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138 Cards in this Set
- Front
- Back
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original jurisdiction
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this is what we traditional see. The court is usually referred to as a trail court. It has the power to initially hear and decide cases
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appellate jurisdiction
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the court has the power to review previous decision to determine whether the trial court made any errors
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personam jurisdiction
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the power to render a decision affecting the specific person before the court. The plaintiff must first file a complaint toward the defendant. After viewing the complaint, a summon is given which notify the defendant of the pending case. The summon must be served to the defendant. Traditionally, they are served by sheriff. Once defendant is properly served, the court has in personam jurisdiction over the defendant.
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long-arm statutes
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the two parties have to have a certain amount of contacts with each other in order for a plaintiff to file a complaint in his home state. Additionally, the defendant will have to travel to the plaintiff’s state if the long-arm statutes are met
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In rem jurisdiction
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were a defendant has property within a state. The plaintiff can seek action directly against the property rather than against the owner. Ex. Man from Oregon have house in California but no long pays house tax. California then has in rem jurisdiction.
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1. state jurisdiction
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many cases fall into the state jurisdiction. Some of which includes breach of contract, divorces… etc.
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2. exclusive federal jurisdiction
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cases that deals with fed. Examples… admiralty, bankruptcy… etc.
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3. concurrent federal jurisdiction
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where hearing can be heard in both fed and state court. An example would be constitutional rights.
a. To be in a federal court there are two criteria i. The amount sue is or more than 75,000 ii. The two must be from different states…diversity b. The benefits of a fed. is fear of local prejudice in a state court |
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1. federal trial court
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also known as courts of original jurisdiction
a. deals with bankruptcy case, claim against the U.S. Gov., copyright, paten. Also cases that are controversial btw two or more states. |
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2. intermediate courts of appeal
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a. second level of courts
b. each circuit appeals hears appeals from all of the district courts located within its geographic area |
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3. court of last resort – supreme court
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a. final appellate court in federal system
b. can function as a trial court |
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Attorney-client privilege
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For an attorney to help you fully, all information is needed. Attorney-client privilege is created to encourage client honesty. Information that furnished in confidence to an attorney, in conjunction with a legal matter, may not be revealed by the attorney without permission from the client.
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power of judicial review
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a. has power to determine whether a law passes by legislature violates the constitution
b. judicial activism i. philosophy that says the courts need to take an active role in encouraging political, economic, and social change c. judicial restraint i. philosophy that says courts should refrain from determining the constitutionality of a legislative act unless absolutely necessary and that social, political, and economic change should come out of the political process. |
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The Jury
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Petit juries – around 6 to 12 people.
2. Grand juries – used only in criminal trails. Evidence are given to these grand juries where they decide if the case should go on to trial |
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Criticisms of the adversary system
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some ppl criticize the system because not all evidence are bought forward. If the opponent side finds evidence that would help the other side, they would discard it and not tell the other side. Furthermore, it is very expensive and time consuming. In addition, some feel that the law favors the wealthy because only the wealthy can afford a GOOD attorney. Finally, some say that other ppl (repeat players, RP) have a greater advantage over the one-shotters (OS). If the one-shotters goes against a RP then the RP will most likely be favored because they experienced the court system.
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Pretrial stage
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Pleading – papers filed by a party in court and then served on the opponent.
Service of process – lets the court have in personam jurisdiction over the defendant Motion to dismiss – defendant’s application to the court to put case out of judicial consideration because even if the plaintiff’s factual allegations are true, the plaintiff is not entitled to relief. Counterclaim – the defendant can file a counterclaim that is much like a complaint to the other side. If the defendant files a counterclaim, the plaintiff will most likely file a reply. In which it answers the defendant’s complaint. |
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Pretrial motion
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– any one of the party can motion…for ex. a dismissed or other motions that will either give the defendant time to get things together. Every time a motion is brought up, a copy goes to the other side. The other side’s attorney may advised/request the judge to dismiss the motion. However, the judge has the final ruling.
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Discovery
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the pretrial gathering of information form each other by the parties. There are many ways to go about getting information from the oppose party.
a. interrogatories – a series of written questions that are sent to the opposing party, who must truthfully answer them under oath. The interrogatories are frequently accompanied by a request to admit certain facts. b. request to produce documents or other items. Unless the information requested is privileged or is irrelevant to the case, it must be produced |
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Deposition
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pretrial testimony by witnesses who are examined under oath. It is mostly used so that there’s no inconsistency during trail.
