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by: Coralie Doyle


Coralie Doyle
GPA 3.84

G. Duplechain

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G. Duplechain
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This 62 page Class Notes was uploaded by Coralie Doyle on Tuesday October 13, 2015. The Class Notes belongs to BLAW 3201 at Louisiana State University taught by G. Duplechain in Fall. Since its upload, it has received 32 views. For similar materials see /class/222655/blaw-3201-louisiana-state-university in Business Law at Louisiana State University.


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Date Created: 10/13/15
BLAW 3201 EXAM 2 STUDY GUIDE ADMINISTRATIVE LAW BRANCH OF PUBLIC LAW THAT IS CREATED BY ADMINISTRATIVE AGENCIES IN THE FORM OF RULES REGULATIONS ORDERS AND DECISIONS TO CARRY OUT REGULATORY POWERS AND DUTIES OF THOSE AGENCIES ADMINISTRATIVE AGENCIES GOVERNMENT ENTITIES HAVING AUTHORITIES TO AFFECT THE RIGHTS OF PRIVATE PROPERTIESPARTIES THROUGH THEIR OPERATIONS 0 NATIONAL SAFETY o WELFARE o CONVENIENCE AGENCIES CREATE MORE LEGAL RULES AND ADJUDICATE MORE CONTROVERSIES THAN ALL LEGISLATURES AND COURTS COMBINED STATE AGENCIES PLAY AN IMPORTANT PART AS WELL AS FEDERAL AGENCIES ADMINISTRATIVE LAw IS OFTEN CALLED THE FOURTH BRANCH OF THE GOVERNMENT AGENCIES KEEP LEGISLATIVE BRANCH ORGANIZED AND SEPARATE LAWS INTO APPROPRIATE CATEGORIES ENABLING STATUTE CONGRESS CAN CREATE AN AGENCY TO WHICH IT CAN DELEGATE RULES REGULATIONS AND GUIDELINES TO CARRY OUT THE STATUTORY MANDATE AGENCIES ALLOW FOR EXPERTS TO BE STAFFED EXECUTIVE AGENCIES HOUSED WITHIN EXECUTIVE BRANCH OF GOVERNMENT INDEPENDENT AGENCIES NOT HOUSED WITHIN THE EXECUTIVE BRANCH OF THE GOVERNMENT ADMINISTRATIVE AGENCIES PERFORM 1 RULEMAKING LEGISLATIVE 2 ENFORCEMENT EXECUTIVE 3 ADJUDICATION JUDICIAL ADMINISTRATIVE PROCEDURE ACT APA ADDRESSES THE ISSUE OF AGENCIES MAKING RULES AND PROSECUTING PREVENTS CONFLICTS OF INTEREST RULE THE WHOLE OR A PART OF AN AGENCY STATEMENT OF GENERAL OR PARTICULAR APPLICABILITY AND FUTURE EFFECT DESIGNED TO IMPLEMENT INTERPRET OR PROCESS LAW OR POLICY RULEMAKING AGENCIES ENACTING OR PROMULGATING RULES OF LAW LEGISLATIVE RULES REGULATIONS ADMINISTRATIVE STATUTES ISSUED BY AN AGENCY THAT IS ABLE TO MAKE RULES HAVING THE FORCE AND EFFECT OF LAW 0 IMMEDIATELY BINDING O HAVE THE FORCE OF LAW IS THEY ARE 0 CONSTITUTIONAL O WITHIN THE POWER GRANTED TO AGENCY BY THE LEGISLATURE O ISSUED ACCORDING TO PROPER PROCEDURE INFORMAL RULEMAKING OF THE APA 1 REQUIRES PRIOR NOTICE 2 REQUIRES AN OPPORTUNITY FOR INTERESTED PARTIES TO PARTICIPATE 3 REQUIRES PUBLICATION OF A FINAL DRAFT FORMAL RULEMAKING FAR MORE COMPLEX THAT INFORMAL REQUIRES OPPORTUNITY FOR A HEARING MUST INCLUDE A STATEMENT OF FINDINGS AND CONCLUSIONS AND THE REASONS ON ALL MATERIAL ISSUES OF FACT LAW OR DISCRETION o HAS THE EFFECT OF LAW HYBRID RULEMAIGNG RESULTS FROM COMBINING THE INFORMAL PROCEDURES WITH ADDITIONAL PROCEDURES SPECIFIED BY THE ENABLING STATUE INTERPRETED RULES DECIDING PARAMETERS AND ELIGIBILITY OF GOVERNING STATUTES PROCEDURAL RULES PARAMETERS AND ELGIBILITY INTERPRETED AND PROCEDURAL RULES ARE EXEMPT FROM THE APA AND ARE NOT BINDING NEGOTIATED RULEMAKING ACT OF 1990 ENFORCEMENT AGENCIES EMPOWERED TO INVESTIGATE CERTAIN CONDUCT TO DETERMINE WHETHER THE STATUTE OR RULES HAVE BEEN VIOLATED ADJUDICATION AGENCY USES FORMAL OR INFORMAL METHODS TO RESOLVE INVESTIGATION O INFORMALADVISING NEGOTIATING AND SETTLING O FORMALFINDING FACTS APPLYING LEGAL RULES AND FORM39ULATING ORDERS ORDERS A WHOLE OR A PART OF A FINAL DISPOSITION LIMITS ON AGENCIES o JUDICIAL REVIEW 0 PARTIES CHALLENGING AGENCIES MUST HAVE STANDING o QUESTIONS OF FACT 0 ARBITRARY AND CAPRICIOUS INFORMAL o SUBSTANTIAL EVIDENCE FORMAL o UNWARRANTED BY THE FACTS QUESTIONS OF THE LAW 0 HAS AGENCY EXCEEDED AUTHORITY o PROPERLY INTERPRETED APPLICABLE LAW 0 VIOLATED ANY CONSTITUTIONAL PROVISION o ACTED CONTRARY TO THE PROCEDURAL REQUIREMENTS OF THE LAW LEGISLATIVE CONTROL 1 BUDGETARY POWER 2 CHANGING ENABLING STATUTE 3 REVERSING AGENCY RULE 4 ESTABLISHING GENERAL GUIDELINES THROUGH REVIEW OF AGENCIES BY CONGRESSIONAL OVERSIGHT COMMITTEES CONTROL BY EXECUTIVE BRANCH o PRESIDENT HAS POWER TO APPOINT AND REMOVE HEAD OF AGENCY DISCLOSURE OF INFORMATION 0 MAKES AGENCIES ACCOUNTABLE TO PUBLIC o FREEDOM OF INFO ACT FOIA CAN DENY ACCESS T0 0 RECORDS OF NATIONAL DEFENSE INTERNAL PERSONNEL RULES AND PRACTICES RECORDS EXEMPT BY STATUTE TRADE SECRETS OR COMMERCIALFINANCIAL INTERINTRA AGENCY MEMOS PERSONNELMEDICAL FILES INVESTIGATORY RECORDS COMPILES FOR LAW ENFORCEMENT RECORDS THAT RELATE TO FINANCIAL INSTITUTIONS GEOLOGICAL INFORMATION 0 O O O 0 00000000 CRIMINAL LAW DESIGNED TO PREVENT HARD TO SOCIETY BY DEFINING CRIMINAL CONDUCT AND ESTABLISHING PUNISHMENT CRIME ANY ACT OR OMISSION FORBIDDEN BY PUBLIC LAW IN THE INTEREST OF PROTECTING SOCIETY o PUNISHMENTFINES IMPRISONMENT PROBATION AND DEATH 0 NO UNWRITTEN CRIMINAL ACTS ARE PUNISHABLE o BURDEN OF PROOF BEYOND A REASONABLE DOUBT WHICH IS 90 OR GREATER ESSENTIAL ELEMENTS 1 THE WRONGDOING OR OVERT ACT a ACTUS REUS PHYSICAL ACTION 2 THE CRIMINAL INTENT a MENS REA THE MENTAL ACTION SUBJECTIVE FAULT PURPOSEFUL KNOWING OR RECKLESS OBJECTIVE FAULT CARELESSNESS OR NEGLIGENCE LIABILITY WITHOUT FAULT UNDERAGE ALCOHOL SALE SALE OF ADULTERATED FOOD O PERPETRATOR IS GUILTY NO MATTER WHAT MALA IN SE MORALLY WRONG MURDER MALA PROHIBITA WRONGFUL BY LAW NOT MORALS TAX EVASION FELONY PUNISHABLE BY DEATH OR PRISON MISDEMEANOR PUNISHABLE BY JAIL OR FINE VICARIOUS LIABILITY IMPOSED UPON ONE PERSON BY THE ACTS OF ANOTHER O PARENTS AND CHILDREN 0 EMPLOYERS AND EMPLOYEES LIABILITY OF THE CORPORATION 1 LEGISLATIVE PURPOSE OF STATUTE DEFINING OFFENSE IS TO IMPOSE LIABILITY ON CORPORATIONS 2 OMISSION TO DISCHARGE A SPECIFIC DUTY UPON CORPORATIONS 3 OFFENSE WAS AUTHORIZED BY HIGH MANAGEMENT OR BOARD OF DIRECTORS a USUALLY PUNISHABLE BY FINES COMPLIANCE SHOULD INCLUDE STANDARDS AND PROCEDURES TO PREVENT AND DETECT CRIMINAL CONDUCT RESPONSIBILITY AT ALL LEVELS PERSONNEL SCREENING RELATED TO PROGRAM GOALS TRAINING AT ALL LEVELS AUDITING MONITORING PROGRAM EFFECTIVENESS NONRETALIATORY REPORTING INCENTIVESDISCIPLINE TO PROMOTE COMPLIANCE REASONABLE STEPS TO RESPOND TO AND PREVENT FURTHER OCCURRENCES W QMrbE N WHITE COLLAR CRIME NONVIOLENT CRIME CONSISTING OF DECEIT CORRUPTION AND BREACH OF TRUST o CYBER CRIME SPAM MAIL EMBEZZLEMENT FORGERY BRIBERY ID THEFT OOOOO RACKETEERING INFLUENCED AND CORRUPT ORGANIZATIONS ACT RICO TERMINATES INFILTRATION OF ORGANIZED CRIME INTO LEGITIMATE BUSINESS CRIMES AGAINST BUSINESS CRIMINAL OFFENSES AGAINST PROPERTY GREATLY AFFECTING BUSINESSES O O O O LARCENY THE TRESPASSORY TAKING AND CARRYING AWAY OF ANOTHER S PERSONAL PROPERTY WITH THE INTENT TO DEPRIVE THE VICTIM PERMANENTLY THEFT EMBEZZLEMENT THE FRAUDULENT CONVERSION OF ANOTHER S PROPERTY BY ONE WHO WAS IN LAWFUL POSSESSION OF IT NO TRESPASSORY ACTION 0 CONVERSION ANY ACT THAT SERIOUSLY INTERFERES WITH THE OWNER S RIGHTS IN THE PROPERTY FALSE PRETENSES OBTAINING TITLE TO PROPERTY OF ANOTHER BY MAKING MATERIALLY FALSE REPRESENTATIONS OF AN EXISTING FACT 0 MAIL WIRE BANK FRAUD ROBBERY PROPERTY IS TAKEN DIRECTLY FROM THE VICTIM AND ACCOMPLISHED THROUGH FORCE NOT TRESPASSORY BURGLARY AN ENTRY INTO A BUILDING WITH INTENT TO COMMIT A FELONY NOT JUST THEFT EXTORTION AKA BLACKMAIL THE MAKING OF THREATS TO OBTAIN MONEY OR PROPERTY BRIBERY