Business Law Ch 28, 41, 43

Front 1

What types of authority does an agent have to act on behalf of a principal? 3 types

Back 1

express, implied, apparent

Front 2

What is meant by the term apparent authority?

Back 2

The agent seems to be authorized, but is not. The principal is still bound by the agent's actions

Front 3

Who has the power to terminate an agency agreement?

Back 3

both agent and principal

Front 4

What is the rule about ratification if the principal accepts the benefit of an unauthorized contract?

Back 4

If a person accepts the benefit of an unauthorized transaction or fails to repudiate it, then he is as bound by the act as if he had originally authorized it

Front 5

Even if an agent acts without authority, the principal can decide later to be bound by her actions so long as these requirements are met: (4 things)

Back 5

-agent indicates to 3rd paty she is acting for principal
-principal knows all material facts of transaction
-principal accepts benefit of whole transaction
-3rd party doesn't withdraw from the contract before ratification

Front 6

What is the equal dignities rule?

Back 6

If an agent is empowered to enter into a contract that must be in writing, then the appointment of the agent must also be written

Front 7

How is an agency relationship created? (5 things)

Back 7

-Principal,
-& Agent,
-Who mutually consent that the agent will act on behalf of the principal and
-Be subject to the principal's control
-Thereby creating a fiduciary relationship

Front 8

What is the rule about the principle indemnifying the agent who is sued while carrying out his or her duties?

Back 8

A principal must indemnify an agent for tort claims brought by a third party if the principal authorized the agent's behavior and the agent did not realize he was committing a tort.

Front 9

Fiduciary relationship

Back 9

when a trustee acts for the benefit of the beneficiary, always putting the interests of the beneficiary before his own.

Front 10

Is an agency agreement valid if agent is not paid?

Back 10

Yes

Front 11

What is the agents duty of loyalty?

Back 11

An agent has a fiduciary duty to act loyally for the principal's benefit in all matters connected with the agency relationship

Front 12

Rule regarding agent's outside benefits

Back 12

An agent may not receive profits unless the principal knows and approves

Front 13

Rule regarding agent's competition with the Principal

Back 13

Agents are not allowed to compete with their principal in any matter within the scope of the agency business

Front 14

Rule regarding COnflict of interest between 2 principals

Back 14

unless otherwise agreed, an agent may not act for 2 principals whose interests conflict

Front 15

Rule regarding secret dealing with the Principal

Back 15

If a principal hires an agent to arrange a transaction, the agent may not become a party to the transaction without the principals permission

Front 16

Rule regarding agent's appropriate behavior

Back 16

An agent may not engage in inappropriate behavior that reflects badly on the principal on or off duty.

Front 17

Agent's duty to obey instructions

Back 17

An agent must obey her principal's instructions unless the principal directs her to behave illegally or unethically

Front 18

Agent's duty of care 3 things

Back 18

-an agent has a duty to act with reasonable care
-An agent with special skills is held to a higher standard because she is expected to use those skills
-Gratuitous agents are liable if the commit gross negligence, but not ordinary negligence

Front 19

Agent's duty to provide information

Back 19

An agent has a duty to provide the principal with all information in her possession that she has reason to believe the principal wants to know. She also has a duty to provide accurate information.

Front 20

Principal's remedies when the agent breaches duty

Back 20

-Can recover from agent any damages
-Agent must turn over any profits he has earned as a result of his wrongdoing
-if agent violated duty of loyalty, principal may rescind transaction

Front 21

Principals duty to indemnify regarding any expenses or damages

Back 21

A principal must indemnify an agent for any expenses or damages reasonably incurred in carrying out this agency responsibilities

Front 22

Principals duty to indemnify regarding liabilities

Back 22

the principal must indemnify the agent for any liability she incurs from third parties as a result of entering into a contract on the principals behalf, including attorney's fees and reasonable settlements

Front 23

Principal's duties to cooperate

Back 23

-the principal must furnish the agent with the opportunity to work
-the principal cannot unreasonably interfere with the agent's ability to accomplish his task
-the principal must perform her part of the contract

Front 24

3 choices of termination

Back 24

-Term agreement: Time, Achieving a purpose, mutual agreement
-Agency at will- if they make no agreement in advance about the term of the agreement, either principal or agent can terminate at any time
-wrongful termination- either party always has a the power to walk out but may have to pay damages

Front 25

Principal's liability toward agent (2)

Back 25

The principal is liable for the acts of an agent if:
1. The agent had authority
2. the principal ratifies the acts of the agent

Front 26

express authority

Back 26

granted by principal by words or conduct that, reasonably interpreted, cause the agent to believe the principal desires her to act on the principal's account

Front 27

Implied authority

Back 27

Unless otherwise agreed, authority to conduct a transaction includes authority to do acts that are reasonably necessary to accomplish it

Front 28

Intermediary agent

Back 28

someone who hires subagents for the principal

Front 29

Fully disclosed principal

Back 29

an agent is not liable for any contracts she makes on behalf of a fully disclosed principal

Front 30

Unidentified principal

Back 30

3rd party is aware of principal, but is not informed of their identity. In the case of this, the third party can recover from either the agent or the principal.

