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BLS Exam 2
Terms in this set (183)
offer, acceptance, consideration
three things to make a contract valid
I am offering to provide a service or a good in exchange for something else
agreeing to the terms of the offer
the bargain for exchange, what each party gets in exchange for the contract
have to be in writing to be enforceable
Contracts do not....
a promise by one party in exchange for a promise of another. I promise to pay you $50 and you promise to cut my grass
one party is promising to do something in exchange for an act. My dog goes missing I post a sign saying that I will pay someone who finds my dog. you actually have to find my dog in order to get the promise of money
offer that turns into acceptance
an objective manifestation of willingness by the offeror to enter into an agreement that creates the power of acceptance in the offeree
primary test. would a person in the position of the offeree feel that he/she has the ability to accept the offer. Has to have knowledge of the offer before he/she can accept it
are generally not offers. but they can be if they are clear, explicit and leave nothing open to negotiation
must state subject matter, must identify parties, must contain a price, must also contain the quantity if we are dealing with some type of good
requirements of an offer
rejection, counter offer, illegality, death or mental incapacity, lapse, revocation
6 ways to terminate an offer
___________ of the offer by the offeree acts as termination of the original offer. once you reject, there can be no acceptance, unless a new offer is made
________ as a rejection of the original offer and creates a new offer
if the subject matter becomes _______, the offer terminates
death or mental incapacity
an offer terminates upon the death or mental incapacity of the offeror, there is an exception: if there is an option contract
if the offer specifies on midnight of the date unless specified otherwise. I could give a time.
an offer can be ______ at any time prior to acceptance
independent contract that limits the offeror's ability to revoke the contract. the offeree must give consideration for an option to be enforceable. I'll pay you $50 to keep the offer open, cannot be revoked.
if the offer is for a unilateral contract, the offeror cannot revoke the offer once the offeree has begun the performance
then the courts say it is open for a reasonable amount of time
If i don't give you a specific date on which the offer will expire...
works to help you in the California situation
there is a promise that the promisor could reasonably expect to induce for bearings.
promisee justifiably relies on that promise (moving out to cali).
you rely on that promise to your detriment. (sold your house in ohio, moved out to CA, bought a car)
injustice can only be avoided through enforcing the promise
4 parts to promissory stopple
restatement defines this as willingness to be bound by the terms of the agreement. ______ of the offer forms the agreement between the parties. Only the party who was offered agreement can accept
start of performance
can be acceptance in some situations (but you have to finish it).
when the parties agree that start of performance is acceptance
start of performance can also be acceptance in bilateral contract (if invited by offeror)
how can start of performance be acceptance
give notification to offeror before you begin
if of error has no adequate means of learning of performance with reasonable promptness and certainty
two exception to start of performance rule
occurs through the performance (you actually have to find my dog). complete performance, not enough to actually just start it
start of performance in unilateral contract
acceptance is valid when sent in mail by offeree. but revocation, rejection or any other form of communication is not effective until it is received. does not apply to option contracts.
is acceptance in some situations (magazine subscriptions)
communication regarding mode of acceptance
the offeror can condition the acceptance of the offer on expressed terms and dictate the mode of acceptance. however, if the offeror specifies the means of acceptance but does not condition acceptance on the means, then generally any acceptance will do.
a promise for a promise, a promise for an act, a promise to refrain from doing somethin you have the legal right to do
consideration can take three forms
we just care that there was something given up for it
we don't care about the adequacy of consideration
preexisting duty rule
performance of a duty you are obligated to do under the law is not good consideration
is not consideration. can't rely on past act.
accord and satisfaction
can settle for less than the full amount if they enter into this.
the debt is unliquidated (in dispute)
the creditor agrees to accept full patient less than it claims is owed.
the debtor pays the amount they have agreed on.
three requirements for accord and satisfaction
debtor's payment of the reduced amount
the ability to contract. there are certain people who lack the ability to contract. mental illness, intoxication, age
when a contract is this, we treat it as if it never existed
it acts as a valid contract, unless and until one of the parties decide to make it void
people under 18 do not have the capacity to contract in most states. when a contract is entered into by a minor, the contract is voidable by the minor
when a minor turns 18, the minor has reasonable amount of time to get out of a contract. if they don't do this, then the contract is considered ratified
they can get out of the agreement
even if a minor has lied about his age
a contract entered into by an _______ person is voidable by that person if he/she was unable to understand the nature and consequences of the transaction and the other party knew
if an individual has been adhjucated as mentally incompetent and is under legal guardianship, a contract made by that individual is void. on the other hand, if the person has not been adhjucated as being mentally incompetent then the contract is voidable if the person is unable to understand nature in consequences of the transaction AND the other party has reason to know
an erroneous (wrongful) conclusion of fact that each party came to on his/her own not based on what the other party said
both parties are mistaken about a basic assumption on which contract is based.