OFFERING MONEY OR PROPERTY TO A PUBLIC OFFICIAL TO INFLUENCE HIS OR HER DECISION FORGERY INTENTIONAL FALSIFICATION OF A DOCUMENT WITH INTENT TO DEFRAUD BAD CHECKS WRITING A CHECK FROM AN ACCOUNT CONTAINING INSUFFICIENT FUNDS DEFENSES TO CRIMES O DEFENSE OF PERSONPROPERTY ENABLES A PERSON TO COMMIT WHAT THE LAW WOUILD OTHERWISE CONSIDER A CRIME DURESS COERCION IF A PERSON IS THREATENED WITH IMMEDIATE SERIOUS BODILY HARM UNLESS HESE ENGAGES IN CRIMINAL ACTIVITY UNLESS MURDER HESHE WILL NOT BE HELD GUILTY MISTAKE OF FACT IF A PERSON BELIEVES HIS OR HER CONDUCT WAS NOT A CRIME THE LAW WILL TREAT THE CONDUCT AS THE PERSON BELIEVE IT TO BE ENTRAPMENTI LAW ENFORCEMENT INDUCES A PERSON TO COMMIT A CRIME WHEN THEY WOULD NOT HAVE ORDINARILY DONE SO CRIMINAL PROCEDURE 0 O O ARRESTED BOOKED AND CHARGED PRELIMINARY HEARING DETERMINES IF THERE IS PROBABLY CAUSE TO HOLD SUSPECT INDICTMENT ISSUED IF THERE IS PROBABLY CAUSE INFORMATION FORMAL ACCUSATION OF A CRIME BROUGHT BY A PROSECUTING OFFICER NOT GRAND JURY ARRAIGNMENT INFORMED OF CHARGES AND SUSPECT GIVES PLEA CRIMINAL TRIAL o PRESUMED INNOCENT o BURDEN OF PROOFBEYOND A REASONABLE DOUBT 0 NOT REQUIRED TO TESTIFY 3E AMENDMENT PROTECTS AGAINST UNREASONABLE SEARCH AND SEIZURE 0 2m AMENDMENT PROTECTS AGAINST SELF INCRIMINATION DOUBLE JEOPARDY 0 6m AMENDMENT SPEEDY AND PUBLIC TRIAL CONFRONT WITNESSES PROCESS FOR OBTAINING WITNESSES RIGHT TO COUNSEL VOIR DIRE EXAMINATION OF POTENTIAL JURORS O CAUSE CHALLENGES O PREEMPTORY CHALLENGES BOND INSURANCE POLICY 10 OF BAIL LAW OF TORTS HAS 3 PRINCIPLE OBJECTIVES 1 TO COMPENSATE PERSONA WHO SUSTAIN HARM OR LOSS RESULTING FROM ANOTHER S CONDUCT 2 TO PLACE THE COST OF COMPENSATIONS ONLY ON THOSE WHO SHOULD BEAR IT TO PREVENT FUTURE HARMS AND LOSSES E A TORT IS COMMITTED WHEN I A DUTY OWED TO ONE BY ANOTHER CAUSING INJURY OR IS NOT COMPLETED 2 IS BREACHED AND 3 PROXIMATELY CAUSES 4 INJURY OR DAMAGES TO OWNER OFA LEGALLY PROTECTED INTEREST A TORT MAY BE INFLICTED INTENTIONALLY NEGLIGIBLY OR WITHOUT FAULT INA TORT ACTION THE INJURED PARTY SUES TO RECOVER COMPENSATIONS PUNITIVE DAMAGES DAMAGES OVER AND BEYOND THE AMOUNT NECESSARY TO COMPENSATE TORT REFORM LIMITS LIABILITY BY RESTRICTING DAMAGES OR NARROWING CLAIMS STATE LEVEL APPROACHES TO TORT REFORM 1 LAWS THAT ADDRESS SPECIFIC TYPES OF CLAIMS 2 LAWS ABOLISHING JOINT AND SEVERAL LIABILITY OR LIMITING THE APPLICATION OF THIS RULE 3 LAWS ADDING DEFENSES TOCERTAIN TYPES OF TORT REFORMS 4 LAWS CAPPING NONECONOMIC DAMAGES 5 LAWS TO ABOLISH OR LIMIT PUNITIVE DAMAGES 6 LAWS AIMED AT ATTORNEYS FEES INTENT DOES NOT REQUIRE A HOSTILE OR EVIL MOTIVE O EITHER ACTOR DESIRES TO CAUSE THE CONSEQUENCES OF HIS ACT OR THAT HE BELIEVES THAT THOSE CONSEQUENCES ARE SUBSTANTIALLY CERTAIN TO RESULT FROM IT HARM TO THE PERSON O BATTERY INTENTIONAL INFLICTION OR HARMFUL OR OFFENSIVE BODILY CONTACT OR ITEMS ASSAULT INTENTIONAL CONDUCT BY ONE PERSON DIRECTED AT ANOTHER THAT PLACES THE OTHER IN APPREHENSION OF IMMINENT BODILY HARM OR OFFENSIVE CONTACT VICTIM MUST BE AWARE FALSE IMPRISONMENT FALSE ARREST THE INTENTIONAL CONFINING OF A PERSONA AGAINST HER WILL WITHIN FIXED BOUNDARIES IF THE PERSON IS CONSCIOUS OF THE CONFINEMENT OR IS HARMED BY IT INFLICTION OF EMOTIONAL DISTRESS o RECKLESSNESS CONDUCT THAT EVIDENCES A CONSCIOUS DISREGARD OF OR AN INDIFFERENCE TO THE CONSEQUENCES OF THE ACT COMMITTED HARM TO THE RIGHT OF DIGNITY o DEFAMATION A FALSE COMMUNICATION THAT INJURES A PERSON S REPUTATION BY DISGRACING HIM o A FALSE AND DEFAMATORY STATEMENT CONCERNING ANOTHER 0 AN UNPRIVILEGED PUBLICATION TO A THIRD PARTY DEPENDING ON STATUS OF DEFENDANT NEGLIGENCE OR RECKLESSNESS ON HER PART IN KNOWING OR FAILING TO ASCERN THE FALSITY OF THE STATEMENT a STATEMENT MUST BE FALSE b MUST BE COMMUNICATED TO A THIRD PART ABSOLUTE PRIVILEGE PROTECTS DEFENDANT NO MATTER OF INTENT OR MOTIVE CONDITIONAL PRIVILEGE CAN PUBLISH DEFAMATORY MATTER TO PROTECT HIS OR HER OWN LEGITIMATE INTERESTS OR THE INTERESTS OF ANOTHER LIKE EMPLOYER TO EMPLOYER CONSTITUTIONAL PRIVILEGE PUBLIC OFFICIAL MUST PROVE THAT DEFENDANT KNOWINGLY PUBLISHED DEFAMATORY MATTER O O O O O INVASION OF PRIVACY APPROPRIATION OF A PERSON S NAME OR LIKENESS UNREASONABLE PUBLIC DISCLOSURE OF PRIVATE FACTS UNREASONABLE INTRUSION UPON THE SECLUSION OF ANOTHER UNREASONABLE PUBLICITY THAT PLACES ANOTHER IN A FALSE LIGHT IN THE PUBLIC EYE PP ND APPROPRIATION UNAUTHORIZED USE OF THE PLAINTIFF S NAME OF LIKENESS INTRUSION UNREASONABLE AND HIGHLY OFFENSIVE INTERFERENCE WITH THE SOLITUDE OR SECLUSION OR ANOTHER PUBLIC DISCLOSURE OF PRIVATE FACTS THE COURTS IMPOSE LIABILITY FOR PUBLICITY GIVEN TO PRIVATE INFORMATION ABOUT ANOTHER IF THE MATTER MADE PUBLIC WOULD BE HIGHLY OFFENSIVE FALSE LIGHT IMPOSES LIABILITY FOR PUBLICITY THAT PLACES ANOTHER IN A FALSE LIGHT THAT IS HIGHL OFFENSIVE IF THE DEFENSIVE KNEW OR ACTED IN RECKLESS DISREGARD OF THE FACT THAT THE MATTER PUBLICIZED WAS FALSE DEFENSES APPLY TO INVASION OF PROPERTY AS THEY DO DEFAMATION ABSOLUTE CONDITIONAL AND CONSTITUTIONAL MISUSE OF LEGAL PROCEDURE 1 MALICIOUS PROSECUTION CRIMINAL 2 WRONGFUL CIVIL PROCEEDINGS CIVIL 3 ABUSE OF PROCESS HARM TO PROPERTY 1 TRESPASS TO REAL PROPERTY 2 NUISANCE 3 TRESPASS TO PERSONAL PROPERTY 4 CONVERSION REAL PROPERTY LAND AND ANYTHING ATTACHED TO IT TRESPASS ENTERING LAND IN POSSESSION OF ANOTHER REMAINING ON LAND AND NOT REMOVING PROPERTY WHEN DUTY SAYS SO NUISANCE NONTRESPASSORY INVASION OF ANOTHER S INTEREST IN THE PRIVATE USE AND ENJOYMENT OF LAND PERSONAL PROPERTY ANY TYPE OF PROPERTY OTHER THAN INTEREST IN LAND HARM TO ECONOMIC INTERESTS 1 INTERFERENCE WITH CONTRACTUAL RELATIONS 2 DISPARAGEMENT 3 FRAUDULENT MISREPRESENTATION INTERFERENCE WITH CONTRACTUAL RELATIONS LIABILITY FOR INTERFERING WITH A 3 PART CONTRACT DISPARAGEMENT IMPOSES LIABILITY UPON A PERSON WHO PUBLISHES A FALSE STATEMENT THAT RESULTS IN HARM TO ANOTHER S INTERESTS WHICH HAVE PECUNIARY VALUES DEFENSES TO INTENTIONAL TORTS 1 CONSENT ONE IS WILLING FOR AN ACT TO OCCUR NEGATES THE WRONGFULNESS OF AN ACT 2 PRIVILEGE SELFDEFENSE PROTECTS PEOPLE FROM TORTUOUS INTERFERENCES TORT CIVIL WRONG THAT CAUSES INJURY TO PERSONA PROPERTY OR ECONOMIC INTERESTS INTENTIONAL TORTS COMMITTED WHEN PEOPLE TAKE AN ACTION DESIRING TO INJURE SOMEONE OR WHEN THEY TAKE AN ACTION THAT IS SUBSTANTIALLY CERTAIN TO CAUSE INJURY NEGLIGENCE CONDUCT THAT CREATES AN UNREASONABLE RISK OF HARM STRICT LIABILITY NOT BASED ON ANY FAULT OF A PERSON BUT RATHER ON THE NATURE OF THE ACTIVITY A PLAINTIFF ALLEGING NEGLIGENCE HAS TO PROVE FIVE ELEMENTS 1 DUTY OF CARE THAT A LEGAL DUTY REQUIRED THE DEFENDANT TO CONFORM TO THE STANDARD OF CONDUCT ESTABLISHED FOR THE PROTECTION OF OTHERS BREACH OF DUTY THAT THE DEFENDANT FAILED TO EXERCISE REASONABLE CARE FACTUAL CAUSE THAT THE DEFENDANT S FAILURE TO EXERCISE REASONABLE CARE IN FACT CAUSED THE HARM THE PLAINTIFF SU STAINED 4 HARM THAT THE HARM SUSTAINED IS OF A TYPE PROTECTED AGAINST NEGLIGENT CONDUCT 5 SCOPE OF LIABILITY THAT THE HARM SUSTAINED IS WITHIN THE SCOPE OF LIABILITY WHICH HISTORICALLY HAS BEEN REFERRED TO AS PROXIMATE CAUSE7 9 BREACH OF DUTY OF CARE WHILE THE LAW DOES NOT OBLIGATE US TO HELP EACH OTHER WE ARE OBLIGATED TO AVOID DOING HARM REASONABLE PERSON STANDARD THE DEGREE OF CARE EXPECTED OF A REASONABLE PERSON IN SIMILAR CIRCUMSTANCES O AGE PHYSICAL DISABILITY SKILL OR KNOWLEDGE AND EMERGENCIES MAY AFFECT THE LEVEL OF CONDUCT EXPECTED OF A REASONABLE PERSON O CHILDREN ARE