Business Law Final

Front 1

role of judiciary system

Back 1

to interpret and apply the law

Front 2

court system

Back 2

trial courts

intermediate appellate courts

state and federal courts

Front 3

alternative dispute resolutions

Back 3

negotiation: parties come together w/ or w/out lawyers

mediation: parties themselves reach a mutual agreement with the help of a 3rd party who proposes the decision. if the parties want to, they could possibly make it binding

arbitration: formal method; neutral 3rd party (arbitrator) makes the decision which is often binding

Front 4

intentional torts against persons

Back 4

assault and battery

false imprisonment

infliction of emotional distress

defamation

invasion of right to privacy

appropriation: use of someones name/likeness

misrepresentation/fraud

wrongful interference: ex: destroying a contract for one's own economic benefit

Front 5

intentional torts against property

Back 5

tresspass to land

trespass to personal property

conversion: personal property is unrightfully taken from the owner and placed in the hands of another

disparagement of property: economically injurious falsehood made about ones property

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unintentional torts/negligence

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neglegence: careless performance of a legally required duty or the failure to perform a required act; must be proved that defendant breached duty, which injured another

Front 7

defenses to negligence

Back 7

assumption of risk

superseding cause

contributory and comparitive negligence

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contributory and compartative neglegence

Back 8

contributory: plaintiff will not have to pay damage no matter the degree of the neglence in comparison

comparitive: both parties may be assessed

Front 9

special negligence documents and statuses

Back 9

res ipsa loquitor: plaintiff need not prove negligence since the facts speack for themselves

negligence per se: person violates a statue or ordinance providing penalty which causes another to be injured

special negligence statues: dram shop and good samaritan are examples

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strict liability

Back 10

person must be held liable regardless of the degree of care the exercised, for damages and injuries caused by their product or activity; strict liability for harms caused by dangerous animals, activities, defective products, etc.

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tortfeaser

Back 11

one committing the tort

Front 12

compensatory damages

Back 12

meant to reimburse plaintiff for damage

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causation in fact

Back 13

causation would not have occurred without defendant's act

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superseding cause

Back 14

when a cause for a torte is not forseeable

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slander of qaulity

Back 15

publishing false info. about another's product

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slander of title

Back 16

when someone's ownership of a property is falsely questioned

Front 17

long arm statue

Back 17

when jurisdiction is available over nonresidents

Front 18

judicial review

Back 18

marbury vs. madison

enables judicial branch to check other branches

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probate courts

Back 19

focus on the transfer of assets

Front 20

concurrent jurisdiction

Back 20

both federal and state courts can hear a trial

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exclusive jurisdiction

Back 21

strictly federal

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default judgement

Back 22

plaintiff is granted what they want if defendant does not respond to the summons

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patent

Back 23

grant from govt. that gives inventor exclusive rights to invention

must be novel, not obvious, useful

categories: utility, design, plant

aquired by filing patent with US Patent and trademark office

inventor has right to make sell, license, etc. for duration

duration-20 yrs, 14 for design parents

remedies for infringement: monetary, lawyer's fees

Front 24

copyright

Back 24

intangible property right granted to authors and originators of lit. work. and art

must be original, able to be reproduced and communicated and percieved

categories: lit. works, musical works, dramatic works, pantomime or choreographic, graphic or sculptural works; films and AV, sound recordings

automatically acquired

author has right to reproduce, distribute, license, display, etc.

duration: 70 yrs for authors, for publishers 95 after publishing or 120 yrs after creation

remedies for infringement: actual damages, profits received by infringer, attourney's fees

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trademarks

Back 25

and distinctive word, name, symbol, device, or combo. of these used to identify or distinguish goods or services

trademarks, service marks, trade dress, etc. must distinctive

categories: strong distinctive marks, marks that have acquired secondary meaning by use, other marks, such as certification or collective marks; trade dress

how is acquired: common law of by filing with the US patent office, federal registration, can be renewed b/t 5th and 6th yrs, and then every 10 yrs after

owner has the right to use marks and exclude others from doing so

duration: unlimited, registration can also be renewed

civil remedies: injunction preventing future use of mark
, actual damages + profit received by infringer; impoundement and destruction of infringing marks; attorney's fees

