Business Law Flashcards

Terms Definitions
duties
delegated
continental congress
weak
contitutional convention
government
suosponte
on your own
central national government
federalist
Laches
meaning "lax" or "negligent"
wealth of the nations
smith
Defense
an argument raised by defendant
Contracts
agreement that is legally enforceable
bank of the US
government funded
option
separate contract arising when the offeree gives the offeror something of value in return for a promise to leave an offer open
defamation 
damage other's reputation by spreading FALSEHOOD
OPINION
A STATEMENT  BY THE COURT EXPRESSING  THE REASONING FOR ITS DECISION IN A CASE
Veir Dire
Prelimary examination of potential jurors
"As much as she deserves"
quantum meruit
pertinent
pertaining or relating directly and significantly to the matter at hand; relevant:
Bargained-for-exchange
exchange that parties engage in that leads to an enforceable contract.
Undue Influence
 
one party can greatly influence another pary, thus overcoming that partys free will
Specific Performance
court decree ordering breaching party to render promised performance
a written document used to transfer owndership in real property
deed
Trial Courts
Have general jurisdiction over civil and criminal cases
A contract is a legally enforceable _______
promise
Statute of Fraud
Land
time greater than 1 year
promise to pay debts other than
a executor pay of estate debts
promise of marriage
CONTRACTS OF MOVABLE PROPERTY OF $500 OR MORE
statutory law
the written law established by enactments expressing the will of the legislature, as distinguished from the unwritten law or common law.
offer
proposal by an offeror t do something, provided the offeree does something in return
When is Consideration inadequate?
courts don't usually determine adequacy of consideration, unless it "shocks the conscience"
Garnishment  
a portion of the employees wages on regular basis are taken out until judgment is paid.
7. The essential elements of a contract include all but which of the following?A. Legality of objectB. RelianceC. CapacityD. Consideration
B. Reliance
General Contract Law
the writing(s) or record  must•   specify the parties to the contract•   specify the subject matter and essential terms•   be signed by the party to be charged or by her agent
a direct beneficiary whom the party paying for the other party's performance intends to benefit as payment for a debt or obligation
creditor beneficiary
Jury Instructions
Judge gives the jury the particular rules of law that apply to the case
what is in ram jurisdiction
jurisidiction over the thing
Satisfaction of Condition
Normally use objective or subjective, FOR TEST ONLY OBJECTIVE.
Objective: Performance relates to mechanical fitness or utility, or hte contract does not specify it is subjective satisfaction.
Conditions: An event who's happening or non happening affects a aduty of performance in a contract.
1. Some must be satisfied before the duty to perform arises.
2. Some terminate the duty to perform
3. Some limit/ modify the duty to perform.
Common Law
body of recorded decisions that courts refer to and rely upon when making later legal decisions
83. Warrants are issued by a judge or magistrate upon showing of probable cause by the law enforcement authorities.
t
Promissory estoppel (detrimental reliance)
1)a doctrine that prevents the withdrawal of a promise by a promisor if it will adversely affect a promisee who has adjusted his or her position in justifiable reliance on the promise.2)For this to be applied, the following must be shown 1)the promisor made a promise 2)the promisor should have reasonably expected to induce the promise to rely on the promise. 3)the promisee actually relied on the promise and engaged in an action or forbearance of a right of a definite and substantial nature. 4)injustice would be caused if the promise were not enforced
3 factors of foreseeability
1. number of other factors contributing to harm and how extensive
2. act of conduct has created a series of force that are continuous and ongoing till time of harm 
3. lapse of time 
(BROWN v. PCOM)
Donee Beneficiary
a third party intended to receive a benefit from the contract as a gift
What is comparative negligence?
damages are apportioned according to fault. Also known as comparative fault.