HELD TO A STANDARD OF CONDUCT BASED ON THEIR OWN AGE AND EXPERIENCE EXCEPT WHEN THEY ENGAGE IN AN ADULT ACTIVITY LIKE FLYING A PLAN OR DRIVING A BOAT PHYSICAL DISABILITY A PERSON WHO IS PHYSICALLY DISABLED OR ILL MUST CONFORM TO THE STANDARD OF A CONDUCT OF A REASONABLE PERSON UNDER LIKE DISABILITY MENTAL DISABILITY A PERSON S MENTAL OR EMOTIONAL DISABILITY IS NOT CONSIDERED IN DETERMINING WHETHER CONDUCT IS NEGLIGENT UNLESS THE PERSON IS A CHILD SUPERIOR SKILL OR KNOWLEDGE A PERSON WHO IS QUALIFIED TO PRACTICE A PROFESSION OR TRADE THAT REQUIRES SPECIAL SKILL AND EXPERTISE IS REQUIRED TO USE THE SAME CARE AND SILL NORMALLY POSSESSED BY MEMBERS OF THAT PROFESSION OR TRADE DUTY TO ACT EXCEPT IN SPECIAL CIRCUMSTANCES A PERSON WHO HAS NOT CREATED RISK OF HARM TO OTHERS IS ORDINARILY NOT REQUIRED TO AID ANOTHER IN PERIL A PERSON DOES HAVE A DUTY TO ACT IF THE RELATIONSHIP BETWEEN PARTIES CREATES AN OBLIGATION PARENT AND CHILD EMPLOYER AND EMPLOYEE 2 ONE PARTY HAS NEGLIGENTLY PLACED THE OTHER IN A POSITION OF POTENTIAL HARM 3 A PERSON S CONDUCT WHETHER TORTUOUS OR INNOCENT HAS INJURED SOME ELSE AND LEFT THAT PERSON HELPLESS DUTIES OF POSSESSORS OF LAND PEOPLE WHO OCCUPY LAND WITH THEN INTENT TO CONTROL ITS USE HAVE A RIGHT TO USE IT FOR THEIR OWN BENEFIT AND ENJOYMENT BUT IN A REASONABLE MANNER DUTY TO TRESPASSERS A TRESPASSER ENTERS OR REMAINS ON THE LAND OF ANOTHER WITHOUT PERMISSION THE LAWFUL POSSESSOR OF THE LAND IS NOT LIABLE FOR FAILURE TO MAINTAIN SAFE CONDITIONS BUT MAY NOT INFLICT INTENTIONAL INJURY ON A TRESPASSER DUTY TO LICENSEES A LICENSEE IS PRIVILEGED TO ENTER OR REMAIN ON LAND ONLY BY THE CONSENT OF THE LAWFUL POSSESSOR THE POSSESSOR MUST WARN THE LICENSEE OF ANY KNOWN DANGEROUS ACTIVITIES AND CONDITIONS DUTY TO INVITEES AN INVITEE IS A PERSON INVITED UPON LAND AS A MEMBER OF THE PUBLIC OR FOR A BUSINESS PURPOSE BUSINESS VISITOR AS INVITEE WHO ENTERS THE PREMISES FOR A PURPOSE CONNECTED WITH BUSINESS WITH THE POSSESSOR OF THE LAND THE POSSESSOR HAS A DUTY TO PROTECT THE INVITEE FROM ANY HARMFUL CONDITIONS ON THE PROPERTY RES IPSA LOQUITOR THE THING SPEAKS FOR ITSELF FACTUAL CAUSE LIABILITY FOR THE NEGLIGENT CONDUCT OF A DEFENDANT REQUIRES THAT THE CONDUCT IN FACT CAUSE HARM TO THE PLAINTIFF CAUSATION IN FACT A WIDELY APPLIED TEST FOR CAUSATION IN FACT IS THE BUT FOR TEST A PERSON S CONDUCT IS A CAUSE OF AN EVENT IF THE EVENT WOULD NOT HAVE HAPPENED BUTFOR THE PERSON S NEGLIGENT CONDUCT SCOPE OF LIABILITY PROXIMATE CAUSE THE LEGAL RULE THAT LIMITS A PERSON S LIABILITY TO THE CONSEQUENCES THAT ARE CLOSELY CONNECTED WITH THE NEGLIGENT CONDUCT SUPERSEDING CAUSE IN AN EVENT OCCURS AFTER THE DEFENDANT S INJURY THAT EVENT MAY BE JUDGED AS A SUPERSEDING CAUSE HARM THE PLAINTIFF HAS THE BURDEN OF PROVING THAT THE DEFENDANT S NEGLIGENT CONDUCT PROXIMATELY CAUSED THE HARM TO A LEGALLY PROTECTED INTEREST IN A NEGLIGENCE CASE DEFENSES TO NEGLIGENCE I CONTRIBUTORY NEGLIGENCE AN ACT OR FAILURE TO ACT ON THE PART OF THE PLAINTIFF THAT IS ALSO NEGLIGENT AND CONTRIBUTES TOWARD THE RESULTING INJURY 2 COMPARATIVE NEGLIGENCE HAS REPLACED CONTRIBUTORY NEGLIGENCE IN ALMOST ALL STATES DAMAGES ARE DIVIDED BETWEEN THE PARTIES IN PROPORTION TO THE DEGREE OF FAULT OR NEGLIGENCE FOUND AGAINST THEM ASSUMPTION OF RISK APPLICABLE IS A PLAINTIFF UNDERSTANDS A RISK EXISTS AND VOLUNTARILY PLACES HIMSELF IN THE ZONE OF DANGER E STRICT LIABILITY A PERSON MAY BE HELD LIABLE FOR INJURIES HE HAS CAUSED EVEN THOUGH HE HAS NOT ACTED INTENTIONALLY OR NEGLIGENTLY AKA ABSOLUTE LIABILITY OR LIABILITY WITHOUT FAULT ACTIVITIES GIVING RISE TO STRICT LIABILITY 1 ABNORMALLY DANGEROUS ACTIVITY INVOLVE A HIGH DEGREE OF RISK OR SERIOUS HARM THAT CANNOT BE ELIMINATED BY THE EXERCISE OF REASONABLE CARE AND ARE NOT A MATTER OF COMMON USAGE KEEPING OF ANIMALS STRICT LIABILITY FOR HARM CAUSED BY ANIMALS EXISTED AT COMMON LAW AND CONTINUES TODAY WITH SOME CHANGES39 PEOPLE WHO POSSESS ANIMALS MUST DO SO AT THEIR OWN PERIL N CONTRACT LAW ARISES FROM SOCIAL NECESSITY SALE THE PASSING OF TITLE TO GOODS FROM A SELLER TO A BUYER FORA PRICE PERSONAL PROPERTY ANY TYPE OF PROPERTY OTHER THAN AN INTEREST IN REAL PROPERTY LAND UNIFORM COMMERCIAL CODE UCC GOVERNS SALES IN ALL STATES EXCEPT LOUISIANA o DOES NOT APPLY TO EMPLOYMENT CONTRACTS SERVICE CONTRACTS INSURANCE CONTRACTS CONTRACTS INVOLVING REAL PROPERTY AND CONTRACTS FOR THE SALE OF INTANGIBLES SUCH AS COPY RIGHTS AND PATENTS o THESE ARE GOVERNED BY GENERAL CONTRACT LAW CONTRACT A BINDING AGREEMENT THAT THE COURTS WILL ENFORCE PROMISE A MANIFESTATION OF THE INTENTION TO ACT OR REFRAIN FROM ACTING IN A CERTAIN MANNER BREACH A FAILURE TO PERFORM PROPERLY REQUIREMENTS OF A CONTRACT MUTUAL ASSENT BOTH PARTIES MUST AGREE TO ENTER INTO THE CONTRAT CONSIDERATION EACH PARTY MUST GIVERECEIVE SOMETHING AS A RESULT LEGALITY OF THE OBJECT PURPOSE OFA CONTRACT MUST BE LEGAL CAPACITY BOTH PARTIES MUST BE COMPETENT NOT MINORS NOT INTOXICATED ETC bP ND CLASSIFICATION OF CONTRACTS EXPRESS OR IMPLIED UNILATERAL OR BILATERAL VALID VOID VOIDABLE OR UNENFORCEABLE EXECUTED OR EXECUTORY FORMAL OR INFORMAL 959 EXPRESS OR IMPLIED 1 ENTIRELY ORAL PARTLY ORAL ENTIRELY WRITTEN PARTLY ORAL OR WRITTEN AND PARTLY IMPLIED BY CONDUCT OF PARTIES WHOLLY IMPLIED BY CONDUCT OF PARTIES Elkgt9 UNILATERAL OR BILATERAL 1 UNILATERAL ONLY ONE PROMISSORY AND ONE PROMISSEE 2 BILATERAL BOTH PARTIES ARE PROMISSORY AND PROMISSEE VALID VOID VOIDABLE OR UNENFORCEABLE VALID MEETS ALL REQUIREMENTS OFA BINDING AGREEMENT VOID DOES NOT MEET ALL REQUIREMENTS OF A BINDING AGREEMENT VOIDABLE LAW PERMITS ONE OR BOTH OF THE PARTIES TO EXIT THE CONTRACT UNENFORCEABLE LAW PROVIDES NO REMEDY FOR BREACHING FP NF EXECUTED AND EXECUTORY 1 EXECUTED FULLY PERFORMED 2 EXECUTORY NOT YET FULLY PERFORMED FORMAL AND INFORMAL 1 FORMAL DEPENDS ON FORMALITY FOR LEGAL VALIDITY 2 INFORMAL DOES NOT DEPEND ON FORMALITY FOR LEGAL VALIDITY PROMISSORY ESTOPPEL THE DOCTRINE THAT ENFORCES NONCONTRACTUAL PROMISES WHEN THEY ARE MADE UNDER CIRCUMSTANCES THAT WOULD MAKE PROMISSOR EXPECT THAT PROMISSEE WOULD TAKE ACTION IF PROMISE ISN T FULFILLED QUASI CONTRACTS AN OBLIGATION NOT BASED ON CONTRACT THAT IS IMPOSED TO AVOID JUSTICE OCCURS WHEN I THE PLAINTIFF CONFERS A BENEFIT UPON THE DEFENDANT 2 THE DEFENDANT KNOWS OR APPRECIATES THE BENEFIT 3 THE DEFENDANT S RETENTION OF THE BENEFIT IS INEQUITABLE Chapter 3 Courts Chapter 3 Courts are established by governmental bodies a court may render a binding decision only when it has jurisdiction over the dispute and the parties to that dispute Two Court Systems in the United States I Federal I State Federal Courts District Courts l The general trial level in the federal court system Where issues of fact are decided serve districts each located entirely in a particular state Each district court is presided over by one judge except in certain cases When three judges preside They decide issues of fact I Appeals from district courts usually go to the Circuit Court of Appeals Where the district court is located In a few cases the appeals are taken directly to the 18 Supreme Court Federal Courts COURTS OF APPEAL Twelve Circuit Courts of Appeals are the next level in the federal system They primarily hear appeals from the district courts and review decisions of administrative agencies the Tax Court and the Bankruptcy Courts They generally hear cases in panels of three judges although in some instances all judges of the circuit