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56 Cards in this Set
- Front
- Back
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Types of Agency |
Express Implied Ratification Apparent |
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Principal's Duties to Agent |
Duty to Compensate Duty to Reimburse Duty to Indemnify Duty to Cooperate |
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Agent's Duties to Principal |
Duty to Perform Duty to Notify Duty to Account |
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Exceptions for when Principal is not Liable when Agent is Acting within Scope of Agency |
Frolic and detour Coming and Going Rule Independent Contractor |
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When are principals and agents liable for contracts with third parties? |
Fully disclosed agency - Agent not liable Partially disclosed agency - Agent liable Undisclosed agency - Agent liable |
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How can you terminate an agency relationship? |
Principal must give notice to third parties 1st: Act of the Parties Unusual Change in Circumstances Impossibility of Performance Operation of Law |
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How does the worker's comp. process work? |
1. Injury 2. Worker Files Claim w/ State Work Comp. Board 3. Board decides if injury is compensable 4. If so, employer pays; if not, employee can appeal decision to court Worker's Comp. Award is the employee's EXCLUSIVE REMEDY. |
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FLSA (Fair Labor Standards Act) Exemptions |
Executives Salaried Administrative Employees Salaried Learned Professionals Highly Compensated Employees (>$100K) Computer Employees Outside Sales Reps |
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When can kids work? |
<14: can't work except as newspaper deliverers 14-15: can work limited hours at nonhazardous jobs 16-17: can work unlimited hours at nonhazardous jobs (farm kids and child actors are exempt from these rules) |
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What topics must be present in a Collective Bargaining Agreement? |
Wages Hours Fringe Benefits Disciplinary Standards |
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Type of Unionized Companies |
Union Shop - employer may hire anyone, but employees must join union after being hired Agency Shop - employer may hire anyone, and employees have option of joining union, but if they don't, they have to pay an "agency fee" Closed Shop - employer may only hire union members (ILLEGAL) |
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Safety Nets |
COBRA - can continue your health insurance after you leave your job (but you pay) ERISA - sets rules for retirement programs Unemployment Comp - employers pay into the system for each employee Social Security - employer and employee both pay in; self-employed pay double |
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To whom does Title VII apply? |
Employers with >14 employees Employment Agencies Labor Unions Governmental Bodies |
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What classes does Title VII protect? |
Race Color National Origin Religion Sex |
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Whats forms of discrimination count? |
Disparate Treatment - when an employer discriminates against a certain individual because he/she is a member of a protected class Disparate Impact - when an employer discriminates against an entire class of people without malice aforethought |
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Remedies for Title VII Breach |
Back Pay Attorneys' Fees Equitable Remedies - Reinstatement, Grants of Seniority, Injunctions Punitive Damages - if employer acted maliciously |
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Defenses to Title VII Claims |
Merit Seniority BFOQ (Bona Fide Occupational Qualification) |
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When is an employer liable? |
If harasser is a coworker, employer is liable if it was negligent in controlling the work environment. If harasser is a supervisor, the employer is strictly liable. If harasser is a supervisor, but not tangible negative action was taken against the employee, then employer is liable unless it exercised reasonable care to prevent/correct the harassment and the employee failed to take advantage of it |
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What is prohibited by the Equal Pay Act? |
Prohibits different pay rates for men and women for jobs that require: equal skill, equal effort, equal responsibility, or similar working conditions |
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What is GINA? |
Genetic Information Nondiscrimination Act of 2008 - prohibits discrimination based upon genetic information |
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Types of Courts |
Trial - (Circuit Courts in IL. District Courts in Federal) Appellate - (District Courts in IL. Circuit Courts in Federal) Supreme |
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Requirements to Sue Somone |
Standing - the dispute affects you Personal Jurisdiction - the court has power over you Subject Matter Jurisdiction - the court has authority to hear this type fo case (Federal Courts can hear cases on Diversity or Federal Questions; State courts can hear anything) |
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What are the steps in a lawsuit? |
Pleadings (Complaint, Answer/Counterclaim) Discovery Motions Trial |
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What are the steps in a trial? |
Jury Selection Opening Statements Plaintiff's Case Defendant's Case Rebuttal Closing Arguments Verdict |
