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Terms in this set (84)
-Statutes within their areas (cities, counties, townships) control:
a) Have authority to handle zoning issues, municipal code outlines
b) Govern lesser issues like dog licensing, curfews, loitering, etc.
treaty that is among many countries
Act of State Doctrine
Immunity of governmental actions from discipline by other countries; sanctity of governments right to govern.
Uniform Commercial Code
Set of commercial state laws that all states would find acceptable, first appeared in 1940s
Uniform Partnership Act
Govern partnerships; state statute; because the US needs all partnerships to be governed by similar rules they are nearly the same BUT this is NOT federal in nature; STATE STATUTE
Taking of private property by government, also called confiscation or nationalization
The United Nations Convention on Contracts for the International Sale of Goods. Provides type of international UCC for countries that adopt it and when parties choose to use it. 4 parts: Application, Formation, Sale of Goods, Final Provisions
Differences Between UCC and CISG
CISG follows common law mirror image rule and not the more liberal UCC "battle of the forums" modification exception. CISG requires the presence of a private for an offer to be definite enough to be valid. CISG has merchant's firm offers but is not suject to UCC's 3 month limit. PAGE 242
North American Free Trade Agreement- trade agreement among the US, Canada, Mexico, permitted free-flow of goods, services, and capital between 3 nations. "Borderless North America"
If the lower court made an error in applying the substantive/procedural law in the case. Used in appealate court to see if previous court made an error. Appeallate court does not hold trials, no witnesses, no testimonies.
Subject Matter Jurisdiction
In Rem Jurisdiction over the thing;a method whereby a court obtains jurisdicition by having property or money located within its geographic jurisdiction, authority over content/subject
Long Arm Statute
Statutes in each state that allow the state courts to bring in defendents from outside the state so long as they have some "minimum contact" with the state. Give courts power to extend their arms of jurisdicition into other states.
Latin term for "let the decision stand"; the doctrine of following or distinguishing case precedent, upholding precedent; courts use judicial decisions of the past in making their decisions to provide more consistency.
process in which both parties meet with a neutral mediator who listens to each side. Does not issue a decision and helps parties agree upon a decision.
an 1890 law that banned the formation of trusts and monopolies in the United States, First federal action against monopolies, it was signed into law by Harrison and was extensively used by Theodore Roosevelt for trust-busting. However, it was initially misused against labor unions
Mistake made in lower court proceedings that is ruled as improper by an appellate court and that requires a reversal of the case and possible retrial.
a) Appellate court reverses the district court's decision
b) retrial or modification of trial courts decision
Writ of Certiorari
Issued by the Supreme Court where they decide whether or not a case is heard. This is part of the process or appealing to the US Supreme Court (Doesnt gaurantee that your case will actually be heard)
Those voluntarily in the public eyes such as elected officials, recording artists, actors, sports figures, and media magnets. Paris Hilton example.
Tort of Contract Interference
Parties not allowed the freedom to contract without the interference from third parties. Someone persuading another to break a contract.
Elements of Defamation Tort
See study guide., • A statement about a person's honesty, reputation, or integrity that is untrue
• A statement that is directed at a particular person
• Proof of malice
Written defamation, defamation in a newspaper or magazine or broadcasted
Tort of oral defamation (Spoken)
Tort of False Imprisonment
Detention of a person for any period of time again his/her will; no physical harm needs to be done; imprisonment party can collect damages for simply being imprisoned without consent. Carries defense of the SHOPEKEEPERS PRIVILEGE
Congressional Absolute Privilege
Defense to defamatioin, protection given to legislators and courtroom participants for statements made relating to the proceedings; encourages people to come forward and speak without fear of liability.. promotes free and open debate among judicial hearings.
Falls under one of the three defenses to defamation. Available to the media that permits retraction and no liability so long as the information is not printed or given with malice or with reckless disregard for whether it is true.
Elements of Negligence
See study guide, 1) Defendant owes a duty of care to plaintiff 2) the defendant breached this duty of care 3) the plaintiff suffered an injury 4) the defendant's negligent act caused the plaintiff's injury
Assumption of risk
Requires the defendent to prove that the plaintiff knew there was a risk of injury but decided to go through with it anyway. Must be completely aware and assume risk voluntarily. 1 of 3 defenses to negligent torts
"Negligence in the Air"
Deals with the Palsgraph case, supreme Court said you could not be negligent because you could not forsee the fireworks in the box and the accident happening. LI Railway won.