will sit en banc all together in a session to decide a case Aggellate courts do not bear evidence or conduct a trial i they examine the record of acase to determine if the trial court committed prejudicial error error substantially affecting the appellant s rights and duties If so the appellate court will reverse or modify the judgment and if necessary remand or send the case back to the lower court for further proceeding If there is no prejudicial error the appellate court will affirm the decision of the lower court COURTS OF APPEAL I When voting I Majority controls I Opinion I Concurring opinions I Dissenting opinions I Rehearing Federal Courts Supreme Court I The nation s highest tribunal consisting of a Chief Justice and eight Associate Justices Principally reviews cases of the Federal Courts of Appeals and in some instances decisions involving Federal law made by the highest State courts l RevieWs cases between States I Appellate cases reach the Supreme Court by 1 appeal by right where review by the court is mandatory very few cases or 2 the discretionary writ of certiorari If four Justices vote to hear the case a writ is granted Chapter 3 I Federal Courts I Trial Courts I Located in geographical areas Circuits I Try Cases I New Trial Chapter 3 Remedies in Courts of Appeal I Affirm I Reverse I Modify I Remand SUPREME COURT The nation s highest tribunal consisting of a Chief Justice and eight Associate Justices principally reviews cases of the Federal Cjourtsof Appeals and in some instances deciSionsiinvolving Federal law made by the 39h igheSt State courts and disputes between States Appellate cases reach the Supreme Court by 1 appeal by right Where review by the court is mandatory very few cases or 2 the discretionary writ of certiorari If four Justices vote to hear the case a writ is granted Chapter 3 US Supreme Court The FINAL final court of appeal 9 Justices Majority controls many 54 opinions SPECIAL COURTS o The US Court of Federal Claims hears claims against the United States The US Bankruptcy Courts hear and decide certain matters under the Federal Bankruptcy Code o The US Tax Court hears cases involving federal taxes 0 The US C0urt of Appeals for the Federal Circuit reviews decisions of the Court of Federal Claims the Patent and Trademark Office patent cases decided by the US District Courts the US Court of International Trade the Merit Systems Protection Board and the US Court of Veterans Appeals State Courts Small ClaimsCity Courts JP Courts District Courts Appellate Courts Supreme Court JURISDICTION I To resolve a lawsuit a court must have jurisdiction the authority to hear and decide a given case I There are two kinds l jurisdiction over the subject matter of the lawsuit and l jurisdiction over the parties to a lawsuit JURISDICTION Exclusive Federal Jurisdiction i over federal criminal prosecutions maritime or seagoing law bankruptcy antitrust patent trademark and copyright cases suits against the United States and cases arising under certain federal statutes expressly Providing for exclusive jurisdiction Concurrent Federal Jurisdiction Two types 1 federal question jurisdiction over any case no minjnrum dollar requirement arising under the Constitution statutes or treaties of the United States if there is not exclusive federal jurisdiction 2 civil suits where there is diversity of citizenship and the amountin controversy exceeds 75000 Diversity of citizenship exists I 39 when the plaintiffs are citizens of a state or states different from the state or states ofwhich the defendants are citizens or I 39 when a foreign country brings an action against citizens of the United States or I 39 when the controversy is between US citizens and citizens ofa foreign country STATE JURISDICTION l Exclusive State Jurisdiction The state courts have exclusive jurisdiction over all matters not involving exclusive Federal jurisdiction or concurrent jurisdiction including but not limited to Property torts contracts agency commercial transaction domestic matters and most crimes I Choice of Law in State Courts A state may choose to apply the law of another state to a case that has connections to both states This con ict of laws rule may vary from state to state JURISDICTION OVER PARTIES Jurisdiction over the parties is the power of a court to bind the parties involved in the dispute The court must give reasonable notification and a reasonable opportunity to be heard Moreover jurisdiction is valid only if the defendant has sufficient minimum contacts with that state IN PERSONAM JURISDICTION l Jurisdiction of a court over the parties to a lawsuit in contrast to its jurisdiction over their Property applies to persons domiciled in that state or those who are temporarily present in the state and are Personally served process within the state I Most states have adopted long arm statutes to allow courts to obtain jurisdiction over a nonresident defendant who I 39 has COmmitted a tort civil wrong within the state I 39 owns Property in the state if that property is the subject of the lawsuit l 39 has entered into a contract Within the state or I 39 has transacted business within the state if that business is the subject matter of the lawsuit IN REM JURISDICTION l Jurisdiction over Claims to property situated Within the state if the plaintiff gives those persons Who have an interest in the property reasonable notice and an opportunity to be heard ATTACHMENT JURISDICTION l Applies to property like in rem jurisdiction but is invoked by seizing the defendant s property Within the state to obtain payment of a Claim against the defendant that is unrelated to the property seized VENUE l The particular geographical place Where a court With jurisdiction may hear a case often confused with jurisdiction Its purpose is to regulate the distribution of cases Within a specific court system and to identify a convenient forum Is usually the county of residence of one party or the county where an involved piece of real estate is located Chapter 3 Civil Dispute Resolution 3 legs I 1 Liability 2 Damages 3 Solvent Defendant ability to paycollect Chapter 3 Incident Files suit pleadings l purpose of pleadings is to give notice and to establish the issues of fact and law the parties dispute l The complaint is the initial pleading by the plaintiff stating his case The lawsuit begins when the county sheriff serves a summons and a copy of the complaint PLEADINGS I Responses to Complaint the Answer I If the defendant fails to respond to the summons and complaint a default judgment will be entered against him I Pre trial Motions jurisdiction venue parties statute of limitations vagueness no cause or right of action Request for sanctions Affirmative defenses counterclaims Chapter 3 Discovery more than investigation I is the pretrial exchange of information between opposing parties to a lawsuit includes 1 pretrial depositions consiStin off sworn testimony taken outFOf cou rt sworn answers to written questiOns 3 production of documents and physical objects 4 examination by a physician of the physical condition of the opposing party and 5 admissions of facts set forth in a request for admissions DISCOVERY Interrogatories Depositions Record Production Inspection Physical Inspection of Property Medical Exams Admissions of Fact Expense and time PRETRIAL PROCEDURE Judgment on the Pleadings Pretrial conference Summaryjudgment