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trade secrets

Back 26

information (ex: recipes, programs, devices, etc.) that give a business a certain advantage over competition who does know the info. or processes

requirements: info. must have commercial val., not be easily ascertainable, reasonably protected

categories: customer lists, research, plans and programs, techniques in marketing and production, formulas, compilations

acquired through originality and development

owner can license or assign trade secret; use legal means to protect against use by others

unlimited duration, as long as it is not revealed to others

monetary damages plus attorney's cost

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cybermark

Back 27

trademark in cyberspace

Front 28

felony

Back 28

serious crime punishable by death or imprisonment for over a year

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misdemeanor

Back 29

any crime that is not a felony

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criminal liability

Back 30

guilty act: some harmful act must committed for a crime to exist

intent: intent to commit a crime or wrongful mental state

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corporate criminal liability

Back 31

liability of corps.: corps. normally are liable for crimes committed but their workers w/in the scope of employment; corps. cannot be imprisoned, but they can be denied certain legal priveledges

liability of corporate officers and directors: they are liable for crimes they commit and may be held liable for their employees actions under their supervision

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violent crimes:

Back 32

crime that causes others to suffer harm or death ex: rape, robbery, assualt and battery, murder

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property crime

Back 33

ex: burglary, larsen

Front 34

public order crime

Back 34

crime against morals of public (ex: public drunkness, gambling, etc.)

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white-collar crime:

Back 35

non-violent crimes committed for personal business gain
bribery, bankruptcy fraud, etc.

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organized crime

Back 36

crime committed by groups operating illegitimately for illegal goods and services

Front 37

defenses to criminal liability

Back 37

infancy: a minor

intoxication

insanity

mistake: ignorance about the law or not knowing what the outcome of something will be

consent:

duress: wrongful threat

justifiable use of force: self defense

entrapment: an undercover officer convinces someone to commit a crime

statue of limitations: must be prosecuted w/in certain numbers of years

immunity: not giving out info. to avoid self incrimination

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fourth ammendment

Back 38

provides protection against unreasonable searches and seizures; probably cause is needed to get a warrant

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fifth amendment

Back 39

due process

prohibits double jeopardy

protects against self incrimination

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6th amendment

Back 40

speedy trial, trial by jury, public trial, witnesses, right to counsel

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8th amendment

Back 41

prohibits bail and excess fines, cruel and unusual punishment

Front 42

exclusionary rule

Back 42

prohibits evidence in trial that violates const. right or was illegally gotten

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miranda rule

Back 43

individuals who are arrested must be informed of their rights

Front 44

criminal process

Back 44

arrest, indictment, and trial: procedures concerning arrest, indictment and trial are supposed to protect rights of individuals against the state

sentencing guidelines: indicate range of penalties for fed. crimes, judges must abide by guidelines when giving sentences

Front 45

double jeopardy

Back 45

being tried for the same crime twice

Front 46

grand jury

Back 46

determines whether it is reasonable to believe that a crime was committed;

Front 47

plea bargaining

Back 47

deal that gives a lesser sentence

Front 48

elements of a valid contract

Back 48

agreement, consideration, contractual capacity, legality

Front 49

possible defenses of contracts

Back 49

genuiness of assent and form

Front 50

bilateral contract

Back 50

a promise for a promise

Front 51

unilateral contract

Back 51

a promise for an act

Front 52

express contract

Back 52

formed by words

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implied in fact contract

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formed at least in part by the conduct of 2 parties

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quasi-contract

Back 54

imposed by the law

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formal contract

Back 55

requires special form

Front 56

informal contract

Back 56

requires no special form

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executed contract

Back 57

not fully performed

Front 58

executary contract

Back 58

in the process of being performed

Front 59

valid contract

Back 59

necessary contractual elements:

offer, acceptance, consideration, parties with legal capacity, legal purpose

Front 60

requirements of an offer

Back 60

intent

definiteness

communication

Front 61

termination of an offer by action of parties

Back 61

revocation

rejection

counteroffer

Front 62

termination of an offer by law

Back 62

lapse of time, destruction of subject of the offer, death or incompetence, illegality