Restatement of Contracts
Defines a contract as a promise or set of promises for breach of which the law gives remedy, or the performance of which the law in some way recognizes as a duty; general summary of the nature of common law contracts in the US; restatement of common law; states do not follow the same set of restatement of contracts.
First part of a contract. (first person is offerer, second person is offeree) Must contain parties, subject matter, price, payment/delivery terms, performance times
Offeree's positive response to the offeror's proposed contract, only person to who the offer was made has the power of acceptance and must be communicated with the proper method of communication (Stipulated means or no stipulated means)
The Mailbox Rule
Timing rule for acceptance and applies to stipulated means offers so as long as the offeree uses the stipulated means to communicate acceptance
Article 2 of the UCC
governs contracts for the sale of goods that have been adopted in all states except Louisiana; under article 2, contracts are formed easily, standards defined, remedies are easily determined. Article 2a talks about leases
unenforceable at the election of one of the parties, give one party the option of disaffirming the contract.
VOID- agreement to do something that is illegal or against public policy; lacks legal elements.
UNENFORCEABLE- contract cannot be honored because procedural problem; contract that should be in writing or have record with statute of frauds but does not equal unenforceable.
A valid contract that cannot be imposed because of a procedural error, such as the passage of the statute of limitations, Contract that has all the elements of a valid contract, yet neither party can sue the other for performance; an unsigned contract is usually unenforceable
A local government's qualified immunity from negligence lawsuits for actions that were reasonable under the circumstances, idea that the law is only concerned with the assent, agreeement or intention of a party as it reasonably appears from his words or actions
Knowing and intentional disclosure of false information or knowing the failure to disclose relevant information. Same elements of proof as misrepresentation with the added element of SCIENTER (Knowledge that the information given is false)
In contract law, a defense that permits nonperformance of a contract if the party can show that physical or mental force was used to obtain the agreement to enter into the contract. Defense to contracts.
Events that give rise to performance, events that must occur before performance is required. i.e. if someone needs financing for a car, they can only get the car is they get financing.
in addition to compensatory damages, non-breaching parties are entitled to collect extra damages called incidental damages that are involved because of the breach.
both parties promise to perform certain things, you pay $2000 for a car in return (both people providing something to make a deal)
In contract formation, misstatements of material facts. When the other party about the contract subject matter does not give one party full or accurate information. when there has been a misrepresentation in the formation of a contract, law allows for a recission.
3 elements of innocent misrepresentation
Misstatements of a material fact (failure to disclose a fact)
Reliance by the buyer on that material misstatement
Results in damages to the buyer
Type of information that would affect someones decision to enter into the contract
Misrepresentation cannot be based on sales puffing which is opinion or sales hype about the contracts subject matter.
Added element to fraud to make it different than misrepresentation, scienter implies that you willingly know that the information given is false. Termite example.
Disclosure Requirement in Real Estate Transactions or of a Material Fact
Most states have disclosure statutes for real estate transactions; some states for example you must disclose the history of criminal activity on property but in other states there are prohibitions against certain disclosure such as whether or not the occupant dies of AIDS
Code of Federal Regulations
Form of codified law that exists at the federal level, regulations passed by administrative agencies. See study guide
Law of contracts and the intra-business laws such as personnel rules (Homeowners laws) developed by individuals. Valid unles they infringe any public rights or violate any statutory protections.
Law passed by some governmental agency; enacted by the governmental body, state, and federal constitutions and statutes are examples of public laws.
Types of legal remedies
Compensatory damages, incidental damages, liquidated damages, consequential damages (See study guide)
A remedy other than money damages, such as performance, injunction, etc. Temporary Injunction Order (See study guide)
Constitutions are the law of the people and gives basic rights such as speech, religion, property. Provides framework for all other forms of law.
Civil Penalties for violation of federal agency rules
agency may impose any fines, civil penalties, or administrative sanctions for a violation of a state law or agency rule by a small business. If no correction is possible or if an agency is acting in response to a complaint made by a third party and the third party would be disadvantaged by the application of this subsection, the requirements in this subsection do not apply.