Chapter 3 Trial Jury or Bench l The 118 Constitution guarantees the right to a jury trial msfederal cases ifwolvingwmore than tWenty dollars and nearly eVery State ConstitutiOnprovi des Va similar iri ght The Partiesmay choose not to have a trial byrju39ry The determines questiens offact and 1thejudge de termiires issues oflaw When there is no juryy the judge seeres39 both functions I VOil Dire the process of examining the jurOrs to find bias Juror Challenges Challenges for cause I Peremptory ChBIIGI lgES39 6 challenges for which no cause is required no racial objection is allowed TRIAL JURY SELECTION l Jury Selection As the parties attorneys or in some courts the judge examine the potential jurors each party can prevent prospective jurors from serving on the basis of potential bias challenges for cause Each party also has a limited number of Berem Qtorz ch all en ges for which no cause is required to disqualify a prospective juror The Supreme Court ruled that the Constitution prohibits juror discrimi nation based on race or gender The process of examination of jurors is called voir dire vwar deer TRIAL I Both attorneys make an opening statement about the facts that they expect to prove I The plaintiff and his Witnesses then testify on direct examination by the plaintiff s attorney Each is subject to crossexamination by the defense Directed verdict l The defendant and his Witnesses then testify on direct examination subject to cross examination POST TRIAL ISSUES Jury Instructions Verdict The jury receives jury instructions and then deliberates to reach a general verdict The judge then applies the law to these ndings and renders a judgment Motions Challenging Verdict The unsuccessful party has two options at this point before appeal A motion fora new tiial may be granted if the judge committed prejudicial error during the trial 2 the verdict is against the weight of the evidence the damages are excessive or the trial was not fair The judge has the diSCretion to grant a motion for a new trial on ground 12 37 or 4 above even if the verdict is supported by substantial evidence 39 L 139 the Verdict called aj 39b t n ov may be Filed7 but must be denied if there is substantial evidence supporting the verdict This A motion for judgment not motion is similar to a motion For a directed verdict7 only it is made after the jury7 s verdict and is contrary to that verdict Chapter 3 Appeals Did the trial court commit prejudicial error Errors of law only are generally considered trial court is trier of fact and given great discretion to determine the facts vs harmless error The appellate court does not rehear evidence or redetermine facts Rehearing Chapter 3 Collection of Judgment Garnishmen t Seize Property Chapter 3 Court Costs Attorney Fees 5 Interest Chapter 3 Arbitration A nonjudicial proceeding where a neutral third party renders a binding decision The parties usually select an arbitrator with special expertise Types of Arbitration There are two basic types of arbitration consensual which is mOre common and compulsory a Consensual arbitration occurs when parties to a dispute agree to submit to arbitration b Compulsory arbitration is required by statute for specific types of disputes such as those involving public employees like police officers or Fire fighters Procedure The procedure is usually speci ed by the parties agreement The arbitrator renders an m1 is binding on the parties and is subject to limited judicial review if 1 the award was procured by corruption Fraud or other undue means 2 the arbitrators were partial or corrupt 3 the arbitrators were guilty of misconduct prejudicing the rights of a party to the arbitration proceeding and 4 the arbitrators exceeded their powers MEDIATION I A process in which a third party the mediator selected by the disputants helps them to reach a resolution of their disagreement The mediator unlike the conciliator proposes possible solutions for the parties to consider but like the conciliator he does not have the power to render a binding decision Chapter 3 White v FCI Wrongful termination refusal to perform illegal act Defendant remove to federal court Issue 75000 jurisdictional removal proper Chapter 3 World Wide Volkswagon v Woodson Oklahoma does not have jurisdiction over NY defendant Chapter 3 9 Parker v 20th Century a Summary judgement Chapter 3 Circuit City v Saint Clair Does Federal Arbitration Act apply to non transportation employment contracts C0urt of Appeal held all employment contracts were exempt from Act Supreme Court reverse say exemptions from Act limited to transportation employment CONTRACTS CHAPTER 9 INTRODUCTION TO CONTRACTS Development of the law of contracts 0 Contract law is not staticit has and is undergoing enormous changes 0 Law usually recognizes contractual obligations whenever the parties manifest an intent to be bound So even promises can be enforced 0 Parties can be excused from contract in cases of fraud duress undue influence mistake unconscionability or impossibility 0 20h century limiting the absolute freedom of contract and relaxing the requirements of contract formation 0 Common law 0 Contacts primarily governed by State common law 0 Restatements of the Law of Contracts Known know as the Restatement Second Contracts or just Restatementextensively relied upon quoted in judicial opinions 70yrs 0 Uniform commercial code 0 Sale of personal property forms substantial portion of commercial activity 0 Article 2 of the Uniform Commercial Code governs sales in all states but Louisiana 0 A sale passing of title to goods from a seller to buyer for a price present and future 0 Goodsmoveable personal propery 0 Personal Property any type of property other than an interest in real property land 0 Law Governing Contracts figure 91 If it s a sale of goods and specific provision of UCC acceptable then UCC governs if not General Contract law governs 0 Types of contracts outside the codeGeneral contract law governs all contracts outside 0 Employment service insurance or Real Property Also intangibles such as patents Definition of a Contract 0 Contract binding agreement that the courts will enforce A promise or a set of promises for which the law gives a remedy or the performance of which the law in some way recognizes a duty 0 Promise a manifestation of the intention to act or refrain from acting in a specified way o If promises meet requirements of a binding contract they will be enforceable o Breachfailure to perform properly 0 Remedies for breach include compensatory damages equitable remedies reliance damages and restitution o All contracts are promises but not all promises are contracts Requirements of a Contract 0 Mutual assent parties to contract must manifest by words or conduct that they have agreed to enter into a contract Offer and Acceptance 0 Consideration each party must intentionally exchange a legal benefit or incur a legal detriment as an inducement to the other party to make a return exchange 0 Legality of object purpose of contract can t be criminal tortuous or against public policy 0 Capacity Parties must have contractual capacity adjudicated judicially declared incompetent have no legal capacity minors incompetent or intoxicated have limited capacity Classification of Contracts 0 Standard classifications of contracts are contract can contain more then one of the following 0 Express or implied contracts