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119 Cards in this Set
- Front
- Back
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Innocent misrepresentation |
people rely on an innocently misrepresented material fact can later avoid a resulting contract because of lack of genuine assent. |
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Duress
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use of restraint, violence, or threats of violence to compel a party to act contrary to his or her wishes or intentions |
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Undue influence |
the improper use of power or trust to deprive a person of free will and substitute another’s objective, resulting in lack of genuine assent to a contract. |
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Interpretive rule |
providing guidance for agency staff or regulated parties, but lacks the force and effect of law and is not binding on individuals. |
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Procedural rule
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prescribes procedures for agency operations, legislative rulemaking and adjudication proceedings. |
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Legislative rule
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rule from statutory delegation of authority and has same force as law enacted by Congress or legislative |
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Administrative procedure Act (APA)
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procedure for admin. Agency rulemaking at a federal level. |
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Subpoena
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is a legal order to a witness to appear at a certain place and time to testify or to produce documents. |
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subpoena ad testificatium
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command to testify or simply a subpoena
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subpoena duceds tecum
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command to bring things with you (documents). |
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Standing to sue
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party’s right to sue as the one suffered or will suffer a legal og or averse effect from an action.
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Aggrieved
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order has substantially affected his or her rights. |
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Contract
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legally enforceable agreement between two or more parties in which each party makes some promise to the other
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Promisee
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party to a contract whom a promise is made
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Promisor
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party to a contract making a promise
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Privity of contract
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relationship that exists between parties to a contract
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Third-party beneficiary
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person who is not a party to a contract but who benefits from it and has legal rigt to enforce the contract if it is breached by either party |
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Breach of Contract
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failure, without legal excuse, to fulfill a contractual promise.
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Unilateral contract
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contract only one party makes a promise or undertakes the requested performance.
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Bilateral contract
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contract completely performed by both parties.
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Executed contract
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contract that has been completely performed by both parties.
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Executory contract
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has not been completely performed by one or both parties.
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Implied contract
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terms and intentions are indicated by the actions of the parties to the contract and the surrounding circumstances.
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Express contract
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terms and intentions are explicitly stated |
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Implied in fact contract
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not express but parties presumably intended, either by tacit understanding or by the assumption that it existed.
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Implied in law contract
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obligation that is not actual contract but that is imposed by law because of the parties conduct or some special relationship between them or because one of them would otherwise be unjustly enriched.
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Voidable contract
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contract that one of the parties can reject or avoid based on some circumstance surrounding its execution.
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Void Contract
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agreement despite intentions never reaches contract status and is therefore not legally enforceable or binding.
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Offer
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promise requires some action by recipient to make and agreement. |
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Lapse of time
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definite amount or reasonable amount of time has passed. Subject to contract and commercial setting. Once a contract offer is terminated, any attempted acceptance becomes a counteroffer, which original offeror can accept or reject.
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Operations of law
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event prior to acceptance- rules apply automatically without any act by the parities. i.e contract no longer valid if illegal after contract was agreed upon.
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Offeree’s rejection
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offeree notifies he offeror either rejection, counteroffer or acceptance
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Counteroffers
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proposal an offeree makes to an offeror that varies in some material way from the original offer, resulting in rejection of the original offer and constituting a new offer. |
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Offeror’s revocation
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Generally an offeror can revoke, or withdraw their offer any time before acceptance. Similarly offer itself, revocation only applicable when communicated, in this case to the offeree, and only when the offeree actually receives it. Similarly, offer mails a revocation but offeree accepts the offer by telephone before receiving the mailed revocation, a contract exists.
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Counteroffer
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proposal an offeree makes to an offeror that varies in some material way from the original offer resulting in rejection of the original offer and constituting a new offer. |
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Forebearance
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act of giving up or the promise to give up a legal right.
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Substantial performance
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performance of the primary, necessary terms of an agreement.
