Bus Law Final Flashcards

Question

Bench Trial

Answer 1

-a judge -the decision will be made faster

Answer 2

-a jury -jury selection occurs -voir dire: peremptory challenges -jury instructions need to be read and a final decision takes longer due to deliberation

Answer 3

during these statements it is mostly storytelling, no arguments yet. the plaintiff goes first → defense council goes second.

Answer 4

presenting witnesses and can only present NON-leading questions, this allows the witnesses to tell a story. *exception: hostile witness*

Answer 5

your witness flips and isn't helping your case, this allows you to deem them a hostile witness and allow you to ask leading questions on direct.

Answer 6

defendant can ask leading questions (yes or no answer) to the witness *objection– when a witness tries to say more than yes or no to explain themselves

Answer 7

each side gets to explain what they were trying to stress to the jury; the final persuading.

Answer 8

the final decision

Answer 9

if during the trial there is wrongfulness, the lawyer must go to the judge and ask for a motion for a new trial. If the wrongfulness is found out after the trial the motion is still able to be made.

Answer 10

1. Negotiations 2. Mediation 3. Arbitration

Answer 11

both parties, either on their own or with an attorney, come to some mutual agreement.

Answer 12

-where a neutral third party helps to facilitate an agreement between the parties. the third party must be is outside of the lawsuit and unbiased. -a mediator gives an opinion or another set of eyes on your case and shows you it's strengths and weaknesses -this could lead to a negotiation and a resolution, but if not, then a bench or jury trial

Answer 13

-you give your whole case to a third party and their judgment is final and binding -a contract called an arbitration agreement is made and willfully and knowingly signed and must not be deemed unconscionable -still start with negotiation even if started at arbitration

Answer 14

1. Actus Rea -guilty act 2. Mens Rea -guilty mind

Answer 15

Murder Rape Burglary Arson Robbery Kidnapping

Answer 16

1. Murder in the First Degree: immediate: cop killing, deaths that result from a felony crime 2. Murder in the Second Degree: heat of passion, a quick reaction ex: killing your husband after catching him cheating 3. Voluntary Manslaughter: drunk driving, get in a car intoxicated knowing you could possibly kill someone 4. Involuntary Manslaughter: distracted while driving and you kill someone, did not have the intent of killing someone

Answer 17

Common Law — the unlawful carnal knowledge of a female without consent Modern Law — the unlawful carnal knowledge of anyone without consent

Answer 18

Common Law — the unlawful carnal knowledge of a female under the age of 9 Modern Law — the unlawful carnal knowledge of anyone under the age of 18

Answer 19

Common Law — the unlawful breaking and entering into the dwelling house of another during the nighttime with the specific intent to commit a crime there end Modern Law — the unlawful breaking and entering into any structure at anytime with a specific intent to commit a crime there end

Answer 20

Common Law —The malicious burning of the dwelling house of another (there has to be charring and must cause property damage) Modern Law —The malicious burning of any structure

Answer 21

the trespassory taking and asportation of the personal property of another by force, fear or intimidation.

Answer 22

tangible and moveable (chattels and goods)

Answer 23

fixed annex to the ground

Answer 24

Implied – gestures or a response to a past repeated behavior or experience Expressed – verbal or written consent

Answer 25

Common Law —The trespassory taking of a person outside the country Modern Law — The trespassory taking of a person without consent

Answer 26

the trespassory taking and asportation of the personal property of another while in lawful custody or possession (exceeding the scope of consent)

Answer 27

the trespassory taking and asportation of the personal property of another

Answer 28

serious crimes punishable by death or by imprisonment of more than a year

Answer 29

less serious crimes punishable by a fine or by confinement of up to a year

Answer 30

when receiving stolen property you either knew or should have known the property to be stolen

Answer 31

the modification or alteration of a legal document ex: birth certificates, marital license, drivers license, death certificates, passports, checks, credit cards, titles

Answer 32

the intentional misrepresentation of fact that's known to be false by the wrongdoer for purposes of inducing action or an inaction and, in fact induces the action or inaction desired

Answer 33

enticing a government official to do something they would not otherwise do ex: Police, IRS, judges

Answer 34

enticing a lay person to do something that they would not otherwise do (sometimes through threat)

Answer 35

Self Defense Defense of Others Defense of Property Duress Necessity Insanity Intoxication Consent Infancy

Answer 36

one may use both deadly or non-deadly force to defend themselves where the same amount of force is being used against them.

