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64 Cards in this Set
- Front
- Back
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Contract (Definition)
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A promise or set of promises for breach of which the law gives us a remedy. A promise is not always a contract.
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Sources of Contract Law
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Common Law (Judge-Made)
Uniform Commercial Code (UCC) Evolving E-Commerce Contract Laws |
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Common Law
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Varies by state.
Not all contracts covered. Some include: Land, services, building of a home, employment. |
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UCC
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Uniform Commercial Code
-Drafted by ALI and the National Confrence of Commisioners on Uniform State Law -Appeared in 1940s -Article II governs sale of goods -Article II Leases governs lease of goods. |
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Bilateral vs Unilateral Contracts
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Bilateral: A promise for a promise
Unilateral: A promise for performance. |
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Express vs. Implied Contracts
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Express Contract: Parties express intent to enter contract. Oral or Written
Implied in Fact Contract: Inferred by behavior. (Doctor's Visit) Implied in Law Contract: One party benefits from another (House Painting Scenario) |
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Void vs. Voidable Contracts
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Void Contract: No contract because legal requirement is missing. (Paid Assassin)
Voidable Contract: Can be breached by one or more parties (Minor) |
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Unenforceable Contract
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All contractual aspects are met but is faulty because of legal rule. (Not in writing or waiting to long)
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Executory vs. Executed
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Executory: Ongoing until all parties have fully completed responsibilities.
Executed: All parties have completed their performance as described in the contract. |
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Legally Enforceable
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Court can help enforce.
Must have: Agreement (Meeting of the Minds) Consideration (Gift or Contract?) Capacity (Sane, sober, and of age) Genuineness of Assent (Knowingly Agree) Legality of Purpose (Must be legal) |
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Parts of an Agreement
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Offer and Acceptance
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Offer
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Promise to do or to refrain from doing something. An advertisement is not an offer, it is an invitation to an offer.
Need to have: Present intent to enter a contract Reasonable define terms Communication of the offer to the offered party. |
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Duration
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Offeror can revoke the offer prior to acceptance.
If offer is rejected, it goes away. |
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Counter-Offer
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Orginal offer is rejected and oferee lays new offer on the table
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Option Contract
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Paying money to keep an offer on the table.
Creates a separate agreement. A contract within a contract. |
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Acceptance
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Offeree's positive response to the offeror's proposed contract.
Only the offeree can accept. How to accept must be set forth or it is reasonable acceptable. |
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Mailbox Rule
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Acceptance is effective when it is sent, even if it is never received.
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Preexisting Legal Duty Rule
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If you are already obligated to perform something then it is typically not valid consideration. (Police and the Pig)
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Statutes of Fraud
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Designed to prevent fraud.
To be enforceable, some contracts must be in writing. |
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Parole Evidence Rule
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If a contract is reduced to writing with the intent that the written document represents the agreement either party can introduce oral or written evidence to prove or disprove the written agreement.
Exceptions: Document is incomplete Contract is ambiguous Issues of Fraud |
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UCC Merchant's Firm Offer
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Contract will be kept open and irrevocable for up to three months.
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Termination by RejectionMential
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Offeree indicates no.
Rejection by change of terms. (Counter offer) |
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Termination by Counteroffer - UCC
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Non-merchants: Addition of terms in acceptance does not equal counter offer. Acceptance occurs but additional terms are not included in the contract.
Merchants:Acceptance with additional terms equals contract. Unless: Materal, Offer Limited, Objection of new terms. |
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Termination by Offer Expiration
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Time for offer expires.
Every offer expires (lapses) after a reasonable amount of time. |
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Capacity
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Age Capacity: (=+18yo) or minor is voidable at the option of the minor.
Mental Capacity: Mental condition and level of maturity. Intoxication can be excused. |
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Genuineness of Assent
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Meeting of the Minds
Misrepresentation Fraud Duress (physically forced) Undue influence (affected by relationship) |
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Unconscionable
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A contract so unfair that is actually shocks the conscious (Font, one-sided agreement, etc.)
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Contract Performance
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Due: When the event should take place.
Standard: Completion terms are also in contract. Excused: Unforeseen events happen. |
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Remedies to Breach of Contract
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Law: Put the parties in the position that would have been had the contract been completed
Compensatory Damages (Money) Incidental Damages (Transportation) Liquidated Damages (Damages built in contract) |
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Remedies to Breach of Contract: Equity
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Specific Performance: Do what they were told to do.