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Capacity to contract
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some parties are considered incapable of entering into legally binding contracts.
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Competent party
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party to a contract who have basic or minimal ability to do something and the mental ability to understand problems and make decisions.
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Restitution
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return of specific property by court order.
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Insane persons’ contracts
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agreements are void. |
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Two classes of insaine persons
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1.Adjudged insane 2.Those who claim insanity or mental incompetence. |
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Intoxicated persons’ contracts
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generally person who is intoxicated cannot avoid the contract. Exceptions are the same as insanity proof that lack of knowledge of contract forming or didn't understand the binding legal consequences. |
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Artificial entities’ contracts
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corporations, although artificial creations of the state, are people in law.
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Consideration
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something of value or bargained for and exchanged by the parties to a contract. |
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Good consideration
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consideration based on natural love of affection, or on moral duty, that is not sufficient to support a contract.
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Valuable consideration
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consideration is necessary and sufficient to support a contract. |
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Bona Fide or good faith disputes
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disputes about amounts of money owed, parities believe they are just. Usually damage to property or injury to person.
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Accord and satisfaction
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agreement (accord) to substitute performance other than that required in a contract and the carrying out of that agreement (satisfaction).
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promissory estoppels
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legal principal that permits enforcement of a promise made without consideration in order to prevent injustice.
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Charitable subscriptions |
pledge of money to a charitable organization that depends on voluntary contributions, the obligation involve more than a gratuitous promise to make a gift the commitment is fully binding on the pledging party as if consideration had supported it. |
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Insurable interest
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interest in the subject of an insurance policy that is not unduly remote and that would cause the interested party to suffer a financial loss if an insured event occurred.
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Usury contracts
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charging an illegally high rate of interest on a loan.
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Wagering contracts
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gambling |
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Genuine assent
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contracting parties’ actual assent to form a contract or their indication of intent to contract by their actions and words.
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False representation
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representation is a statement of fact of opinion made by the insured when applying for insurance usually in response to a question from the insurer
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material fact
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fact that would affect the insurer’s decision to provide or maintain insurance or to settle a claim.
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International corporate tax earnings approaches
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Territorial tax systems, Worldwide tax systems, Border tax adjustments, earnings stripping, inversion ( or expatriation, or reincorporation)
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factors for offshore tax haven
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Countries following attributes tax structure, level of enforcement of its privacy laws, language, type of judicial system, political stability, independence from the parent company's home country, and costs of establishing in the country
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corporate tax haven structures
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low or minimum taxes, no corporate taxes, no taxes on foreign income, special tax considerations
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international business challenges
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language barrier, cultural differences, time differences between counties, physical distance and space between countries, and government structure. |
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modern democratic forms of government
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1 non party democracy 2 parliamentary democracy 3 presidential democracy 4 multiparty democracy |
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non-party democracy
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form of government in which elected representatives have no political party affiliation.
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parliamentary democracy
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form of government ruled by a prime minister and an elected parliament
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presidential democracy
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governed by a president directly elected by citizens
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multiparty democracy
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form of government in which representatives may be elected from several or many political parties.
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absolute monarchy
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rules alone and selects advisers for assistance
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constitutional monarchy
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a parliament, or democratic legislative body, replaces absolute monarchical rule. |
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expropriation
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government's lawful acquisition of property without owner's consent and often without fair compensation |
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eminent domain
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government's power to confiscate private property for public use. US constitution require just compensation for property taken by eminent domain.
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financial considerations for international insurance markets
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currency and foreign exchange markets, expropriation, accounting issues, taxation issues, tax havens.
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Patriot act section 352
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prohibits financial institutions from knowingly becoming involved in unlawful transactions with suspected terrorists and requires that companies establish and maintain written anti-money-laundering programs that at minimum meet 1 incorporate internal policies, procedures, and controls based on the company's assessment of its money-laundering risks 2 designate a compliance officer 2 establish ongoing employee- training programs as well as independent audit functions to test programs. |
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Patriot Act Subtitle B (Sections 351 to 366)
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amends the banking and finance laws to permit the government access to information from banks that might relate to terrorism. Additionally section 351 allows the secretary of the treasury to impose sanctions including cutting off all dealing with US financial institutions or banks in foreign nations whose bank secrecy laws deny information to US agencies.