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Alternative Dispute Resolution Options |
Negotiation - offers and counteroffers to find compromise Mediation - help parties communicate more effectively, has no decision-making authority Arbitration - accepts evidence and hears testimony and then decides the case; retired judges and other attorneys are common |
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Differences between civil/criminal lawsuits |
Criminal Case: Plaintiff is the goverment, concerns violations of criminal laws, consequences can be fines, jail, and other stuff Civil Case: Plaintiff can be anyone who's been wronged, consequences are typically money damages |
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Intentional Torts |
Assault - reasonable fear that you're about to strike them Battery - actual unwanted touching of another person False Imprisonment Appropriation - using someone's likeness for a profit without consent Invasion of the Right to Privacy Defamation/Disparagement (libel/slander) - made to someone other than who is defamed Fraud Intentional Infliction of Emotional Distress |
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Elements of Negligence Torts |
Duty Breach Causation - was the iteration with you the last thing before whoever got hurt - Cause in Fact: what you did led to someone getting hurt - Proximate Cause: the iteration with you was the last thing before whoever got hurt Damages |
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Unique Forms of Negligence |
Malpractice: Res Ipsa Loquitur - burden shifting |
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Defenses to Negligence |
Superseding/Intervening Event Assumption of the Risk Contributory Negligence - no recovery Comparative Negligence - some recovery (maybe) |
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IP Infringement |
Trade Secrets - Misappropriation (tort and a crime) Patents - remedies for infringement ($ damages; reasonable royalty, loss of customers, destruction of infringing items, injunction) Copyright Infringement - copying a substantial and material part of a copyrighted work without permission Trademark Infringement - likelihood of confusion |
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Fair Use Exception for Copyright Infringement |
Used for review or criticism in scholarly work Parody or Satire Brief Quotation in News Report Reproduction by a teacher to illustrate a lesson Reproduction in legislative or judicial proceeding |
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Classifications of Crimes |
Felonies - often jail time for more than 1 year Misdemeanors - can be jailed for up to 1 year; often have fines Violations - no jail time, often have fines, and speeding is a violation |
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Common Types of Crimes |
"Regular" Crimes - Robbery, Burglary, Larceny, Receiving Stolen Property, Arson "White Collar"/Business Crimes - forgery, embezzlement, bribery, extortion, fraud, money laundering, hacking |
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Types of Contract Performance |
Complete - you did exactly what you were supposed to; contract is completed and discharged Substantial - you mostly did what you were supposed to; non-breaching party may withhold cost to fix the problem, or sue to recover damages Inferior - you failed to do something important you were supposed to do; non-breaching party may rescind the contract and get restitution, or affirm the contract and sue for damages |
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Types of Damages for Breach of Contract |
Compensatory - these place the non-breaching party in the position they would have been in had the contract been fulled performed Consequential - these are foreseeable damages arising from circumstances outside the contract Liquidated - advance agreement by the parties as the amount of damages Nominal |
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Equitable Remedies (remedy in the event that money damages can't make you whole) |
Specific Performance - the court makes the parties perform the terms of the contract; only available when the subject of the contract is unique (e.g. works of art, real estate) Reformation - permits a court to rewrite a contract to express the parties' true intentions; clerical error Injunction - a court order that prohibits a person from doing a certain act |
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Buyer's Duties for Sale of Goods |
Duty of Performance (Pay!) Duty to accept tender of conforming goods |
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Seller's Duties for Sale of Goods |
Duty of tender of delivery is fulfilled when seller makes goods available to buyer (for non-carrier contracts), or seller delivers goods to common carrier (shipment contract), or goods are delivered to buyer (destination contract) |
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When does buyer's duty to pay arise? |
Buyer’s duty to pay arises when buyer deems the goods acceptable; signifies to the seller (by any means) that goods are either conforming or nonconforming but acceptable; fails to reject nonconforming goods within a reasonable time |
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Buyer's Options on Breach |
Accept/Reject Nonconforming Goods - must be within a reasonable time; must hold goods for a reasonable time for the seller to reclaim; must identify defects to the seller Recover goods from insolvent seller Specific performance for unique goods Compensatory damages |
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Seller's Options on Breach |
