Business Law Final Exam 510

Front 1

The Commerce Clause

Back 1

Gives Congress the power to regulate any activity that has any appreciable effect on interstate commerce

Front 2

Eminent Domain

Back 2

The power of the government to take, or to authorize the taking of, private property for public use

Front 3

The Takings Clause (found under the 5th Ammendment)

Back 3

"nor shall private property be taken for public use, without just compensation"

Front 4

Two Categories of Regulatory Takings

Back 4

Categorical or per se takings:
1. Regulation causes a property owner to suffer a physical invasion of the property
2. Regulation denies all economically beneficial use of the land

Front 5

The Due Process Clause

Back 5

Ensures procedural safeguards when life, liberty, and property were the subjects of government action

Front 6

The Equal Protection Clause

Back 6

No state shall "deny to any person within its jurisdiction the equal protection of the laws"

Front 7

Rational Basis Test of Equal Protection

Back 7

-Upheld only if they are designed to serve a compelling state of interest
-"reasonably and rationally related to the health and welfare of the people"

Front 8

The First Amendment

Back 8

Protects freedom of speech and freedom of the press from infringement by the government

Front 9

A Contract

Back 9

A promise that the law will enforce

Front 10

An Offer

Back 10

-Made by the offeror and gives the offeree the power to bind the offeror by accepting the offer
-Test is whether a reasonable person in the position of the offeree would interpret the offer as signifying the offerer's intent to be bound

Front 11

Acceptance

Back 11

Words or actions by which an offeree signifies his or her intention to be bound by the offer

Front 12

The Mirror Image Rule

Back 12

-The acceptance must mirror the offer
-If it adds new terms then it is a counteroffer

Front 13

UCC 2-207

Back 13

-Provides that a document intended to be an acceptance is an acceptance even though it has terms different from those in the offer
-Only when both parties are merchants
-New terms become part of the contract unless one of the three conditions is met:
1. The offeror expressly limited acceptance to the terms of the offer
2. The offeror objects to the new terms
3. The new terms materially change the contract

Front 14

Consideration

Back 14

-The requirement that a promise be part of a bargained-for exchange in order for it be enforceable
-Offer and acceptance are the bargaining process
-Two elements:
1. Legal detriment (a loss) by the promisee that is...
2. Bargained for by the promisor

Front 15

Preexisting Duty Rule

Back 15

-A promise to perform a preexisting legal duty is not consideration
-Modifications of existing contracts are unenforceable

Front 16

Statue of Frauds

Back 16

-Requires written evidence for promises that cannot, by their terms, be performed within one year or is greater than $500
-Courts can enforce oral contract where both parties have performed their part of the obligation and the performance is referable to the contract

Front 17

Promissory Estoppel

Back 17

-Enforces promises that lack considerations and oral promises that would otherwise be unenforceable under the Statute of Frauds
-Three conditions must be met:
1. Defendent made an unambiguous promise to the plaintiff
2. Plaintiff showed reliance on the promise
3. The reliance was to the plaintiff's substantial economic detriment

Front 18

Unconscionability

Back 18

Exists when one party did not have a meaningful choice and where the terms are so one-sided as to be oppressive

Front 19

Tort Law

Back 19

-Civil wrong other than a breach of contract
-Includes compensatory and punitive damages

Front 20

Battery

Back 20

-An unprivileged, unwanted touching of another
-Could be sexual harassment

Front 21

Assault

Back 21

Causing another person to be apprehensive about battery

Front 22

Intentional Infliction of Emotional Distress

Back 22

Provides a remedy for conduct intended to upset the victim

Front 23

Defamation

Back 23

-Protects a person's interest in his or her reputation and good name
-Requires proof that:
1. The tortfeasor made a defamatory statement
2. The tortfeasor intended to communicate the defamatory statement
3. The statement identifies the victim to be a reasonable listener
4. The statement was communicated to a third party
5. The victim's reputation was damaged

Front 24

Slander

Back 24

-Statements deemed to cause damage
-A statement that:
1. Adversly reflecting on a person's business or profession
2. A person is afflicted with a loathsome communicable disease
3. A person has committed a crime
4. Imputing sexual unchaste behavior to a person

