Blaw Test 2 - Study Guide

Front 1

Contract will end by Operation of Law if:

Back 1

1. It is Illegal
2. Preforming party goes bankrupt
3. Statue of limitations has been reached (certain amount of time has passed w/o using)
4. Becomes impossible to preform (Natural disaster takes away a building) -Doctrine of Impossibility

Front 2

Objective Standard (satisfaction doctrine)

Back 2

-Product is measurable
-Passes w/o objection
Then you MUST PAY
EX: contract, hired someone to build something

Front 3

Subject Standard (satisfaction doctrine)

Back 3

-Product is NOT measurable
-If you dislike it, you DON'T have to pay
EX: food, paintings, music

Front 4

Substantial Performance Doctrine
-Major VS Minor Deviation

Back 4

Major Deviation: HUGE mistake
-Material Breach
-Aspect of contract is nowhere close to what you were expecting
-DO NOT have to pay them

Minor Deviation
-Small aspects of contract are missing
-Still pay the contract, but *LESS the cost of damages*

Front 5

Damages = _______

Back 5

Money

Front 6

Equitable Remedies

Back 6

- Also called INJUNCTION
-Suing for an action, BESIDES MONEY
-Looking for a specific act (Carpet Cleaners)

On test: Cross off anything with "fees" or "damages"

Front 7

Consequential Damages

Back 7

-What you were going to buy is part of your job
-Money lost from job
-Can not always sue in contract law

Front 8

Compensatory Damages

Back 8

Money lost from expected income from breach of contract
-Can sue for difference

Ex: thought he was paying $4,000 for a car, but ended up paying $5,000, can get $1,000 back

Front 9

What 2 things to Equitable, Consequential, and Compensatory damages have in common?

Back 9

1. CAN'T sue for punitive damages
2. Breaching party must know about the consequences beforehand

Front 10

Liquidated Damages Clause

Back 10

-Specifies the amount the breaching party will owe if contract is breached
Requirements:
1. Must recognize breach
2. *Reasonable to be enforced*

Front 11

Smith VS Russ on Test

Back 11

Look for: "Consequences must be foreseeable"

Front 12

Condition Precedent

Back 12

Condition that must be satisfied before you are bound to the contract
-If condition isn't satisfied, NOT liable
EX: "if" .....
Don't do it = not bound

Front 13

What doesn't have limited liability and pays income tax?

Back 13

Limited Liability: LLP, LLC, Sub S
Pays Tax: Corporation

Front 14

General Partnership

Back 14

-NOT pay Federal Income tax
-NO limited liability
-Uniform Partnership Act -No filing required
-Liable for all debt
-Person can do things w/o consent
-Profits divided evenly

Front 15

How are profits and losses determined in a General Partnership?

Back 15

Profits = divided evenly, unless otherwise stated
Losses = Same as profits are divided, unless other wise stated

EX: Profit: 40/60
Loss: 40/60

Front 16

LLP: Limited Liability Partnership

Back 16

P = Professional
-Professionals for tort protection
-Doctors, Lawyers
-Register with state

BENEFIT: *Not liable for unpaid torts and contract debts of partnership*

Front 17

LLC: Limited Liability Company

Back 17

-No size limit
-Register with state

Front 18

Corporation

Back 18

-Pays Federal Income Tax
-Has Limited Liability

Front 19

What do LLP, LLC, and Sub S have in common?

Back 19

They do not pay Federal Income Tax
Have Limited Liability

Front 20

Shareholders

Back 20

-Own Company
RESPONSIBILITIES:
1. Amend articles of incorporation
2. Elect board of directors

Front 21

Preferred stock has priority over common stock when receiving ______?

Back 21

Dividends

Front 22

What do the directors do?

Back 22

Hire officers

Front 23

What does an Article of Incorporation NOT include?

Back 23

Names of officers and directors

Front 24

What is the action against a business who is found "co-mingling funds"?

Back 24

Piercing the Corporate Veil

Front 25

Business Judgment Rule

Back 25

Shareholders hold directors responsible for losses acquired when poor business judgement is used

How to win case: *Prove directors used poor business judgment or violated BJR*

Front 26

Principal is the ____ in an agency.

Back 26

Boss

Front 27

____ is the person working for the principal.

Back 27

Agent

Front 28

T/F A principal could be a corporation?

Back 28

True
"If they INCORPORATE it, they are agent, and corporation is the principal"

Front 29

Employee/Servant

Back 29

-Agent is being supervised and controlled
-Agent: Primary liable
-Principal: Secondary liable

Front 30

Independent Contractor

Back 30

Agent is not being supervised or controlled by the principal
-Principal: Not liable

Front 31

Taylor VS Gill

Back 31

On test: Asking if there was supervision and control, and if it was a servant or contractor.

