict or encourage export What is atariff What is a quota What is dumping What is the purpose of the Alien Tort Claims Act What is expropriation What is the Doctrine of Sovereign Immunity Recognize an example of a joint venture What is licensing What could Congress do about the import of foreign agricultural products that could pose a danger to domestic crops What is the function of the World Trade OrganizationWTO Chapter 9 bP N 9 89 HHHH 0 1wa D ID ID I OOO What is the importance of intent in a contract Why do business persons normally put their contracts in writing What is an implied contract Recognize an example of rejection of an offer and the making of a counter offer Is an acceptance effective when it is sent or received Is acceptance by fax proper when an acceptance is required urgently Would a contract signed by a patient with an unlicensed doctor enforceable Recognize where fraud would void a contract 2 What is the purpose of the statue of frauds What is an assignment 1 l What is a third party beneficiary contract What is a unilateral contract What is the effect of an invitation to make an offer Recognize an example of when an acceptance is completed when performance is Recognize an example of a contract that must be in writing to be enforceable 3 completed When will a court examine the adequacy value of consideration Must the consideration always be legally sufficient What is the effect of an unforeseen difficulty on the validity of a contract 19 What Will a court consider When looking at Whether a contract is unconscionable 20 Recognize an example of rescinding a contract on the basis of mistake 21 If one of the palties disa irms a contract must he return the merchandise purchased by the contract Chapter 3 1 What is negotiation The parties come together informally with or without attorneys to represent them 2 What is a minitrial A private proceeding in which each party s attorney brie y argues the party s case before the other party 3 What is the least expensive form of ADR Alternative dispute resolution Negotiation 4 What is the meaning of an award In context of ADR The nal decision of the arbitrator even if no money is conferred on a party as a result of the proceedings 5 If a contract contains an arbitration clause may a court order a part to submit to arbitration YES 6 Is an award in a court annexed arbitration proceeding on any party YES 7 What is a summary jury trial A mock trial that occurs in a courtroom before a judge and a jury 8 Can an appeal in online forms be made by either party or a dispute resolution An online dispute resolution must be made 9 Do online forms apply to general universal legal principles YES 10 What is the purpose of ICANN The International Corporation for Assigned Names and Numbers is a nonpro t corporation that the federal government set up to oversee the distribution of domain names 11 Must an arbitration clause provide that the arbitrator be a third party Any arbitration clause contract disputes must be decided by a neutral third party Chapter 4 1 Is acting in an ethical way with a purpose of getting good publicity really a way of acting ethical at all NO 2 Recognize an example of the duty approach Religious standards philosophical reasoning and principle of rights 3 What is the principle of rights theory The principle that human beings have certain fundamental rights to life freedom and the pursuit of happiness for example Those who adhere to this theory believe that a key factor in determining whether a business decision is ethical is how that decision affects the rights of others 4 What does the categorical imperative require Individuals should evaluate their actions in the light of the consequences that would follow if everyone in society acted in the same way 5 What does Corporate Social Responsibility concern itself with Those who run corporations can and should act ethically and be accountable to society for their actions 6 Recognize an example of the utilitarian approach Business Law Test Four Chapters 10 11 Chapter 10 908994P N O D ID ID ID ID I l Nb O39 Recognize a contract where all the duties by both parties have been performed What is a tender What is a substantial performance 2 What is complete performance What is a Novation 2 What does it mean for a contract to be discharged Be able to compute the measure of damages in a breach of contract case 4 What can be recovered as compensatory damages What is the liquidated damages clause What is mitigation of damages 2 What is Restitution What is specific performance 2 What is required of a party who wants to rescind a contract What is reformation 15 Are damages still due if substantial performance has been done Recognize an example of a mutual agreement to recind What is a penalty clause What is a limitation of liability clause Chapter 11 Elk WP x19 9 KO D ID ID ID ID I l Nb O39 ON What does the UCC article two govern In general where does the UCC require the delivery of a good to take place What is the effect of omitting a quantity term in a sales contract What types of contracts does the UCC statute of frauds require to be in writing Be able to determine when title passes and who bears the risk of loss the buyer or the seller 4 What does replevin mean If the seller delivers but the buyer will not pay for the good what can the seller recover as damages What is the most important factor in determining whether an expressed warranty is created What is an expressed warranty What does puffery mean What is implied warranty of fitness for a particular purpose What is required for an Econtract to be created What is the main purpose of the Esign act Recognize when the concept of good faith is used to determine the price of goods sold What are the two ways that a seller of goods to be shipped can accept an offer by a potential buyer What is required of the seller in a shipment