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108 Cards in this Set
- Front
- Back
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Essential Date
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Performance after the date renders the deal no good
-wedding -stock trade |
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What constitutes a breach?
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1. totality of circumstances
2. Time 3. Essential date 4. Time doesnt always matter |
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Rescission
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Mutual Agreement
Agreement to discharge (nothing prevents anyone to do this) |
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Can statements of "non-recession" be upheld in law?
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NO
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Operation of Law
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A provision in law allowing for the void of a contract
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Statue of Limitations properties
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1. Only limited amount of time to sue
2. differs from state to state/case 3. If contract breeched, but a new one made, statute of limitations expires |
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T/F Contracts are void under bankruptcy law
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True
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Alteration of Contract
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When 1 party changes the contract, laws give the "innocent" party the right/option to discharge the contract
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Types of Doctrine's of Impossibility
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1. Objective Impossibility
2. Commercial Impracticality 3. Frustration of Purpose |
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Objective Impossibility
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-can't be done by anyone
(hurricane) 1. 1 party in a personal contract dies, or incapacitated 2. Specific subject matter is destroyed (superdome) 3. Change of law renders the performance illegal |
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Commercial Impracticality
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It can be done, but because of some event, it is much more expensive now than initially believed. -impractical
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Frustation of Purpose
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Unexpected event cause the benefits associated with the contract to be no longer available
-no benefits |
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Remedies
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Damages for a breach of contract
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Compensatory Damages
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Normal
plaintiff in same position he was in before |
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Consequential Damages
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1. only recoverable if they are reasonably foreseeable by defendant
2. Indirect and Foreseeable "Because you did this, i lost this___" |
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Mitigation Doctrine
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Responsibility of the wronged to make damages as small as possible
-cant take action to increase damages -wrongfully discharged - new employment |
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Waiver of Breach
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Paying rent on 8th instead of 1st, landlord accepts.
-Cant sue later |
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Restatement
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-When landlord reinstates the deadline
-waiver no longer recognized -Must have proper notice to tenant |
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Non-Pecuniary damages
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-Pain and suffering
-not allowed in contract cases -only economic damages are recoverable |
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Punitive Damages
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Punish
-not allowed in contract cases -only economic |
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Liquidated Damages
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Damages the partied have agreed to in the contract
-prenuptial agreement |
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Clause of Contract (Liquidated Damages)
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States how damages in contract will be calculated in case of breach
1. must be reasonable 2. if not: then penalty clauses, not allowed |
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Equitable Remedies
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Action of equity is something other than money
-occurs when money damages are not enough |
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Types of Equitable Remedies
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1. Specific Performance (common- forces party to complete the responsibilities of contract)
2. Rescission(canceling of contract) 3. Restitution (both parties make restitution. Return of plaintiffs benefit) 4. Reformation (imperfectly expressed argument in writing) |
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What is the most common condition stated in a contract?
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"Condition Precedent"
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CISG
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International contracting for sale of goods
-business NOT CONSUMER sale -can opt out by saying CISG wont apply -doesn't have a statute of frauds |
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Sole Proprietorship
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1 person business
-reliable for all debts |
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Partnership business
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2 or more people
-no writing necessary (hand shake) -dont have to register with the state -ALL liability -responsible for others actions |
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Applicable law of partnerships
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-each state has a code describing partnerships
-contract law -agency (1 person rep someone else) -easy in/out, little govt interference |
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Uniform Partnership Act
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Partnerships are fairly similar across states through this act
-not as sacred as UCC |
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Taxes of partnerships
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-do not pay taxes
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Limited Partnerships
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(LP)
1 general partner (runs business) -responsible for everything Limited partners -Financial contributions, but not fully responsible -usually short term business |
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Limited Liability Partnership
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(LLP) P= professionals
-general partnership that has applied with the state -Benefit: not personally liable for tort debts of other partners |
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UBCC: Uniform Business Corporation Code
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(Corporation Code)
States are fairly common -Delaware is more |
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To be a corporation, you must have _____
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Stock issued
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3 Tiers of corporations (Cowboys)
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Shareholders: hire professionals (Jerry hiring coach)
Directors: Run corporation, implement policies (coaches)(Most important) Officers: Other policies, day to day basis (Players) |
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What is never included in the creation of a corporation?
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Names of directors and officers
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Debt in a corp.
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BONDS
-buy a bond: creditor of company |
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Equity in a corp.
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STOCK: become owner of company
Common stock, ownership, $$ |
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Common Stock
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Owner in company
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Preferred
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Paid ahead of common stock
Gives a right the share profits -"detailed" dividend |
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Creation of a corporation must receive _____ under laws of some state
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Charter
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Articles of incorporation must include
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1. Name
2. Name of Incorporators 3. Numbers of authorized shares of stock |
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Dividends
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-everyone gets the same stock.
-Investment remains the same -worth less because everyone has it -no obligation to declare |
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Cash Dividend
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Company writing a check for you
-Increases network |
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Stock Splits
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2:1
Occurs when you get 2 shares for having 1 |
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What is never included in the creation of a corporation?
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Names of directors and officers
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Debt in a corp.
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BONDS
-buy a bond: creditor of company |
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Equity in a corp.
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STOCK: become owner of company
Common stock, ownership, $$ |
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Common Stock
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Owner in company
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Fiduciary
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Exercise reasonable care (tort)
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Business Judgement Rule
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Liability for failure to act reasonably
-no liability for sample errors |
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Derivative action suit
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Against manager for not being reasonably prudent
-from shareholders TO directors/oficers |
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How to loose limited liability
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Failure to disclose
Piercing corporate veil (treating business like a partnership) Inadequate Capitalization (knowingly not putting enough money back for business) Co-mingling of funds |
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2 special forms of corporations
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Subchapter S
-S =Small -only 1 in state -limited liability without paying income tax Limited liability Company (LLC) -No size limitations -No income tax -Members can be management Downside: Liquidity (no market) |
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Agent
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A person that represents another person
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A principle is represented by an ____
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Agent
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What can agents do?