express language or conduct that implies willingness I Fully Oral exp written exp or implied imp or partially 2 or more of each I Expressed contract is oral written or both I Implied or fact contract is one that is inferred from parties conduct pay for a meal at a resturant o Unilateral or bilateral contracts I Unilateral one side promises something I ll pay you 10 to mow my grass I Bilateral when other side agrees to said offer I will mow it I Promisor makes promise Promisee person to whom promise is made 0 Valid void voidable or unenforceable contracts I Valid one that meets all of the requirements of a binding contract Enforceable I Void agreement that doesnt meet all requirements of a binding contract not valid I Voidable law permits one or more of parties to avoid legal duties lf void all parties freed I Unenforceable one for which the law provides no remedy o Executed or executor contracts pertain to the state or performance of a contract I Executed contract fully performed by all parties present tense is not a contractfilled I Executory one or more promises by either party underperformed not yet filled 0 Formal or informal contracts I Formal depends upon a particular form or mode of expression for its legal existence I lnformal all contracts not formal Promissory Estoppel o A doctrine enforcing some noncontractual promises 0 Requirements a promise made under circumstances that should lead the promisor reasonably to expect that the promise would induce the promise to take definite and substantial action and the promise does not take such action 0 Remedy a court will enforce the promise to the extent necessary to avoid injustice Quasi contracts not a contract but implied in law 0 An obligation not based on contract that is imposed to avoid injustice Neither expressed or implied promise 0 Ex someone delivers 100 but gives it to wrong person the person is not under contract to return it but the giver is permitted to recover this money 0 Requirements a court will impose a QC when 1 plaintiff confers a benefit upon the defendant 2 defendant knows or appreciates the benefit and 3 defendants retention of the benefit is inequitable o Remedy plaintiff recovers the reasonable value of the benefit she conferred upon the defendant CHAPTER 10 MUTUAL ASSENT Offer An agreement is a manifestation of mutual assent on the part of two or more parties Offer and acceptance is usually how people show mutual assent To form a contract parties must manifest their agreement objectively 0 Law applies an objective standard therefore concerned only with the assent agreement or intention as it reasonable appears from its words or actions Definite proposal or undertaking made by one person to another which manifests a willingness to enter a bargain Upon receipt the Offeror confers on the offeree the power of acceptance by which the offeree expresses willingness to comply with the terms Until offeree accepts the outstanding offer creates neither rights nor iabiities Propose a promise for a promise bilateral Promise for an act unilateral Perform an act for a promise inverted unilateral contract Essentials of an Offer 0 To be effective offers must 1 Be communicated to offeree 2 Manifest an intent to enter a contract 3 Be sufficiently definite and certain Communication for Mutual Assent offeror gives offer to offeree offeree must have knowledge of offer I Does not have to be in words Intent to have legal effect offer must manifest an intent to enter into contract 0 Determined objectively from words or conduct of the parties 0 Meaning of either party s manifestation is based upon what a reasonable person in other party would have believed o Promise made under obvious excitement or emotional strain is not an offer 0 Preliminary negotiations if communication as seen by reasonable person on oferee side creates feeling that acceptance will create contract it is an offer IF NOT it is a preliminary negotiation I Request or supply terms I Ex quotwill you buy my car for 3000quot Yesquot not a contract because it was not offered just a o Advertisements I Published advertisements displays price quotes circulars invite people to come in but do not make offers because 1 they do not contain a promise 2 they leave unexpressed many terms needed to complete contract Responses are not acceptances I Advertising fase price doesnt make price a contract federal trade comish egisation prohibit I Can be an offer if it includes a definite promise 0 Auction sales I Bidder is free to withdraw bid at any time prior to acceptance hammer doesn t revive od bid I Auctioneer can also withdraw goods from sale unless sale is advertised without reserve Definiteness offer s terms must be clear enough to provide a court with a bias for giving appropriate remedy o The Code provides standards by which omitted important terms may be determined 0 Good faith honesty in fact in the conduct or transaction concerned 0 Commercial reasonableness standard determined in terms of the business judgment of reasonable persons in that field Duration of Offers 0 Ways to terminate offer besides acceptance 0 Lapse of time stated in terms or reasonable time o Revocation usually offeror can withdraw offer at any time notice must REACH offeree before accepted I Can be given indirectlythrough other reliable source I Exceptions I Option contractsgive set time to keep offer open I Firm offers under the Codemerchant required to state a period if not up to 3mo reasonable 0 Merchantdealer in goods ofa given kind by occupation has skillknowledge in goodspractices or employs an agent or broker who he holds out with these skills I Statutory irrevocability offer made irrevocable by statue to state govt ect I rrevocable offer of unilateral contract promise for act cant be revoked once reasonably started I Promissory Estoppel noncontractual promise that binds promisor because promisee is relying on them Example A is builder B is subcontractor B says they will subcontract A uses them in a bid to get a job B cant back out until A has a reasonable time to tell them bid was accepted 0 Rejection refusal to accept an offer once refusal cant change mind has to be a new offer 0 Counteroffer cancels original offer submits a new offer to original offeror I If in counter you say your willing to consider original but offer different original is still open I Conditional acceptanceaccepts the offer but under conditionsterminates offer new offer 0 Death or incompetency either side terminates offer exception is if offer contained an option 0 Destruction of subject matter 0 Subsequent illegality 0 Deposit rule offer accepted when sent cant change your mind before it gets to them soon as letter is in maildoes not apply to revocationrejection Acceptance 0 Once given offer formed only made by offeree 0 Acceptance accepted upon dispatch unless offer provides otherwise or its sent by unauthorized means 0 Mirror image ruleexcept as modified by the Code it cant deviate from terms of the offer 0 Late or defective is not acceptance but is manifesting offeree s willingness to enter a new offer o If unilateral offeree acceptor must ensure offeror knows or it is not enforceable o Silence as acceptance does not accept offer even if offer says quotif no response given then offer is accepted with exception if it is by custom usage or course of dealing Example you subscribe to news paper for 1 year then you