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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.