Withhold Delivery Stop delivery of goods in transit Reclaim goods (sometimes) - only if buyer misrepresents his solvency to the seller Dispose of goods - resell goods Recover incidental Damages Sue for purchase price - if buyer accepted goods and didn't pay, or if seller still has goods and can't resell them, or if risk of loss has passed to buyer and buyer doesn't pay |
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Types of Warranties |
Express Implied Disclaimed |
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Implied Warranty of Merchantability |
applies to all sales from merchants unless it’s specifically disclaimed. Guarantees that goods are fit for the purpose for which they are to be used, goods are adequately contained/packaged/labeled, goods are of an even kind/quality/quantity within each unit; goods conform to any promises made on the box; goods pass without objection in the trade; fungible goods must be middle range of quality Disclaimed by "as-is" for all implied warranties; or use the word "merchantability" |
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Implied Warranty of Fitness for a Particular Purpose |
attaches if the seller (merchant or not) has made statements that the goods will meet the buyer's needs for a specific purpose; seller must have reason to know the buyer's purpose, seller must represent that the goods will work for that purpose, buyer must rely on the seller's representation in making the purchase disclaimer can be pretty general |
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Disclaimers |
Must be conspicuous |
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Damages for Warranties |
Generally compensatory - we want the buyer to be in the situation he/she would have been in had the seller not breached |
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Product Liability Negligence and Strict Liability |
Negligence: people (including manufacturers and sellers of goods) are always liable for their own negligence (negligent product design, testing, packing, etc.) Strict Liability; sometimes we want to hold someone liable even if there was no negligence - this is when harm is caused by a defective product; it doesn't matter who actually caused the defect, every party in the chain of distribution is strictly liable |
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How do you show a product is defective? |
show that there is a defect in manufacture defect in design failure to warn defect in packaging failure to provide adequate instruction |
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Defenses to Product Liability Suits |
Generally known danger Government contractor defense Abnormal misuses of a product Supervening event Assumption of the risk Doctrines of contributory and comparative negligence apply |
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You graduate and go to work for a small start-up company. You're helping your boss put together a presentation for potential investors, and you run out of binders to distribute to the meeting's participants, so you offer to run to the office supply store and get some more binders. You go to the store, purchase the binders with your own money, and return to work. Does your employer have a duty to pay you back for the cost of the binders? |
Right to reimburse as he paid with his personal money for the company |
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Wal-Mart enlists Fred's Trucking Company to transport goods from Wal-Mart's distribution center to one of its stores. Wal-Mart tells Fred's that the shipment needs to arrive by a certain date, but other than that leaves it up to Fred to decide how best to get the goods to the store. During the course of trucking the goods, Fred falls asleep behind the wheel of his truck and causes an accident. Is Wal-Mart liable for the damage done by Fred's Trucking Company? |
Walmart has no control as he is an independent contractor so Walmart has no control |
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You graduate and land a sweet job working for Google as their Director of Fun and Relaxation. The job pays $125,000 per year and you love it. One week, your boss makes you stay late because not enough employees have been having fun, and you end up working 45 hours that week. Your boss then only makes you work 35 hours the following week to make up for it. You ask to be paid overtime for the week when you worked 45 hours, but Google refuses. Who is right in this dispute? |
Google wins because you are exempt from the Fair Labor Standards Act because you are highly paid and because you are in a paid-salary position. |
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Porky's Pig Palace is a Memphis-style BBQ restaurant (gross!) that specializes in pork BBQ. Porky's has a requirement that ALL of its employees must eat its pork sandwiches at least once per month. A Muslim employee who handles the restaurant's accounting and never comes into contact with customers complains that she is being discriminated against because Muslims are not supposed to eat pork. Who wins? |
This employee wins because the restaurant’s policy created a disparate impact on a religious group. |
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Types of Discovery Available |
Depositions, Interrogations, Request for Production of Documents |
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General Motors enters into a contract with Flex-N-Gate for Flex-N-Gate to deliver 10,000 bumpers to GM every month for the next two years. After making deliveries for six months, GM stops paying, but assures Flex-N-Gate the payments will resume soon. Flex-N-Gate stops making the monthly shipments as called for by the contract, and GM sues. Who wins? |
Flex-N-Gate wins because GM breached by failing to pay and therefore the seller has the right to withhold delivery |