Front 25

Invasion of Privacy

Back 25

Four Distinct Privacy Rights:
1. Intrusion
2. Public disclosure of facts
3. False light in the public's eye
4. Appropriation (use of name or likeness for benefit without consent)

Front 26

Palming Off

Back 26

If an advertiser represents its good in a way that deceives the average buyer into believing them to be the goods of a competitor

Front 27

Trespass

Back 27

Two Types:
1. Trespass to personal property (merchandise)/ interferes with value of property
2. Trespass to real property (land)

Front 28

Nuissance

Back 28

Substantial inference with the use and enjoyment of an interest in land

Front 29

Two Defenses to Intentional Torts

Back 29

1. Consent
2. Privilege (self-defense)

Front 30

Negligence

Back 30

-Unintentional conduct that is unreasonable under certain circumstances
-Falls below the standard of care that is necessary to protect others against a risk of foreseeable injury
-Must prove four elements:
1. The existence of a duty to exercise the degree of care that a responsible and prudent person would exercise under similar circumstances
2. A breach of duty by a failure to adhere to the standard of reasonable conduct (reasonable person standard)
3. That the unreasonable conduct was the actual and proximate cause of the plaintiff's injury
4. Actual injury to the plaintiff

Front 31

Actual Cause

Back 31

Direct connection between the defendent's conduct and plaintiff's injury

Front 32

Proximate Cause

Back 32

Plaintiff's injury has to be natural, probable, and a foreseeable result of the defendents conduct

Front 33

Negligence Per Se (can be used as a defense)

Back 33

-The violation, by itself, is considered unreasonable
1. The injured person must be within the class of persons the statute was designed to protect
2. The injury must be a type that the statute or regulation was designed to prevent

Front 34

Res Ipsa Loquitur (the thing that speaks for itself)

Back 34

-Presumption of negligence
-Can be inferred from the very nature of the accident
1. Injury occurred under negligence
2. Has to be in exclusive control of the defendent

Front 35

Defenses to Negligence

Back 35

1. Contributory Negligence: deals with the plaintiffs contribution to the injury
2. Comparative Negligence: recovery is reduced by the percent that the plaintiff's negligence contributed to the injury
3. Assumption of Risk: plaintiff is held to have assumed the risk of injury (i.e. driving with defective breaks with full knowledge)

Front 36

Strict Liability

Back 36

-Liability is strictly imposed in certain situation even if the actor does not intend to do the act or exercises all reasonable care
-Three areas where this applies:
1. Injuries cause by a defective product that is unreasonably dangerous because of its defects
2. Keeping of dangerous or vicious animals
3. Result from abnormally dangerous activities

Front 37

Title VII of the Civil Rights Act

Back 37

Prohibits discriminatino in employment on the basis of race, color, religion, national origin, or sex

Front 38

Disparate Treatment

Back 38

-Results when an employer treats one employee less favorably than another because of race, sex, religion, national origin, age, or disability
-Intentional discrimination; focuses on motive

Front 39

Equal Employment Opportunity Clause

Back 39

A plaintiff may raise an inference or discrimination showing that he or she:
1. Belonged to a protected class
2. Applied and was qualified for the job
3. Was rejected, after which the position remained open and the employer continued seeking applicants with similar qualifications
-Defense needs a legitimate non-discriminatory reason

Front 40

Disparate Impact

Back 40

-Criteria systematically excludes members of a protected class from job opportunities
-Plaintiff must prove that the challenged practice disqualifies a protected class of a significantly greater rate than the majority class

Front 41

Exemptions to Prohibitions Against Discrimination

Back 41

1. Bona fide Occupational Qualification (BFOQ): allows an employee to discriminate in its hiring where the protected class is a bona fide qualification reasonably necessary to the normal operation of business
2. Professionally Developed Ability Tests: permits the use of any professionally developed test
3. Bona fide Seniority Systems

Front 42

Harassment

Back 42

-Unwelcome conduct
-Two types of sexual harassment:
1. Quid pro quo harassment: job benefits exchanged for sexual favors
2. Hostile Environment Harassment: where unwelcome sexual conduct creates an intimidating or hostile environment