pay for next 2 years after notice arrived Next year they sent notice but you don t respond they deliver so your obligated to pay because you cant hide behind silence 0 Effective movementoffer accepted once dispatched see deposit rule above True unless offer says otherwise 0 Stipulated Provisions in the Offerif offer specifies mode of acceptance or specifies a receive by date 0 Authorized Meansmodes of acceptance stated any reasonable means or way which offer was received 0 Unauthorized means acceptance effective if it arrives within the time of authorized means 0 Acceptance following a prior rejection not effective unless acceptance is gets there before rejection received Variant Acceptances 0 Common law acceptance must be positive and unequivocalcant change offer at all Mirror Image rule 0 Defective acceptance does not create contract serves new offer CHAPTER 11 CONDUCT INVALIDATING ASSENT Duress Any wrongful or unlawful act or threat that overcomes freewill of a party Physical compulsion compel assent by using physical force VOID Improper threatsuse of improper threats or acts such as economic and social coercion makes it VOIDABLE 0 Don t have to be criminal or tortuous to be wrongfulneed to be contrary to public policymorally bad Undue Influence Person in dominant position taking unfair advantage by reason based on confidential relationshipVoidable 0 Using position of knowledge to take advantage of someone that may not be familiar with subject Factors to see if it was fair 1 dominant party made full disclosure of information known to them 2 whether the consideration was adequate 3 whether the dependent party received competent and independent advice before entering agreement Fraud 2 types in the execution and in the inducement Fraud in the Execution misrepresentation deceiving other party as to nature of document sign receipt that is really a hidden contract for something VOID Fraud in the Inducementquotfraudquot or quotdeceitquot renders contract VOIDABLE if below apply 0 False representation positive statement or conduct that s misleading Concealment The buyer is not responsible for sellers ignorance I Fiduciaryperson in a confidential relationship who owes a duty of trust loyalty and confidence 0 Fact an even that occurred or thing that exists rarely will an opinion fall here 0 Materiality something of substantial importance 0 Knowledge of falsity and intention to deceivecalled scienter includes actual knowledge lack of belief in statements truthfulness reckless indifference to its truthfulness Seller must know of misrepresentation o Justifiable reliance a defrauded party is 39 39 39 quot 39 by the 39 r party entered contract because of the types of fraud If buyer knows there is fraud and still buys his fault Nonfradulent Misrepresentation Mistake False statement that induces another but is made without scienter Negligent misrepresentation false representation made without due care in ascertaining its truthfulness Innocent misrepresentationfalse representation made without knowledge of its falsity but with due care To get relief from misrepresentation all other elements of fraud must be present and misrep must be material A belief that is not in accord with the facts Mutual mistake both parties are mistaken renders contract voidable by either party Unilateral mistakeonly one of the parties is mistaken relief granted if one party knows or should know mistake Assumption of Risk of Mistakeparty who assumes the risk of a mistake 0 Buying a ship at sea that may be lllost or not lostquot Effect of fault upon mistake cant use not knowing as a reason to avoid unless the fault amounts to a failure to act in good faith Does not apply to a failure to read a contract Mistake in meaning of termsboth parties misunderstand meaning of one anothers manifestationsvoid contract CHAPTER 12 CONSIDERATION Consideration class notes 0 Primary but not only basis for enforcement of promises o It is the price you pay to make a price binding The inducement to make a promise enforceable o In form of a promise to act or forbearance to act creation modification or destruction of a legal ration 0 Must be bargained for something you exchange for a promise o Adequate not concerned with sufficiency 0 Consists of legal detriment acquiring new legal obligationpromisee or legal benefit acquiring new right Legal Sufficiency 0 Legal benefitpromisor means the obtaining by the promisor of that which he had no prior legal right to obtain 0 Legal detriment promise 1 doing or not doing that which the promise was under no prior legal obligation to do 0 Adequacy not required where the parties have freely agreed to exchange nothing to do with legal sufficiency 0 Legal suffiency 1 parties have agreed to exchange 2with respect to each party legal ben or det was imposed o Unilateral contractsmust have legal det to promisee and benefit to promisor o Bilateral contractsboth parties make promises o Mutuality of obligationeach promise is the consideration 4 the other Consequenceboth parties bound 0 Illusory Promisesstatement in the form ofa promise but there is no consideration or obligation on promisor 0 Example Exxon says you can buy as many barrels of oil you want for 40 Company can decide to buy zero barrels satisfying the contract though nothing was exchanged 0 Following are not illusory 0 Output contract agreement to sell all of output could be more or less then they need 0 Requirements contracts agreement to buy all needs from one producer as much as they need I Act of Good Faith limitationthe Codeprevents output contractors from producing extreme amt 0 Exclusive dealing contractsgrant to a franchisee or licensee by manufacturer sole rights to sell in region 0 Conditional promiseone where the obligations are dependent upon the occurrence of a stated event 0 Preexisting Public Obligation public duties are neither a legal detriment nor a legal benefit 0 Preexisting Contractual Obligation performance of a preexisting contractual duty is not consideration 0 Modification of a preexisting K common lawmust be by mutual consideration Code no consideration needed 0 Substituted contractsparties agree to rescind original contract for new one needs consideration for both parts 0 Settlement of a Liquidated Debtcan only be legally cleared if promisee gets legal detriment from new deal 0 Liquidated debt undisputed obligation of debt by a party 0 Settlement of Unliquidated Debtpayment of a lesser sum of money to discharge debt is legally sufficient consid o Unliquidated Debt an obligation disputed as to existence or amount Ba rgainedFor Exchange 0 Mutually agreed up exchange 0 Past consideration an act done before the contract is made is not a consideration 0 Third partiesare consideration because A promises B something for B doing something for C Contracts Without Consideration enforceable even without consideration 0 Promises to Perform Prior Unenforceable Obligations o Promise to Pay Debt Barred by the Statute of Limitations promise by debtor to pay the debt renews for a second statutory period 0 Promise to pay debt discharged in bankruptcy o Voidable promises ex minor has contract to pay once he is of age When he is old enough he has to pay 0 Moral obligationA does something for B and B says they will pay them Enforceable in some cases 0 Promissory Estoppelstated above 0 Promises under sealmostly abolished but some states still