the assumption has material fact on the agreement.
it is not a risk that was assumed by either party in making the agreement
three parts to a mutual mistake
one party is mistaken. we don't care about these unless the other party knew or had reason to know of the mistake
a ________ of material fact that the other party relies on in her decision making makes the contract VOIDABLE. in contracts this can be an omission, a mistake. doesn't matter if intentional.
mistake is about what parties believe, misrepresentation is about what the other party said
mistake vs misrepresentation
occurs when one party induces another party to enter into a contract based on some type of threat. two forms: physical and economic
if you don't sign this contract, i'm going to shoot you
occurs when we leave one of the parties (the oferee) with no real alternative but to accept the offer
a contract that is so unfair to one of the parties that no reasonable person in the position of that party would have agreed to the contract
looks at circumstance surrounding the agreement or the language in the contract
the terms of the contract are unduly harsh or oppressive.
certain types of contracts have to be in writing. 1. does this contract fall within the statute of frauds 2. and is the statute met? (has to be in writing, signed by party against whom enforcement is sought)
statute of frauds
marriage, surety ship, one year service contract, UCC, real property
5 contracts fall within the statute of frauds
a contract by which a third party promises to pay the debts of another. surety is person who makes payments for you. you are principal because you owe the payments
one year service contract
a contract for services that cannot be performed within one year of its making falls within the statute of frauds
any contract for the sale of goods over $500
land or real estate. a contract for the transfer of an interest in real property for more than a year
this comes up when we get into court. evidence of PRIOR negotiations or contemporaneous agreements. arises when there is a contract that is in writing but there is a dispute about the terms in the writing vs what the parties agreed about before. don't even get parole evidence unless its in writing. keep out evidence that contradicts the agreement in its written form
generally not admissible because courts assume written agreement is the final agreement
parole evidence / evidence of prior negotiations is...
hinges on whether the contract is completely integrated or partially integrated
exceptions to parole evidence to be used
a contract that is this includes some but not all of the terms of the agreement
a contract that is this contains all of the terms that had been agreed to by the parties. when a contract is this, parole evidence is never allowed
you can tell me or merger clause
how do we know what integration the contract is?
if the contract contains this, then the agreement is completely integrated. a statement is in a contract that says this is the final and complete version of our agreement. if there are parts not in there, they are not part of the agreement
the court will allow parole evidence if it supplements the agreement, but not allowed if it contradicts the agreement
occurs when one party under the contract transfers his/her rights to receive something under the contract to a third party.
if written in the contract that no assignments are allowed or when it increases the duties of the obligor
assignments are not allowed ....
when a party delegates her duty to perform to a third party
not allowed when it is not in the contract, it is illegal and when the obligation is personal and when the performance would vary significantly
delegation not allowed ...
damages designed to put the non breaching party (the plaintiff) in the economic position that he would have been in had the contract been performed perfectly.
law requires you to try to mitigate your losses. find employment actively. you can't recover if you just sit there and do nothing
expectation damages exception:
designed to put the non breaching party (the plaintiff) in a position that he would've been had there never been a contract to begin with
actus reuse and mens rea
in order for there to be a crime you need two things:
a criminal/guilty act. (possessing heroin). has to be voluntary
failure to stop at a stop sign, failure to pay taxes
failure to do something can also be actus reus
guilty mind. the mental element required at the time that the crime was committed. knowingly do it
specific intent, general intent, malice crimes, strict liability.