Fair Labor Standards Act
Provides restrictions on child labor, hourly minimum wage and maximum hours before overtime is owed
Restitution
- When a party rescinds a contract, he will seek restitution, which is the return to the injured party of that with which he parted
- The court is asked to restore the \"Status Quo\", which is the position the parties were in prior to contract
If a third party in an agency relationship does not know that the agent is acting for a principal, that principal is undisclosed.
undisclosed principal
communication of offer
must be in the intended manner (offeror must give offer to offeree); must be communicated by offeror and nobody else; must be state or communicated by words or conduct that infers a proposal to a reasonable person
sole proprietorship
A business in which one person is in control of the management and profits.
rights that cannot be assigned
-rights that are personal in naturerights whose assignments would increase the obligors risk or duties-rights who assignment is prohibited by contract-rights whose assignment is prohibited by law or public policy
Mitigation of Damages
innocent injured party is held to a duty to mitigate or reduce damages suffered after a breach of contract.  Ex - tenant leaves and doesn't pay, landlord must try to reduce losses by finding a new tenant, otherwise the court will minimize the loss amount.
what is a promissory estopel
soetimes refered to as dedrimental review and is a consideration substatue. it keeps one of the parties from saying consideration is lacking in contract
discharge by performance
contract comes to an end when both parties fulfill their respective duties to performing the acts they have promised. Performance also accomplished by tender.
Equal Pay Act of 1963
(EPA) Federal law that prohibits an employer from paying workers of one gender less than the wages paid to the employees of the opposite gender for work that requires equal skill, effort, and responsibility.
Four characteristics between civil and criminal law
Criminal:a) purpose is to protect societyb) state/govt. initiates the casec) the consequence is incarcerationd) burden of proof is beyond a reasonable doubtCivil:a) purpose is to redress individual wrongsb)any individual can initiate the casec)consequence is moneyd) preponderance of evidence (50% or more of the evidence supports the plaintiff).
Define and explain disparagement of property.
Disparagement is the publication of statements derogatory to the quality of the plaintiff's business, to the business in general, or even to the plaintiff's personal affairs, in order to discourage others from dealing with him.
What case dealt away with forum shopping
Erie Railroad Co v Tompkins
definiteness of offers
terms in an an offer must be clear enough to provide a court with a reasonable basis for determining the existence of a breach and for giving an appropriate remedy
Tort Liability of the principal for acts of the agent
responde at superiorSuperior has to respond to a tort committed by agent
what is an implied contract
formed by the conduct of rge party, you look at the parties actions to see if there is a contract
what does a brief do
it stands in for the witnesses in appealate court
If the buyer rejects nonconforming goods before the delivery date what must he do?
Must give seller a Notice of Breach: i.e. which breach is causing problem (anticipatory or nonconforming) and then seller is entitled to cure breach because the buyer communicated to the seller the problem.
Discuss the components of nuisance, public nuisance, and private nuisance.
A nuisance is a thing or activity that unreasonably and substantially interferes with an owner's use and enjoyment of owner's property. A public nuisance is an unreasonable and substantial interference with the public health, safety, peace, comfort, convenience, or utilization of land. A private nuisance is interference with a person's use and enjoyment of his or her land and water.
What is contained in amendment nine?
Rights of the people not limited to those not listed in the constitution.
what two types of speech do we get in freedom of speech
corporate political speech and commercial speech
what is significane fo public offer
it is how you revoke it . you can only revoke offer same wahy it was made. if the original mode is not avalable then you must use the next reasonable mode
pre-emption
supreme
contitutional convention
government
substantive
a noun.
fletcher v peck
contract
implied powers
not mentioned
Stock
equity instruments, ownership, companies don't have to pay it back
writ of mandamus
court order
quantum meruit
(pronounced kwahn-tuhm mehr-oo-wuht) Literally, as much as he deserves—an expression describing the extent of liability on a contract implied in law (quasi contract). An equitable doctrine based on the concept that one who benefits from another's labor and materials should not be unjustly enriched thereby but should be required to pay a reasonable amount for the benefits received, even absent a contract
vice admiralty courts
abolished jury trials
Non negotiable instrument
cannot be transferred
Brief
Formal legal document outlining the facts and issues of the case
Informal
 
Requires no form of special Creation
(formation)
writ of general assistance *
search warrant
Fourth Amendment
Protection from unreasonable searches and seizures. No warrant for a search or an arrest can be issued without probable cause
Affidavit
A written statement signed under oath
force majeure
try to plan for unseen events
Conciliation
Nonbinding process in which a third party acts as an intermediary between the disputing parties
restrictive covenants
neighbor covenantincludes in deed for subdivision
conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm.