contract 17 What is required of a buyer for hisher acceptance of nonconforming goods 18 Does a warranty of title arise With a sale contract or a lease contract 19 When does implied warranty of merchantability arise What happens when it is created 20 What is a browsewrap term Business Law Test One Questions Chapter 1 1 Does a law passed by the TN legislature apply only in TN Can a state law that violates the US Constitution be enforced by anyone What does administrative law incl ude What is the main purpose of administrative agencies What are damages What is a remedy What is an injunction What is an equitable remedy 9 What is the most common normal remedy 10 Where do common law rules develop from 11 What is the effect of the Doctrine of Stare Decisis 9 53 5 gt0 N Chapter 2 1 What is the nal authority regarding the constitutionality of a lavW Must a court havejurisdiction before hearing a case What does on39ginal jurisdiction mean What does substantial enough connection with the state to establish jun39sdiction mean What does Standing mean In what court do Federal cases originate Is the US Supreme Court required to hear a case What does a complaint include 9 What determines how service of process is accomplished 10 What is a counter claim 11 What is a deposition 12 What is direct examination 13 What can a person who is not an expert testify about in a trial 14 What is motion for a new trial 15 Can diversity of citizenship be a basis for original jun39sdiction 9 53 0 9gt9 N Chapter 3 Are most cases dismissed or setll ed before a trial What is negotiation What is a minitn39al What is arbitration Which law provides the means for enforcing an arbitration agreement What is an award If a contract has an arbitration clause can a court order a party to submit to arbitration In a courtannexed arbitration proceeding is an award binding on either party What is a summaryqu trial 10 Do online forums apply general or universal legal principles 11 What is the purpose of ICANN 12 At an time can either party appeal an online dispute resolution dispute to a court 13 Is ODR a form of ADR 14 Does the Federal Arbitration Act provide that an arbitrator will be any third party 9 9 N5370 gt N Chapter 4 1 Who are the various parties that a business management decision may affect 2 What is perhaps the most effective way to set a tone of ethical behavior within a business organization 3 What is the Principle of Rights 4 What are the various characteristics of utilitarianism 5 Is a common ethical dilemma evaluating on group as to another 6 What are some of the guidelines forjudging if individual actions are ethical Business Law Test Six Chapters 1415 Chapter 14 1 Can someone obtain trade mark protection for an operating manual that goes with a machine 2 What is required to prove trademark dilution 3 Can someone claim a trademark for a generic phrase 4 What is a certi cation mark 5 What is a service mark 6 What is a trade name 7 What is trademark infringement 2 8 What is patent infringement 9 Could someone obtain copyright protection for the installation manual that goes with a particular product 10 What is copyright infringement 2 11 Are videogames protected by copyright law 12 What does trade secrets law cover 3 13 What is the effect of the Trips Agreement 14 What is trade dress 15 What is a collective mark 16 What is a license 17 For how many years does a patent protect an invention 18 What is required to be protected under the fair use doctrine Chapter 15 1 What is a lien 2 What is the usual number of days that a service person has to file a lien after all labor or materials have been provided 3 What is a writ of attachment 2 4 What is a writ of execution 5 What is an order of garnishment 6 What is a guarantor 7 What is a right of contribution 8 What are examples of exempted property from execution ie you can t put a lien on them 9 Does someone who files for bankruptcy have to show that he attended a credit counseling meeting 10 What could cause a court to force a debtor in bankruptcy to file for an individual repayment plan 11 What is the adequate protection doctrine 12 What are the types of claims that will not be discharged during bankruptcy 3 13 Doe a discharge in bankruptcy prohibit judgments regarding overdue debts 14 What is a reaffumation 15 What is reorganization 16 What is a composition agreement Is bankruptcy apart of federal law What are the various items a petition for bankruptcy must include What are preferences What could happen to a debtor Who fails to appear at a meeting of creditors listed nub H Hoxoooxl N N Is the debtor the party that les for an individual repayment plan in his bankruptcy schedules What must the debtor provide for when he enters into an individual repayment plan BLAW Final Review 1 Chapter 1 a A remedy is a legal means to enforce a right to redress a wrong fwronged the person wronged is awarded monetary damages b Damages are the amount given to a party whose legal interests have been injured c A plaintiff is the suing party 2 Chapter 2 a Acomplaint includes i Facts showing that the court hasjurisdiction i Facts establishing the plaintiff s basis for relief iii Remedy the plaintiff is seeking u A counterclaim is a claim made by defendant in a civil lawsuit that in effect sues the plaintiff 0 A motion to dismiss is requesting court to dismiss the case for the reasons stated in the motion although normally it s the defendant who requests dismissal 3 Chapter 3 a Negotiation is when two parties come together informally with or without attorneys to work out differences b A minitrial is a private proceeding in which each party s attorney briefly argues the party s case before the other party c A summaryjury trial is a mock trial that occurs in courtroom before a judge 4 Chapter 4 a Duty approach to ethical reasoning can be from religious philosophical and