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175 Cards in this Set
- Front
- Back
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Uniform Commercial Code (UCC)
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Originally drafted by the National Conference of Commissioners on Uniform State Law, it governs commercial transactions and has been adopted by all states, entirely or in part.
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Requirements contract
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A contract in which one party agrees to buy all its requirements for a particular product from the other party.
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Output contract
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A contract in which one party agrees to deliver its entire output of a particular product to the other party.
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Option contract
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A contract in which the buyer gives the seller consideration to keep the offer open for a stated period of time.
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Merchant's firm offer
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An offer made by a merchant in a signed writing that assures the buyer the offer will remain open for a specific period of time. It does not require consideration to be binding.
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Mirror image rule
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The requirement that the acceptance exactly mirror the offer or the acceptance will be viewed as a counteroffer.
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Quasi-contract
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Although no contract was formed, the courts will fashion an equitable remedy to avoid unjust enrichment.
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Consideration
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Anything of value; it must be present for a valid contract to exist, and each side must give consideration.
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Unconscionable contract
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A contract formed between parties of very unequal bargaining power where the terms are so unfair as to "shock the conscience."
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Promissory estoppel.
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Occurs when the courts allow detrimental reliance to substitute for consideration.
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Voidable
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A valid contract that can be set aside at the option of one of the parties.
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Disaffirm
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The ability to take back one's contractual obligations
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Necessaries
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Normally food, clothing, shelter, and medical treatment.
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Void
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A contract that is invalid even if it is not repudiated by either party.
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Covenant not to compete
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A promise not to compete within a given geographical area for a specific time period.
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Adhesion contract
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A contract formed where the weaker party has no realistic bargaining power. Typically a form contract is offered on a "take it or leave it" basis.
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Exculpatory clause
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A provision that purports to waive liability
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Rescission
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The act of canceling the contract and returning the parties to the positions they were in prior to the contract having been formed.
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Warranty
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A guarantee, made by the seller or implied by law, regarding the character, quality , or title of the goods being sold.
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Implied warranty of merchantability
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An implied promise that the goods being sold will be usable for the purpose for which they were sold.
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Implied warranty of fitness
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An implied promise that the goods being sold will satisfy a special purpose.
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Statute of frauds
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A statutory requirement that, in order to be enforceable, certain contracts must be in writing.
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Parole evidence rule
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An evidentiary rule that a written contract cannot be modified or changed by prior verbal agreements.
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Substantial performance
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Although a breach of contract, performance of all the essential terms of the contract will entitle the breaching party to the contractual price minus any damages caused by the breach.
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Material Breach
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Such a grave failure to fulfill the contractual terms that the other party is relieved of all contractual obligations.
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Novation
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When a third party is substituted for one of the original parties
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Accord and satisfaction
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The agreement and then the performance of something different than originally promised.
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Assignment
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The transfer by one of the original parties to the contract of part or all of his or her interest to a third party.
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Delegation
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The transfer by one of the original parties to the contract of his or her obligations to a third party.
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Specific performance
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When money damages are inadequate, a court may use this equitable remedy and order the breaching party to perform his or her contractual obligations.
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Mitigation of damages
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The requirement that the non-breaching party take reasonable steps to limit his or her damages.
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Cover
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Finding substitute goods
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Consequential damages
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Indirect damages that must be foreseeable to be recovered
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Liquidated damages clause
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A contract provision that specifies what will happen in case of breach.
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Contract reformation
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An equitable remedy that allows the courts to "rewrite" contract provisions.
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Property
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A tangible object or a right or ownership interest.
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Real property
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Also known as real estate; land and items growing on or permanently attached to that land.
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Personal property
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All property that is not real property.
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Intellectual property
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Intangible assets, such as trademarks, copyrights, and patents.
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Estate
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An interest in or a title to real property. (Note that this term has a different meaning when used in probate matters.)
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Joint tenancy
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Ownership by two or more persons who have equal rights in the use of that property. When a joint tenant dies, that person's share passes to other joint tenant(s).
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Tenancy in common
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Ownership by two or more people. Ownership shares do not have to be equal but each has an undivided interest in the property. When a tenant in common dies, that person's share passes either by will or be intestate statute.
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Tenancy by the entirety
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A special type of joint tenancy applicable only to married couples
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Restrictive covenant
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A provision in a deed that prohibits specified uses of the property.
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Easement
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A right to use property owned by another for a limited purpose.
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Lease
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An agreement in which the property owner gives someone else the right to use that property for a designated period of time.
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Lessor or Landlord
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The owner of the property being leased
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Lesee or tenant
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The person with right of possession during the time of the lease.
