Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
101 Cards in this Set
- Front
- Back
Negligence Elements |
duty of care, breach of duty of care, causation, damages (NO INTENT) |
|
Breach of duty of care |
reasonable person standard |
|
Causation |
must be proven in all tort cases. Causation in fact (by jury) AND proximate cause (by judge)
|
|
Proximate cause |
must be foreseeable. |
|
Elements of a contract |
agreement, consideration, capacity and legality. |
|
Agreement |
requires offer and acceptance. |
|
Consideration |
value must be exchanged between two parties |
|
Capacity |
refers to the mental capacity to understand and appreciate the significance of entering into a contractual friendship. |
|
Legality |
refers to the purpose of the contract. Must be legal. |
|
Compensatory damages |
are intended to compensate you for the loss suffered as a result of the breach of contract.
|
|
Consequential damages |
indirect damages that result as a consequence of the breach (foreseeable only) |
|
Punitive damages |
are awarded to punish a defendant and to deter future conduct. Must be intentional and malicious. |
|
Nominal damages |
may consist of a small amount awarded for miscellaneous expenses when there are no compensatory damages. |
|
Requirements of an offer |
(3) serious intent, reasonably certain terms and communication of the offer |
|
Not an offer |
opinions, future intent, negotiations, advertisements, price tags, flyers, etc. |
|
Serious offer is determined by |
what was said, how it was said, the context, the circumstances, etc. |
|
Reasonably certain terms |
include the subject matter, the parties, the price, the QUANTITY, the payment terms, the delivery terms, etc. |
|
Termination of offer |
revocation, rejection and counteroffer |
|
Operation of law |
lapse of time, destruction of the subject matter, death or incompetence of the offeror or offeree, and supervening illegality. (terminates offer) |
|
Valid offer acceptance |
(4) the acceptance must be clear, match the offer, timely, in the appropriate manner |
|
Most common termination (contract) |
perform |
|
Conditions of an offer |
precedent (before perform.), concurrent (during), subsequent (perform then condition) |
|
Substantial performance |
if the party does not perform to the expectations of the other party, but does perform a significant part of the contract |
|
Amount owed (substantially perform contract) |
measured by what it would cost to complete the contract. |
|
Material breach |
if the breaching doesn't substantially perform the contract, the contract may be terminated and the non breaching party will owe the breaching party nothing. |
|
Administrative agencies purposes |
Make laws, enforce them, and interpret. |
|
Federal independent agencies |
Federal Reserve Federal Trade Commission Federal Communication Commission Securities Exchange Commission National Labor Relations Board Equal Employment Opportunity Commission Environment Protection Agency Nuclear Regulatory Commission |
|
Law |
body of enforceable rules |
|
Substantive Law |
defines the rights and responsibilities themselves. |
|
Procedural Law |
governs the enforcement of those rights and responsibilities. |
|
Civil vs. Criminal Law |
Remedy or Punishment Plantiff or prosecutor Speedy trial or right to lawyer Code or Common Law Burden of proof Judgement or Convicition |
|
Appeal |
Questions of fact (jury) and Questions of law (judge). The appeal must specifically cite the errors that the lower court made. |
|
Stages in civil case |
(6) pleading, discovery, pretrial, trial, post-trial, appeal. |
|
Pleading |
petition or complaint. Complaint contains facts necessary to show jurisdiction, to justify a remedy from the court and a statement of the remedy sought. |
|
Obtaining service of process |
sheriff, process server, certified mail, at your residence to someone 14 yrs old, publication, registered agent. |
|
Defendant receiving serve |
do nothing, answer by admitting, denying, affirmative defense, counterclaim, motion to dismiss, pay, utilize alternative dispute resolution, hire an attorney, etc.