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Patriot Act Section 215
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revises the Foreign Intelligence Surveillance Act (FISA) to allow the FBI to subpoena all business records for foreign intelligence and international terrorism investigations.
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Foreign Corrupt Practices Act (FCPA)
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prohibits payments to foreign officials to keep business, restore public confidence in the integrity of the US business system, also requires companies who list their securities in the US to meet certain accounting provisions.
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Repatriation of Earnings
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process by which US parent company moves earnings from its foreign based affiliates back to the US to the parent company or stockholders.
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Asia-Pacific Economic Cooperation (APEC)
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attempted to facilitate economic growth, cooperation, trade, and investment in the Asia-Pacific region and is the only intergovernmental body that operates on the basis of nonbinding commitments, open dialogue, and equal respect for the views of all participant countries. |
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public international law
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concerns the interrelation of nation states and is governed by treaties and other international agreements. |
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comity
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practice by which one country recognizes, within its own territory or in its courts, another country's |
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private international law
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concerns disputes between individuals or corporations in different countries. |
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international court cases
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determine jurisdiction over the person or entity (in personam jurisdiction) and subject matter (in jes jurisdiction) and if they have the jurisdiction to render the particular judgement in the case.
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in personam jurisdiction
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jurisdiction over the person or entity
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in jes jurisdiction
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jurisdiction over the subject matter
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United nations purposes
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maintain international peace and security, develop friendly realtions among nations, cooperate in solving international economic, social, cultural and humanitarian problems, promote respect for human rights and fundamental freedoms, to be a center for harmonizing the actions of nations in attaing these goals. |
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Three primary World Trade Organizations (WTO) agreements |
1 The General Agreement on Tariffs adn Trade (GATT) 2 The General Agreement on Trade in Services (GATS) 3 The Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS Agreement) |
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North American Free Trade Act (NAFTA) |
eliminated nearly all tariffs between US and Canada by 1998 and the US and Mexico by 2008. |
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Association of Southeast Asian Nations (ASEAN) purposes
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1 accelerating the economic growth, social progress, and cultural development of the region through endeavors in the spirit of equality and partnership to strengthen the foundation for a prosperous and peaceful community of Southeast Asian nations 2 promoting regional peace and stability through respect for justice and the rule of law in the relationship among countries in the region and adherence to the principals of the UN charter.
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international sales contract concerns include
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import and export controls, terms of sale, and method of payment
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business licenses to regulate imported goods in the US
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goods will be imported into the country on more favorable terms than if domestic companies competed for the goods for use or resale.
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United Nations Convention of Contacts for the International Sale of Goods (CISG) facilitates international trade
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provides rules for writing interntional contracts and for the transfer of goods under the contracts.
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open account
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rotating charge account under which the buyer settles the account at determined intervals. with letter of credit, buyer establishes credit with the local bank, which then contacts a bank in the seller's country, establishing a credit line in favor of the seller. The seller then receives a letter of credit in confirmation of credit.
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international agreement requirements
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assess the trustworthiness of the foreign company, and ability to meet financial requirements of the licensing agreement
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franchising
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control over the use of the company's name and the quality of the product or service.
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major legal systems used in most of the world
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civil-law system and the common-law system
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Three stages of civil-law cases
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1 preliminary stage 2 evidence stage 3 decision stage
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common-law system
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judge interprets the facts of the case, examines precedents, and makes a decision based on the facts in the current case. |
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six major types of unincorporated associations
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1 trade associations 2 labor unions 3 benevolent and fraternal organizations 4 religious organizations 5 clubs 6 condominium owners' associations
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trade associations
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foster members' interests by exchanging and compiling information, lobbying, setting standards, and issuing publicity. largest group of unincorporated organizations
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labor associations
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second largest group of unincorporated organization. local unions as well as national organizations representing multiple smaller unions, may be formed as associations.
