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51 Cards in this Set
- Front
- Back
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What is the best strategy for managing legal risks? |
1. Avoid or eliminate the risk 2. Reduce the risk (contracts) 3. Transfer (insurance) 4. Retain the risk |
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How can crisis be incorporated into a risk management plan? |
The lesson can be learned via new standards that will be implemented to reduce or avoid re occurrence. |
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Describe the mechanisms for resolving a legal dispute? Compare the advantages and disadvantages of each. Which is the best method for solving a legal dispute? |
1. Mediation - parties and a mediator who assists parties Advantages - quick and cheap, private and controllable, may produce a final decision Disadvantages - requires and agreement, no precedent and may fail 2. Arbitration - parties and lawyers where a third party makes a decision that is usually binding. Advantages - quick and lest costly than litigation, decision may be binding Disadvantages - may require an agreement that is slow and just as expensive as litigation. May destroy relationships |
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a. what is a class action? when is it appropriate? b. what are the costs and how are they awarded? |
A class action lawsuit is when there are two or more parties that are sueing the same institution for the intent. 1. Must be two or more persons 2. Must be suing the same firm for same reason. Class action lawsuits also helps the common man get a voice in disputes with larger companies. |
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Describe the litigation process. |
In superior courts, a lawsuit that goes through the full court process comprises four stages: pleadings, discovery, trial and enforcement 1. Pleadings - the formal documents concerning the basis for a lawsuit consisting of a claim from the plaintiff and , defense and/or counterclaim from the defendant 2. Discovery - the process of disclosing evidence to support the claims in a lawsuit 3. Trial - a formal hearing before a judge that results in a binding decision *the plaintiff has the burden of proof to formally introduce evidence that can support a claim. (balance of probabilities) 3. Decision - the judgement of the court that specifies which party is successful and why 4. Enforcement - the winner of the lawsuit must enforce the judgement with assistance of the court |
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When is litigation the most appropriate method of resolving a legal dispute? |
Litigation is appropriate when all other feasible methods have failed and the claim cannot realistically be abandoned |
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What is an offer? What is the distinction between and offer and an invitation to treat? |
an offer is a promise to perform specified acts on certain terms. an invitation to treat is an expression of willingness to do business. |
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Whats does it mean to say that" an offer must be communicated to the offeree prior to acceptance? |
An offer must be communicated to the offeror to be effective. The offer must be accepted for it to become and agreement and it must be supported by mutual consideration. |
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How is an offer terminated? 5 |
an offer can be terminated by any of the following events: revocation (withdrawal) lapse (expiration) rejection (refusal) counter offer death or insanity |
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What constitutes acceptance of an offer? |
in order for an offer to be accepted the must be an unqualified willingness to enter into a contract on the terms of the offer by words or by conduct |
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Must acceptance of an offer be communicated to the offeror to be effective? Explain? |
In order for legal acceptance the offeree must communicate by words or by conduct an unconditional assent to the offer in its entirety. |
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What is the post box rule? |
an offer is considered accepted at the time the acceptance is mailed. |
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Define consideration. What characteristics must consideration possess to be valid consideration? |
where each party must give something of value in exchange for something of value from the other. |
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When are promises that lack consideration enforceable? |
A promise is enforceable without consideration for : 1. Promise under seal (hot wax authentication) 2. Promissory estoppel(gives effect to a promise w/o consideration 3. Partial payment of debt( parties is owed money) |
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What is intention? |
one party must have intended to be a contractual one where it is enforceable by law. |
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When is there a presumption of no intention to create legal relations? How can presumption be rebutted? |
when one party can seek to rebut or dislodged by leading evidence to the contrary |
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What form can a contract take? |
any form of communication that supports mutual consideration and constitutes the acceptance of the offer ie : written, verbal, conduct etc |
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What are the contents of a contract? |
A contract is a deliberate and complete agreement between two or more competent persons not necessarily in writing supported by mutual consideration to do some act voluntarily. |
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What is the difference between express and implied terms in a contract? |
An express term is a promise to enter into an agreement that explicitly states the intentions ( ie : (i will pay x dollars to ABC) An implied term is where the intentions are not expressly stated by are implied by the court ie: business efficacy |
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How do courts interpret the meaning of terms in a contract? |
the court assigns as reasonable a meaning as possible to vague or ambiguous terms. |
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What is the parole evidence rule? how does the rule for, content and meaning of contracts? |
A rule that limits the evidence a party can introduce concerning the contents of a contract and can only be used as a defense |
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How can risk associated with terms of a contract be managed? 5 |
riskzs can be managed by including conditional agreements such as: 1. Limitation of liability clause - limits the liability for breach to something less than would otherwise be recoverable 2. Exemption clause - identifies events causing loss for which there is no liability 3. Liquidated damages - specifies how much one party must pay to the other in the event of a breach 4. Condition Subsequent - an event that when it occurs brings an existing contract to an end ie: parties to an employment contract may agree that a certain employee is to work for the organization unless the employee's sales drop below a certain amount 5. Condition Precedent - an event that until it occurs, suspends that parties obligations to perform their contractual obligations ie: mortgage financing 5. Condition Precedent |
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What defects in the relationship between parties can result in the contract being set aside? How does each of these affect a contract? |
the defect in the relationship between parties resulting in the contract being set aside are: 1. legal capacity (minors/mental incapacity) 2. Duress (economic or physical harm) 3. Undue Influence (manipulation) 4. unconscionability (unfair contract) Each of the defects place legal constraints on the type of contract that can be written and enforced by the court of law |