Front 31

Undisclosed principal

Back 31

Principal is undisclosed if the 3rd party did not know of his existence. in this case, third party can recover from both agent or principal

Front 32

A third party is not bound to the contract with an undisclosed principal if: (2)

Back 32

1. the contract specifically provides that the third party is not bound to anyone other than the agent
2. the agent lies about the principal because she knows the third party would refuse to contract with him

Front 33

Unauthorized agent rule

Back 33

If the agent has no authority (express, implied, or apparent), the principal is not liable to the third party, and the agent is.

Front 34

Respondeat superior

Back 34

latin phrase that means "let the master answer" which drives principal for principal's liability for torts

Front 35

2 types of agents

Back 35

1. employees
2. independent contractors

Front 36

Principal's liability: Employee vs. independent contractor

Back 36

A principal may be liable for the torts of an employee but generally is not liable for the torts of an independent contractor

Front 37

When is a principal liable for an independent contractor?

Back 37

The principal is liable for the torts of an independent contractor if the principal has been negligent in hiring or supervising her

Front 38

A principal is not liable for the intentional torts of an employee unless: (2)

Back 38

1. The employee intended to serve some purpose of the employer
2. the employee was negligent in hiring or supervising this employee

Front 39

Physical vs. non-physical harm liabilities for principal

Back 39

Physical- liable if agent acted within scope of employment
nonphysical- treated more like a contract claim, and the principal is liable if the employee acted with express, implied, or apparent authority

Front 40

First amendment regarding cyberlaw

Back 40

Protects freedom of speech, that includes on the internet

Front 41

4th amendment (cyberlaw)

Back 41

Prohibits unreasonable search and seizures by the government

Front 42

Section 5 of the FTC Act

Back 42

Prohibits unfair and deceptive acts or practices

Front 43

Electronic Communications Privacy Act of 1986

Back 43

prohibits unauthorized interception of, access to, or disclosure of wire and electronic communications

Front 44

ECPA of 1986 rules

Back 44

1. any intended recipient of an electronic communication has the right to disclose it
2. Internet service providers (ISPs) are generally prohibited from disclosing electronic messages to anyone other than the addressee
3. An employee has the right to monitor workers' electronic communications if (1) the employee consents, (2) the monitoring occurs in the ordinary course of business, (3)in the case of email, if the employer provides the computer system

Front 45

The Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM)

Back 45

a federal statue that does not prohibit spam but instead regulates it

Front 46

Communications Decency Act of 1996 (CDA)

Back 46

Under the CDA, ISPs and web hosts are not liable for information that is provided by someone else. Only content providers are liable.

Front 47

Computer Fraud and Abuse Act of 1986 (CFAA)

Back 47

Statute that applies to any device connected to the internet.

Front 48

Fraud

Back 48

the deception of another person for the purpose of obtaining money or property from him

Front 49

Shilling (auction fraud)

Back 49

When a seller at auction either bids on his own goods or agrees to cross-bid with a group of sellers

Front 50

The Identity Theft and Assumption Act of 1998

Back 50

prohibits the use of false identification to commit fraud or other crime and it also permits the victim to seek restitution in court.

Front 51

Phishing

Back 51

A fraudster sends a message directing the recipient to enter personal information on a website that is an illegal imitation of a legitimate site

Front 52

Types of Real Property

Back 52

Land, Buildings, Plant life, Fixtures

Front 53

Rule for fixtures

Back 53

object is a fixture if a reasonable person would consider the item to be a permanent part of the property

Front 54

Fee Simple absolute

Back 54

Full ownership privileges in a property

Front 55

concurrent estate

Back 55

two or more people owning property at the same time

Front 56

tenancy in common

Back 56

Most common concurrent estate. When 2 or more people holding equal interest in a property, but with no right of survivorship

Front 57

Partition

Back 57

Dividing up ownership, All co-tenants have an absolute right to partition.

Front 58

Partition by kind

Back 58

A court will normally attempt a partition by kind, meaning that it actually divides the land equally among the co-tenants

Front 59

Joint Tenancy

Back 59

Two or more people holding equal interest in a property with the right of survivorship. When one tenant dies, the surviving tenant assumes full interest

Front 60

Tenancy by the Entirety

Back 60

The husband and wife each own the entire property, and they both have a right of survivorship

Front 61

Community property law

Back 61

This system allows husband & wife to maintain separate ownership of assets they bring to the marriage or inherit. These assets are called separate property. Income or assets that either party earns during the marriage are considered community property, which must be equally shared during the marriage.