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Pretrial conference
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– to find all the facts that both party agrees on to make the trial go faster. If no agreements are met then they are discuss in the trial
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Stages of the Trial
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1. jury selection
2. opening statement 3. plaintiff's case 4. defendant's case 5. conference on jury instructions 6. closing arguments 7. post trial motion |
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Voir dire
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process where the judge and attorney questions potential jurors to see if there’s any bias
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Appellate procedure
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the court may accept the decision of the lower court and affirm that decision. The court may find that the decision was correct but not the remedy, so they will modify the remedy. Furthermore, if the court decides that the lower court was incorrect then the decision will be reversed. Finally, if the court finds an error that might have a different outcome, they will remand the case to the lower court for a new trail.
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Supreme court appeal
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file petition with the court, asking it to issue a writ of certiorari, which is an order to the lower court to send to the supreme court the record of the case. court will issue a writ if 4 of the judges agreed. And with criteria
1. case presents a substantial federal question that has not yet been addressed by the supreme court 2. the case involves a matter that has produced conflicting decisions from the various circuit courts of appeal and is, therefore, in need of resolution 3. a state court of last resort holds that a federal law is invalid or upholds a state law that has been challenged as violating federal law 4. federal court has ruled that an act of congress is unconstitutional |
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Pretrial stage
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Pleading – papers filed by a party in court and then served on the opponent.
Service of process – lets the court have in personam jurisdiction over the defendant Motion to dismiss – defendant’s application to the court to put case out of judicial consideration because even if the plaintiff’s factual allegations are true, the plaintiff is not entitled to relief. Counterclaim – the defendant can file a counterclaim that is much like a complaint to the other side. If the defendant files a counterclaim, the plaintiff will most likely file a reply. In which it answers the defendant’s complaint. |
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Pretrial motion
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– any one of the party can motion…for ex. a dismissed or other motions that will either give the defendant time to get things together. Every time a motion is brought up, a copy goes to the other side. The other side’s attorney may advised/request the judge to dismiss the motion. However, the judge has the final ruling.
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Discovery
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the pretrial gathering of information form each other by the parties. There are many ways to go about getting information from the oppose party.
a. interrogatories – a series of written questions that are sent to the opposing party, who must truthfully answer them under oath. The interrogatories are frequently accompanied by a request to admit certain facts. b. request to produce documents or other items. Unless the information requested is privileged or is irrelevant to the case, it must be produced |
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Deposition
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pretrial testimony by witnesses who are examined under oath. It is mostly used so that there’s no inconsistency during trail.
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Pretrial conference
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– to find all the facts that both party agrees on to make the trial go faster. If no agreements are met then they are discuss in the trial
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Stages of the Trial
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1. jury selection
2. opening statement 3. plaintiff's case 4. defendant's case 5. conference on jury instructions 6. closing arguments 7. post trial motion |
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Voir dire
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process where the judge and attorney questions potential jurors to see if there’s any bias
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Appellate procedure
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the court may accept the decision of the lower court and affirm that decision. The court may find that the decision was correct but not the remedy, so they will modify the remedy. Furthermore, if the court decides that the lower court was incorrect then the decision will be reversed. Finally, if the court finds an error that might have a different outcome, they will remand the case to the lower court for a new trail.
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Supreme court appeal
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file petition with the court, asking it to issue a writ of certiorari, which is an order to the lower court to send to the supreme court the record of the case. court will issue a writ if 4 of the judges agreed. And with criteria
1. case presents a substantial federal question that has not yet been addressed by the supreme court 2. the case involves a matter that has produced conflicting decisions from the various circuit courts of appeal and is, therefore, in need of resolution 3. a state court of last resort holds that a federal law is invalid or upholds a state law that has been challenged as violating federal law 4. federal court has ruled that an act of congress is unconstitutional |
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Pretrial stage
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Pleading – papers filed by a party in court and then served on the opponent.
