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Business Law Exam 1 cha 1-5
Chapters 1, 3, 4, and 5.
Terms in this set (67)
The Common Law
written by Oliver Wendell Holmes
the means by which the law enforces the decisions of the court.
a court-ordered obligation
Fair, equitable, and impartial treatment of the competing interest of individuals with due regard for the common good
the capacity of a person, with the aid of the law, to require another person or persons to perform, or to refrain from performing, a certain act
the obligation the law imposes upon a person to perform, or to refrain from performing, a certain act
creates, defines, and regulates legal rights and duties
establishes the rules for enforcing those rights that exist by reason of substantive law & defines the method by which one may obtain a remedy in court
deals with the government's rights and powers in its political or sovereign capacity and in its relation to individuals or groups
governs individuals and legal entities (such as corporations) in their relations with one another. Business law is primarily private law.
defines duties the violation of which constitutes a wrong agains the party injured by the violation; to compensate the injured party
establishes duties the violation of which is a wrong against the whole community; to punish the wrongdoer
the party bringing a civil action who has the burden of proof which he must sustain by a preponderance (greater weight) of the evidence
Commencement of Action
Civil Law: Aggrieved individual (plaintiff) sues
Criminal Law: State or federal government prosecutes
Purpose of Civil Law
Purpose of Criminal Law
Preservation of Peace
Burden of Proof in Civil Law
Preponderance of the evidence
Burden of Proof in Criminal Law
Beyond a reasonable doubt
Principal Sanctions in Civil Law
Principle Sanctions in Criminal Law
The supreme law of the land
the U.S. Constitution; Federal statutes and treaties
the fundamental law o a particular level of government
Separation of Powers
the Federal judiciary, the Congress, the executive branch
U.S. legal system is a
common law system. it is also used by other English-speaking countries, including England, Canada, and Australia
the parties, not the court, must initiate and conduct litigation...this approach is based upon the belief that the truth is more likely to emerge from the investigation and presentation of the evidence
Civil law systems
based on Roman law; depend on comprehensive legislative enactments (called codes) and an inquisitorial method of adjudication
the judiciary initiates litigation, investigates pertinent facts, and conducts the presentation of evidence
to stand by the decisions, used for the common law
Strength of the common law:
its ability to adapt to change without losing its sense of direction
Court of Equity:
the chancellor could issue a decree, or order, compelling a defendant to do or refrain from doing a specific act. A defendant who did not comply with the order could be held in contempt of court and punished by fine or imprisonment.
a court order requiring a party to do or refrain from doing a specified act.
upon the ground of mutual mistake, contracting parties could bring an action to reform or change the language of a written agreement to conform to their actual intentions.
the general legal principles
Maxims of Equity:
Equity will not suffer a wrong to be without a remedy. Equity regards the substance rather than the form. Equity abhors a forfeiture. Equity delights to do justice and not by halves. He who comes into equity must come with clean hands. He who seeks equity must do equity.
American Law Institute (ALI) in 1923.
composed of a distinguished group of lawyers, judges, and law teachers who set out to prepare the restatements of the Law.
the primary source of new law and ordered social change in the US
Uniform Commercial Code (UCC)
prepared under the joint sponsorship and direction of the National Conference of Commissioners on Uniform State Laws and the ALI. 1. simplify, clarify, and modernize the law governing commercial transactions 2. permit the continued expansion of commercial practices through custom, usage, and agreement of the parties; and 3. make uniform the law among the various jurisdictions.
an agreement between or among independent nations; on the for the federal government to enter, NOT the states; signed by the President and approved by the Senate has the legal force of a Federal statute; treaties are subordinate to the Federal Constitution and subject to judicial review.
President of the US has authority to issue laws.;; it may amend, revoke, or supersede a prior executive order
example of Executive Order
issued by President Johnson in 1965 prohibiting discrimination by Federal contractors on the basis of race, color, sex, religions, orders, and decisions to carry out the regulatory powers and duties of those agencies
the branch of public law that is created by administrative agencies in the form of rules, regulations, orders, and decisions to carry out the regulatory powers and duties of those agencies.
________ create more legal rules and adjudicate more controversies than all the legislatures and courts combined.
________ in State trial courts generally are not reported or published.
Court decisions are found
in the official State reports of most States
Jones v. Brown
Definition of Law (william blackstone)
" a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong"
Functions of Law
to maintain stability in the social, political, and economic system through dispute resolution, protection of property, and the preservation of the state, while simultaneously permitting ordered change
Law and Morals
are different but overlapping; law provides sanctions, while morals do not
creates rights and duties
rules for enforcing substantive law
dealing with the relationship between government and individuals
governs the relationships among the individuals and legal entities
law dealing with rights and duties the violation of with constitutes a wrong against and individual or other legal entity
law establishing duties which, if violated, constitute a wrong against the entire community
fundamental law of a government establishing its powers and limitations
Common law and equity
body of law developed by the courts that serves as precedent for determination of later controversies
body of law based upon principles distinct from common law and providing remedies not available at law
statutes and adopted by legislative bodies; treaties and executive orders
agreements between or among independent nations
laws issued by the President or by the governor of a State
body of law created by administrative agencies to carry out their regulatory powers and duties
certain acts must not be committed
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