Front 63

acceptance of contract

Back 63

can only be made for the offeree of their agent

if new terms are added, it is considered to be a counteroffer

acceptance of unitlateral offer is effective upon full performance of the requested act

acceptance of bilateral offer must be communicated

Front 64

elements of consideration

Back 64

something of legally sufficient value must be given in exchange for the promise

bargained-for exchange: the contract involves something that the person normally would not be legally obligated to do
(or not do)

Front 65

contracts that lack consideration

Back 65

preexisting duty

past consideration

illusory promises: when performance is uncertain

Front 66

settlement of claims

Back 66

accord and satisfation

release

convanent not to sue

Front 67

promisory estoppel

Back 67

a person who has relied on the promise of another may in some cirumstances obtain relief; promise is enforced

Front 68

estoppel

Back 68

being barred or impeded

Front 69

release

Back 69

one party forfeits the right to have legal claim on another party

Front 70

recission

Back 70

unmaking of a contract to return parties to where they were at the starting point

Front 71

option contract

Back 71

offerer promises to hold open an offer for a certain period of time for payment given by the offeree, takes away offerers power to revoke in time specified or reasonable amt of time is not specified

Front 72

contracts with minors

Back 72

contracts with minors are generally voidable at the choice on th minor

Front 73

disaffirmance and minors

Back 73

legal avoidance of obliation:

disaffirmance can usually take place any time during minority and only soon after they have reached majority

if they disaffirm the contract, the who thing is disaffirmed

if disaffirming occurs, minor is generally required to return recieved goods or pay their value

minor who has committed fraud (i.e. misrepresenting age) will usually be denied the right to disaffirm by the courts

the minor will remain liable for the value of goods if they must disaffirm

Front 74

ratificaion and minors

Back 74

acceptance of obligation:

express ratification exists when the minor assumes the obligations

implied ratification: exists when the conduct of the minor is not consistent with disaffirmance or when they fail to disaffirm

Front 75

parents' liability and contracts

Back 75

parents generally are not liable for contracts that their children enter into, except in the case of necessaries,

Front 76

intoxicated persons and contracts

Back 76

a contract entered into by an intoxicated person is usually voidable by him if the lacked mental capacity of the intoxication was not voluntary

a contract with an intoxicated person is enforceable if the person understood the legal consequences

Front 77

mentally incompetent persons and contracts

Back 77

a contract made a person judged by the court to be incompetent is void

if the person is not adjudged the court, it is there choice whether or not void it

Front 78

contracts contrary to statue

Back 78

usury- rates above the lawful max.

gambling-illegal and void

sabbath(sunday)laws: certain contracts cannot be formed on sunday, not enforced in all states

linncensing statues

Front 79

contracts contrary to public policy

Back 79

contracts in restraint of trade

unconscionable contracts and clauses: when a contract is oppressive to one party

exculpatory clauses: releases party in the event of monetary of physical injury

Front 80

effects of illegality and contracts

Back 80

court will aide neither party when both seem to be equally at fault -- no recovery

exceptions:
when on party is innocent
when someone in a party is protected by a statute
when either party seeks reparation before the illegal act is performed
when one party entered into illegality through fraud, duress, etc.

Front 81

adhesion contract

Back 81

dominant party drafts contract and presents it the other party on a take it or leave it basis

Front 82

blue sky laws

Back 82

state laws regulate and supervise investment companies for the benefit of the public

Front 83

mistakes and contracts

Back 83

usually the mistaken party is bound to the contract unless the other party knows about the mistake or it was a math error

bilateral: if parties are mistaken about actual fact, either can leave the contract; if they mistaken about value or quality, it can be enforced

Front 84

fraud and contracts

Back 84

when fraud occurs, the innocent party can usually avoid the contract

1. a misrepresentation of fact must occur

2. there must be intent to decieve
3. the innocent party must rely on this deceit