Service of process – lets the court have in personam jurisdiction over the defendant Motion to dismiss – defendant’s application to the court to put case out of judicial consideration because even if the plaintiff’s factual allegations are true, the plaintiff is not entitled to relief. Counterclaim – the defendant can file a counterclaim that is much like a complaint to the other side. If the defendant files a counterclaim, the plaintiff will most likely file a reply. In which it answers the defendant’s complaint. |
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Pretrial motion
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– any one of the party can motion…for ex. a dismissed or other motions that will either give the defendant time to get things together. Every time a motion is brought up, a copy goes to the other side. The other side’s attorney may advised/request the judge to dismiss the motion. However, the judge has the final ruling.
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Discovery
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the pretrial gathering of information form each other by the parties. There are many ways to go about getting information from the oppose party.
a. interrogatories – a series of written questions that are sent to the opposing party, who must truthfully answer them under oath. The interrogatories are frequently accompanied by a request to admit certain facts. b. request to produce documents or other items. Unless the information requested is privileged or is irrelevant to the case, it must be produced |
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Deposition
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pretrial testimony by witnesses who are examined under oath. It is mostly used so that there’s no inconsistency during trail.
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Pretrial conference
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– to find all the facts that both party agrees on to make the trial go faster. If no agreements are met then they are discuss in the trial
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Stages of the Trial
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1. jury selection
2. opening statement 3. plaintiff's case 4. defendant's case 5. conference on jury instructions 6. closing arguments 7. post trial motion |
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Voir dire
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process where the judge and attorney questions potential jurors to see if there’s any bias
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Appellate procedure
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the court may accept the decision of the lower court and affirm that decision. The court may find that the decision was correct but not the remedy, so they will modify the remedy. Furthermore, if the court decides that the lower court was incorrect then the decision will be reversed. Finally, if the court finds an error that might have a different outcome, they will remand the case to the lower court for a new trail.
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Supreme court appeal
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file petition with the court, asking it to issue a writ of certiorari, which is an order to the lower court to send to the supreme court the record of the case. court will issue a writ if 4 of the judges agreed. And with criteria
1. case presents a substantial federal question that has not yet been addressed by the supreme court 2. the case involves a matter that has produced conflicting decisions from the various circuit courts of appeal and is, therefore, in need of resolution 3. a state court of last resort holds that a federal law is invalid or upholds a state law that has been challenged as violating federal law 4. federal court has ruled that an act of congress is unconstitutional |
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Federalism
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a. The means that the authority to govern is divided between two sovereigns or supreme lawmakers. (in the US, state and federal govs)
b. Allocates the power to control local matters to local governments. c. All powers that are neither given exclusively to the federal gov nor taken from the states are reserved to the states. |
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Supremacy Clause (Article VI)
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a. Provides that the Constitution, laws, and treaties of the US constitute the supreme law of the land.
b. This principle is also known as federal supremacy. |
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Federal Preemption
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a. Used to strike down a state law that, although does not directly conflict with a federal law, attempts to regulate an area in which federal legislation is so pervasive that it is evident that the US Congress wanted only federal regulation in that general area.
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Commerce Clause
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a. Provides the basis for most of the federal regulation of business today
b. Empowers Congress to regulate commerce with foreign nations (tariffs, treaties) and among the states. c. NLRB V. Jones & Laughlin Steel Corp- although activities may be intrastate when separately considered, they have such a close and substantial relationship to interstate commerce that their control is essential to protect that commerce from burdens or obstructions, Congress cannot be denied the power to exercise that control” e. Courts attempted to resolve the conflict over the extent of regulation by distinguishing between regulations of commerce and regulations under the state police power. |
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Article 1, Section 8
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a. Gives the federal government the power to lay and collect taxes, duties, imports, and excises.
b. Gives Congress its spending power by authorizing it to ‘pay the Debts and provide for the common Defense and the General Welfare of the US.” |
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First Amendment
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i. Guarantees freedom of speech and of the press, prohibits the abridgment of the right to assemble peacefully and to petitions for redress of grievances, and prohibits the government from aiding the establishment of a religion and from interfering with the free exercise of religion.