Injunction Relief: Court says to do or not do something |
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resolution
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managers, owners, and workers decide whether or not to pursue
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pre-litigation
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things that happen before the suit is filed
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standing to sue
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idea that litigant (plaintiff) has sufficient interest in the outcome of the controversy
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pleadings
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documents filed by the parties to the court
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prayer for relief
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where you state what you want
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summons
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document issued by the county clerk and tells the defendant that they are being sued
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Answer
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defendant files a pleading within 20 days of summons.
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Options for answering a summon
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Admit,deny, or not enough info
Counter claim cross claim third party complaint |
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counter claim
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where the defendant files back at the plaintiff
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cross claim
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when named defendants sue eachother
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discovery
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exchange of info.
time between comp. and trial be careful, it can be expensive |
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methods of discovery
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depositions
interrogatories requests for documents admissions Independent Medical Exam |
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deposition
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two lawyers take you to a neutral site along with a court reporter. youre under oath. really expensive, dont have time for defendant to think
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interrogatories
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questions asked in writing and answered in writing under oath. have 30 days to respond
cheaper than deposition, time to plan out answers |
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requests for documents
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if its relevant, you can ask for any document within past couple years
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admissions
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stipulations to the law or stipulations of fact.
"Light was red at time of accident" then you admit, deny, or not enough evidence |
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Independent Medical Exam
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Personal Injury. If plaintiff claims theyve been hurt, defendent can request IME from a doctor of their choosing.
very expensive |
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Benefits of Discovery
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Preserves Testimony
Reduction of Perjury Promotes settlement Narrows the issues Prevents surprises at trial |
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Pretrial Conference
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meeting between attorneys and judge; plans the course of the trial
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Processes of Civil Trial
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Voire Dire
Opening Statements Plaintiff's Case Defendants Case in Chief Closing Statements Deliberations + Verdict |
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Two types of Strikes during Voire Dire
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Strike for cause (impartial or not fair)
Peremptory Challenges (each side is given amt. to kick out) |
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Burden of proof for each type of case
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Civil-preponderance of the evidence
Criminal- beyond reasonable doubt |
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Post Trial Motions
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any motion will be after trial
Taken care of usually 4-6 weeks, after which that judge is done with case |
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Criticisms of Court
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Time
Cost Publicity (bad rep) Preserving Relationships |
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Types of Alternative Dispute Resolution (ADR)
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Arbitration
Mediation Med-Arb Rent a Judge |
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Pros of ADR
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much cheaper
quicker usually private sometimes you can have jury hear everything that happens with evidence |
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Cons of ADR
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if case is strongly supported by law and youre not in court, it wont help as much
If an important case went ADR, thered be no case law (such as Brown v. Board of Education) |
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Business Ethics
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an awareness of what is wright or wrong in the workplace and taking responsibility for a course of action in the business environment
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Types of Stakeholders
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1. Primary-direct impact (employees, shareholders, customers)
2. Secondary-affected in indirect way (community, suppliers) 3. Key- can significantly impact a project (customers, suppliers, shareholders, community) |
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Management + Ethics
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what you do and what you wont do will affect the way people act and view you
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Categories of ethical dilemnas
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stealing
lying giving false impression conflict of interest hiding/ divulging information taking unfair advantage |
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Models for resolving Ethical Dilemnas
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Blanchard and Peale- is it legal, balanced, hows it make me feel?
Front of Newspaper-how they'd portray you? Laura Nash's Model- other side of fence perspective, able to discuss with family, what am i trying to accomplish, comfortable with decision? Wall Street Journal- Compliance (is this legal), Contribution (hows it affect stakeholders), Consequence (long term result) |
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Types of rationalizations
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Everybody else does it
If we dont do it, someone else will thats the wya its always been done it doesnt really hurt anyone well wait til the lawyers tell us its wrong the system is unfair |
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Schools of Thought
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Narrow View (Invisible Hand)- only responsibility is to maximize stakeholders wealth
Moderate View (Gov'ts Hand)- regulatory hands of law and political process provide basis for ethical decision making Broad View (Mgt's Hand)- primary obj. is social responsibility and profitability is secondary |