human basic rights b Categorical imperative is when individuals should evaluate their actions in light of the consequences that would follow if everyone in society acted in the same way c Utilitarianism is the greatest good for greatest number of people 5 Chapter 5 a Police powers are the state regulatory powers b Checks and balances allows each branch to limit the actions of the two branches thus preventing any one branch from excising too much power c Supremacy clause is the US Constitution laws and treaties are the supreme law of the land 6 Chapter 6 a Independent regulatory agencies are the outside major executive departments b Notice and comment rulemaking is i Notice of the proposed rulemaking ii Comment period iii Final rule c GovernmentintheSunshine Act is to have the agency s open to the public 7 Chapter 8 a A multilateral agreement is an agreement made by several nations b The principle of comity is one nation will defer and give effect to the laws and judicial decrees of another country as long as they are consistent with the law and public policy of the accommodating nation c Tariff is taxes on imports 8 Chapter 9 a Express contract is formed by words oral written or combination b Delegation is transfer of contractual duty c Third party beneficiary contract is the original parties to the contract intend at the time of contracting that the contract performance directly benefit a third person d Rejection of the offer and the making of a counteroffer i Rejection where the offer is not taken ii Counteroffer is where they reject original offer and simultaneously make new offer 9 Chapter a pc 10 Chapter a pc 11 Chapter 0 D 12 Chapter 09 03951 13 Chapter 1 u 09 10 Liquidated damages clause is a provision in a contract specifies that a certain dollar amount is to be paid in the event a future default or breach of contract Specific performance calls for the performance of the act promised in the contract Reformation is equitable remedy used when the parties have imperfectly expressed their agreement in writing Allows a court to rewrite the contract to reflect party s true intentions Novation occurs when both parties in a contract agree to substitute a third part for one of the original parties Previous valid obligation Agreement by all the parties to a new contract Extinguishing of the old obligations New contract that is valid 2 ll lmplied warranty of merchantability is automatically arises ion every sale or lease of goods made by a merchant who deals in goods of the kind sold or leased Expression of opinion aka puffery Opinion or seller or lessor that is not made as a representation of fact lmplied warrant of fitness arises when a seller or lessor knows the particular purposed for which a buyer or lessee will use the goods and knows that the buyer of lessee is relying on the skill and judgement of the seller or lessor to select suitable goods 12 Defamation of character involved wrongfully hurting a person s good reputation Trespass to personal property is whenever an individual without consent takes or harms the personal property of another or otherwise interferes with the lawful owner s possession and enjoyment or personal property Negligence per se may occur ifan individual violates a statute or an ordinance providing for a criminal penalty and that violation causes another to be injured Wrongful interference with a business relationship is when a person from one business stands in front of a competitor s business and deters competitor s business to its own business and causes a loss of sales for competitor l Commonly know dangers are the dangers associated with certain products such as sharp knives and matches UJ Statute of limitations restrict the time within an action may be brought Abnormally dangerous activity is like carrying radioactive material Assumption of risk can sometimes be used as a defense in a product liability action To establish such a defense the defendant must show that i The plaintiff knew and appreciated the risk created by the product defect ii The plaintiff voluntarily assumed the risk even though it was unreasonable to do so 14 Trademark is a distinctive mark motto device or implement that a manufacturer stamps prints or otherwise affixes to the goods it produces so that they can be identified on the market and their origins made known Patent infringement is when a firm makes uses or sell s another s patented design product or process without the patent owner s permission Copyright infringement is whenever the form or expression or an idea is copied Trade secrets law is i One who discloses or uses another s trade secret without a privilege to do so is liable to the other if 1 2 He discovered the secret by improper means His disclosure or use constitutes breach of confidence reposed in him by the other in disclosing the secret to him 14 Chapter 15 a Right of redemption is before foreclosure sale a defaulting mortgagor can redeem the property by paying full amount ofdebt plus an interests and costs accrued b Chapter 13 Bankruptcy provides for adjustment ofdebts of an individual with regular income Individuals with regular income who own fixed unsecured debts of less than 336900 or fixed secured debts of less than 1010650 may take advantage of bankruptcy repayment plans c Writ of execution is an order that directs the sheriff to seize personal property that s within court s geographic jurisdiction d Order of garnishment permits a creditor to collect a debt by seizing property of the debtor that s being held by a third party e Foreclosure is when a debtor defaults on a mortgage and doesn t pay in reasonable amount of time 15 Chapter 16 a Sole proprietorship is when one person is responsible for the business and owns it b Dissociation is when a partner ceases to be associated in the carrying on of the partnership business c Franchisee is