ii. See pg 127 for Central Hudson Gas & Electric v Public Service Commission of New York iii. Commercial Speech 1. A speech done on behalf of a company or individual for the intent of making a profit. It is economic in nature and usually has the intent of convincing the audience to partake in a particular action, often purchasing a specific product. iv. Corporate Political Speech 1. Funds to support political candidates or referenda. |
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Fourth Amendment
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i. Protects the right of individuals to be secure in their persons, their homes, and their personal property; prohibits the government from conducting unreasonable searches and seizing their property to use as evidence against them
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Fifth Amendment
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i. Due Process Clause- Provides that one cannot be deprived of life, liberty, or property without due process of law
1. Procedural Due Process a. Requires that a criminal whose life, liberty, or property would be taken by a conviction be given a fair trail 2. Substantive Due Process a. Refers to the fact that when a law is passed that will restrict individuals’ liberty or their use of their property, the government must have a proper purpose for the restriction, or else it violates substantive due process. |
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The 14th Amendment
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a. Extends most of the provisions in the Bill of Rights to the behavior of states, prohibiting their interference in the exercise of those rights.
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Enron - CFO
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Andy Fastow “….rip their face off!”
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Contract
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A legally enforceable exchange of promises or an exchange of a promise for an act.
It brings predictability and accountability to the exchange. Example: if a manufacturer agrees to supply a retailer with 100 widgets a month, the retailer can then advertise that supply. If the manufacturer only supplies 50, they are reneging on the contract, which is enforceable in a court of law. |
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Sources of Contract Law
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Contract Law is groundd in (common law) Case law of state and federal courts.
Originates with the law of English courts. Governs contracts dealing with real property, personal property, services and employment contracts. |
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State and federal statutory law
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Particularly the Uniform Commercial Code (UCC)- generally governs contracts for the sale of goods. It is a set of commercial laws applicable to all states. (Only on goods)
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Article 2 of UCC
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Allows more liberal requirements to form and perform contracts than common law.
Governs the sales of goods in all states except Louisiana. Defines sale as the passing of the title of goods from buyer to seller for a price. Defines goods as tangible (physical revsed) personal property. |
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Express Contract
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An exchange of oral or written promises between parties, which are enforceable in a court of law. (any oral)
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Deontological
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Duty based “Golden Rule”
Absolute Deontological – absolute principles applied to all equally without regard to consequences (Immanuel Kant) rules and principles determine whether actions are ethically good or bad. -if it is ethically good or bad is determined by a persons moral compass and -adopts universal principles that are applied to all equally |
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Humanist
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Good and bad based on what they contribute to inherent human capabilities: intelligence, wisdom and self restraint (natural law/reason)
evaluate actions as ethically good or bad depending on what they contribute to improving inherent human capacities such as intelligence wisdom and self restraint |
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Judeo-Christian Principles
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eg. ten commandments.
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Virtues
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(Aristotle/St. Thomas Aquinas) – theological (faith, hope and charity) and intellectual virtues (wisdom, justice and temperance
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Egoism
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enlightened pursuit of self interest
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Implied Contract
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One that is established by the conduct of a party rather than by the party's written or spoken words.
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Unilateral Contract
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An exchange of a promise for an act... intangible for tangible
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Bilateral Contract
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The exchange of one promise for another promise
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Consequential Theories
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Act Utilitarianism
Rule Utilitarianism Businesspeople who adhere to consequential theory of ethics judge acts as ethically good or bad based on whether the acts have achieved their desired results. -theory is best used by the utilitarian which is 1)act utilitarianism and rule utilitarianism- they both measure all conducts of the organization based on whether it brings net happiness to the society or not 1) If bribing someone to earn profit and it makes society better then it makes it worth it. |
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Corporate Codes of Ethics
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since 1960 about 90% of companies have created a code of conduct
-most apply to middle to upper management -things that are usually forbidden are 1) Paying bribes to foreign government officials 2) Fixing prices 3) Giving gifts to customers or accepting gifts from suppliers 4) Using insider information 5) Revealing trade secrets |
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Industry Code of Ethics
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most codes of ethics address areas such as:
1) Honest and fair dealings with customers 2) Acceptable levels of safety, efficacy and cleanliness 3) No deceptive advertising 4) Maintenance of experience and trained personnel, competent Sets of do not |
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Professional Code of Ethics
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• Under the foreign corrupt practices act of 1977, a lawyer is force to disclose the intention of a company to bribe a high level foreign official.
