The Jurisprudence Philosophy of Law schools of thought: o Natural Law - Oldest, believe in natural law and hold that there is a universal law applicable to all human beings and is discoverable through reason and is of a higher order than positive (national) law. o Positivist Centered on the assumption that there is no law higher than the laws created by the government: all laws must be obeyed even if they are unjust, to prevent anarchy o Historical Stresses the evolutionary nature of law and looks to historical doctrines that have withstood the test of time for guidance in shaping present laws o Legal Realism They advocate a less abstract and more realistic and pragmatic approach taking into account customary practices and the circumstances in which transactions take place. Common Law vs. Civil Law o Common Law (C/L) What we use Began in England Stare Decisis ~ "Let the Decision Stand" Similar Facts in past, similar Decision o Civil Law (LA, UK/EU, Mex, S. Am, Canada) Based on Justinian (Roman) code Code implies statutory Law (legislature writes the law) Criminal Vs. Civil Cases o Criminal (state/fed vs. defendant) Must have burden of proof to convict Case must be proven beyond a reasonable doubt Defendant is either guilty/not All constitutional rights reserved o Civil cases (Plaintiff vs. Defendant Only needs scintilla (little bit) of proof Defendant is either liable or not liable Jurisdiction The court must have both Personal and Subject Matter jurisdiction over the case for it to be heard. Personal and Subject matter Jurisdiction: o Personal `in rem' latin for land What happens in Vegas is tried in Vegas The incident must have happened in the same physical area as the court for in rem to apply `in personam' (minimum contacts apply) The person can be from out of town but as long as the incident in question happened in the general area of the court or if it involves someone from the courts' jurisdiction then in personam applies o Subject Matter State Officials are elected by voters Exclusive Jurisdiction Ltd to 1 court Concurrent Jurisdiction many cts Original Jurisdiction ~ where cases are first heard Questions of fact and of law General Vs. Specific General Jurisdiction includes County, District, & Municipal Specific Jurisdiction includes Tax, Probate, Juvenile, Bankruptcy courts, etc. Appellate Jurisdiction ~ if the plaintiff/defendant disagree with cts decision: person disagreeing (appellant) files against appellee Minimum of 3 Judges Only Qs of Law 3 Possible Outcomes: 1. Affirm, 2. Reverse, 3. Reverse and Remand May go up to State Court of Criminal Appeals (criminal cases) or Supreme Ct (civil cases, min of 9 judges) Federal Officials are appointed Original jurisdiction District Court Questions of Federal Law Or Diversity of Citizenship (only applies if P&D are from different states and dispute is >= $75k Appellate Jurisdiction Circuit court of appeals Texas is in the 5 th circuit Anywhere from 3-15 Judges Supreme Court 9 Lifetime Appointed Justices 4 of 9 must vote in favor to hear the case for it to be considered Procedural Law Voir Dire to speak the truth (lit) jury selection o Judge has preemptory challenge: extreme bias, unlimited number of removals of potential jurors o Lawyers have Challenge for Cause: limited number of juror removals (due to possible abuse of this allowance) Motion for new trial is only granted to loosing side if judge is convinced that the jury is in error. Motion for Judgement NOV (latin: non obstante verdicto, not withstanding the verdict.) Alternative Dispute Resolution Used due to the high cost of litigation Mediation o 1 or more mediator Does not have to be a lawyer Actively listens to both sides Get the disputing parties to talk and figure things out on their own. Primary Objectives Fact Finding Get Disputants to evaluate facts on their own