Negligence
in camera
"In the judge's chambers," meaning that the judge does something out of view of the jury and the public.
Eighth Amendment
Prohibits excessive bail and fines and cruel and unusual punishment
disaffirmance
the legal avoidance, or setting aside of a contractual obligation
Statute of Limitations
time limit on legal action.
legislation
the act of making or enacting laws.
Administrative Agency
A federal, state, or local government agency established to perform a specific function.
Cure
Even if parties don't agree to limit remedies, seller still repair/replace..the right of the seller to repair, adjust, replace nonconforming goods
Obligor
party owing a duty to the assignor under the original contract
Consequential Damages
Foreseeable damages that occur as a result from a party's breach of contract.  Also called special damages.
precedent
An earlier case that decided the same legal issue as that presently in dispute, and which therefore will control the outcome of the current case.
defamatory speech
Speech that harms the good reputation of another. Libel- written; Slander- oral
A form of organization that permits professionals to incorporate. Shareholders are not personally liable for torts of shareholders or for the contract debts of the organization
Professional corporation
Shipment Contract
Requires or autorizes seller to send the goods to the buyer but does not require the seller to deliver them. To a particular destination. Under shipment contract title passes to the seller at hte time and place that the seller delivers the goods to the carrier for the shipment to the buyer
Which Article of the UCC covers secured transactions?
Article 9
Mirror Image Rule
acceptance must not change terms of offer
In wills, the term used on a legal principle governing a non-existent gift
Ademption
A court hearing in a criminal case, at which the prosecutor must produce sufficient evidence to show that a crime has been committed and that there is good cause to believe that the defendant committed it.
preliminary hearing
Define punitive damages.
May be awarded to punish the defendent and deter others from engaging in similar conduct. Punitive damages are only awarded in cases of outrageous conduct.
what is an injunction
makes someone cease doing harmful conduct
Liscensing laws
if you don't know the person doesn't have a contract you can get your money back
Court Jurisdiction
1. Authority of a court to "hear" a dispute / case. 2. Authority is granted by the Constitution or legislative act.
consequential
as a result due to the breach of the contract
to adopt the act even if it was not approved beforehand; to agree to be bound to a contract
ratify
argument from analogy
comparing facts at hand to facts in other cases to analyze similar patterns
Passage of Title
Passage of Risk of Loss that passes with the title. Title passes when the parties intend it to pass provided the goods are in existance and have been identified. When the parties have no explicit agrement as to transfer of title the code provides rules that determine when tilte passes to the buyer.
"You can not pass better title then you have"
Th title is a concept and the possession of a paper is just a physical implementation of that concept
Contracts contrary to public policy
contracts that have a negative impact on society or that interfere with the publics safety and welfare. Such contracts are void. -immoral contracts-contracts in restraint of trade.-Exculpatory Clauses: use it for normal negligence.
Covenant not to compete
Seller of a business agrees not to open a new store in a certain geographic area surrounding the existing store and create competition.  Covenant must be ancillary (secondary or located in a clause) 
what is a valid contract
has all the requiremnts and is totally legals, binding, and enforcable
what is case of controversy
you have suffered the injury and continue to suffer the injury
civil law
the body of laws of a state or nation regulating ordinary private matters, as distinct from laws regulating criminal, political, or military matters.
What is common law?
Common law or court law is made every time a court makes a decision.
Other Doctrines - Performance
- Anticipatory breach
 - This applies in a situation in which one party repudiates the contract. In that event, the other party may sue immediately even though the time for performance has not yet run out. (Apple Example)
- Prevention of Performance
 - If one party substantially interferes with or prevents performance by the other, such other party may be discharged; prevention is usually asserted in connection with the non-occurance of a condition
3 factors that indicate whether a third party is an intended beneficiary
1. Performance is rendered directly to third party
2. The third party has the right to control the details of performance
3. The third party is expressly designated as a beneficiary of the contract
Numbers triumph words on a checkTrue or False?