• Professionals have the following characteristics: o Pre-licensing mandatory university educational training, as well as continuing education requirements o Licensing-examination requirements o A set of written ethical standards that is recognized and continually enforced by the group o A formal association or group that meets regularly o An independent commitment to the public interest o Formal recognition by the public as a professional group |
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Profit-oriented school
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o Business entities are distinct organizations in our society whose sole purpose is to increase profits for shareholders. Money is its motivator
o Classical economist who advocate this position, recognize that there will be unintended effects of profit-seeking activities (externalities) • Individual businesses are not expected to incorporate in their products price the cost of cleaning up water or air because it is the government’s responsibility. • The sole responsibility of a business is to seek profits of its shareholders, not pollution control, upgrading minority workers, and bringing equality of payment to the workforce |
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• Managerial School
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o Advocated of this theory argue that business entities (particularly large ones) have a number of groups that they must deal with. The sole purpose of the firm is to make the most profit
o They include not only stockholders but also employees, customers, activist groups, and government regulators, all of whom may make claims on the entities’ resources. |
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• Institutional School
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o Business entities have responsibility to act in a manner that benefit all society such as:
• Churches, unions, courts, universities, and governments. • Whether a single proprietorship, partnership or corporation, • Benefits everyone |
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• Professional Obligation school
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o Business managers and members of board of directors must be certified as “professionals” before they assume managerial responsibilities. They must have a responsibility to the public interest beyond making profits. They Sarbanes-Oxley Act may be leading in that direction.
o Advocates of a professional obligation theory argument that business directors and manager, like doctors, lawyers have responsibility to the public beyond merely making profits and that the public must be able to be sure that they are qualified to hold their positions. o Professionals are responsible for their unintended effects of their profit-making activities (externalities) |
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• Regulation school
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o All business units are accountable to elected officials. See the Sarbanes-Oxley act, as to dealing with independent financial audits.
o Proponents of this theory argue that, because business managers are responsible only to a board of directors that represents shareholders, the corporation cannot be trusted to act in a socially responsible manner. o If society is to be protected from the unintended effects of profit-making business activities, it is necessary for the government to be involved. |
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Social Responsibility of Business
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of business is defined as a concern by business about both its profit seeking and its non-profit seeking activities and their intended and unintended impact on groups and individuals other than managers or the owners of a corporation
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Void Contract
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One that at it's formation has an illegal object of serious defects (faults)
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Voidable Contract
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One that gives one of the parties the option of withdrawing. Finding something that they can void
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Valid Contract
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One that meets all legal requirements for a fully enforceable contract.
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Executed Contract
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One for which all the terms have been performed. (Contract writing and they go through with it).
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Quasi- Contract
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A court- imposed agreement to prevent the unjust enrichment of one party when the parties had not really agreed to an enforceable contract. (No proof... can say there was a contract)
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Soc. Responsibility of Business-definitions
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Interdependence – no individual or business is an island unto itself. The firm depend on the public and the public on the firm for good conduct.
Political influence – gov. sees solution in form of more regulation Philosophical differences – about what should be the obligation of the business. Ex. Neo classical…profit for the shareholder |
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Legal Offer
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An offer that shows objective intent to enter into the contract, is definite, and is communicated to the offeree.
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Requirements of a Legal Offer
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1. The offer must show objective intent to enter into the contract.
2. The offer must be definite; that is there must be some reference to subject matter, quantity of items being offered, and price of the items. 3. The offer must be communicatd to the party (offeree) intended by the offeror. (Have to state all of the conditions) |
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Legal Acceptance... accepting legal offer
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An acceptance that shows objective intent to enter into the contract that is communicated by proper means to the offeror, and that mirrors the terms of the offer.
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Requirements for Legal acceptance
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1. An intent to accept must be shown by the offeree.
2. The intent must be communicated by proper means. 3. The intent must satisfy or "mirror," the terms of the offer... It will be counter offered if it's not the same. |
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Consideration
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A bargained-for exchange of promises in which legal detriment is suffered by the promise. Studen accept his mothers promise of going to bar... if not going to it... then she'll give him $500
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Adequacy of Consideration
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Unless a party can show fraud, duress, undue influence, or mistake the court will not interven. They only interview if there's fraud or mistake.
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Preexisting Duty Rule
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The courts have declared that if a party merely agrees to do what he or she is required to do, there exists no detriment to the promisee.
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Genuine Assent
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Assent to a contract that is free of fraud, duress, undue influence, and mutual mistake. Assent-making the decision.
