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102 Cards in this Set
- Front
- Back
Where does law come from?
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-British common law system
-Precedents of English Judges -Cases decided by judges (most important aspect) |
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Double Jeopardy
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1. Can NOT be tried twice by same court
2. CAN be tried in 2 different courts for same crime (State and Federal) (Civil and Criminal) |
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Doctrine of State Action
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-Government can NOT interfere with your fundamental freedoms
-Companies CAN |
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Fundamental Freedoms:
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-Anything in the Bill of RIghts
-Due Process (Guarantee day in court) -Equal protection (everyone treated same way. Must justify is treated differently) (Health safety and welfare) -Freedom of _______ |
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Burden of Proof in Criminal Case?
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Beyond a Reasonable Doubt
-at least 95% sure -"Charged" |
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Burden of Proof in Civil Case?
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Preponderance of the Evidence
-at least 51% sure -"Sued" |
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Precedent (Stare Decisis)
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-Judge required to follow prior decisions of higher judges in their jurisdiction
-DONT look to own, or lower courts |
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Contingency Fee Lawyer
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Paid when win a case
-ONLY: Seeking monetary recovery in civil case |
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Jury rules on _____
Judges rules on____ |
Fact
Law |
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Voir Dire
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Interrogating potential jurors
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Peremptory Challenges
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Cannot purge jury on basis of RACE or GENDER
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Forum Selection Clause
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Solves cases regarding internet jurisdiction
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Personal Jurisdiction
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May be tried in state you live in
-Must have minimum contacts to be charged in another state (working) |
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Trial Process
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Complaint: Filing document called complaint
Service of Process: Defendant is notified of lawsuit Answer Discovery: Prepare for trial |
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Deposition
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Interrogation of someone you expect to testify at trial
-Not in court room -Not in lieu of witness testifying in court -Under oath -Court reporter in room |
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State Court System
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-Trial Court
-Appellate/Court of Appeals -Supreme Court (Must start at lowest; and highest is Supreme) |
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Federal Court System
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-District Court/US Trials Court
-US Circuit Appellate/US Circuit Court of Appeals -US Supreme Court |
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Federal Court Subject Matter Jurisdiction
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1. USA in question (ONLY in Fed court)
2. Federal Question Diversity of state citizenship IF $75,000 or more |
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Summary Judgment
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Before trial
-Win via matter of law |
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Directive Verdict
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During trial
-One side does not have enough evidence -After plaintiff speaks |
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Judgment NOV
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After trial
-Rendering decision because jury was obviously wrong -Based on facts, emotions, lack of paying attention |
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Most important aspect of common law?
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Cases decided by judges
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Marbury vs Madison
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Established Judicial Review
-Said Judicial Branch is the ULTIMATE authority (congress cant overturn) |
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What happens when the same case is taken to a different court?
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Case preceded under normal circumstances
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Jurisdiction that is always Federal
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USA is a question
Bankruptcy Patents Copyrights |
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State or Federal Jurisdiction
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Trademarks
Federal Question Constitution Diversity of citizenship over $75,000 |
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The judge can only control the outcome in a _____
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Civil case
(Summary J., Directive V., Judgment NOV) |
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Suing = ____ ____ ____
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Seeking monetary damages
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Mediation
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A third party comes to help resolve case
-Never binding |
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Arbitration
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A third party comes in and decides who is right or wrong
-Binding |
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Tort
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An injury to your person, reputation, or property
-Comes from case law |
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Restatement of Torts
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Summary of the common law of torts
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Assault
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Apprehension of harmful physical contact
-See punch coming -Toy Gun |
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Battery
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Physical harm, not dealing with apprehension
-Punched |
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Tort of Outrage
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Infliction of emotional distress
-Must be extreme and completely intolerable in society |
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Appropriation
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You have the right to sue for someone using your name of likeness of monetary gain
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Falso Imprisonment
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Holding someone against their will
-Exception: Shopkeeper's Privilege |
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Shopkeeper's Privilege
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Think they are stealing. Holding for reasonable amount of time to see if they actually were stealing.