False.  Words triumph numbers on a check
what are the seven ways to terminate an offer
1. lapse of time2. revocation3. rejection4. counteroffer5. death or incompetency6. destruction of subject matter 7. subsquently illegality
For Delay or for non-delivery to justify commercial impracticability, what must be true?
the event that caused the breach was unforeseeable to either party at FORMATION...doesn't include ordinary price fluctuations.
what is an employee at will
a employee that does not sign an a employment contract
what precedent does the s Soldano v O'daniels case give us
you cannot keep a good smartian from trying to help
bolsheviks
russia
mercantilism
support business
Capacity
Ability to understand
alexandria/mt vernon convention
interstate
hampton court conference
puritans
Damages in Construction Contracts
know ye party
paper money
 Downsizing -  
reduction in work force
acts of trade and navigation
mercantilism
Accord
an aggreement whereby the parties agree to accept something different in satisfaction of the original contract-if this is not satisfied, the other party can sue to enforce either the ___ or the original contract
stock splits
does not increase shareholder wealth2-1 stock dividend on steriods
The communication of damaging, false information about a person to at least one other person.
Defamation
If a person's reckless driving results in an automobile accident, he or she can be charged with both a tort and a crime
true
drawer
person who orders another party (person writing check)
caveat emptor
buyer beware, do your do diligence
Reply
Plaintiffs pleading in response to the defendants answer
apparent authority
illusion of authority that the principal did (or did not) give
PETITIONER
IN EQUITY PRACTICE, A PARTY  THAT INITIATES A LAWSUIT
deponent
The person being questioned in a deposition
Entrapment
When a law enforcement agent suggests that a crime be committed, pressures or induces an individual to commit it and arrests the individual for it.
promissory estoppel
noncontractual promise that binds the promisor because she should reasonably expect the promsei will induce the promisee (offeree) to take action in reliance on it
Share
Single unit of ownership of a coorpration
Diversity of Citizenship
whenever a federal court has jurisdiction over a case that does not involve a question of federal law
Appeal by Right
mandatory review by a higher court
Express
formed by words (oral, written, or a combination)
(formation)
Objective Impossibility
no promisor is able to perform; generally discharges the promisor
What are the three different categories of torts?
intentional, unintentional (negligence) and strict liability
remand
The power of an appellate court to return a case to a lower court for additional action.
An unofficial category of crime that generally does not involve force or violence
white-collar crime
An agreement that, because of some defect, may be terminated by one party, such as a minor, but not by both parties.
Voidable contract
debenture note
promissory note NOT SECURED but issued by corporate seal and is negotiated
delegate
a person designated to act for or represent another or others; deputy; representative, as in a political convention.
Remedies in equity
the remedies granted by the equity courts. Include Specific performance, an injunction (ordering a party to cease engaging in a specific acitvity and recession (the cancellation of a contractual obligation)
Special Trial Courts
Trial courts, such as probate courts and family courts, which have jurisdiction over a particular area of state law
implied in fact
formed by the conduct of the parties
(formation)
Jill accuses of Ken of committing an assault. A person commits an assault if he or she creates in another an apprehension or fear of
immediate harm.
the repudiation by a promisor of the contract prior to the time that the performance is required when such repudiation is accepted by the promisee as a breach of the contract
anticipatory breach
Discuss assumption of risk.
The assumption of risk defense requires that the plaintiff 1. knew the risk was present and understood its nature 2. voluntarily chose to incur the risk. It applies when the plaintiff, in advance of the defendent's wrongdoing, expressly or impliedly consented to take his or her chances of injury from the defendent's actions.
what does the judge in the court of equity issue
decree's
Define the supremacy clause.
states that the constitution, laws, and treaties of the United States take precedence over state laws and that judges of the state courts must follow federal law.
year
a contract from which the date it is made is not over within a year, if it's less than a year you can't get out of it
Lapse of time
an offer terminates when a stated time period expires
Limited Liability Company (LLC)
No limit # of membersmember interest transferablecan have management dutiesNo corporate income tax
A state law modeled on the English Statute of Frauds dealing with the enforcement and requirements of agreements in particular circumstances
Statute of Frauds
what is insider trading
when you get access to information that is not disclosed to the public and you act on it before the info is disclosed
BANK DRAFTS
check drawn up by a bank on funds which are @ another bank
in circumstances under which a person is held liable as a principal even though no actual agency has been created, there is a
a. agency by estoppel
b. apparent agency
c. ostensible agency
d. all of the above
d. all of the above
Definite Terms that must be included in a contract

Identification of the parties
Object or subject and quantity matter of contract including work to perform, goods, services, etc.