|
|
Discovery stage |
depositions, interrogatories, request for admissions, request for documents, request for inspection of land or object, request for medical exam. |
|
Pretrial Conference |
used to narrow the issues and outline the trial |
|
Trial |
jury selection, opening statements, plaintiff's case, defendants case, closing arguments, jury instructions, deliberation |
|
Post-trail motions |
are made when a procedural error is claimed. |
|
Privileges and Immunities caluse |
entitles citizens of each state to enjoy the same rights and opportunities in other states. |
|
granted in Full Faith and Credit Clause |
provides that each state recognize the judgments, property rights, contract rights, etc. granted in other states unless it violates a law or the public policy of the state. |
|
Commerce Clause |
is the greatest grant of power to the federal government. Has been interpreted to allow congress or the President to regulate any activity that has an affect on interstate commerce. |
|
Dormant Commerce Clause |
is the idea that the SC will allow states to pass laws that affect interstate commerce as long as those laws don't discriminate against the other states. |
|
Police Power |
power reserved to the states. Includes the power to regulate morality, property issues and other local matters. |
|
Supremecy Clause |
governs the balance between state and federal law. It creates a presumption that the federal law or rule will prevail of a conflicting state law or rule. |
|
Conflicting state and federal law |
the court balances the merit for the state or local against the burden placed on the federal law or right. It's always balanced in terms of the burden placed on the federal law or rights. |
|
Bill of rights |
first 10 amendments of the constitution. Freedom of speech, religion, right to assembly, freedom of press, etc. (protects from GOVERNMENTS, not private companies). |
|
Establishment Clause |
guarantees Freedom of speech. It prevents the government from establishing or dictation a religion |
|
Free Exercise Clause |
prevents the government from discrimination against someone based on their religion. |
|
Due process |
involves substantive and procedural law and rules. It requires fairness. Life, Liberty, Property. |
|
Equal protection Clause |
police cannot selectively enforce the law against any one person and not against another. |
|
Assault elements |
(3) immediate, reasonable apprehension or fear, threat of harmful or offensive contact, CID |
|
Battery elements |
(1) harmful or offensive contact, CID |
|
Defenses of assult and battery |
consent, self-defense, defense of others, defense of property |
|
False Imprisonment Elements |
(1) confinement or restraint without justification, CID |
|
Intentional infliction of emotional distress elements |
(1) extreme and outrageous conduct, CID (emotional) |
|
Defamation Elements |
(2) false statement of fact, publication, CID (reputation) |
|
Invasion of Privacy Elements |
(2)intruding into someone's private affairs and making the information public, CID |
|
Appropriation Elements |
(1) taking someone's name, likeness, slogan etc., and using it to make a profit. |
|
Fraudulent misrepresentation elements |
(2) false statement of fact, justifiable or reasonable reliance, CID |
|
Wrongful interference with a contractual relationship elements |
(3) a contract exists, the defendant has knowledge of the contract, the defendant induces one of the parties to breach the contract, CID |
|
Wrongful interference with a business relationship elements |
(2) a business relationship between two parties, the defendant interferes in some way with the business relationship, CID |
|
Trespass to land elements |
(1) harm or interference with someone's land without permission or justification, CID |
|
Conversion Elements |
(1) taking someone's personal property, CID |
|
Disparagement of Property Elements |
(2) False statement of fact, publication, CID (reputation) |
|
Protected classes |
(Title 7) race, color, national origin, religion, gender |
|
ADA |
American Disabilities Act- disabilities. |
|
ADEA |
Age Discrimination in Employment Act |
|
USERRA |
Uniform Service Employment and Re-employment Rights Act- armed reserve forces |
|
Quid Pro Quo |
Kiss me or your fired |
|
Hostile Environment |
Exposed to conditions that are uncomfortable. |
|
Business Ethics |
focuses on what constitutes right and wrong behavior in the workplace. |
|
Duty Based Approach (Ethics) |
individuals owe duties to society and to each other that are absolute regardless of the consequences. |
|
Utilitarianism (ethics) |
the greatest good for the greatest number of people. |
|
Principle of rights theory |
concerns how the decision affects the rights of others. |
|
Categorical Imperative Perspective (Ethics) |
what if everyone did it. |
|
Defenses of Negligence (important) |
(4) Assumptions, superseding cause, contributory and comparative(more than 50) |
|
Burden of Proof (civil and criminal) |
Civil- more likely than not (preponderious of the evidence Criminal- beyond a reasonable doubt |
|
Major Intellectual property |
(9) trademarks, service marks, collective marks, certification marks, trade names, trade dress, copyrights, patents, trade secrets. |
|
Trade mark |
mark, motto, slogan, symbol (for products) |
|
Trade Dress |
overall presentation of the mark or symbol |
|
Service marks |
protect services not products |
|
Trade name |
given by each state to protect the names of entities. |
|
Patent |
inventions, designs, business processes |
|
Copy Rights |
expression of ideas, not ideas themselves. |
|
Voidable contract |
mistake of fact, Intoxication, incompetent, duress, undo influence, bankruptcy, statue of limitations, |
|
Negotiation (Litigation) |
parties reach an agreement on their own |
|
Mediation |
using a third party, to assist in reaching the agreement. |
|
Arbitration |
third party hears the evidence and makes a decision resolving the dispute. |
|
Duties of Agents |
loyalty, obedience, accounting, performance, notification, protect confidential information |
|
Principles Duties |
compensation, cooperation, reimbursement, and indemnification, safe working conditions. |
|
How to create an agency |
Agreement, ratification, estoppel, law |
|
Liability (Agency) |
(principle is liable) scope of employment, ordered to do it, knew I was doing it and didn't stop me |
|
Apparent Authority |
when a principal puts an agent in a position where it appears as if the agent has authority. |
|
Independent Contractors |
do not deal with the public or act on behalf of the principal (not agents). Taxes are different than employees, ind. cont. are work for hire. |
|
Characteristics of organizations |
Ability to Raise Capital Control Continuity Flexibility Formality and Expense Liability Management Taxes Transferability of Interests |
|
Detour |
slight departure from the agent's scope of employment. |
|
Frolic |
a major departure from the agent's scope of employment. |
|
Equitable remedies |
specific performance, rescission, restitution, reformation, quasi contract. |
|
statue of frauds |
has to be in writing. |