Answer 37

one may use deadly or non-deadly force to defend another where the same amount of force is being used against the other.

Answer 38

NEVER use deadly force, only use non-deadly force

Answer 39

one may use the defense of being under duress for everything (except murder)

Answer 40

The criminal act was necessary to prevent an even greater danger Valid defense for everything (except murder)

Answer 41

expressed - verbal or written implied - gestures or passed repeated response

Answer 42

1. M’Naghten Rule 2. Irresistible Impulse Rule 3. Model Penal Code

Answer 43

the defendant at the time of the crime did not know the difference from right or wrong (majority rule)

Answer 44

the defendant at the time of the crime could not resist the impulse to do the crime even if they knew it to be wrong (minority rule)

Answer 45

look to the state that the crime was committed in to determine the rule of law

Answer 46

Voluntary – no valid legal defense Involuntary – valid legal defense

Answer 47

0-6 → presumption of innocence 7-14 → rebuttable presumption of innocence 14 and above → guilty of the crime Socio economic status, intellect, education etc. can be arguments

Answer 48

The criminal act was necessary to prevent an even greater danger, viable defense to everything except murder

Answer 49

Freedom of religion – unless causes harm Free speech – unless insights others or on private property

Answer 50

-Prohibits against any unlawful governmental intrusion (searches and seizures) against one’s person and/or property. -Search warrants required to search a home unless an exception applies -Exceptions: consent, exigent circumstances, type of business (pawn shop, liquor store, strip clubs), plain sight, plain smell, plain hearing, terry stop and frisk etc.

Answer 51

The Right Against Self Incrimination: when you are deemed in custody or can be used while testifying in court Double Jeopardy: no person shall be tried for the same offense twice -not guilty, may not be tried again -hung jury, may be tried again

Answer 52

1. The Right to Counsel at Trial: counsel must be available in all felony prosecutions and any other prosecution where there is the potential for loss of liberty. 2. Right to Cross Exam/Confront a Witness 3. Right to a Fair and Impartial Trial: under the due process clause you have the guarantee of an impartial trial. The right is to ensure that the defendant is tried only by an impartial judge or jury 4. The Right to a Jury Trial: where there is the potentials of imprisonment of 6 months or more

Answer 53

At common law, the right trial jury for civil lawsuits, the amount in controversy must exceed 20 dollars

Answer 54

No Cruel or Unusual Punishment: making someone do something against their religion, denying the right to exercise, denying the right to smoke, watch t.v. etc. Unreasonable bail: bail depends on case and person

Answer 55

The Equal Protection Clause: prohibits against discrimination based on race, religion, age, disability, gender, sexual orientation etc.

Answer 56

a civil non-contractual wrong

Answer 57

Intentional Torts Defamation Privacy Strict Liability Product Liability Negligence

Answer 58

Assault Battery False Imprisonment Trespass to Land Trespass to Chattels Conversion Intentional Infliction of Emotional Distress

Answer 59

The intentional placing of one in reasonable apprehension of an immediate harmful or offensive touching to plaintiff or plaintiffs’ person. -harmful, offensive, fear, obnoxious -must be aware of the attempted assault -Immediate sense of harm, not in the future

Answer 60

The intentional harmful or offensive touching to plaintiff or plaintiffs’ person -must have contact (punched in the face etc.)

Answer 61

The intentional confinement of a person without responsible means of ingress (the act of going in) or egress (the act of going out).

Answer 62

The intentional entry onto the land of another without consent or privilege

Answer 63

The intentional taking of the personal property of another without consent

Answer 64

Dominion and control of the personal property of another

Answer 65

Extreme and outrageous (goes beyond all bounds of decency) conduct calculated to cause, and causes, severe emotional distress

Answer 66

Self Defense Defense of Others Defense of Property Consent Shopkeepers Privilege Necessity

Answer 67

A shopkeeper may detain a party for reasonable period of time under reasonable belief that the other has their property

Answer 68

Public: where you're protecting a large group or class of individuals then you do not need to reimburse and are not liable. Private: when you’re protecting a smaller group or class of individuals then excused for the actions but you MUST reimburse, repair or replace what you used.

