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65 Cards in this Set
- Front
- Back
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Ignorantia Legis Neminem Excusat |
Ignorance of the Law Excuses No One |
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law |
is the principles and rule of conduct that the governing body maintains and enforces (Juris) (Jurisprudence- study of law) |
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Appellant |
(petitioner) party appealing case (the loser) |
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Appelli |
(respondent) party against whom party is taken |
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Legal Remedy |
DAMAGES -- Sum of money that is recoverable Tort: private claim (car accident) |
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Equitable Remedy |
NOT MONETARY 1)Specific Performance 2)injunction 3)recession |
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Specific Performance |
Court order requiring to take action Two people divorce, need other to sign deed of house |
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Injunction |
InjunctionPerson refrain from doing somethingBurning tire story-neighbors party |
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Rescission |
Cancel a contract because of certain circumstances → Grounds: fraud/misrepresentation/undue influence(pressure)/duress/lack of capacity |
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DOCTRINE STARRY DECISIS |
Adhere to decided cases, prior cases used to decide future ones→predicted outcome |
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Jurisdiction |
Means “to speak the law” Power of the court to hear a case and issue an enforceable judgment The judge is the only one who has the power to enforce that law Cop could issue ticket but judge would overrule |
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2 elements to AUTHORITY (court has power over…) |
Parties or objects involvedIn |
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In Persona Jurisdiction |
(court gets power over) Plaintiff- volunteers Defendants- forcedHas to be a member of the state Non-resident → reasonable minimal contact with the state (Due Process) |
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In Rem Jurisdiction |
Authority over an object Land story-not paying taxes |
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Subject Matter Jurisdiction |
Deals with the type of claim 2 types``` Limited Subject Matter Jurisdiction---- Court can hear only cases dealing with specific subject matterTraffic CourtGeneral Jurisdiction Court Any types Court Systems of the United States |
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Trial Courts |
A judicial forum where the case is first tried Original jurisdiction 3 types of activity 1)Testimony by witness 2)Evidence is presented 3) Dispute is decided by court |
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Appellate CourtA |
Any court that has the power to hear the appealHas appellate jurisdiction Supreme and Courts of Appeal---Have power to hear appeals from lower courts of their region |
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he US District Courts |
2 types of cases they can hear 1)Federal Question Jurisdiction: authority to decide cases involving the US Constitution, Federal Statutes, or Treaties of the US EXAMPLE:1st amendment breach…involves US constitutionDiversity Jurisdiction )2 things:Diversity of Citizenship Parties of the lawsuit comes from different statesGreater than $75,000 in controversy |
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Summons: |
document used to force a defendant to appear Defendant must respond to complaint or else court will render judgment |
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Subpoena |
: document that may require any person to appear in any judicial proceedings for the purpose of giving testimony |
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Complaint |
a document in which the plaintiff alleges the foundation of his or her claim Has to have 3 elements:1) Statement of essential facts 2)Basis for court’s jurisdiction 3)Demand for a judgment for relief |
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Vou Dire |
Court proceedings where the jurors for a certain trial are selectedOrally asked questions |
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Alternative Dispute Resolution |
1)Arbitration: non judicial process where dispute is decided by impartial 3rd partyParty will have a hearing in front of arbitrator Has the force of lawAbuse of discretion Only way to void 2)Mediation: impartial 3rd party attempts to guide the parties to a mutual agreeable settlement |
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1st Amendment |
1st AmendmentFreedom of religion, speech, press, assemblyEstablishment clause: gov’t can’t make religion part of gov’tRestrictionsReasonable time, place, manner |
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2nd Amendment |
well regulated malitia and right to bear arms |
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3rd amendment |
no quartering of soldiers |
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4th amendment |
Requires probable cause for a police officer to conduct a search or arrest |
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5th Amendment |
Double Jeopardy Clause Right to be Free from self-incriminationCan’t be a witness against self/provide a confession against self 1)Does a corporation have this right? Corporation is not a person so they can be forced to talk, turn over documents, etc.Due Process ClauseLife (execution), liberty, property (anything you own) Procedural Due ProcessRequires: reasonable notice, opportunity to be heard, and fair hearing or trial Substantive Due Process All legislation have a legit gov’t objective |
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6th Amendment |
gives persons accused of crime rightsSpeedy, Public, Jury of peers |
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8th amendment |
no cruel or unusual punishment |
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10 amendment |
Any powers not given to the federal gov’t by the constitution belong to the states |
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Valid Contract |
has all the essential elements 1)Agreement 2)Consideration 3)Legal object |
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Agreement (enforceable contract necessity) |
Mutual assent by the parties as to the substance of the contract-- Meeting of the MindsOfferAccepted |
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Consideration( necessity for contract) |
a bargain for exchange of legal value |
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Exculpatory clause |
Provision in a contract that releases one party of liability regardless of the fault EXAMPLE See it in Hockey games (back of ticket says not liable if hit by hockey puck) Landlord- not responsible for injury to person on property Swimming pools - swim at own risk |
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Genuineness of Assent |
