Business Law Final Exam

196 terms by kfed-don

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common law

judge made law, body of all decisions made by judges

statute

law passed by Congress or by a state legislature

equity

court's use of power to create an equitable result

precedent

earlier court case used to influence a court decision in a current case

criminal law

concerns behavior so threatening that society outlaws it altogether

civil law

regulates the rights and duties between parties

holding

courts decision

reverse

to declare lower courts ruling wrong and void

remand

to send a case back down to a lower court

affirm

to uphold a lower court's ruling

litigation

process of resolving disputes in court

alternative dispute resolution

resolving disputes out of court through formal or informal processes

mediation

form of ADR in which a neutral third party coaxes the disputing parties toward a voluntary settlement

arbitration

form of ADR in which a neutral third party has the power to impose a binding decision

trial courts

determine the facts and apply to them the law given by appellate courts

jurisdiction

court's power to hear a case

appellate courts

generally accept the facts provided by trial courts and review the record for legal errors

error of law

wrong decision made in a trial that leads to the reversal of a decision or a new trial

federal question case

claim based on the US Constitution, a federal statute, or a federal treaty

diversity case

lawsuit in which the two parties are of different states and the amount in dispute exceeds 75,000

steps to litigation

pleadings, complaint, answer, discovery, interrogatories, depositions, production of documents and things, summary judgement(optional), trial

steps of trial

opening statements, plaintiffs case, defendants case, closing argument, verdict

pleadings

documents that begin a lawsuit; complaint, answer, reply

complaint

short statement of the facts alleged by the plaintiff, and his or her legal claims

answer

defendants response to the complaint

default judgement

decision that the plaintiff in a case wins without going to trial

class action

suit filed by a group of plaintiffs with related claims

discovery

pre-trial opportunity for both parties to learn the other side's case

interrogatories

written questions that the opposing party must answer, in writing, under oath

depositions

one party's lawyer questions the other party

motion

formal request to the court

summary judgement

ruling that no-trial is necessary because the essential facts are not in dispute

adversary system

system based on the assumption that if the two sides present their best case before a neutral party, the truth will be established

burden of proof

plaintiff must convince the jury that its version of the case is correct

preponderance of the evidence

burden of proof in civil case

beyond a reasonable doubt

burden of proof in a criminal case

tort

violation of a duty imposed by civil law

defamation

defamatory statement, falseness, communicated to another, injury

defamatory statement

statement is likely to harm another person's reputation

falseness (defamation)

must be false to by defamatory

communicated (defamation)

statement must be communicated to at least one other person besides the defendant

injury (defamation)

in slander cases, plaintiff must show some injury; in libel cases, law is willing to assume injury

opinion (defamation)

opinion is generally a valid defense in a defamation case

public personalities and defamation

must prove actual malice

actual malice

defendant knew that that his statement was false and acted with reckless disregard of the truth

false imprisonment

intentional restraint of another person without reasonable cause or consent

battery

intentional offensive touching

assault

an action that causes another person to fear an imminent battery

fraud

injuring someone by deliberate deception

intentional infliction of emotional distress

extreme and outrageous conduct that causes serious emotional harm

compensatory damages

intended to restore the plaintiff to the position he was in before he defendants conduct caused injury

single recovery principle

requires a court to settle a legal case once and for all, by awarding a lump sum for past and future expenses

punitive damages

punish the defendant for conduct that is extreme and outrageous

intrusion

into someones life is a tort if a reasonable person would find it offensive

commercial exploitation

prohibits the unauthorized use of another person's likeness or voice for business purposes

negligence

duty of due care, breach of duty, factual cause, foreseeable harm, injury

duty of due care (negligence)

if a defendant can foresee injury to a particular person, she has a duty to him

breach of duty (negligence)

by failing to behave the way a reasonable person would under similar circumstances

factual cause (negligence

defendants breach led to the ultimate harm

foreseeable (negligence)

injury that a reasonable person could anticipate

injury (negligence)

must be genuine, not spectulative

trespasser

anyone on property without consent, no liability

licensee

anyone on the land for her own purposes but with the owner's permission, entitled to warn of hidden dangers on property

invitee

someone on property as of right because it is a public place or a business open to the public, duty of reasonable care

assumption of the risk

person who voluntarily enters a situation of obvious danger cannot complain if she is injured

contributory negligence

plaintiff who is even slightly negligent recovers nothing

comparative negligence

plaintiff may generally recover even if she is partially liable

strict liability

high level of liability assumed by the people or corporations who engage in activities that are very dangerous: ultra-hazardous activity and defective products

ultra-hazardous activity

defendant engaging in such acts is virtually always liable for resulting harm

judicial activism

will ignore certain provisions of a contract

judicial restraint

court won't enforce a contract if serious harm to one party will occur

elements of a contract

agreement, consideration, legality, capacity

contract

promise a court will enforce

bilateral contract

both parties make a contract

unilateral contract

one party makes a promise the other party can only accept only by doing something

express contract

agreement with all important terms explicitly stated

implied contract

contract where the words and conduct of the parties indicate that they intended an agreement

agreement (contracts)

meeting of minds, offer, terms are definite, acceptance, mirror image rule

meeting of the minds

both parties understood each other and they intended to reach an agreement

consideration (contracts)