Consideration to be paid
Time of payment, delivery, or performance. 
Contracts governed by the Statute of Frauds are Called?
- \"Within\" and \"Not Within\"
- NOT within and without
Possible Test Question!!
what is an order
it is the relief the parties think they are entitled
Federal Rules of Civil Procedure (FRCP)
governs all civil trials held in federal district courts
Four Philosophical Schools of Law:
 
#4 Legal Realist School
a) There is no unifrom way to interpret the law; result oriented, considering the impact on the parties and society; many are semantic relativists (lawyers, people who see if they can twist meanings and get out of situations they should not be able to get out of)
 
Example: Holmes- the constitution is what the judges say it is, there is no uniform way to interpret/apply a law, various individuals interpret the law
Modification - Third Party Beneficiaries
- The original parties may change or modify the contract to the detriment of the 3PB at any time before the rights of the 3PB vest
 - The rights of a creditor beneficiary vest only when he relies on the original agreement; the rights of a donee beneficiary vest as soon as he knows of the contract
- Indiana rule; the general rule is it vests automatically whether the beneficiary has knowlege or not
Compare and contrast procedural due process with substantive due process.
Procedural due process focuses on the fairness of the legal proceding, while substantive due process focuses on the fundamental rights protected by the Due Process Clauses.
How do courts avoid precedents?
A lower court can choose not to follow to set precedent if the facts are different from the previous case, and if previous ruling was incorrect, or if there was technological or social change.
what is judgement on the pleadings
papers submitted to the judge on how strong the case is
What must to the seller prove to collect consequential damages?
1. CAPACITY to make the additional goods had the buyer not breached.2. existence of another buyer.
A proxy is a person whom the shareholder designates to vote in his place, or a
written form that the shareholder uses to appoint a designated voter
what is the case precednt for marbury v madison
That the supreme court cannont give a remedy because they are an appelate court not a trial court
executed
completely performed
pogroms
mass murders
taft hartley act
labor
massachusetts bay company
boston
Jurisdiction--over property
In Dem
new jersey v wilson
contract
Are Liquidated damages enforceable?
Yes
Agent
person who represents another entity
Metadata
- Changes in the document
law
the principles and regulations established in a community by some authority and applicable to its people, whether in the form of legislation or of custom and policies recognized and enforced by judicial decision.
Defamation
Check 4.
 
1___ Wrongful injury to one’s REPUTATION.
2___ In the eyes of a SUBSTANTIAL RESPECTIBLE GROUP.
3___ Involving DISGRACE.
4___ PUBLISHED to (caused to be known by) a THIRD PARTY.
affidavit
A written statement signed under oath.
how many judicial circuits are there
13
Silence
the offeror cannot mandate that silence from the offere means acceptance
Crime
A violation of a specific statute, which has been enacted to protect the public against a serious wrong.
Breaches
breaks or fails to perform (breaches contract)
Law Court
emphasized form over substance and only relief available was a monetary award for damages
monopoly for sale of tea
east india company
Summary Judgement
Binding determinations on the merits made by the judge before trial
U.S. Trustee
a government official who performs appointment and other administrative tasks that a bankruptcy judge would otherwise have to perform.
Answer
The pleading, filed by the defendant in court and served on the plaintiff, which responds to each allegation in the plaintiff’s complaint
The parties them selfs try to negotiate an agreement with the help of a third party is called?
Mediation
89. If a doctor is accused of negligence in treating a patient. The standard of care is that which any person would have given in the same situation.
f
Arson
The willful or malicious burning of a house or building belonging to another person.
Kay files a suit against Larry based on one of Larry's statements that Kay alleges is fraudulent. To give rise to fraud, the statement must be one of
delusion.
a document that states how a person wishes his or her property distributed after death
will
Antitrust Laws
Enforced by the federal and state governments and by private parties; FTC and Department of Justice.