Front 85

undue influence and contracts

Back 85

arises from special relationships in which one party's free will has been overcome by undue influence by the other party; usually these types of contracts are voidable

Front 86

duress

Back 86

when a party forces another into a contract in some way, the forced party may rescind the contract

Front 87

statute of frauds - contracts that must be in writing

Back 87

contracts involving land

contracts whose terms cant be performed w/in a year

collateral promises:

promises made in the consideration of marraige

contracts for goods costing $500 or more

Front 88

the parrol of evidence rule

Back 88

in trial prohibits the introduction of evidence of the parties prior negotiations, agreements, etc. that contradict or vary the terms of the party's written contract

exceptions

to clarify ambiguous terms
to show that it was voidable or void
to show it was modified
to clarify contract when it lacks terms
under UCC, to explain the meaning in light of prior dealing
to show it subject to oral agreement
when there has been an error

Front 89

integrated contract

Back 89

written contract that explains the final expression of the party's agreement

Front 90

binding authority

Back 90

law the court must follow when deciding a case

Front 91

establishment and free exercise clause

Back 91

establishment: no state-sponsored religion

free exercise: person can hold any religion they want to

Front 92

mechanic's lien

Back 92

lien filed on owner's real estate b/c services or materials were not paid for

Front 93

artisan's lien

Back 93

possossory lien on an owner's property for labor performed or value added

Front 94

innkeeper's lien

Back 94

possesory lien on a hotel's guest baggage for changes that are not paid

Front 95

judicial liens

Back 95

writ of execution: court order directing sheriff to seize and sell debtor's nonexempt property to pay debt

attachment: court-ordered seizure prior to determination of creditor's rights;

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garnishment

Back 96

collection rememedy that allows debtor to attach a debtor's money and property held be a third person (ex: taking wages)

Front 97

creditor's composition agreement

Back 97

contract b/t debtor and creditors by which creditor's debts are made into a sum less than that is owed

Front 98

mortgage foreclosure

Back 98

on the debtor's default, the entire mortgage debt is due and payable, allowing the creditor to foreclose on the real estate to settle debt

Front 99

suretyship

Back 99

ex: cosigning on something; debtor and third party can both be liable

Front 100

gauranty

Back 100

third party is secondarily liable for debtor's default and debt

Front 101

exemption - real property

Back 101

debtor can retain their family home to some extent

Front 102

exemption - personal property

Back 102

furniture to certain dollar amt
clothes and some possessions
vehicles up to certain dollar amt
certain animals, such as livestock and pets
equiptment used in business or trade

Front 103

Ch 7 - liquidation

Back 103

who can apply? debtors-voluntary, creditors, involunatary

who is the debtor? any person (including partnerships and corps.)besides RR, banks, insurance cos., loan institutions, farmers, credit unions, etc....

procedure? nonexempt property is sold w/ proceeds distributed to the creditors

advantages? usually involves a fresh start w/ little or no debt

Front 104

Ch 11 - reorganization

Back 104

who can apply? debtors-voluntary, creditors-involunatary

who is the debtor? anyone eligable for ch 7, including RR

procedure? plan is submitted, debt is discharged

advantages? debtor can continue business creditors must accept it, it allows for reorganization and liquidation of debt

Front 105

Ch 12 & 13 - adjustment

Back 105

who can apply? debtors - voluntary only

who is the debtor? ch 12- any family farmer
ch 13- any person (but not partnerships or corps.) with regular income who owes debt less than $290,525 or fixed debt less than $871,550

procedure? plan is submitted and needs to approved if debtor turns over disposable income for 3 yrs; it the plan goes right, debt is discharged

advantages? debtor continues business and possession of assets; most debts sould discharged after 3 yrs.

Front 106

cram down provision

Back 106

court may force creditors to accept debtor's plan

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debtor in possession

Back 107

continues to own and operate their own business

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order for relief

Back 108

relieves th debtor of the immediate debt

Front 109

agency relationship

Back 109

the agency acts on behalf of the principal in dealing with third parties; an employee who deals with 3rd parties is normally an agent;