Draw up a detailed contract (ideally) Arbitration o 1 Quasi-judge (doesn't have to be an actual judge but can be) Constitutional Law Three Judicial Branches of Gvt: o Judicial: "Maybury Vs. Madison" first example of judicial review; Maybury was appointed as judge, confirmed by senate, then next pres, didn't reconfirm; Supreme Ct. enacted judicial review as a check. o Executive o Legislative Article 88 gives congress power over International Interstate Indian Tribes (due to int'l status) th o "4 Branch" quasi branch is administrative agencies (i.e. water commission) who act as their own quasi government with hearings, etc for disputes. Tort Law Intentional Tort o Assault fear of immediate harmful or offensive contact o Battery Intentional touching without consent o False Imprisonment Detaining another beyond a reasonable time w/o consent o Defamation Injury to someone's reputation Must be made known to a TP Information must be true Can be slander (oral) or libel (written) Defamation per se: (in and of itself) A statement that is so defamatory that it is considered so, i.e. virginity o Fraud Material misrepresentation of fact (not opinion) o Conversion Taking of personal property o Trespass enter onto real property w/o permission (including a revoked inv.) o Emotional Distress extreme outrageous conduct o Invasion of Privacy self explanatory Negligence o Must have both breach of standard of care and proximate cause Breach of standard of care: Invitee = Business Guest (strict liability): must warn of known dangers & anything you SHOULD have known about Licensee = Social Guest (strict liability): must warn about known dangers Tresspasser = liable only for abnormally hazardous conditions Proximate Cause: must have a direct enough cause/connection between defendant and plaintiff o Defenses against Negligence: Contributory negligence absolute bar to recovery: a plaintiff who is not an RPM or has contributed in one way or another to the tort cannot recover remody (in Texas) Comparative Negligence if Plaintiff is < 50% liable, then plaintiff can recover the % of liability caused by the Assumption of Risk: a plaintiff who voluntarily enters into a risky situation knowing the risk cannot recover o Negligence Per Se: Certain conduct can be treated as such if the plaintiff proves: 1. There is a statute that clearly sets out what the standard of conduct is 2. That he/she is in the class intended to be protected by said statute and 3. That the statute was designed to prevent the type of injury suffered o Res Ispa Loquitur: The presumption that negligence has occurred leaving the defendant to `Prove' that they are not negligent. o Good Samaritan Statutes: protect those who help the community voluntarily from being held negligent (i.e. doctors volunteering their time in emergency situations.) o Dram Shop Acts Hold bartenders/owners liable for damages drunk people they serve cause after they leave Strict Liability Liability without fault o Abnormally Hazardous Conditions: Activity involves potential harm, of a serious nature, to persons or property The activity involves a high degree of risk that cannot be completely guarded against by the exercises of reasonable care The activity is not commonly performed in the community or area o Keeper of Wild Animals i.e. if fence fails and animal gets out Third Party Rights Parties A, B, & C: Assignment/delegation (after original K) o B transfers K to C but B is still Liable (i.e. sublease) o Assignor & Delegator still remain liable Novation (after original K) o All three parties have to agree o B is substituted out of K and C is put in TP Benefit (within the original K) o Incidental o Intended Creditor Debtor Accord & Satisfaction o No TP o Person A & B only o Accord - New Agreement between parties o Satisfaction - Performance of the accord Ex: Original agreement (breached) A sued B in ct. A wins judgment of 10k B is deadbeat and doesn't have money Can garnish wages Can seize land Can come up with Acc. & Sat. B has 3 segways and 2 vespas New Agreement: Transfer the titles to me in exchange for money