(Because when 2 parties enter into a legally enforceable contract, it is presumed that they have entered at their own free will and that the 2 parties understand the consent of the contract in the same way) |
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Fraud
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1. Misrepresentation of a material fact
2. Made with intent to deceive the other party 3. Who reasonably relies upon the misrepresentation (other party) 4. And as a result is injured |
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Duress
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Any wrongful act or threat that prevents a party from exercising free will when executing a contract
*this includes the state of mind of the party at the time *this is not limited to physical threats, but can pertain to economic ruin or public embarrassment as well |
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Undue influence
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Mental coercion exerted by one party over the other party to the contract
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two court established requirements for undue influence
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1. There must be a dominant-subservient relationship between the contrasting parties (ex: doctor/patient or lawyer/client)
2. This dominant-subservient relationship must allow one party to influence the other in a mentally coercive way |
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Mistake
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Error as to material fact
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Bilateral mistake
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Mistake made by both parties
Courts will rescind (cancel) such contracts |
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Unilateral mistake
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Mistake made by only one party to the contract.
Courts will generally not grant the mistaken party a rescission of the contract. Exception= if the non-mistaken party knew or should have known of the mistake |
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Competency
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a person’s ability to understand the nature of the transaction and the consequences of entering into it at the time the contract was entered into
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Minors
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(under legal age) contracts made by minors are voidable and can be disaffirmed by the minor at any time before the minor becomes of age; a minor is generally liable for the reasonable value of the necessary goods
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Statutes that Make Minors liable for some contracts
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o Contracts to enlist in the armed forces
o Contracts for life insurance o Contracts for medical, surgical, and pregnancy care o Contracts for sports and entertainment where the court has approved each |
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Insanity
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if a person is adjudicated by a court of law to be insane at the time of entering into a contract, then the individual will be allowed to disaffirm a contract
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Intoxication
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a person who is intoxicated to the degree that understanding the nature of the contract and its consequences is responsible; it is the degree of intoxication that the court will look at
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Legal Object
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The subject matter of the agreement must be lawful and if it is not then the contract is void at its inception
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Unilateral mistake
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Mistake made by only one party to the contract.
Courts will generally not grant the mistaken party a rescission of the contract. Exception= if the non-mistaken party knew or should have known of the mistake |
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Competency
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a person’s ability to understand the nature of the transaction and the consequences of entering into it at the time the contract was entered into
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Minors
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(under legal age) contracts made by minors are voidable and can be disaffirmed by the minor at any time before the minor becomes of age; a minor is generally liable for the reasonable value of the necessary goods
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Statutes that Make Minors liable for some contracts
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o Contracts to enlist in the armed forces
o Contracts for life insurance o Contracts for medical, surgical, and pregnancy care o Contracts for sports and entertainment where the court has approved each |
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Insanity
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if a person is adjudicated by a court of law to be insane at the time of entering into a contract, then the individual will be allowed to disaffirm a contract
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Intoxication
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a person who is intoxicated to the degree that understanding the nature of the contract and its consequences is responsible; it is the degree of intoxication that the court will look at
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Legal Object
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The subject matter of the agreement must be lawful and if it is not then the contract is void at its inception
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Methods of Discharging (Terminating) a Contract
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Performance, mutual agreement, conditions precedent and subsequent, impossibility of performance, or commercial impractically.
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Discharge by performance
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1.complete performance ( “traditional” way)
2.substantial performance (“today” way) 1)completion of nearly all the terms of the agreement 2)an honest effort to complete all the terms 3)no willful departure from the terms a.usually for minor breach of contract |
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Discharge by mutual agreement
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Both parties agree to rescind the contract due to some unexpected event.
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Discharge by conditions precedent and subsequent
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1) condition precedent: if the event does not take place, the contract may be discharged
2) condition subsequent: a particular future event that terminates the contract |
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Discharge by impossibility of performance
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1. The party cannot legally or physically perform the contract
2. Used most frequently in the following circumstances: • Death or illness of a promisor whose personal performance is required to fulfill the contract when no substitute is possible • A change of law making the promised performance illegal • Destruction of the subject matter |
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Discharge by commercial impracticability
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Situation in which performance is impracticable because of unreasonable expense, injury, or loss to one party
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Monetary Damages (“Legal Remedies”)
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compensatory, punitive, nominal, and liquidated.