the purchaser of franchise d Distributorship franchise the license is given to a franchisee from the franchisor to run the franchise e Dissolution is where the partnership dissolves 16 Chapter 17 a Yes LLC members are considered to participate in the firm s management b A general partner assumes management responsibility for the partnership and has full responsibility c LP 1 general partner 1 or more limited partners d Upon a LP s dissolution creditors are to be paid first 17 Chapter 18 a S Corporation is a close corporation that meets the qualifying requirements specified in Subchapter S of the IRS It can avoid imposition of income taxes at the corporate level while retaining many advantages of a corporation b A close corporation is one whose shares are held by members of family or relatively few persons c Pierce of the corporate veil 239 55 A party is tricked or misled into dealing with the corporation rather than the individual The corporation is set up never to make a profit or always to be insolvent or too thinly capitalized that is it insufficient capital at the time it is formed to meet it prospective debts or potential liabilities Statutory corporate formalities such as holding required corporation meetings are not followed Personal and corporate interests are mixed together to the extent that the corporation has no separate identity d Board of directors is the ultimate authority in every corporation 18 Chapter 19 a An agent is an employee A b A principal is an employer P c An agency by ratification occurs when the principal affirms responsibility for an agent s unauthorized act When this occurs the principal is bound to the agent s act and its treated as it had been authorized by the principal from the outset Ratification is either express or implied d Express authority is authority declared in clear direct and definite terms 19 Chapter 20 a Employment at will doctrine is either employeeemployer may terminate an employment contract at anytime and for any reason unless the contract specifically provides to the contrary b Typically domestic workers agricultural workers temporary workers and employees of common carriers are excluded but minors are covered Existence of an employment relationship and the fact the worker s injury was accidental and occurred on the job or in the course ofemployment regardless of fault c Social Security Act provides for oldageretirement survivors and disability insurance 20 Chapter d e 21 Chapter a 09 22 Chapter a D 23 Chapter a 039 D 24 Chapter a 09 Federal Unemployment Tax Act created a stateadministered system that provides unemployment compensation to eligible individuals 21 The most important statute prohibiting discrimination against members ofa protected class is Title VII Reverse discrimination is discrimination against the majority individuals such as white males Quid pro quo harassment occurs when sexual favors are demanded in return forjob opportunities promotions salary increases or other benefits Business necessity defense is something that s necessary to do the job at the required level of competence Bona fide occupational qualification defense is when discrimination against a protected class is essential to the job 22 Prohibited secondary boycott is when a strike directed against someone other than the striker s employer such as companies that sell materials to the employer It is NEVER legal to hire illegal immigrants No the terms that result from collective bargaining apply to only those workers in the union A hotcargo agreement is when employers voluntarily agree with unions not to handle use or deal in with non unionproduced goods of other employers 23 Baitandswitch advertising is advertising a very low price for a particular item that will likely be unavailable to the consumer who will then be encouraged to purchase a more expensive item Counteradvertising order is when FTC requires the company to advertise anewin print on the internet on radio and on tv to inform the public about the earlier information The TruthinLending Act covers disclosures of credit costs etc Violation of the Fair Debt Collection Practices Act Contacting the debtor at the debtor s place of employment if the debtor s employer objects Contacting the debtor during inconvenient or unusual time or at any time if the debtor is being represented by an attorney Contacting third parties other than the debtor s parents spouse or financial advisor about payment ofa debt unless a court authorizes such action Using harassment or intimidation or employing false or misleading information Communicating with the debtor at any time after receiving notice that the debtor is refusing to pay the debt except to advise the debtor of further action to be taken by the collective agency 24 Environmental impact statement required when construction by a private developer ofa ski resort on federal land for example may require an EIS EIS unnecessary Safe drinking water is for all residents of the USA The significance of a oneinamillion chance of developing cancer from exposure to pesticides is there must be no more than a oneinamillion risk to people of developing cancer from any kind of exposure to the substance including eating food that contains pesticide residues 26 Tying arrangement is when a seller conditions the sale ofa product on the buyer s agreement to purchase another product produceddistributed by the same seller Exclusive dealing is a contract under which the seller forbids a buyer to purchase products from the seller s competitors Price discrimination is when a seller charges different prices to competing buyers for identical goodsservices Predatory pricing is when one firm attempts to drive its competitors from the market by selling its products at prices substantially below normal cost of production
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