Parties truly agreed to the contract Raised as a defense and can sue and get compensated |
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Basis for lack of Genuiness of Assent |
1) mistake 2)Misrepresentation: a manifestation by one person to another that falsely portrays the facts Fraud: intentional misrepresentation of a material fact used to induce another into an agreement |
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Fraud: |
Fraud: intentional misrepresentation of a material fact used to induce another into an agreement 1)False statement effectAffirmative act (concealment)Leaky roof..sell in winter when things are frozen..paint over water stains 2)Silence: with duty to discloseMaterial latent defect (significant, not observable) |
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Innocent Misrepresentation |
person makes a statement he believes to be true, but misrepresents EXAMPLE-- Car for sale: said 35 mpg..but really 20 mpgCan rescind and get money back Or sue and get punitive damages |
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Duress |
uses force or a threat of force that causes a person to do something they would not otherwise do |
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Undue influence |
one person takes advantage of another because of a confidential or fiduciary relationship (trust) |
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Contractual Capacity |
Raised as a defense Could be lacking due to: 1) a minor 2) an incompetent person |
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STATUTE OF FRAUDS |
Requires certain contracts to be in writing: 1)Contracts to transfer in interest in real property 2)Contracts that cannot be performed within one year 3)Contract to be secondarily liable for the debt of another (co-sign) 4)Contracts made in consideration of marriageAnit-nuptualContract of the sale of goods for $5000 or more |
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Non-Corporate Business |
Sole Proprietor: owned by one person and is not incorporated 1) no legal requirements 2)libalitiy--YOU ARE RESPONSIBLE FOR EVERYTHING |
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Taxes for Non-cprperat business |
TNo tax return for company The individual files a 1040 Schedule ‘C’ : business income and expenses |
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Ordinary Partnership |
voluntary association of 2 or more persons to carry on as co-owners of business for a profit |
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3 elements of ordinary partnership |
1)Common ownership of a business 2)Sharing of profits and losses 3)Right to manage the business |
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formation or a partnership |
No legal requirement Understanding can be written or oral Written: Articles of PartnershipSpecify the rights and duties of the parties |
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entity of partnership (legal and property) |
Entity concept---Partnership is treated as a separate entity from partners Legal capacity-- Partnership can sue and be sued Property Ownership---Partnership can hold title to property in the name of the partnership- separate from the owners |
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Aggregate Concept |
A collection of individuals for purposes of existence Partnership depends on the continued association of all of its partners Personal liability----Individual partners are liable for the debt: creditors can go after individuals |
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Limited partnership |
Provides limited liability and is formed under a state statute Formation:Parties file a certificate of limited partnership in the state where it has its principle state of business States partnership name, purpose, duration, profit sharingXYZ, Limited Partnership (Name) |
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2 types of partners in limited partnership |
General Partner--Involved in the management of the business (silent partner) Has personal liability for partnership debts Partnership can’t pay a debt-creditor can collect against the personal assets of that partner Limited Partner-Just an investor, not involved in the running of the business No personal liability for debts |
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Limited liability company (LLC) |
Business formed under states Limited Liability Company Statute Owners→members Limited Liability |
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LLC taxes |
Do not pay income taxFlows to the owner and they pay individual taxes |
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Corporations |
Legal entity that is formed in accordance with state incorporation statute to engage in business on its own |
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Bylaws |
Meeting held to adopt bylaws and elect a board of directors Bylaws are rules that are adopted →tells what management can do Give actual authority to officers to conduct business |
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Characteristics of Incorporation (legal entity) |
Legal Entity: separate from its owners, Enter into own contracts Hold title to property Can sue and be sued |
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Characteristics of Incorporation(limited liability and perpetual existence) |
Limited Liability--Liability of a shareholder is limited to investment in company Not responsible for corporate debts Perpetual existence---Continual existence Death of “someone” will not change anything |
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Ease of Transfer of Ownership |
Ease of Transfer of Ownership Evidence of ownership is STOCK: transferred by endorsement and is then transferred from person to person Sale, gift, inheritance |
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stock |
Is equity security that represents owners clip of company |
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Bonds |
Debt security Corporation is the debtor and the holder is a creditor Carries interest payments Paid periodically (usually 6 months) Repay principle at time of maturity |
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Mangement of corporations |
Board of Directors Have to operate as a group at a meeting No one director can bind a corporation |
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board of directors power |
activities--- Set corporate policy Set financial structure Hire/Fire/Pay the officers Declare dividends Initiate fundamental changes Delegate authority to officers |
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taxes of a corporation |
Title 26 chapter 1 subchapter C deals with:C Corporation: Corporation that pays tax on the income it makes in a year Includes dividend in tax return and is taxed through the individual |
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S Corporation\ |
Does not pay income tax Taxable income flows through to shareholders No more than 100 shareholders or 25% Passive Income Passive income is something you didn’t produce a good for |