4 forms of mens rea:
the defendant must have a specific intent/objective to commit a crime.
specific intent crime. permanently deprive the person of the item
defendant must be aware of his actions
the defendant acts with reckless disregard or undertakes an obvious risk from which a harmful result is expected.
all murder that is not first degree and arson
two types of malice crimes
there is no mens rea. crimes that you can be guilty of simply on the actus reas. the act itself makes you guilty of the crime. you don't have to know what you're doing, just doing it is enough.
strict liability crime. if a person over the age of majority has sex with a person who is a minor then he/she is guilty. illinois ha this.
first degree murder, inchoate offenses, assault with the intent to commit a battery, theft crimes
specific intent crimes: FIAT
battery, rape, kidnapping, robbery
general intent crimes
doctrine of transferred intent
a defendant may be held criminally liable if he intends to cause harm but the harm caused is to a different victim of object then intended
someone who aids, encourages or councils in the commission of a crime with the intent to encourage its commission. criminally responsibly for the original offense and other foreseeable crimes committed by the principle in its furtherance
a person who helps out after the crime is committed
it hasn't happened yet
solicitation, conspiracy, intent
three types of inchoate crimes
enticing, urging or otherwise asking another to commit a crime with the intent that he commit the crime
a criminal act: solicitation to murder, solicitation to insider trading, solicitation to robbery.
solicitation is coupled with...
the agreement between two or more parties to commit a crime
yes, you can. you have to notify the other party that you want out and also notify law enforcement
can you get out of a conspiracy once you agree?
you are still guilty of it. because the agreement is the crime
even if you withdraw from conspiracy...
it's just murder. the agreement without it happening yet is just conspiracy. but once it happens, its murder
once the act is completed (conspiracy)...
and therefore not a conspirator
you can be an accomplice without agreeing to the act...
when a party takes a substantial step towards committing a crime, but falls short of committing it. has the party done enough for it to be an attempt?
once the act is complete
there is not attempt ...
assault as a threat, assault with the intent to commit a battery
two types of assault:
assault as a threat
a general intent crime. have to intentionally place another in apprehension of imminent bodily contact
assault with the intent to commute a battery
specific intent crime. i am trying to commit a battery but i am unsuccesful
unlawful application of force resulting in bodily harm or offensive touching. general intent crime
a general intent crime. the unlawful (without consent) sexual intercourse with a female. at common law, a man could not be raped. in some states, this is still a thing.
general intent crime. unlawful confinement of a person that involved either concealment of the victim in an unknown, hidden or secret location or some movement of the victim
7 cannot be held criminally responsible
a common law, a child under the age of...
children between ages of 7-14 could not be held criminally liable. HOWEVER the prosecutor can rebut that with evidence to show the child can be held criminally responsible
homicide that is committed during the commission of a serious crime. malice crime
burglary, arson, robbery, rape, kidnapping
serious crimes: BARRK
because a person has died during the commission of the crime i can still be guilty of felony murder
even though I did not pull the trigger,
some states say you won't be charged for felony murder
if one of you accomplices dies
not some elaborate plan. can be formed in an instant.
second degree murder
malice crime. generally defined as a homicide with necessary malicious intent to kill, the intent to do great bodily harm or acting with a depraved heart
acting with a depraved heart
you are acting with a reckless disregard to the value of human life
voluntary man slaughter
malice crime. a homicide committed in response to adequate provocation
involuntary man slaughter
an unintentional homicide committed with criminal negligence
you failed to become aware of a substantial and unjustifiable risk. no malice there.
specific intent. larsoning plus force or intimidation.
specific intent. obtaining title to another's property using false statements
larsony by trick
specific intent. obtaining possession of another's property using false statements
title = ownership. possession is not ownership
one very important distention between the two:
the fraudulent conversion of another's personal property by a person in lawful possession of the property
using the property in a manner that is inconsistent with or beyond the scope of your possessory rights
creating or altering a document with legal significance to be false with the intent to defraud. making into something that is not. you only need the INTENT to defraud
obtaining property through threats of future harm or exposing info. if you don't give me $50, i will tell joan that you ate her rice. blackmail
specific intent. the breaking and entering into another's dwelling at nighttime with the intent to commit a crime
mistake of law
you lack the awareness or knowledge that a specific act constitutes a crime. it is never a defense. i did this but i didn't know it was against the law
if the crime itself requires knowledge of the law. registering as a sex offender is an example
exception to mistake of law
make sure to know self defense torts
mistake of fact
can be a defense to criminal liability. the defendant acted on an incorrect assumption of fact rather than for criminal purpose. i was incorrect.
because negates the mens rea of the crime.
mistake of fact is a complete defense for specific intent
the mistake must be reasonable
mistake of fact for a general intent crime can be a complete defense
is never a defense
mistake of fact for strict liability...