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1. Negotiate contracts
2. Make a contract 3. Responsibilities differ |
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A corporation doesnt have to be a ______ but they all have to represented by one.
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Human
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Servant/Employee type of agent
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(master-servant doctrine)
Employer-Employee. When paid, taxes withheld |
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Independent Contractor type of agent
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Hired to achieve some outcome, but no day to day control
-Paid in full, taxes not withheld |
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Express Authority (creation of agents)
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Most common
-an actual and affirmative declaration by the principal |
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Power of Attorney(creation of agents)
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Written express authority
-May or may not be any attorney involved |
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Implied Authority(creation of agents)
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Authority someone has because of their position in a business
-custom, tradition |
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Apparent Authority(creation of agents)
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Not actual agency (Rare)
-Legal Doctrine used in which a person appears to be an agent because of some action by the principal |
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When is the principal liable?
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When express, implied or apparent authority
-agent isnt bound |
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No disclosure
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Agnet didnt inform 3rd party he was representing first party (principal) and didnt identify the principal
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Partial Disclosure
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knows agent is an agent, but doesnt know name/who principal is
-agent liable when: principal requests anonymity |
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Ratification occurs when....
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the principal affirms an agent's unauthorized act
-expressed or implied |
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Tort Liability: of the _____ for acts of the _____
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principal; agent
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Respondeat Superior
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the principal may be held liable for torts caused by the agent
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Tort Liability in Court and Scope of Employment
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-Injury (will be responsible)
-Can not disrupt store operations -Advancing interests of employer |
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Employment at will
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Can end job at any time without reason
-Exception: Term contract. Can fire a player before contract, but have to pay him until contract expires |
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Tortfeasor
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Primary Liability for causing negligent tort falls under the agent because it was his action
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Principal not reliable for intentional torts
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True
Exceptions: -job related -Negligent Hiring -Negligent supervision |
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Real Property
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Land, buildings, fixtures
-permanently attached |
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Fee Simple Absolute ownership
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All parts of the land
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Life estate ownership
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Own land for life
-Remainderman (goes to when life owner is dead) |
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Ownership in Common
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(A--B--C) (Tenants in common)
-If A dies, interest goes to HEIRS -Law prefers |
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Joint ownership
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(joint tenancy) (JTWROS)
-Interest passes to B and C -Have to have equal interest and acuire it at the same time |
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Tenancy by the Entirety
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Husband and Wife
-whole thing. |
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Ernest Money
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Good faith money given to seller to guarantee that further expenses will be paid
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Listing Agents Fee
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Commission for finding a buyer for you
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General Warranty Deed
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Conveys title of seller to buyer, assurance of good title
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Quitclaim Deed
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Gives you the title, but no assurance of a good title
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Race/Notice System
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One who gets the the court first is the one who get the house
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Adverse Possession
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Squatters Rights: Allow someone to get ownership of property they don't own
ELEMENTS: -open possession Under claim of ownership -continuous -Not needed: good faith |
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Term vs At will leases
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Term: Set move in/out
At will: Set move in, have to tell them when you are moving out |
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Easement
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Right to use someone else's property for a limited purpose
-permanent interest |
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Restrictive Covenant
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Restrict future use of land
-"Neighborhood covenants" -Nice vs Poor Neighboorhoods |
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Eminent Domain
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Private property wont be used for a public purpose
-pay compensation |
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Trademark
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A word or design used by a merchant to identify its goods and distinguish them from others (R-resistered and TM-hoping to claim without registering)
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How to obtain a trademark
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1. Federal Registration with U.S. Patents and Trademark office (must have interstate commerce)
2. State Registration 3. Common Law (no registration) |
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Trademarks are renewed forever!
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YES
-must renew between 5-6 year and every 10 years after that |
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Trademark Classification (weakest to strongest)
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1. Generic (Lite)
2. Descriptive 3. Suggestive 4. Arbitrary 5. Fanciful (Nike and swoosh) |
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Benefits of Federal Registration
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-Notice to all businesses
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Infringement on a Trademark
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The likelihood of confusion
"Sambucks Coffee" |
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Dilution of a Trademark
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Lessoning the capacity of a "famous" mark to identify and distinguish goods or services
("McDonalds Clothing Store") |
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The "grandfather" policy
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-Can CONTINUE to use something, but cant change it
All "razorback" shops have to pay us because they are using the name |
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Cyber Squatting
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Using someone's trademark name on the internet
-WIPO: Takes them off. But cant award monetary damages |
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Copyright
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Protection for people who have created something "artistic"
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How to get a copyright?
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1. Common Law
-Have to prove you are the author -"Poor man's copyright" 2. Federal Office |
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Term of a copyright?
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Life PLUS 70 years.
(95 for corporate owner) -Copyright Term Extension Act |
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The "Fair Use" Doctrine
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Courts should consider:
1. Purpose (Educational?) 2. Nature of copyright material 3. Amount and sustainability of copyright in relation to a whole 4. Effect on the marker |
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Digital Millennium Copyright Act
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Cant override security device
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Patent
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Invention, something unique
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Term of a patent?
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20 years from application date
Non renewable |
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Obtaining a patent?
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File with the U.S. Patent Office
-do a search Cost $8,000 |