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monetary damages
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dollar sums awarded for breach in contract
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punitive damages
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damages in excess of compensatory that court awards for sole purpose of deterring the defendant from doing same act again.
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nominal damages
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small awards given when cannot be proven (but contract still breached) and will usually cover at minimal the court costs.
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compensatory damages
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compensate for what is lost
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liquidated damages
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a party agrees to pay a certain amount everyday beyond a certain date that the contract is not performed (usually found in general contractor agreements with individuals, corporations, and state or local agencies in which it is essential that a building project be completed on time)
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Equitable Remedies (ER)
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When dollar damages are impracticable as remedy, we use equitable remedies.
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Four parts of ER
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rescission- cancellation of a contract (used in cases of fraud, duress, mistake, or undue influence)
specific performance injunctions reformation- correction of terms in an agreement |
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Remedies for the sellers when buyers breach
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a)the right to recover the purchase price if seller is unable to sell or dispose of goods
b)the right to recover damages if the buyer repudiates a contract or refuses to accept the goods |
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Remedies for the buyer
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a) right to obtain specific performance of good
b) right to recover damages after cancellation of contracts c) right to reject food if it fails d) right to recover damages for accepted good if the seller is notified of breach in seasonable time e) right to revoke and acceptance of goods under certain circumstances |
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E-Contracts
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contracts entered into electronically via computer or satellite
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Uniform Computers Information Transaction Act (UCITA)
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are used to enforce E-contracts and provide consumer protection
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Criticism Of UCITA
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- who will be responsible for software viruses
- will customers read the fine print disclaimers? |
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differences if you license under the UCITA
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- can not distribute software
- if greater than 5,000 dollars it must be authenticated Authenticated: sign a contract or execute an electronic symbol |
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“zippo” case
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The degree of the interaction of the website. If it’s a lot then it’s like a sale man sitting in front of you
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Paralegal
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a person working for you that prepares the files and mark the transcripts. If you need something quick on the deposition transcript then they can find it.
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Quasi
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not really a contract. But the court have power as though there was a contract. Ex. Sitting on your front porch and a pickup truck drives up and they paint your house. They then say that will cost but it was the wrong house. Was it fair? Could you have done something? Yes. So in fairness, you have to pay. However, if you where away… then that’s fair. The court tries to prevent unjust. Ex. You and another company working on a joint deal. You are doing some work to test if it makes sense. When you finished you share data and they say that they’re not interested anymore. In fairness, should they have contributed something or tell you to stop since they’ve change their goals.
bn a court-imposed agreement to prevent the unjust enrichment of one party when the parties had not really agreed to an enforceable contract. Ex. Landscaper landscaping the wrong house and the owner was there, but didn’t say anything. The court will make the owner pay because he was there and knew about it. |
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mail box rule
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turn of offer by return using US mail on june 1. l. When you sent the acceptance you use speedy deliever. By june 3, it was rejected. Since it was not sent by US mail like the contract wanted.
If it was put in the US mail by the 2 and the other side got to it on the 8… it is still good because putting it in the box is when it’s active. |
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Undue influence
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unequal bargaining ability. When someone enters a contract who doesn’t fully understand what’s going on. They felt as though they have to agree.
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parol evidence rule
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When drafting the contract…lots of talk…there might be some agreement and not. All of these put in the contact. Once the contact is on its face where there’s noting missing. If you’re talking to someone about the termites and it wasn’t put into the contact, but at the time they said something that made you feel comfortable… now you find termites. Since there’s termite…you can not tell the judge…that…he said… when it’s not in writing or on its face.
bn when parties have executed a written agreement that is complete on its face, oral agreements made before, or at the same time as, the written agreement that vary, alter, or contradict it are invalid. |
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donee-beneficiary contract
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the purpose of the promisee in obtaining a promise from the promisor is to make a gift to a third party. Ex. Liberty insurance company…paying members of the insured money when they died.
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Creditor-beneficiary contract
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when the purpose of the promisee in requiring a promisor’s performance to be made to a third person is to fulfill a legal obligation of the promisee to the third person. Ex. Smith works for jones in exchanges for jones’ promise to pay taylor $$$ that smith owes. If smith does the work and jones refused to pay, taylor may sue both jones and smith.
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Peremptory challenges
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where a lawyer can dismiss any person when picking out juries for no particular reasons. however, they are limited to certain amounts of peremptory challenges.
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