Codified law that exists at the federal level called regulations. Passed by federal administrative agencies. Administrative agencies independently make their own laws; Congress does not make their laws. All laws contained in Code of Federal Regulations
Membership Countries to the EU
Made up of 25 countries and requires member nations to subscribe to the same monetary standard (Euro), elimination of immigration and customs controls, universal product and job safety standrds, uniform licensing of professionals, and unified taxation schedules
Purpose of precedent is the same as the law, offer consistency and reliability, must be stable and rpedictable, but still incorporate felxibility
Name on appeal for the party who appeals a lower court's decision, typically had lost the case beforehand
Name on appeal for the party who won a lwoer courts decision. party who does not appeal the lower court's decision.
Federal District Court
General trial court in the federal system, hear 3 types of cases: 1. US in a party 2. involve federal questions 3. diversity of citizenship cases
Justice of the Peace of Small Claims Court
Courts that try civil cases with minimal damage claims; state. TX state court- $10,000 or less or can hear criminal and law suits
Diversity of Citizen Jurisdiction
Cases in which the parties are from different states qualify for diversity of citizenship status and federal district courts have the authority to hear these cases. See study guide
minimum contract doctrine for jurisdiction
Burden of proof
Respsonsibility of the party for proving the facts needed to recover in a lawsuit. Beyond unreasonable doubt/ by a purponderaance of the evidence.
Court of Limited Jurisdiction
Specialty courts that have only limited authority over certain types of cases with the distinct subject matter (probate courts, divorce courts, tax courts, US claims courts, International trade court) See guide
Libel vs. Statement of Opinion
Current defamation issue on whether or not statements made in columnists opinion sections are defamation. If columnist is "expressing subjective view, interpretation, theory, conjecture, or surmise, rather than claiming to be stating facts, the statement is not actionable"
A defense to the tort of false imprisonment for store owners; allows reasonable detention of shoppers upon reasonable suspicion of shoplifting
1 of 3 types of torts, civil wrongs against individuals that are committed with a requisite state of mind and intent to harm. Includes: Defamation, Contract Interference, False Imprisonment, Intentional Infliction of Emotional Distress, and Invasion of privacy- see guide for definition
Put the nonbreaching party in the same position they would have been if the breach had not occurred
Often rewarded when compensatory damages are not enough. Given with the intention to reform or deter the defendent and others from engaging in conduct similar to which formed the basis of the lawsuit.
Ratio of punitive damages to compensatory damages
Terms not required for a valid UCC offer
IF the contract is for less than $5000 and covers the sale of goods, doesnt have to be in writing
Merchant's Firm Offer
Option under the UCC that is irrevocable even without offerees payment; offer made by merchant, put in a form of record, signed by the merchant. if requirements are met, merchant must hold offer open for specific time period, no longer than 3 months
Merchant's Confirmation Memorandum
Summarized the oral agreement and signed even electronically (only by one party) can be used to satisfy the statute of frauds so long as the memo has been sent to the nonsigning party for review and no objection is raised upon the party's receipt. (See guide)
Force Majeore Clause
Clause in a contract that excuses performance in the event of war, embargo, or other generally unforeseeable events
Contracts Under the Statute of Frauds UCC and Common Law
Complicated...See guide, valid contracts that must be in writing to be enforceable: contracts the deal with sale of property like leases and easements, contracts not able to be performed in a year, and contracts that pay the debt of another. Contracts for the sale of goods over $5000 have to be evidenced by a record to be enforceable
Enforceable agreement called an implied in law or quasi contract. quasi= as if. Describes the action of the court when it treats parties who do not have a contract as if they did.
Cannot be revoked under common law; offeree pays the offeror for the time needed to consider the offer
Added forms to an offer (UCC)
Merchant vs. non merchant. Battle of forms vs. negotiation see (study guide)
"Point and Click"
Parties must prove that a click was something more than an accidental action and that a click was made after there had been disclosure of the terms.
Damages agreed to in advance and provided for in the contract; usually appropriate when it is difficult to know how much the damages will be. Happens if nonperformance in a contract.
Third Party Beneficiary to a Contract
Certain groups of people do have rights in contracts even though they may not have been parties of the contract. Life insurance policy
Minors Liability for Necessity provided by _(adult?)_ under contract
need age capacity of 18 to not be considered a minor; contracts concerning minors are voidable with the minor choosing whether or not to honor a contract. Student loan agreements are enforceable against minors.
Elements of a Valid Contract
Offer, Acceptance, Consideration
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