have bind oneself by bond deed or solemn promise o Promises made enforceable by Statute 0 Contract modifications 0 Renunciation o Irrevocable offers CHAPTER 13 ILLEGAL BARGAINS Illegal Bargains 0 Unenforceable as opposed to being voidno remedy Discourages undesired conduct and prevents inappropriate use ofjudicial process Violations of Statutes 0 Licensing Statutesrequire formal authorization to perform certain trades professions businesses 0 Regulatory license intended to protect the public doctors ect Unlicensed cant recover for services 0 Revenue license intended to raise revenue unlicensed can recover for services performed 0 Gambling Statutesmost is unenforceable exception being lotteries Insurancequotinsurable interest fire floods o Usury Statutesestablish a maximum rate in interest for lender and borrowers 0 Sunday Statutes llblue lawsquot prohibition of certain types of commercial activity on Sunday Violations of Public Policy 0 Common law restraint of trade o Restraint of t adc C that quot 39 t I 39 39 or obstructs commerce or trade 0 Covenant not to compete agreement not to enter into a competing trade 0 Sale ofa businessseller of a business business promises not to start competition with buyer Can t be blocked out of trade in that area for unreasonable time but short term is enforceable 0 Employment contractscontract prohibiting an employee from competing with his employer for a reasonable period following termination is enforceable provided restriction is legit to protect employer Problem with signing is that employer has more bargaining power 0 Exculpatory clausescontractual provision excusing a party from liability for her own tortuous conduct 0 Unconscionable contractsunfair or unduly harsh agreements are not enforceable 0 Procedural unconscionabilityunfair or irregular bargaining o Substantive Unconscionability oppressive or grossly unfair contractual terms 0 Adhesion contracttake it or leave it bias Made by 1 party not automatically unenforceable 0 Tortuous conducta agreement that promises a person to commit a tort or to induce the commission of a tort Effect of illegality o Exceptions that may allow 1 party to claim relief 0 Party withdrawing before performanceif party was not involved in serious misconduct it can back out once it finds illegality of other party and get relief Party protected by statutepurchaser can sometimes rescind the sale and recover money paid Party not equally at faultone party induces other into illegal bargain through fraud duress ect Excusable ignoranceone party is completely unaware Partial illegalitysometimes can enforce the legal part if there are 2 sides CHAPTER 14 CONTRACTUAL CAPACITY Minors quotinfantquot person who has not attained the age of legal majority Contracts voidable at minors option once of age can ratify contract Disaffirmance voidable at minors option and can avoid liability 0 During minority or shortly after reaching age of majority 0 Selling of Land cant be disaffirmed until after age of majority o Expressed or implied even acts of conductsell land to different person 2 disaffirms 1st 0 Minors duty they can wreck a car then return it most states have require reasonable payment Ratificationminor can ratify the contract when reaching majority 0 Makes contracting binding ab inito from the beginning 0 Can be expressed or implied Liability for Necessariesa minor is liable for the reasonable value of necessary items those that reasonably supply a persons needsfood shelter clothing medicine Not for agreed price but for a reasonable value 0 Other necessities for maintaining life of themselves and family Car for a hardship Liability for misrepresentation of ageusually can get out of contract but some states wont let them back out make minor pay damages in tort require minor to restore the other party Liability for Tort Connected Contact if it is very intertwined where the contract must be enforced for tort to go through a court will rule the minor not liable in tort Incompetent Persons Person under Guardianship contracts are void Mental illness or defectvoidable Intoxicated voidable but must be done asap Cases Moodle Hill v Gateway 2000 Inc and David Prais Hills order a computer from Gateway The computer was defective but the Hills waited more than 30 Days to report it According to the arbitration clause Gateway had no liability The Hills said they did not agree to the clause before the purchase nor did they see it Judge ruled in favor of Hills remand the case to court llthe present record is insufficient to support a finding of a valid arbitration agreement between the parties or that the plaintiffs were given adequate notice of the arbitration clausequot By keeping the computer beyond 30 days the Hills accepted Gateway39s offer including the arbitration clause Vanderbilt University v Gerry DiNardo Vandy coach resigns and goes to LSU Vandy says breach of contract District court entered summary judgment for Vandy affirm the district court39s judgment that the contract contained an enforceable liquidated damage provision affirm the portion of the judgment reflecting damages calculated under the original fiveyear contract reverse the district court39s judgment concluding that the Addendum was enforceable as a matter of law remand for a resolution of the factual issues as to whether Larry DiNardo39s approval was a condition precedent to the enforceability of the Addendum and if so whether the condition was satisfied by Larry DiNardo39s failure to object affirm in part reverse in part and remand case to the district court for further proceedings consistent with this opinion Brodhead v Board of Trustees for State Colleges and Universities Athletic director Brodhead for LSU fired for bugging rooms not part of case He then enters a llverbal contract with southeastern university for 5 yrs He says 72000 a year SE said it was 46000 money is not really the issue They fire him after 10 months which he says breached the contract Trial court rules in favor of Brodhead appellate court reversedit was an llat will contract so he could be fired any time Rudy Gil v Metal Service Corporation Gil was manager at steel company for 10 years he refused to manage at times when they would unmark foreign steel to sell as domestic he was fired and claims that llhe was fired for refusing to perform an illegal act TC in favor of defendant appellate court affirms this decisionLouisiana had no precedent in this before BOOK CASES Reed v King House was sold 10000 over value to Reed by King House had multi murder take place and King asked neighbors not to disclose any information about it so he could sell the house TC Ruled in favor of Reed but Appealete court reversed ruling because of no way to determine loss of value in this case Dodson v Schlader Dodson a minor buys a truck for 5k had mechanical problems didn t get it fixed just drove till broke down returned it TC infavor of Dodson Appelite affirmed state SC remanded to court to see how much he was responsible for Earthweb Inc v Schlack T Vice Pres gets offer for better job takes it but 1st employer says he is in noncompete contract so he cant work there Fed District Court says it is unfair and rules for Schlack he had no way to hurt EW and his lyr rule of not working in industry was to long considering how dynamic and quickly changing it is


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