Only when the new agreement is performed is the old debt extinguished Breach & Remedies Breach o Types Major Breach Big: Material, core of contract i.e. decides not to sell a car when that is the K Minor Breach Trivial: in relation to K - can't get much i.e. kitchen sink Anticipatory Breach Occurs before the date of performance i.e. Feb 1 enter K; July 4 date of Performance March 15: informed that will not be able to perform **it is a breach as of date of notification** Conditions & Remedies Condition o Precedent Precedes K IF I sell my current house, THEN I will buy yours o Concurrent During K, at the same time as K i.e. seller is to transfer & deliver goods to buyer Buyer is to accept and pay for the goods Concurrent condition, to happen at the same time o Subsequent Condition comes after the K i.e. I hire you to take care of grandmother for as long as she lives Legal Remedies ($ damages) o Compensatory - how much it will take Consequential - result because of breach I.e. lost profits/wages/earnings Telephone, gas, etc, things that cost as a result of the breach Punitive damages - (tort & K only, N/A Nominal - Trivial amount for technical (minor) breach Equitable Remedies - generally unique property o Specific Performance - Undo breach and perform according to terms of K o Rescission Voidable K, Dissafirm o Restitution Voidable K, Dissafirm o Reformation - Rewriting K (make certain it is okay w/parole evidence r/l o Injunction (n)/Enjoin (v) - Make you do something or prevent you from doing something o Quasi K ***promisory estoppel Contract Law All contracts have an Offeror and an Offeree Offeror o Can make an offer or revoke the offer Make: Clear, definite communicated to the offeree Offer is officially made when the offeree receives the offer Revoke G/R: offerer can revoke at any time before the offer is accepted Exception: if the K has an 'Option K' included which makes the offer irrevocable Revocation is official when it is received o **G/R: an ad does not equal an offer Exception: if the ad is very detailed about the product and has the 'magic' words 'First Come First Served' Offeree o Can accept or reject an offer Accept: R/L (rule of law): Can only accept what was offered Can only accept or reject what was offered, nothing in between Must accept in the same or faster means that the offer came G/R: Silence does not equal acceptance Exception: if there is a past history of offers being made in such a fashion Acceptance is official as soon as it is dispatched Mailbox R/L: assume proper postage and proper address K => legally binding promise and can be categorized in four ways: Validity: o Valid: deals with a legally binding process include the 6 essential elements, all 6 must be present to be valid Agreement Offer Offeror - Must be CLEAR, DEFINITE, COMMUNICATED to offeree G/R: an ad is not an offer **unless detailed and says 'first come first served'** Revoke - To withdraw o G/R: revoke at any time before acceptance Exception: option K in K makes it irrevocable There has to be consideration put down Offeree o Accept - mirror image R/L (must accept exactly what is offered) Unless counter offer in which case it is a rejection to original offer Must accept in same or faster means G/R: Silence acceptance Mailbox Rule: Moment that acceptance is dispatched it is deemed effective (assuming proper postage and address) OR Reject (either completely or via counter offer) Consideration - Present element of bargained for exchange o Legal Detriment - Give up a legal right
And/or Legal Benefit Problems: Past consideration (executed K), preexisting duty, illusory promise Capacity o Minor - not yet 18, protected from entering into Ks (Voidable) Necessaries - food, clothing, shelter (exception, minor will still owe a part) o Intoxicated (Objective test) Valid - if appear to be sober Voidable - Appear Drunk o Incompetent (Objective test) Valid - appear lucid Voidable - not lucid Void - court adjudicates (declares) you incompetent and appoints a guardian Assent o Mistake Fact Bilateral - Both parties are mistaken (no meeting of the minds) Unilateral - G/R: bound, unless RBM knows the mistake Law - Bound Value - Bound o Fraud - Voidable o Undue Influence - (i.e. confidential relationship) Voidable o Duress Economic - Voidable Physical - Voidable Legality (illegal): o Against public policy - restraint of trade, unconscionable o Against Statutes - Blue Laws, Gambling, Licenses Form - required by law, if any (G/R: Oral K = Written K) o Except: Statute of Frauds Real Property Sale of Goods > $500 Collateral K (promise to be secondarily liable) Promise not possible to be performed w/in 1 yr. Promises made in consideration of Marriage (not prenup) Dowry Voidable: can be ratified or disaffirmed: o Ratified: K becomes valid o Disaffirmed: Must be have rescission and restitution Rescission: Cancellation of K Restitution: return of whatever was received