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Defamation
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False verbal or written statement about someone's reputation that damages their reputation in the eyes of a third party
-Doesnt have to intend harm |
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Defamation with a public figure
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Must prove malice
-knowingly false |
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Conversion =
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Theft
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Conversion
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Can sue for monetary damages for stealing as well as criminal charges
Charge with theft Sued with conversion |
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Elements of a Negligence Case
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Duty
Breach of Duty Causation Damages |
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Comparative Fault
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Only get paid percent you weren't responsible for
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Assumption of the Risk
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If you are fully aware of the hazards you may not hold another party responsible
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Shannon vs. Ashworth
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Merchant who knowingly sells alcohol to minor is responsible for injuries
-Reverses long line of Arkansas cases -Showed that Supreme court can change the law by refusing to follow established precedents |
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Damages Provided in Tort Cases
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-Compensatory (back in same position) (intentional and unintentional) (extra money had to pay because happened)
-Punitive (punish person) (only in intentional) -Arkansas places caps on them |
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Requirements to make a contract
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Mutual Agreement
Consideration Capacity (understand contract) Legal -Doesnt have to be fair -Gambling/raffel = unlawful Minors dont have capacity; can cancel at any time |
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Pre-Existing Duty Rule
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-Consideration says there must be an exchange for a contract to be binding
-You cannot demand more money to finish a project; even if they agree to award they dont have to pay unless you receive something extra -Boss doesnt have to give a promised bonus unless something extra is done |
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Contract and Tort law comes from ____ and _____
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Common; Case
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Restatement of Contracts
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Document containing key contract laws
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Uniform Commercial Code Article 2
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Same laws apply to sale of products in all states
-Only with sale of GOODS -Not land -Not service |
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Bilateral
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Promise for Promise
-Sales -Money for Good |
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Unilateral
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Promise for Act
-Money for good -Have to actually do the act to create contract |
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Executed vs Executory
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Fully performed vs not finished
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Acceptance
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-Offer may be revoked at any time up until it is accepted
-Even in you say it is irrevocable: can still withdraw at any time -Exception: If you are paid to keep an offer open than you may not revoke the offer |
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Mailbox Rule
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When you SEND (in own mailbox) the acceptance of an offer is the time you create the contract
-NOT when it is received |
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Contract Interference
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Illegal to attempt to get someone to breech a contract so you may gain from it
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Lucy vs Zimmer
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If a reasonable person determines that the men intended to make an offer, then they made an offer
-Must be an manifestation of intent to make contract |
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Parole Evidence Rule
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May not use oral testimony to contradict a clearly written contract
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Statue of Frauds
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Contracts that must be in writing
-Sales of land -Impossible to complete within 1 year -$500 or more in sale of goods -Paying someone else's debts |
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Contract will be ended by termination of law if:
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-Illegal
-Preforming party goes bankrupt -Statue of limitations has been reached -Becomes impossible to perform |
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Satisfaction Doctrine (obj. vs sub.)