bargaining that leads to an exchange between the parties

non compete clause

has to be generally reasonable to be enforceable

exculpatory clauses

contract provision that attempts to release one party from liability in the event the other party is injured

unenforceable exculpatory clauses

when it attempts to exclude an intentional tort or gross negligence, affected activity is in public care, unequal bargaining power, unless clause is clearly written and readily visible

unconscionable contracts

contract that is shockingly one-sided and fundamental unfair

capacity

legal ability to enter into a contract

disaffirm

give notice of refusal to be bound by an agreement (minors)

restitution

restoring an injured party to its original position

misrepresentation

statement that is factually wrong

to rescind a contract based on misrepresentation or fraud must show:

false statement of fact, fraud or materiality, and that she did rely on the false statement and was reasonable

contracts that must be in writing

interest in land, cannot be performed in one year, pay the debt of another, made by an executor of an estate, made in consideration of marriage, sale of goods worth more than $500

what writing must contain (statute of frauds)

signature, reasonable certainty

promisor

person who makes the promise that the third party beneficiary benefits from

promisee

person to whom a promise is made

assignor

person making the assignment

assignee

person receiving the assignemtn

obligor

person obligated to do something under a contract

obligee

person who has an obligation coming to her

what rights are not assignable

would substantially change the obligor's rights or duties under the contract, forbidden by law or public policy, or is validly precluded in the contract itself

delegator

person who gives his obligation under a contract to someone else

delegatee

person who receives an obligation under a contract from someone else

what duties are not delegable

would violate public policy, contract prohibits, obligee has a substancial interest in personal performace by obligor

strict performance

party generally not required to render strict performance unless the contract expressly demands it and such a demand is reasonable

substantial performance

will receive full contract price, less the value of any defects

consequential damages

damages that result from the unique circumstances of the plaintiff

injunction

court order to do something or to refrain from doing something

merchant

someone who routinely deals in the particular goods involved

cover

to reasonably obtain substitute goods because another party has not honored a contract

implied warranty of merchantability

goods must be of least average passable quality in the trade

negligence in sales

negligent design, negligent manufacture, failure to warn

commercial paper

unsecured promissory note

promissory note

maker of the instrument promises to pay a specific amount of money

maker

issuer of a promissory note

payee

someone who is owed money under the terms of an instrument

draft

order directing someone else to pay money for you

check

most common form of draft

drawer

person who issues a draft

drawee

person who pay the draft (bank)

payee

person getting paid

non-negotiable commercial paper

possessor has same rights as the person who made the original contract

negotiable commercial paper

possessor of negotiable commercial paper has more rights than the person who made the original contract

elements of negotiable commercial paper

must be in writing, must be signed by the maker or drawer, must contain an unconditional promise to pay, must be payable on demand or at a definite time, must say "pay to order or bearer of"

interpretation of ambiguities

words over numbers, handwritten over typed over printed

negotiation

an instrument has been transferred to the holder by someone other than the issuer

to be negotiated:

must be endorsed (order paper) and delivered to the transferee

holder in due course

someone who has given value for an instrument, in good faith, without notice of outstanding claims or other defenses

outstanding claims or other defects for holder in due course

instrument is overdue, instrument is dishonored, instrument is altered, forged, or incomplete, holder has notice of certain claims or disputes

attachment

three step process that creates an enforceable security interest; security interest, secured party has given value to security agreement, debtor has rights in the collateral

after acquired property

items that the debtor obtains after the parties have made their security agreement

perfection by filing

filing a financing statement with state agency

financing statement

is sufficient if it provides the name of the debtor, name of secured party, and indication of the collateral

perfection by possession

actually having th debtor's merchandise

perfection of consumer goods

PMSI

purchase money security agreement (PMSI)

interest taken by the person who sell the collateral or advances money so the debtor can buy it

steps to file bankruptcy

file a petition, assigned a trustee, meeting of the creditors, automatic stay, payment of claims, discharge, can reaffirm

voluntary petition must include:

petition, list of creditors, all assets and liabilities, exceptions, income and expenses, statement of financial affairs

automatic stay

safe burrow for the bankrupt

exempt property

allows debtor to keep some property for himself

voidable preferences

trustee can void any payment to creditor up to 90 days before filing petition

fraudulent transfers

made within one year of filing and made to hinder creditors

payment of claims

secured claims, priority claims, unsecured claims

elements of an agency relationship

principal, agent, consent that agent will act on behalf of principal, principal controls, creates a fiduciary relationship

fiduciary relationship

purpose is for one person to benefit another

duty of loyalty (agent to principal)

agent may not recieve outside benefits unless principal knows and agrees, cannot disclose confidential information, cannot compete with principal in scope of business, cannot act for two principals whose interests conflict, secretly dealing with the principal, appropriate behavior

other duties of an agent

duty to obey instructions, duty of care, duty to provide information

express authority

either by words or conduct, principal grants agent permission to act

implied authority

authority to conduct a transaction includes authority to do acts that are reasonably necessary to accomplish it

apparent authority

principal can be liable to third party for agent

fully disclosed principal

can sue principal alone for contracts made

partially disclosed principal

third party can sue either agent or principal

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