2 types of 3rd party beneficiaries
1. intended
2. incidental
Contract law
all you gain is what you lost
continuance
adjournment of a step in a proceeding to a future day.
in comparative negligence
a plaintiff will recover nothing in some situations if he is over 50% fault but in pure comparative negligence will recover in proportion to the defendants share of the fault
Close Corporations
Corps who's shares are held by members of a family or by relatively few persons.  If all shareholders agree in writing, the company can operate without directors, bylaws, shareholder or director meetings, stock certificates and records of decisions.
Command School
law is a set of rules developed, communicated, and enforced by the ruling party-- changes when ruling class changes
Contractual Capacity
The legal ability to enter into a contractual relationship.  Capacity can be lacking with minors, intoxicated individuals, or mentally incompetent persons.
counter claim
A claim made by the defendant against the plaintiff.
can you accept an offer you did not know was being made
no
The maker of a promissory note or the drawer of draft
issuer
Defective Design
When the design of the product is unreasonably dangerous. Can prove that there is a reasonable safer design. That would cost the same. Formula for determining whether or not it should be forced to use as a safer design is: BPL.
Balance burden of manufacturing vs Severity times the likelihood of that particular injury. Must assign net value of utility to society. The utility must be greater then the burden.
parliament
a game in which the players play their sevens and other cards forming sequences in the same suits as their sevens, the winner being the player who first runs out of cards.
Shareholder agreement in close corps
Agreement stating that when a shareholder dies, the shares are divided equally among surviving shareholders.
Consumer Sales, Inc. sends its catalogue to Carol and includes a "personalized" letter inviting her to buy any item in the catalogue at the advertised price. This
does not constitute an offer.
What is Auctions with Reserve?
Seller agrees to the purcahse price.-Acceptance takes place when the seller agrees to the purchase price.
the general partner is not personally liable for the debts of the partnership
limited liability liimited partnership
The "grandfather" policy
if some used name prior to becoming a trademark,they can keep it within their market
federal question jurisdiction
One of the two main types of civil cases that a United States district court has the power to hear. It involves a federal statute or a constitutional provision
what are the parties in a trial level case
plantiff and defendent
Explain the equal protection clause.
states that the government cannot deny to any person within its jurisdiction the equal protection of the laws.
What is (2) way to show acceptance?
Failure to reject goods: after opportunity to inspect them.
Explain the defenses of the intentional torts.
The most frequently raised defense is consent. The law may also imply consent. The defendent may also be absolved of liability by a claim of self-defense or defense of others. Defamation: if the defendent has an absolute priviledge, he or she can publish with impunity a statement he or she knows to be false. Absolute priviledge is limited to situations in which 1. the plaintiff has consented to the publication 2. the statement is a political broadcast made under the federal "equal time" statute 3. the statement is made by a government official in the performance of governmental duties 4. the statement is made by participants in judicial proceedings, or 5. the statement is made between spouses. There is a qualified priviledge to make statements to protect one's own personal interests, including statements to a peer review committee. There is also a qualified priviledge to make statements to protect legitimate business interests, or to provide information for the public interest. A qualified priviledge can be lost is the person abuses the priviledge. Truth is an absolute defense. These defenses also apply to injurious falsehood.
what two clauses are there concerning freedom of religion
establishment clause and free exercise clause
As a general rule, courts do not punish
for breaching civil duties to others
Promissory Estoppel (exception to the Statute of Frauds)
you can always go to equity: powerful but hard to prove.
what does unconscionablity deals with
unfairness . it is where you have an unfair situation where one party has all or most of the bargaining power
What are the 4 exceptions to the Statute of Frauds?
1. admissions in pleadings 2. partial performance 3. promissory estoppel 4. specially manufactured goods
What are the 2 basic sources of law in the U.S legal system?
Legislature: They make statutory law. Judiciary Branch: every court decision makes a law (common/case law)
What is the case precedent of Erie Railroad v Tompkins
If a court hears a case dealing with purely state issues the federal court must use the applicaple state laws in making its decisions. It cannot abirtarily apply any law it chooses
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Term:
Definition:
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