back to the other party Void: no legal effect o Primarily if it is an illegal K Unenforceable: courts will not help you to enforce the K o Statute of Limitations o Statute of Frauds (G/R oral K = written K, certain Ks must be in writing to be enforceable ) Executed vs. Executory o Executed >> both parties have fully performed their parts o Executory >> both parties have not fully performed Bilateral Vs. Unilateral o Bilateral - Promise for Promise o Unilateral - Promise for Performance **if the performance has begun it is too late to revoke offer Express vs. Implied vs. Quasi o Express: Fully Stated >> written/oral (depending on the statute of fraud o Implied: Inferred from conduct o Quasi: Implied by Law <<not a K Contract Defenses o 1. Bilateral (mutual) mistake of the facts: both sides made a mistake to the facts o 2. The other side misrepresented the facts Intentionally (fraud which is a tort) False Statements, half-truths, and failure to reveal defects Silence of half-truths are misrepresentation Plaintiff must have relied on misrepresentation Unintentional (deceptive trade practice) Contract defense but not intentional tort o 3. Unduly influenced by someone in a fiduciary capacity o 4. Influenced by duress (an offer you cannot refuse) o 5. Unconscionability - includes adhesion contracts and exculpatory clauses o Effect of an illegal contract = void Exceptions: Law changes, facts unknown to one party o Non Compete Covenant Unless against public policy Unless unenforceable/unreasonable o Exculpatory Clause: Releases liability
Requirement K - B agrees to purchase ALL they require from one S Legal Detriment** Output K - S agrees to sell ALL made to one B, (irrevocable) Firm Offer (type of Opt. K): S puts offer in writing and signs firm offer, valid w/o consideration for a max of 3 months o Accommodation: Mirror Image R/L applies Goods must be identical - Exception: can make an "accommodation" (i.e. non-conforming goods.) and it will not be a breach at that moment Buyer can accept accommodation or reject at which point there is a breach o Consideration C/L dictates if Increase price, must increase Obligation UCC: Can increase price as long as it is with good faith ROL - Risk of Loss **two main: Shipment and Destination** o Shipment K (pro seller) **FOB Seller** ROL txfrs to buyer when goods are duly delivered TO CARRIER Defaults to this type if silent o Destination K (pro buyer) **FOB Buyer** ROL txfrs to buyer when seller properly tenders goods to buyer o Sale on Approval - ROL --> B when approval by buyer (condition precedent) o Sale or Return - ROL --> B until goods are properly returned (Condition subsequent) o Void vs. Voidable Title: A - Rightful Owner, B - ______, C - TP in possession of A's Item If B is thief, K is void If B is jewelry store, sells watch that was in for repairs is C a bonafied purchaser (BFP) C must take it without knowledge that it belongs to A C must pay value for item C can become Title owner Warranties Types of Warranties o Warranties of Title Good Title - Seller warrants that they are rightful owner of title No Liens - A seller warrants that the goods sold are free of any encumbrances (claims, charges, or liabilities - liens) A lessor warrants that the lessee will not be disturbed in his or her possession of the goods by the claims of a third party No Infringements - A merchant seller warrants that the goods are free of infringement claims (i.e. patent, trademark, etc.) by third parties. Lessors make similar warranties o Express Warranties - An express warranty arises under the UCC when a seller or lessor indicates any of the following as part of the sale or bargain: An affirmation or promise of fact. A description of the goods A sample or model shown as conforming to the contract goods o Implied Warranty of Merchantability - When a seller or lessor is a merchant who deals in goods of the kind sold or leased, the seller or lessor warrants that the goods sold or leased are properly packaged and labeled, are of proper quality, and are reasonably fit for the ordinary purposes for which such goods are used. o Implied Warranty of Fitness for a Particular Purpose - An implied warranty of fitness for a particular purpose arises when the buyer's or lessee's purpose or use is known by the