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Quiet enjoyment
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The tenant's right to be free from interference from the landlord with respect to how the property is used
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Implied warranty of habitability
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A requirement that property be fit for the purpose for which it was rented. Owners are required to repair and maintain the premises at certain minimum levels.
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Constructive eviction.
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An act by a landlord that makes unfit or unsuitable for occupancy.
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Listing agreement
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A document that spells out the nature of the services a real estate agent will perform with respect to selling real property and how the agent will be compensated for those services.
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Earnest money
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The money the buyer turns over to the real estate agent to be applied to the purchase price of property.
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Title search
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An examination of documents recording title to the property to ensure the owner has clear title.
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Clear title
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Also known as a marketable title; an ownership right that is free form encumbrances or other defects.
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Abstract
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A condensed history of the title, which includes the chain of ownership and a record of all liens, taxes, or other encumbrances that may impair the title.
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Title insurance.
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Insurance against any loss due to a defective title
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Deed
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The legal document that formally conveys title to the property to the new owner.
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Warranty deed
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A deed in which the seller promises clear title to the property.
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Quitclaim deed
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A deed in which the grantor gives up any claims to the property without making any assertions about there being a clear title.
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Closing statement
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An itemized allocation of all the costs and moneys exchanged among the various parties including financial institutions and real estate brokers, when a property is sold.
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Land contract.
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An installment contract for the sale of land.
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Decedent
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A person who has died
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Devise
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A gift of real estate that is given to someone through a will.
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Foreclosure
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The process by which a creditor who holds a mortgage or some other form of a lien on real property in order to satisfy the debt to the mortgagee or lien holder.
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Power of sale clause
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A clause authorizing a private foreclosure sale that does not require court action
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Eminent domain
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The power of government to take private property for public purposes.
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Just compensation
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The amount of money the government must pay the owner of property it seizes through eminent domain.
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Adverse possession
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A transfer of real property rights that occurs after someone other than the owner has had actual, open, adverse, and exclusive use of the property for statutorily determined number of years.
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Bailment
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Temporary transfer of personal property to someone other than the owner for a specified purpose.
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Bailor
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The owner personal that is being temporarily transferred as part of a bailment.
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Estate
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The total property of whatever kind, both real and personal, that a person owns at the time of his or her death.
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Will
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The document used to express a person's wishes as to how his or her property should be distributed upon death.
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Intestate
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When a person dies without a valid will.
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Bequest
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Also known as a legacy; a gift of personal property in a will.
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Beneficiary
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The person named in a will, insurance policy, or trust who receives a benefit.
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Executor/Executrix
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A person appointed by the testator to carry out the directions and requests in his or her will.
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Self-proving clause
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A notarized affidavit, signed by the attesting witnesses, that may eliminate the need to call witnesses during the probate process to attest to the validity of the will.
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Codicil.
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A supplement or addition to a will that modifies, explains, or adds to its provisions.
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Living will
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Also known as a medical directive; a document expressing a person's wishes regarding the withholding or withdrawal of life-support equipment and other heroic measures to sustain life if the individual has an incurable or irreversible condition that will cause death.
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Trust
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A legal relationship in which one party holds property for the benefit of another
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Donor
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Also known as a grantor or settlor; a person who creates a trust.
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Trustee
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The person appointed to administer a trust
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Probate
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The process of court supervision over the distribution of a deceased person's property.
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Administrator/Administratix
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A person appointed by the court to carry out the directions and requests of someone's will.
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Kindred.
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Also known as consanguinity; persons related to the decedent by blood.
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Affinity
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Persons related to the decedent by marriage.
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Per stirpes
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Also known as right of representation; a method of dividing an intestate whereby a person takes in place of the dead ancestor.
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Escheat.
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A reversion of property to the state when there are no heirs.
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Testamentary capacity
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The mental capacity, also known as sound mind, whereby the testator understands the nature of his or her property and the identity of those most closely related to him or her.
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Limited partnership
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A partnership of at least one general partner and one or more limited partners. The limited partners' liability is limited to their investments so long as they do not participate in management decision.
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Uniform Partnership ACt (UPA)
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Known as a gap filler, the UPA comes into play only if terms are left out of a partnership agreement.
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Partnership by estoppel
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A partnership created by the words or actions of persons acting as though they were a partnership.
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Piercing the corporate veil
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When a court sets aside the unlimited liability protection normally given to corporate shareholders.
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Close corporation/closely held corporation
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When one person or the members of one family own all the stock.