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benevolent or fraternal associations
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if providing insurance must comply with state laws governing such issues.
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clubs
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associations of persons for some common objective such as social purposes.
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condo association
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owners are responsible for the condo's operation and the care and preservation of the common areas.
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partnership agreement
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fifty fifty unless special provisions apply this applies to profit and at time of dissolving the agreement
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rightful dissolution of partnership
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is in accordance with the partnership agreement and is not any partner's fault. The partnership is liquidated and assets distributed.
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wrongful disolutions of partnership
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there is fault on the part of one or more partners. The innocent partners can either liquidate the business or continue the business for the remainder of the partnership term. If they choose to continue, the remaining partners must pay the wrongful partner his or her share of the assets, less any damages the wrongful dissolution caused. |
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partnership by estoppel requires three elements
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1 person who is not a partner acts as if he or she is a partner or permits others to think he or she is a partner. 2 a third party deals with the entity in justifiable reliance on a belief that it is a partnership or that the person who claims to be a partner is actually a partner. 3 third party changes his or her legal position because of reliance on that belief, such as entering into a contract. partnership by estoppel
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the person who permitted the appearance is liable to the third party tot he same extent an actual partner would be. In addition, the presumed partner has the power to bind the partnership, just as an actual partner would.
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partnership formations
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actions as partners, oral agreement, written agreement.
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partners
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two or more persons who agree to work together in any kind of activity and share the profits and losses, although not necessarily on an equal basis. does not need physical assets but must have profit as a goal.
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partnership advantages
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income is taxable at each individual partner's tax rate rather than at a rate that would apply to a corporation.
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voluntary corporate dissolution
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begins with board resolution to dissolve the corporation, approved by a majority of the stockholders. The corporation files a "statement of intent to dissolve" with the state and then proceeds with liquidation.
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Involuntary corporate dissolution
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the state of incorporation, the stockholders, or corporate creditors file for involuntary dissolution proceedings.
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hostile takeover
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making tender offer for shareholders' stock and thus acquiring sufficient stock to become eligible to vote on the board of directors. or obtaining sufficient proxies from the unwilling target company's stockholders (often by offering a higher share price than what it currently trades at) in order to elect its own board of directors or to vote for a merger.
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share exchange merger
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corporation acquires all of another corporation's outstanding shares in return for shares of the acquiring corporation.
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de facto merger
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one corporation sells all or most of its assets to another corporation, in return for the purchasing corporation's shares, for distribution to its stockholders.
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redemption
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process of re-acquiring company issued securities by repurchasing them. applies to all non-voting stock but cannot apply to all common voting stock. can redeem stock only if its assets exceed its liabilities, including any obligations to preferred stockholders in the event of dissolution.
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redemption advantages include
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1 reduction in number of shares resulting in a stronger return on investment. if earnings are static, earnings will increase with fewer shares. 2 less attractive for takeover by reducing excess cash and increasing the value of the stock.
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Fiduciary under ERISA (employee retirement income security act)
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directors and officers have duty to act solely in the plan participants' interest, to exercise care and skill of a reasonable person conducting a similar enterprise,to diversify investments unless it is clearly unreasonable to do so, and to act in accordance with the plan documents.
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stockholders may file class action law suit when
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transaction damages multiple stockholders.
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three types of stockholder suits
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1 damages for fraud, such as failure to make a full disclosure in connection with a public stock offering. 2 individual stockholder may sue to seek remedy for direct harm, injury sustained while engaged in company business. 3 filed on behalf of the corporation by one or more of the stockholders, called derivative action, if an outside auditing firm negligently audited the books of the operation. |
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