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Objective Standard: If the product is measurable and is passes without objection then you must pay
Subjective Standard: If a product is not measurable they if you dislike it you do not have to pay -Food -Paintings -Music |
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Substantial Performance Doctrine (major vs minor)
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Major Deviation (Material Breach) -some aspect of the contract is not even close to what you were supposed to do
-Dont have to pay Minor Deviation (Minor Breach) -contract is performed, but small aspects are missing -Pay contract less the cost of damages |
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Types of Remedies in Contract
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Equitable
Compensatory Consequential |
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Equitable Remedy
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Seeking something besides money
-Looking for specific performance of an act or injunction |
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Consequential Damages
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Money lost from expected income from breach of contract
-Breaching party must know about consequences beforehand -Must attempt to minimize losses |
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Liquidated Damages Clause
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Specifies the amount the breaching party will owe if contract is breached
-Must be reasonable to be enforced |
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Condition Precedent
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Condition that must be satisfied before you are bound to the contract, if the condition is not satisfied then you are not liable for the contract
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General Partnetships
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-Established by UPA
-Does not pay Fed. Income Tax -Does not pay limited liability -No filing required -Each partner can be held liable for all debt -Has implied authority to make contracts for the partnership -Losses and Profits divided evenly unless stated |
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DO NOT pay federal income tax and HAVE limited Liability
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-LLP (professionals for tort protection) (state registered)
-LLC (no size limit) (register with state) -Sub S (only in one state) -Have to register (have limited liability) |
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Corporations
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-Pay Fed. Income aTax
-Have Limited Liability |
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Shareholders
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-Own the company
1. Amend articles 2. Elect board of directors (preferred stockholders: receive dividends first) |
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Directors
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1. Run company (anything else)
2. Hire officers 3. Dividends |
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Articles of Incorporation NEVER include:
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Names of officers or directors
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Actions against corporations
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1. Piercing the Corporate Veil
-Action by creditors taken when the business has done something wrong (commingling of funds) 2. Business Judgment Rule -Shareholders hold directors responsible for losses acquired when poor business judgment is used |
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Principal
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Boss
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Agent works for
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Principal
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Employee/Servant
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Agent is being supervised and controlled by princ.
-Principal is secondarily responsible |
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Independent Contractor
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Agent is not being supervised of controlled by princ.
-Not liable for agents actions |
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Taylor vs Gill
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"Was the friend a servant of independent contractor?"
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Ways to Create Agency Relationship
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Express Authority (giving specific directions to what authority is)
Implied Authority (authority that normally comes with job) (company responsible for agents actions) Apparent Authority (impostor) (princ. only responsible if they had no way of knowing) |
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Ratification
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Principal approves an unauthorized act, now liable
-Doesnt matter who they told |
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Tort Liability
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In order for the principal to be responsible for agent's torts:
1. Agent must be supervised and controlled 2. Agent must be under course and scope of employment |
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Contract Liability
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When signing a contract for the principal, an agent must disclose that he is only an agent, for only the principal is liable for the contract
Ex: Only signed own name: Them and company responsible Ex: Name and Company: Only company |
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Eminent Domain
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Government can use land for public use
-Kelo Case: questioning public use |
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Adverse Ownership
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Occupy land openly for a certain amount of time, then you gain ownership
-Not in good faith |
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Easement
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Acquiring limited se of someone's land
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Life Estate
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You designate a person who will inherit your estate upon your death.
You have the right to sell your interest and the remainderman has the right to sell his interest. Original: can sell interest, but person can live there during original owners life time |
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Restricted Covenants
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Restricts future use of the land after you sell it
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Race Notice
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When land is sold twice, whoever records the deed first gets the land
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Realtor Commission
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Must be pain when:
1. House sells while under contract 2. Offers full contract price, even if rejected |
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Fee Simple Absolute Ownership
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Highest and most complete form
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Tenants in Common
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Most common
-Family inherits land |
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Tenants by Entirety
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Land goes to spouse
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Joint Tenants
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Land goes to other owners upon an owners death
Rules: 1. Must have same percentage of ownership 2. Purchased property at the same time 3. Family inheritance is never allowed |
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Patents
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-Inventions
-20 years -File with Federal Patent Office |
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Copyrights
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-Artistic works
-Author's life; plus 70 years -File through common law or federal |
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Trademarks
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-Fanciful
-Indefinite, last forever -File through common, state or fed |
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Cyber Squatting
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Use or sell a domain name to a person who already has the rights to that name
-Sued -Wipo |
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WIPO
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wipes offending site off internet
-Does not award monetary damages or criminal sanctions -Turns domain name to successful plaintiff (faster and cheaper than court) |
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Fair Use Doctrine
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-Purpose
-Nature of the copyrighted work -Amount -Impact/Effect of use in market |