Front 62

Life estate

Back 62

Ownership of property for the lifetime of a particular person

Front 63

Reversion

Back 63

The right of an owner (or her heirs) to property upon the death of a life tenant

Front 64

Easement

Back 64

gives one person the right to enter land belonging to another and make a limited use of it, without taking anything away

Front 65

2 types of Easements

Back 65

1. Easement appurtenant
2. Easement in gross

Front 66

easement in appurtenant

Back 66

Benefits its owner in the use of another parcel of land.
eg. Madi has land w/o water front. Buys easement from Wade to cross land to water. Madi's land is dominant tenement(benefiting property) Wade's land is servient tenement (burdened land)

Front 67

easement in gross

Back 67

benefits owner, but not in the use of other land.
eg. electricity company using land for power lines (doesn't benefit other property of land)

Front 68

Grant

Back 68

occurs when a landowner expressly intends to convey an easement to someone else

Front 69

reservation

Back 69

occurs when an owner sells land but keeps some right to enter the property

Front 70

easement by implication

Back 70

arises when an owner subdivides land in a way that clearly implies the creation of an easement in favor of the new parcels

Front 71

easement by necessity

Back 71

arises when the dominant tenement absolutely must make use of other property

Front 72

"easement by prescription" arises when someone makes use of property belonging to another, if his use is: (3)

Back 72

-open and notorious
-adverse to the owner
-continuous and uninterrupted for the number of years required by local statue

Front 73

Profit

Back 73

the right to enter land belonging to another and take something from it

Front 74

license

Back 74

the right to enter land belonging to another temporarily

Front 75

Mortgage

Back 75

a security interest in real property

Front 76

Mortgager

Back 76

An owner who gives a security in interest in property in order to obtain a loan

Front 77

Mortgagee

Back 77

The party acquiring a security interest in property

Front 78

Nuisance

Back 78

an unprivileged interference with a person's use and enjoyment of her property

Front 79

abatement

Back 79

an order requiring the homeowner to eliminate the nuisance

Front 80

Zoning statues

Back 80

state laws that permit local communities to regulate building and land use

Front 81

landlord-tenant relationship

Back 81

when an owner of a freehold estate allows another person temporary, exclusive possession of the property

Front 82

Eminent domain

Back 82

the power of the government to take private property for public use

Front 83

condemnation

Back 83

If a property owner refuses a government's offer for their land, the government will file suit seeking condemnation of the land, that is, a court order specifying what compensation is just and awarding title to the government

Front 84

reversionary interest

Back 84

Interest in land landlord keeps in property, meaning right to possess property when the lease ends

Front 85

Statute of frauds rule for Leases

Back 85

SOF generally requires that a lease be in writing

Front 86

covenant

Back 86

is simply a promise by either the landlord or the tenant to do something or refrain from doing something

Front 87

condition

Back 87

allows for a landlord to evict a tenant if there is a violation. in many states, conditions in leases must be slearly labeled as "conditions" or "evictable offenses"

Front 88

Tenancy for years

Back 88

A lease for a stated, fixed period

Front 89

Periodic tenancy

Back 89

a lease for a fixed period, automatically renewable unless terminated

Front 90

Notice to quit

Back 90

A landlord's notice terminating a tenancy

Front 91

tenancy at will

Back 91

a tenancy with no fixed duration, which may be terminated by either party at either time

Front 92

Tenancy at sufferance

Back 92

A tenancy that exists without the permission of the landlord, after the expiration of a true tenancy

Front 93

quiet enjoyment of the premises right

Back 93

all tenants are entitled to quiet enjoyment of the premises, meaning the right to use the property without the interference of the landlord

Front 94

Landlord's first important duty

Back 94

to deliver possession of the premises at the beginning of the tenancy, that is, to make the rented space available to the tenant

Front 95

English Rule

Back 95

obligates the landlord to remove the previous tenant in time for the new tenant to take possession

Front 96

American rule

Back 96

minority rule in this country, but rule holds that the landlord has not duty to deliver actual possession of the premises

Front 97

Actual eviction

Back 97

If a landlord prevents the tenant from possessing the premises, he has actually evicted her.
eg. changing locks when tenants gone (landlord liable for this)

Front 98

Constructive eviction

Back 98

If a landlord substantially interferes with the tenant's use and enjoyment of the premises, he has constructively evicted her.

Front 99

Duty to maintain premises

Back 99

in most states, a landlord has a duty to deliver the premises in a habitable condition and a continuing duty to maintain the habitable condition

Front 100

Implied Warrant of Habitability

Back 100

requires that a landlord meet all standards set by the local building code, or that the premises be fit for human habitation

Front 101

rent abatement

Back 101

court order to lower rent in remedy warranty of habitability cases

Front 102

escalator clause

Back 102

a lease clause allowing the landlord to raise the rent for specified reasons

Front 103

Duty not to damage premises

Back 103

a tenant is liable to the landlord for any significant damage he causes to the property

Front 104

Tenant's liability

Back 104

a tenant is generally liable for injuries occurring within the premises she is leasing, whether that is an apartment, a store, or otherwise.

Front 105

Landlord's liability: (2)

Back 105

-Common law rules: Latent Defects, common areas, negligent repairs, public use
-Modern Trend: landlord must use reasonable care to maintain safe premises & is liable for foreseeable harm

Front 106

Exculpatory clause

Back 106

a lease clause that relieves a landlord of liability for injuries to you or guest regardless of the cause. Today, these clauses are generally void in residential leases.