defense when the commission of the crime is reasonably necessary to avoid imminent and great injury to society
voluntary and involuntary
two types of intoxication
a defense to all crimes. including strict liability. without consent or forced to consume. if it negates the mens era of the crime
M nahgton test
test applied to determine whether a person accused of a crime was sane at the time of its commission and, therefore, criminally responsible for the wrongdoing. this is about if you knew if it was right or wrong
irresistible impulse test
because of a mental illness the defendant was unable to control or conform his conduct to the law. even if he know what he was doing was wrong.
only used by new hampshire. but for the defendant's mental illness, the defendant would not have acted in the way that he/she did. the more lenient rule
occurs when an officer by means of physical force or show of authority intentionally terminates or restrains a person freedom of movement. would the reasonable person feel free to disregard the police officer?
terry, stop and frisk
if a police officer has a reasonable suspicion based on articulable facts to believe that the individual is or was invovled in criminal behavior, the officer can stop that individual and can pat the individual down.
the officer can seize that property
if during the pat down an officer feels an object whose shape is readily identifiable
in order for a police to make this and for it to be constitutional , the officer has to have probable cause
more than a reasonable suspicion. substantial likelihood that you committed a crime
without a warrant
an arrest can occur...
it allows an officer to go into that person's home to arrest that person
if a police office does have a warrant...
has to be issued by a neutral judge,
must be based on a finding of probable cause (warrant must state the probable cause)
the warrant must name the offense charged,
has to identify the person who is being arrested.
4 requirements for an arrest warrant
emergency situation. without these, cannot enter into a person's home without a warrant
as long as the police had a valid reason to arrest you on crime B, they can do so even if what they really cared about is crime A
it is not unlawful for a police officer to do this. there is no criminal offense for officers
equal protection under the law
you could sue the officer for monetary damages for racially profiling
occurs when a govt.'s conduct violates a reasonable expectation of privacy. has to be the government's conduct. has to violate a reasonable expectation of privacy (bedroom, cellphone, computer, purse)
have to have a search warrant
unlike arrests, _________ for it to be constitutionally valid
has to be issued by a neutral judge,
has to be based on probable cause,
must describe the property and places to be searched with particularity (give specifics)
requirements for a search warrant
search incident to a lawful arrest,
evidence obtained in an administrative search
6 ESCAPE exceptions for a search warrant
search incident to a lawful arrest
if the police conduct a lawful arrest (probably cause or a warrant), the arresting officer may make a search of the person and the immediate areas surrounding that person. to protect the evidence from being destroyed and for their own safety
access to the vehicle
make sure a person doesn't destroy anything
to enter your home. can be revoked by you.
if the officer has probable cause to believe the vehicle contains evidence of a crime, the officer can search the entire car including the trunk. can search containers in the car that are capable of holding evidence to the crime
they can search the passenger compartment (anywhere a person can sit) only if it is reasonable to believe the arrested person might have access to the vehicle or it contains evidence
if the police arrest an individual in a car
if evidence is in this there is no need to get a search warrant
evidence obtained in an administrative search
health inspection example
illegally obtained evidence either physical evidence obtained by a search or statements obtained through interrogation is inadmissible at the criminal trial of the person whose rights were violated. applies at trial (not grand jury proceedings). standing and evidence that violates 4th, 5th or 6th
the violation has to have been in the defendant's rights and not someone else's.
if the driver of a car is arrested, pas angers are deemed to have been seized as well so they can challenge the constitutionality of the stop
standing slight qualification
4th, 5th, or 6th cannot be used at trial to prove guilt
evidence obtained in violation of the ____________
knock and announce, inevitable discovery, an independent source, good faith
4 main exceptions to the exclusionary rule
knock and announce
although officers executing arrest warrant at a residence are required to knock and request admission, if they fail to do so, burst in and discover evidence, that evidence is admissible
if the evidence would have been discovered anyway through lawful means it will be admissible
an independent source
the evidence was discovered in part on the basis of an independent source
the biggest exception. it applies to officers who relied on either existing law later declared unconstitutional or a warrant that, while facially valid, it later found to be defective
uniform commercial law
a statutory source of contract law that is applicable to transactions involving the sale of goods. article 2 states: UCC Article 2A applies to any transaction, regardless of form, that creates a lease.
mirror image rule
principle whig holds that the terms of an acceptance must mirror the terms of the offer. if the terms of the acceptance do not mirror the terms of the offer, no contract is formed and attempted acceptance is a counteroffer
a trial before a judge, with the judgement decided by the judge rather than a jury; occurs when the defendant has waived his right to a jury trial
the rights that are read to an arrested individual by a law enforcement agent before the individual is questioned about the commission of the crime.
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