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when can a contract be set aside for misrepresentation? 4 a can a contract ever be set aside for mistake? explain. |
the requirements for an actionable misrepresentation the statement must be proven to be: 1. False 2. of fact not opinion 3. material (influence decision to enter contract) 4. Reliance ( the person was aware and use the other anyway) * A contract can be set aside for a mistake if one or both parties can show the obvious error |
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a. which contracts are void and which ones are illegal? What is the difference between illegal and void contracts? b. which contracts need to be in writing to be enforceable? |
a.if they are illegal by statue or contrary to public policy b. Not all contracts need to be in writing to be enforceable unless you are dealing with contracts for : 1 - guarantee 2 - not to be performed within one year 3 - dealing with land |
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How is a contract terminated? PAFB |
A contract can be terminated through: 1. Performance (both fulfill obligations) 2. Agreement (walk away or pay sum) 3. Frustration (end due to unforeseen events) 4. Breach (innocent party may be released) *damages only for a breach of contract |
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How can a contract be legally terminated by agreement? EVES |
Parties may enter into an agreement that becomes unfavorable for one or both of them. In response, they may decide to: 1. enter into a whole new contract 2. vary certain terms of the contract 3. end the contract 4. substitute a party |
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When is a contract frustrated? What is the force majeure clause? |
A contract is frustrated upon the occurrence of an "unforeseen catastrophic event that makes the contract impossible or prevents the contract from being performed"
*the event must be:
1. be unforeseen 2. not arise due to fault of the parties 3. make purpose of contract impossible 4. not to be a risk to occurrence Force Majeure - a clause that deals with the risk of unforeseen events. It allows one party to delay to even terminate a contract in the event of unexpected disruptive events such as: 1. natural disaster 2. military action 3. Labour problems |
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When does a breach of contract terminate a contract? give examples |
A breach occurs when the obligations are not fulfilled and virtually every breach gives the innocent party the right to a remedy such as: 1. condition 2. warranty 3. Innominate term 4. Fundamental breach 5. Anticipatory breach |
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What are the remedies for breach of contract? what is the purpose of damages for breach of contract? |
the remedies for breach of contract can be, punitive, pecuniary or non pecuniary damages. The purpose is to compensate the innocent party with rescission. |
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What are the limits to damages for breach of contract? |
that non pecuniary damages are rarely awarded |
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What are torts? How are torts classified? |
a tort is harm caused by one person to another, other than through breach of contract, and for which the law provides a remedy. Torts are classified either by : 1 - intentional tort 2 - false imprisonment |
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Why is tort law important to business? |
because it acts a deter-ant for unlawful business practices that do harm by protecting the rights of individuals |
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How are damages calculated in tort law? |
damages = plaintiff's loss in value + any other (reasonably foreseeable) loss Non- pecuniary damages can be awarded for: - Pain and suffering - loss of enjoyment of life - loss of life expectancy Pecuniary damages can be awarded for: -cost of future care -loss of future income -special damages (out of pocket expenses) |
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What are the steps in negligence action? DSCR |
1. Does the defendant owe the plaintiff a duty of care? If yes then proceed to #2 2. Did the defendant breach the standard of care? if "#3 3. Did the defendants careless act (or omission) cause the plaintiff's injury? If "#4 4. Was the injury suffered by the plaintiff too remote? If not plaintiff has proven negligence |
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What is the test for determining whether a defendant owes a plaintiff a duty of care? |
a defendant owes a duty of care to anyone who might reasonably be affected by the defendants conduct (known as neighbor principle) |
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How does the law determine whether the defendant breached the duty of care? |
in general the defendants conduct is judged according to the standards of behavior that would be observed be the reasonable person in society. |
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How does the law determine whether there is a casual connection between the defendants breach and the plaintiffs loss? |
would the harm not have occurred but for the defendant's actions? |
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When is the damage suffered by the plaintiff too remote? |
when the absence of a sufficiently close relationship between the defendants actions and plaintiff's injury |
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What is the defenses to negligence? |
the defense is a negligent action could be: -contributory negligence (both parties negligent) -voluntary assumption of risk (no liability exists as the plaintiff agreed knowing the risk) |
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Occupiers liability |
describes the liability that occupiers have to anyone who enters onto their land or property |
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Nuisance |
any activity on an occupiers property that unreasonably and substantially interferes with the neighbor's rights to enjoyment of the neighbors own property |
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Trespass |
wrongful interference with someones possession of land |
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False imprisonment |
unlawful detention, physical restraint or coercion by psychological means |
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Assault |
threat of imminent physical harm by disturbing someones sense of security |
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Battery |
intentional infliction of harmful or offensive physical contact |
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Defamation |
the public utterance of a false statement of fact or opinion that harms another's reputation |
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Invasion of Privacy |
intentional, offensive invasion of another personal affairs without lawful jurisdiction |
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Describe the defenses available for intentional torts. |
1. Contributory negligence - a defense claiming that the plaintiff is at least partially responsible for the harm that has occurred 2. Vicarious Liability - the liability that an employer has for the tortious acts of an employee in the ordinary course of employment |
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How can tort risk be managed? DWCRI |
tort risk can be managed by asking the following questions: 1- are there any dangers on the property? 2- Are adequate warnings and protections given to the visitors? 3- are the know trespassers, in particular children, who come onto the property? 4- what could be done to eliminate or reduce the risk flowing from the dangers? 5- is adequate insurance in place? |
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deceit |
a false representation intentionally or recklessly made by one person to another that causes damage |
