ACC 241 Final Flashcards by Jeff Mecham

Sources of Law

Constitution (State and Federal)
Statutes (State and Federal)
Case Law (Judges)
Ordinances (towns)

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What are the two types of remedies?

Legal (Money)

Equitable (Other things)

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What are the equitable remedies?

Injuction – stop doing it
Recission – cancel contract
Specific Performance

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When can specific performance never be granted?

in personal service contracts

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In real estate, who can demand specific performance?

the buyer, not the seller

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Two ways to get to federal jurisdiction

Federal Question (not always exclusive)
Diversity Jurisdiction

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Exclusive Federal Jurisdiction

Anti-Trust
Bankruptcy
Federal Crimes
Intellectual Property
Maritime Law
United States is a Party

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When does a court have personal jurisdiction?

Automatic for resident

Out of state – sufficient minimum contacts

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What are the steps of litigation?

Pleadings
Discovery
Pre-trial
Trial
Post-trial

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What is included in the pleadings?

Summons
Complain
Answer
Cross-complain
Reply

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What does the summons and complaint cover?

Summons -- Notifies
Complaint --
1) facts sufficient to show jurisdiction
2) Facts to show cause of action
3) requested remedy

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What is included in the answer?

Affirmative Defense

Counter Claims

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What motions are there (both pre-trial and post-trial)

Pre-trial:
Motion for summary judgment
Post-trial
Motion for new trial
Motion for judgment notwithstanding the verdict (JNOV)

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What are the three things your review during appellate proceeding?

1) Your written brief
2) Trial transcripts (court record)
3) Oral argument

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What are the three intentional torts we need to know for this test?

1) Assault
2) Batter
3) Invasion of Privacy

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What are the four types of invasion of privacy?

1) Intrusion upon seclusion (peeping tom or computer-hacking)
2) Misappropriation
3) False Light
4) Publication of Private Facts

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What are the four elements of negligence?

Duty
Breach
Causation (actual and proximate)
Injury

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Difference between Actual and Proximate causation

Actual – but/for

Proximate – foreseeable

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Types of Comparative Negligence?

Pure comparative

Modified/Partial Comparative (plaintiff has to be < defendant)

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Kinds of defects in product liability

Manufacturing
Design
Warning

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Who can you sue in product liability?

Anyone in the chain of distribution

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What business torts are there?

Tortious interference with a contract

Bad faith

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What crimes do we have to remember?

Burglary
Robbery
Larceny
Embezzlement
Responsible Corporate Officer

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Difference Between Burglary, Robbery, and Larceny

Burglary – entering into dwelling w/o authorization w/ intent to commit felony or assault
Robbery – (mugging) use threat or force to take personal property from you
Larceny – (pick-pocket) – deprive you of your personal property w/o you knowing

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What are the steps in crimnal procedure?

Arrest Booking Arraignment Trial

What happens in arraignment?

Charging document | Plea

Difference between an information and inditement during arraignment

Information -- from prosecution | Inditement -- from the grand jury

Elements needed for an implied contract?

Plaintiff offered service/good w/ expectation of pay Defendant knew plaintiff expected pay Defendant had opportunity to reject

Two exceptions of mailbox rule

Written into contract | Rejection first sent, then acceptance (first to arrive wins)

Three types of consideration in contract

Promise Performance Forbearance

Difference between sufficient and adequate consideration?

Sufficient -- Exisists? | Adequate -- Enough?

Two times consideration isn't sufficient (for this test)?

Past consideration | Pre-existing legal duty

When does accord and satisfaction apply?

A disputed debt

When can minors not disaffirm?

NEVER!

When are minors liable for damage to contract material?

Gross negligence, recklessness, intentional damage | Misrepresentation of Age

When can minor ratify?

After adulthood (Express or Implied)

When does not having a valid license void contract?

Barrier to do -- void | Raise revenue -- valid

Defenses to Contract Formation?

Mistake of Fact (Uni and Bi) Duress Undue Influence

Unilateral Vs. Bilateral Mistake of Fact

``` Unilateral -- Still valid UNLESS 1) non-mistaken party knew there was mistake and tried to take advantage 2) clerical error (not GROSS negligence) 3) unconscionable Bilateral -- either can void ```

Mistake of value

What its worth -- not a defense

Duress vs Undue Influence

Duress -- threat or forcing to enter into a contract | Undue Influence -- fiduciary relationship and overcome person's reason

Fraud vs Puffery

Fraud -- intentional misrepresentation of a FACT | Puffery -- statement of opinion

Stature of Fraud

``` Marriage Year Land Goods (over $500) Guaranty Statute of Limitations ```

What do you need for promissory estoppel (just short of a contract)?

Reasonable to rely on promise | Reliance on a promise to your deterimant

Difference between assignment and delegation?

Assignment -- transfer of contract right | Delegation -- transfer of contract duty

Conditions (Precedent, Concurrent, Subsequent)

Precedent -- happening parties must perform Subsequent -- happening means parties do not have to perform Concurrent -- have to happen at same time

Types of Remedies

``` Compensatory Incidental nominal Consequential Punitive Recission and Restitution ```

Who needs capacity in a principal/agent relationship?

Principal

When is a principal liable for an agent's torts?

Within scope of work (motivation test, work-related test) (coming/going generally not liable) (frolic vs. detour)

Who is liable with breach of contract in principal/agent relationships?

Fully disclosed -- only principal | Partially/Un-disclosed -- agent can initially be liable but can sue back under indemnification

What is the liability of partners in a general partnership?

Unlimited personal liability?

What is the difference between LLP's and LP's?

LP's have two types that are either personally or only limitedly liable LLP's -- everyone has limited liablity (when state doesn't have LLC's)

What is an Operating Agreement?

document that governs internal affairs of LLC

What are types of management in LLC's?

Manager or Member Managed

Difference between loyalty, care, and obedience?

Loyalty -- conflicts of interest Care -- doing your job Obedience -- following bylaws

Roles of Directors, Officers, and Shareholders?

Directors -- High level Officers -- day to day Shareholders -- ?????

What are the financing options of corporations??

???

What is a derivative lawsuit?

Brought by shareholders 1) who were holders when it happened 2) represent interests of all share holders 3) made written demands on corporate officers/directors

What are the types of ethical reasoning?

Kantian Utilitarianism Ethical fundamentalism Ethical relativism

What are the categories of corporate social responsibility?

Making a profit Moral Minimum Stakeholder Interest Corporate Citizenship

Three ways to perfect a security interest?

1) filing a financing statement 2) possession of collateral 3) perfection by a purchase money security interest in consumer goods