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Foreign/domestic/alien corporation
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out-of-state/in-state/out-of-country
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Limited Liability Company (LLC)
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A new form of business ownership that gives the advantage of liability limited to the amount of the owner's investment along with single taxation.
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Negotiable instrument
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Commercial paper that can be transferred by indorsement or delivery. It must meet the requirements of UCC S. 3-104 to be negotiable. If it does not, a transferee cannot become a holder in due course but only gets the rights along with the liabilities of a contract assignee.
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Attachment
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Gives the creditor rights against the debtor. The creditor must possess the collateral or have a signed security agreement, have given something of value, and the debtor must have rights in the collateral.
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Perfection
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Gives the creditor rights ahead of other creditors. The creditor must first be attached and then posses the collateral, or file a financing statement, or give money to purchase consumer goods.
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Agent
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Someone who has the power to act in the place of another
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Principal
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A person who permits or directs another person to act on the principal's behalf.
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Fiduciary duty
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A legally-imposed obligation to act in the best interests of the party to whom the duty is owed.
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Respondeat superior
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The tort theory that an employer can be sued for the negligent acts of its employees.
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Bona fide occupational qualification (BFOQ)
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A defense to an overt discrimination claim, alleging that qualification is necessary to the essence of the business operation.
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Disparate treatment
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The legal theory applied when a rejected applicant claims the reason for rejection was based on a discriminatory intent but the employer alleges a nondiscriminatory reason.
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Disparate impact
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The legal theory applied when the use of a neutral standard has a disproportionate impact on one protected group.
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Burden of production
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The necessity to produce some evidence, but it need not be so strong as to convince the trier of the fact of its truth.
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Burden of proof.
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The necessity of proving the truth of the matter asserted.
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Restatement of the Law of Torts, SEcond
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An authoritative secondary source, written by a group of legal scholars, summarizing the existing common law, as well as suggesting what the law should be.
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Assault
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An intentional act that creates a reasonable apprehension of an immediate harmful or offensive physical contact
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Battery
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An intentional act that creates a harmful or offensive physical contract.
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Transferred intent
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A legal fiction that if a person directs a tortious action toward A but instead harms B, the intent to act against A is transferred to B.
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False imprisonment
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Occurs whenever one perosn, through force or the threat of force, unlawfully detains another person against his or her will.
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Defamation
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The publication of false statements that harm a person's reputation
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Slander
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Spoken defamation
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Libel
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Written defamation
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Defamation per se
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Remarks considered to be so harmful that they are automatically viewed as defamatory.
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Malice
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Making a defamatory remark either knowing the material was false or acting with a "reckless disregard" for whether or not it was true.
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Invasion of privacy
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An intentional tort that covers a variety of situations including disclosure, intrusion, appropriation, and false light.
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Intrusion
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the intentional unjustified encroachment into another person's private activities.
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Appropriation
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An intentional unauthorized exploitive use of another person's personality, name or picture for the defendant's benefit.
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False light
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The intentional false portrayal of someone in a way that would be offensive to a reasonable person
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Loss of consortium
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The loss by one spouse of the other spouse's companionship, services, or affection.
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Trespass to personal property
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occurs when someone harms or interferes with the owner's exclusive possession of the property but has no intention of keeping the property.
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Conversion
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Involves the more serious taking of someone else's property with the intent of permanently depriving the owner.
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Interference with a contractual relationship
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An intentional tort that occurs if someone induces a party oto breach a contract or interferes with the performance of a contract.
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Negligence
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Failure to act as a reasonably prudent and careful person is expected to act in similar circumstances. It is careless inflicting of an injury as opposed to an intentional one.
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Malfeasance
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Acting in am improper or a wrongful way.
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Nonfeasance
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Failing to act.
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Res ipsa loquitur
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"The thing speaks for itself"; the doctrine that suggests negligence can be presumed if an event happens that would not ordinarliy happen unless someone was negligent.
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Actual cause
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Also known as cause in fact, this is measured by the "but for" standard: But for the defendant's actions, the plaintiff would not have been injured.
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Market share theory.
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A legal theory that allows plaintiffs to recover proportionately from a group of manufacturers when the identity of the specific manufacturer responsible for the harm is unknown.
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Proximate cause.
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Once actual cause is found, as a policy matter, the court must also find that the act and the resulting harm were so foreseeably related as to justify a finding of liability.
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Contributory negligence
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Negligence by the plaintiff that contributed to his or her injury. Normally, it is a complete bar to the plaintiff's recovery.
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Assumption of risk
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Voluntarily and knowingly subjecting oneself to danger.