-No control, Independent contractor

Front 32

Ways to Create Agency Relationships

Back 32

Express Authority
Implied Authority
Apparent Authority

Front 33

Express Authority

Back 33

-Giving specific orders as to what an agents authority is

Example: Power of Attorney

Required: Specific Instructions

(test could ask "what is required" or "what is an example"

Front 34

Power of Attorney

Back 34

Written document creating agency relationship with express authority

Front 35

Implied Authority

Back 35

-Authority that usually comes with the job
-Company is responsible for agents actions
-If "usually" or "normally" allowed to do it, you can *EVEN IF boss says you can't*

Front 36

Apparent Authority

Back 36

-No authority
-Impostor
-"Claimed to be agent"
-Company is only responsible IF *they had no way of knowing about him or stopping him*

Front 37

Ratification

Back 37

Principal approves an unauthorized act, is now liable
-Boss says "good job"
-Doesn't matter who they tell, can be to anyone

Front 38

Contract Liability

Back 38

When signing a contract, agent must disclose that he is only an agent to be liable for the contract

*If you only sign your name, you OR the company is liable*
*If you sign companies FULL name, only company is liable*

Front 39

Tort Liability

Back 39

In order for the principal to be responsible for an agents torts:
1. Agent must be supervised and controlled (doesnt have to be 100% of the time)
2. Agent must be under course and scope of employment (something job related)
-You: primarily responsible
-Boss: Secondarily responsible

Front 40

Employee at will (termination)

Back 40

-Can be fired for anything, anytime, for any reason

On test: NOTHING is illegal

Front 41

Term Contracts (termination)

Back 41

-Agent can be fired before contract expires, but must be compensated for remainder of time on contract

On test: Can ONLY sue for monetary damages, NOT to get job back

Front 42

Eminent Domain

Back 42

Can use land for PUBLIC USE

On Test: Kelo Case: shopping mall over people's houses. *Violated public use requirement, 5th amendment*

Front 43

Adverse Ownership

Back 43

If you occupy land openly for a certain amount of time, you gain ownership (Adverse Possession)
-person that owns isnt living there
-openly living there
-*continuos*
-Don't have to have good faith, or pay
-Could be a little strip of land

Front 44

Easement

Back 44

Acquiring limited use of someone else's land to access utility

-Ex: can't access road from your house

Front 45

Fixture

Back 45

On test: Chandelier or Ceiling fan

Front 46

Restricted Covenants

Back 46

Restricts future use of the land after you sell it
-Neighborhood limits the use of your land
Ex: Too tall of a house

Front 47

Race Notice

Back 47

When land is sold twice fraudulently, whoever RECORDS deed first in COURTHOUSE gets the house
-Can't know about each other
-Don't have to have good faith

Front 48

When do you have to pay a Realtor Commission?

Back 48

-If house sells within contract time
-Offer asking price,or more; EVEN IF you reject offer

Front 49

Fee simple absolute ownership

Back 49

Highest, most complete form

Front 50

Tenants in Common

Back 50

Family inherits land
Most common form of ownership

Front 51

Joint Tenancy

Back 51

When someone leaves partnership, other owners get the land
-Have to be at the SAME TIME
-SAME percentage
-Family is NOT, allowed to own land, even if it is in the will

-If someone sells interest, they become a tenant in common

Front 52

Patent

Back 52

Good for 20 years
Non renewable
-MUST file in Federal Patent Office
-Inventions

Front 53

Copyrights

Back 53

-Good for author's life, plus 70 years after death
-Can file through Common Law (just say you registered) OR Federal (ensures protection)
-NOT in state level
-Anything artistic: books, music

Front 54

Trademarks

Back 54

-Last forever
-File through Common, State, or Federal
"Companies mark" "special mark"

Most likely, strongest: Fanciful
Least likely, weakest: Generic

Front 55

Grandfathering In

Back 55

--Older company registered through common law, then new company registers through Federal

-Both can keep name, but can not compete

Front 56

Cyber Squatting

Back 56

Test: anything with .com

Front 57

WIPO

Back 57

"wipes" offending site off internet
-Doesn't award monetary damages or criminal sanctions
-*Domain name is turned to successful plaintiff* (remedy)

-*Benefit: Quicker and cheaper than federal court*

Front 58

Fair Use Doctrine

Back 58

4 areas to see if it is "fair use", reasonable, of copyrighting
-Purpose (educational?)
-Amount
-Impact (so someone didnt have to buy something)
-Nature

*Look for "Teacher" on test

Front 59

Least likely in a contract case?

Back 59

Punitive