Business Law
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Created by:
sierradcharter on February 15, 2012
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66 terms
Terms | Definitions |
|---|---|
 Common Law | -a system of jurisprudence based on judicial precedents rather than statutory laws -all of the court case decisions |
| Law of a State | 1. Constitution 2. Legislative Acts 3. Cases-- try and find similar facts of the case in other cases and if cant find it in own state than look to "sister states" 4. if still cant find it look to other countries who practice common law. |
| Stare Decisis | when the court is trying to decide on the case they look back and try and find a previous case that has similar facts (the process of applying precedent) -if it has similar facts than it has precedent and the courts will try to decide the same way |
| Statute | an act passed by a legislative body |
| Chain of cases | 1 decision 2 decision becomes a chain of cases to base decisions off of |
| Common Law (Public Law) | -an entire system -unwritten law -dont always use stare decisis b/c of predictability -Constitutional law, administrative law, etc |
| Private Law | -always follow stare decisis -contract law, property law, torts law -uses stare decisis for stability among commerce and business |
| Plessy v. Ferguson and Brown v. Board | Public Law; PvF= its okay to segregate students by race as long as equal but seperate BvB= schools should be integrated (ignored stare decisis) |
| Supreme Court Personnel | -once a justice gets on the SC its for life to avoid politics -executive branch (president) nominates and then the legislative branch must confirm |
| Sandra Day O'Connor | -once considered most powerful justice because she was the "swing vote" -first to ever resign from the SC due to terminal illness of her husband |
| Judicial Restraint | Philosophy proposing that judges should interpret the Constitution to reflect what the framers intended and what its words literally say. |
| Judicial Activist | dont feel the need to base decision based off of the language but will base it on society and how society wants the decision to go |
| Pendulum of Justice | decisions for periods of times swing between activist and restraint -is why the chain of cases is not straight |
| Litigation Process | Pleadings: Complaint (filed by plaintiff), Summons, Answer (defendent), Counterclaim (defendent), Reply (plaintiff) |
| Complaint | 1. Name parties (who are you? who are you suing?) 2. state place and time 3. State facts in seperate counts 4. Plea for relief |
| Seperate counts | break into peices and list numberically so its easier to refer to -unlimited number of counts in a complaint |
| Plea for Relief | plaintiff tells what they are suing for (money, compensation, restraining order etc) |
| Answer to complaint | Either; 1. admit 2. deny 3. confess and avoid ( no liability and dont owe anything) 4. demurrer 5. insufficient knowledge 6. ethical issus |
| Demurrer | Dismiss or objection -typically not granted (should be removed) |
| Toritous | (Latin) twisted behavior can lead to liability |
| Crime | breached a duty to society victim-complaining witness govt- the prosecuter or plaintiff b/c it is a crime against society |
| Tort | -acting in a twisted manor -damage or injury to others or other's belongings -typically not offending all of society |
| Negligent Tort | most types of torts committed and are so prevalent we refer to them as "accidents" |
| Intentional Tort | injury to person or damage was done on purpose (crime) |
| Strict Liability Tort | you will pay no matter what even if not necessarily intentional ex: throwing bottle in the air coming down hitting girl head and causing permanent brain damage Ultra Hazardous Activity- construction, illegal pets Attractive Nuissances- ultra hazardous activities that people are attracted to ex: trampolines |
| Elements of Negligence | 4 elements must prove all or you get nothing 1. Duty of due care 2. Breach of Duty 3. Proximate cause of damage 4. Provable Damage |
| Duty of Due Care | excercising a degree of skill and care that all others stand by (DR.s standards) |
| Breach of Duty | why didnt you do it right?? |
| Proximate Cause of Damage | direct result of the breach of duty, have to decide where its ones fault and where the chain cuts off ex: car accident exchange info then goes down to wash hands in lake and is electricuted |
| Provable Damage | have to have proof of damage to sue and not just for the principle |
| Contributory Negligence | both parties are negligent |
| Last Clear Chance | when both sides are negligent, whoever had the last clear and present chance to avoid the problem but didn't is negligent |
| Punitive | purpose is to punish and in intentional -sometimes its not always about the money its to send a message to others so they dont make the same mistake |
| Subjective intent | did you commit the crime? answer usually no |
| Objective intent | jury decides if they meant to do it |
| Assault | putting another person in apprehension or harm |
| Battery | Touching someone without consent (doesnt reqire injury) |
| Intent | Subjective intent, Objective Intent, Assault, Battery, Trespass, Emotional Distress, Theft, False Imprisonment, Corporate Torts Ethical Issues |
| Products Liability | strict liability cases where manufacturers pay but in turn consumers pay in the end |
| 5th Ammendment | right to remain silent |
| 6th Ammendment | right to an attorney |
| Burden of Proof | the jury must be beyond a reasonable doubt that the defendant committed the crime and if theres any doubt they should vote not guilty |
| "Hot Potato" | controversial prosecuters dont want to be part of the decision and selects a grand jury to decide if the prosecuter should be allowed to proceed |
| Indictment | grand jury decides the prosecuter should be allowed to continue |
| Acquital | Grand jury says dont go forward |
| Not Guilty by reason of insanity | insane people cannot have intent |
| Nolo Contendere or No Contest | not saying im guilty, and im not saying im not just accepting the consequences |
| Discovery | each side tells the other side everything they know to prevent surprise |
| Voire Dire | process of selecting a jury ;12 jury members and two alternates |
| Litigation | -evidence -could be presented the same day as the jury selected |
| Criminal Trial Process | 1. Voire Dire 2. Opening Statements 3. Evidence 4. Closing Evidence (tell them what you;re going to tell them, tell them, tell them what you told them) 5. Verdict |
| Unilateral | promise for an act |
| Bilateral | promise for a promise |
| Revoked | can take away offer as long as it hasn't already been accepted |
| Rejection | Can either flat out reject or offer a counteroffer |
| Illegality | offer was legal when made but now is illegal and offer ceases when the law changes |
| Reasonable Time | offer only lives for a reasonable time and then ceases to exist (especially with parishable items) |
| Duress | direct threat |
| Coercion | Indirect threat (threatening a family member) |
| Undue Influence | Person tries to take advantage of trust |
| Illusory Promise / Grautitous Promise | an agreement is not a contract, so when someone someone believes they've entered a contract they can get "snookered" |
| Legal Value | change in the legal position of a party as a result of a contract |
| Implied-In-Fact Contract | left facts out, tried to imply facts ex: waving newspaper at vendor implies you will pay later |
| Implied-in-Law (Quasi Contract) | when people have faulty contracts so we force contract on them by law |
| Peppercorn Theory | cant get in the middle, only the parties can decide the transactions |
| Contracts | -can be avoided unless for a necessity |
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