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Last clear chance
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The doctrine that states that despite the plaintiff's contributory negligence, the defendant should still be liable if the defendant was the last one in a position to avoid the accident.
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Exculpatory clause.
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A provision that purports to waive liability.
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Comparative negligence
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A method for measuring the relative negligence of the plaintiff and the defendant, with a commensurate sharing of the compensation for the injuries.
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Sovereign immunity
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prohibits suits against the government without the government's consent.
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Recklessness
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Disregarding a substantial and unjustifiable risk that harm will result.
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Strict liability
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Liability without having to prove fault.
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Ultra-hazardous activities
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Those activities that have an inherent risk of injury and therefore may result in strict liability.
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Products liability
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The theory holding manufacturers and sellers liable for defective products when the defects make the products unreasonably dangerous.
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Product misuse.
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When the product was not being used for its intended purpose or was being used in a dangerous manner; it is a defense to a products liability claim so long as the misuse was not foreseeable.
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Constitutional law
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A body of principles and rules either explicitly stated in, or inferred from, the U.S. Constitution and those of the individual states.
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Literal interpretation
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An approach in which judges use common dictionary definitions for terms used in the document they are interpreting.
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Contextual analysis.
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An approach whereby judges examine other parts of the same document or similar documents to see how the same words or phrases were used in these related contexts.
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Federalism.
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A system of government in which the authority to govern is split between a single nationwide central government and several regional governments that control specific geographical areas.
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Doctrine of implied powers
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Powers that are not stated in the Constitution but which are necessary fo rCongress to carry out other, expressly granted powers.
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Preemption
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The power of the federal government to prevent the states from passing conflicting laws, and sometimes even to prohibit states from passing any laws on a particular subject.
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Separation of powers
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The division of governmental power among the legislative, executive, and judicial branches.
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Executive privilege
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A legal doctrine that exempts some members of the executive branch from having to disclose information in situations where nondisclosure is deemed necessary to the discharge of executive responsibilities.
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Presidential immunity
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A legal doctrine that exempts the President of the United States from being criminally prosecuted or from being civilly sued for actions taken as President.
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Signing statement
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A written pronouncement issued by the PResident at the time a bill is signed into law.
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Judicial self-restraint
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A self-imposed restraint that judges exercise to avoid having to decide controversial issues and political confrontations
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Justiciable controversy
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A court case involving parties with opposing interests that will be personally affected by the court's decision.
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Standing to sue doctrine
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The requirement that a potential litigant have a sufficient stake in the outcome of the case before being accepted as a party in the case.
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Political question doctrine
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The practice of not deciding cases in situations where their resolution is committed to another branch of government or because those issues are not capable of judicial resolution.
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Legal right
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A legally enforceable claim to use something or to be treated in in a particular way.
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Human rights
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Legal rights that all human beings are thought to have regardless of where they live
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Civil rights
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Legal rights that (1) are associated with being a citizen or an inhabitant of a country and are enforced by the government of that country, and (2) involve having the government do something for tis citizens.
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Civil liberties
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Legal guarantees that the government will not interfere with aspects of people's personal lives.
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State action requirement
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A court-imposed requirement that most constitutional protections apply only
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Freedom of expression
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A term used to include a group of First amendment provisions designed to protect people's ability to inform and influence others.
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Time and place restrictions
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Governmental restrictions that limit when and where free expression activities can take place.
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Content neutrality
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A court-imposed requirement that government regulations of free expression not be based on the viewpoint being expressed.
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Symbolic speech
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The use of physical actions, rather than words, to express a point of view.
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Free exercise of religion clause
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A clause in the First Amendment that prohibits government from taking actions to prevent people from adopting any type of religious beliefs or following religious practices that do not violate general, religiously neutral laws.
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Establishment of religion clause
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A clause in the First Amendment that restricts the types of actions government can take to recognize and support religious groups and religious principles.
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Procedural due process
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The requirement that governments follow certain procedures when seeking to deprive people of life, liberty, or property.
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Substantive due process
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The requirement that governments not deprive anyone of life, liberty, or property where the law being violated is found to be arbitrary or unreasonable.
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Rational basis test
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Applied to cases of alleged discrimination when there is no suspect classification nor fundamental right involved; the plaintiff must prove the challenged action is not reasonably related to achieving a legitimate government purpose.
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Strict Scrutiny Test
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Applied to cases of alleged discrimination when there is a suspect classification or a fundamental right involved; the government must prove the challenged action was necessary to achieve a compelling government interest and was the least restrictive means available.
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intermediate Scrutiny Test
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Usually applied to cases of alleged gender discrimination; the government must show the challenged action was substantially related to an important government interest.
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