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Business Law Midterm Prep
Terms in this set (62)
What is Law?
a mechanism for ordering society that helps deal with "disputes resolutions"
What is Positivism/ Positive Law?
The belief that law and morality can be two separate things, Basically that a law can be immoral. It is the idea of man-made laws
What is Natural Law?
The belief that there are fundamental basic laws that are passed down from God himself- morality laws
What is the Enlightenment View of Law and Government?
the individual gives up his rights to the state, as long as that state protects his life, liberties, and estate. On failing to do this, the citizen has the right to revolt
What is Juris Prudential?
the concept that law can come close but never be fully exact or clear
What is Fundamental Law?
Laws that establish the rights of every citizen, like the Constitution
What is Judge-Made Law?
When judges make laws by reviewing documents or setting precedents.
What is the difference between criminal and civil law?
Criminal law deals with people who've committed a criminal offense, while civil deals with private claims, like breaches of contract or civil wrongs
What is the difference between Public and Private Law?
Public law regulates the relationship between the citizen and the state, while private deals with issues of contract and tort law and other private party matters
What is the difference between civil and common law systems?
Civil law system, the state presents a case against the defendant (American System). Common Law System, the state provides any information they have about the suspect to the suspect's lawyer (Irish System)
What are the three ways Criminal Laws can be committed?
Intentionally: there is a clear goal in committing the crime
Recklessly: no intent, but the crime was still committed
Negligently: when a person acts with below standard conduct
What is Contract Law?
law that deal with entering freely into consensual transactions or bargaining
What are the 3 Steps of a contract?
2) Acceptance of an offer
3) Formation of Contract (Paying/Bartering)
4) Intention for future business
What is "Non Et Factum"?
contracts can't be legally binding if the person doesn't understand what they are singing
What is a Bilateral Contract?
an agreement in which each party makes a promise to one another
What is a Unilateral Contract?
an agreement where one party makes a promise to another party
What is an Implied Contract?
a contract is formed if the circumstances imply an agreement (visiting a doctor or lawyer)
What's a Quasi Contract?
a contract that is implied by law, allows for courts to remedy situations where people would be unjustly enriched/rewarded
What is the significance of Carlill vs. Carbolic Smoke Ball Company?
It established the statue that if a offer is beyond reason then a contract can/couldn't be formed
What is the significance of the Fisher vs. Bell case?
It established that items in windows were not offers, but invitations to treat or offer
What is the significance of the High Trees Case?
It established that someone cannot go back on a promise or reduction of paying and then regain money. They are estopped.
What is Promissory Estoppel?
The statute that people cannot go back on promises/reductions and then tried to get money back, they are literally estopped
Why doesn't Consideration need to be adequate?
Consideration must be sufficient, but it doesn't have to be adequate because it is assumed that contracts are on level playing fields
What is Plausible Deniability?
the defense that one person said something while someone else claims another thing was said (he said she said)
What is a breach of warranty?
a breach of a less important part of a contract that entitles you to some form of damages
What is a breach of condition?
a breach of the one of the major parts of a contract that entitles you to damages and/or cancel the contract
What is a common clause?
an exemption of limitation clause limiting liability or exempting the seller from liability
What is a Common Mistake?
occurs when both parties hold the same mistaken belief of facts in a contract
What is a Mutual Mistake?
occurs when both parties of a contract are mistaken as to the terms of a contract
What is a Unilateral Mistake?
occurs when only one party of a contract is mistaken as to the subject-matter
What is Duress?
Any form of coercion or threat that forces a person to do something against their will or their judgement (violence, drugs, mental disability)
What is a void contract?
a contract that never existed
What is a Voidable contract?
either party may declare a contract ineffective
What is Tort Law about?
Tort Law concerns people who commit civil wrongs upon someone else giving cause for damages
What is Defamation?
when someone states a lie about someone else that lowers them in the eyes of right thinking members of the community
What is Slander?
What is Libel?
What are defenses against Defamation?
Fair Comment (Freedom of Speech)
Public Interest (Freedom of Press)
What is Public Embarrassment?
Publishing old material in order to shame a public figure when it is not relevant to the present
What is Privilege?
If information is imparted in secret (absolute privilege), you cannot be sued for defamation
What is Privacy?
private matters that can only be written about if there is some sort of matter or connection to the public domain.
What is Passing Off?
If someone by virtue of misrepresentation attacks your goodwill or reputation to cause you damage (usually in a business case)
Why can Passing Off be limited to geographical zones sometimes?
As long as the damages doesn't expand pass the normal geographical demographic that your business expands to, then it can't be considered passing off
What is Wrongful or Intentional Infliction of Emotional Suffering?
When someone explicitly means to cause someone else emotional suffering or damage. Parodies and other pieces that aren't meant to be taken seriously are covered by freedom of speech though
What is Negligence?
the failing to care for someone if there was a "duty of care" principal established. This can apply to badly produced or made products
What kinds of jobs are connected most often to the tort of negligence?
Attorneys, accountants, doctors
How does public policy (the mass public) connect to the law of negligence?
only direct cases can be connected to the law of negligence, otherwise it would open up the flood gates of lawsuits and damages claims. This establishes the "Remoteness" statute/clause
What is Assault and Battery?
Assault: the tort of intentionally of causing reasonable apprehension of immediate harm of offensive contact, cannot be just threat of words
Battery: the tort of unwanted physical contact without consent
What is False Imprisonment?
the unlawful obstruction or deprivation of freedom from restraint or movement
What is Trespassing?
the wrongful interference with one's possessory rights or property
What are the various types of Trespassing?
1) Trespass of Personal goods and property
2) Trespassing of Land
What are the three elements of Trespassing?
1) Lack of Consent
2) Actual Harm
What is Private Nuisance?
Causing a substantial and unreasonable interference with a plaintiff's land or his use or enjoyment of that land
What is Public Nuisance?
when the defendant's action materially affects the reasonable comfort and convenience of a class of the public
How does nuisance relate to factories and their production/waste?
Companies must be careful of dealing with their waste and overproduction, otherwise it can spill onto the general public through land, air, and sea and cause an inconvenience for the public
What is the significance of the Miller vs. Jackson case?
It established the principal that people of abnormal sensitivity trying to sue for nuisance must have a strong definitive case. (The Lord Denning Cricket Case)
What is Negligent Misrepresentation?
negligent information or practices that affect the goods or trade for another company/group
What is the significance of the Taff Vale Railway vs. Amalgamated Society case?
Unions can be held liable for allowing workers to go out on strike if it effects the general public on a big enough scale
What is Restraint of Trade?
tying a worker into a contract (post employment) that extremely limits his employment oppourtunities
What is the significance of the Donoghue vs. Stephenson case?
The snail in the bottle case, established the principal of care for your neighbor, which is the main principal used in negligence cases.
What is Conspiracy to Injure?
An economic tort where one is found guilty of seeking to intentionally hurt someone in a business setting
What is Trade Libel?
An economic Tort that deals with making false claims about goods of another company and causing damage accrodingly
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