seller or lessor, and the buyer or lessee purchases or leases the goods in reliance on the seller's or lessor's selection o Other Implied Warranties - Other implied warranties can arise as a result of course of dealing or usage of trade. o Magnuson-Moss Warranty Act - Express written warranties covering consumer goods priced at more than $10 if made, must be labeled as either a full warranty or a limited warranty. Full - Requires free repair or replacement of defective parts and refund or replacement for goods that cannot be repaired in a reasonable time Limited - arises when less than a full warranty is being offered. Agency Law Principal (PR) o Provide Benefits o Provide Tools/Materials o Gives instructions/order o Defines A's authority Agent (A) o Continuous Relationship with PR o G/R PR is liable for A's action o Must act within scope of Authority PR gave Express Authority Implied Authority i.e. Hire to be bookkeeper, certain accounting authorative functions are implied... Apparent Authority PR is leading TP to believe that X is an A Ratification Authority After the fact approval i.e. Frolic and Detour (Outlet Mall Example) Outside of Scope of Authority, make large deal K, also have accident PR not liable unless there is ratification PR MUST ratify the ENTIRE Frolic and Detour Ways to Ratify Fully Disclosed PR Must disclose Who they (A) are, title, and who they work for (PR) Partially Disclosed PR Disclose who they are (A) and title Undisclosed PR Independent Contractor (IK) o Per-Job Hire
o No benefits from PR o Must provide own tools o Personally Liable To terminate an Agency Relationship o If there have been actual dealings with TP = Actual Notice of Termination o Indirect Dealings = indirect notice (i.e. newspaper) Bailment Bailment - Transfer of Personal Property (dry cleaners, valet parking, safety dep. Box, coat check, jewelry store holds watch, etc.) o Title does not transfer - Transfer only possession o Bailor G/R Owner of Property o Bailee Essential Elements: Must knowingly Accept Except: Car Trunk; Safety Dep Box Must have exclusive Possession of Prop o Negligence: Amount of care owed by bailee to bailor ranges from Slight to Reasonable, to Extraordiniary **negligence: Breach of standard of care Proximate cause o Types Mutual Benefit Bailment Both bailor & bailee benefit from this (i.e. dry cleaners: they get money we get service) Responsible for use of Reasonable Care Sole Benefit Bailor Only bailor beneifts (i.e. one neighbor puts car in other neighbor's garage) Only responsible for use of Slight Care Sole Benefit Bailee Only Bailee benefits (i.e. borrow neighbor's car) Responsible for an Extraordinary amount of Care o Disclaimer: CBan be posted disclaiming liability from damages Actual notice: Told you Constructive notice: Posted sign Personal Property Lost - Inadvertently Parted with Personal Property o Finder = Bailee (sole benefit bailor) - slight care Mislaid - intentionally put property somewhere and forget where o Finder = Bailee (sole benefit bailor) - slight care Abandoned - Intentionally part with property and title o Abandon on Public property: 1st person to take possession = title o Abandon on Private property: Real property owner = title Gifts Types o Inter vivos - during your lifetime Essential Elements Donor must have donative intent Donee must have exclusive possession Must have delivery Donee must accept delivery o Causa mortis - Made in contemplation of imminent death Essential Elements Same as first three Inter Vivos plus: Must die from what they thought they were going to die from/of.
UCC Article 2 Common Law vs. UCC o Only applies to the sale of 'goods', else, common law K Tangible, Moveable, Personal Property Fixture, is good if can be removed without harm. Minerals, timber, oil, gas, crops --> must be severed. Sale - Seller is transferring title to Buyer o Merchant vs. Non-Merchant Merchant: Deal in goods of the kind Hold out to be an "expert" Hire someone who is an expert (Imputed Knowledge) Principle =>Agent -works on behalf of Princ. All agent's knowledge is responsibility of Princ. o If UCC is silent, go back to C/L K to fill in gaps o Open Terms are Okay Open - Must be reasonable Exception: Qty term must be defined Exception (to exception): Quantity term can be open