Answer 69

1. Animals 2. Ultra-hazardous Material/Abnormally Dangerous 3. Product Liability

Answer 70

Domestic– first injury (one free bite), second injury (on notice) *exception: a pitbull does not get one free bite Wild– regardless, you are at fault but it needs to be a typical injury of animal

Answer 71

Possessing hazardous objects or materials makes you responsible for the damages/injuries that they may do to others Ex: fireworks, dynamite, hazardous chemicals in water etc.

Answer 72

A defective product has been placed in the stream of commerce causing damages, the user, consumer and/or bystander may bring forth a lawsuit against the seller, manufacturer, and/or retailer. -when someone claims a product as their own it takes away responsibility of the company

Answer 73

one who deals in goods of a kind

Answer 74

they are NOT professionals in the field so if a product has a malfunction the fault does not land on the garage seller

Answer 75

if there are warnings on products and the consumer alters the product or doesn't follow instructions that is misuse (misuse = you can’t sue)

Answer 76

Duty Breach Causation Damages

Answer 77

to act as a reasonable prudent person under same or similar circumstances

Answer 78

a duty is owed to only those in the foreseeable zone of danger

Answer 79

a duty is owed to the entire world

Answer 80

Professionals: duty to the community Specialist: duty to the nation Landlord to Tenant: warn and make safe the known dangerous instrumentalities Doctor to Patient: must act as a fiduciary and hold confidences Parent to Child: must provide and not negligent

Answer 81

A failure to act when there is a duty to act

Answer 82

Foreseeability– it was a foreseeable cause that resulted in the plaintiff's injury Unforeseeability– it was an unforeseeable cause that resulted in the plaintiff’s injury

Answer 83

The defendant caused damages to the plaintiff Ex: legal damages, compensatory, punitive damages (damages designed to punish the civil defendant)

Answer 84

1. Assumption of the risk 2. Comparative Negligence 3. Contributory Negligence

Answer 85

Where one volitionally undertakes or assumed the risk involved

Answer 86

Comparing the negligence of both parties and apportioning the damages (if the plaintiff is 51% or more at fault than the defendant is not liable to the plaintiff for damages)

Answer 87

Where the plaintiff contributes to his/her own negligence (in some jurisdictions this is a valid defense)

Answer 88

The false defamatory statement of and concerning the plaintiff communicated to a third party

Answer 89

1. Truth 2. Consent 3. Privilege?

Answer 90

1. False Light 2. Intrusion into Seclusion or Solitude 3. Commercial Appropriation 4. Public Disclosure of Private Facts

Answer 91

Offer Acceptance Consideration

Answer 92

The outward manifestation of present contract intent to be bound by certain and definite terms communicated to the offeree Offeror – presenting the offer Offeree – receiving the offer

Answer 93

Quantity Time Interested Parties Price Subject Matter *U.C.C-- only need quantity term*

Answer 94

Revocation – the offeror revokes the offer prior to acceptance Rejection – the offeree, reject the offer and can counteroffer if wanted. this makes them the secondary offeror (changing the terms of the offer = rejection) Destruction of Subject Matter –prior to acceptance, the subject matter is destroyed Lapse of Time – once the time frame given is exceeded, the offer is destroyed Death of a Party – when a party dies the offer dies Insanity – if a party is deemed mentally unstable when the offer is made then the offer is destroyed

Answer 95

1. Option Contract 2. Firm Offer Rule

Answer 96

An option contact keeps an offer open for a stated period of time and is supported by consideration. The offeree can give up something to the offeror so that the offeror keeps the offer open for only them for a stated period of time. This prevents the offeror from revoking their offer or offering it to someone else instead.

Answer 97

*U.C.C* - An offer is made by a merchant to keep an offer open not to exceed 3 months or 90 days and no consideration is required

Answer 98

the unqualified unequivocal assent to the terms of an offer

Answer 99

there must not be any variances or changes to the terms of the offer a pure acceptance is saying yes to the terms of the offer given

Answer 100

Accepting an offer but not being happy about it, expressing your negativity about the offer but still accepting the terms of it anyway.

Answer 101

Rejection of the offer and creation of a new offer

Answer 102

Acceptance – is valid on dispatch Rejection – is valid on receipt If the acceptance is received first and followed by rejection then acceptance prevails If the rejection is received first and followed by acceptance then rejection prevails Whichever comes first prevails

Answer 103

the bargained for exchange of a legal detriment (the offeree and the offeror are both giving up something)

Answer 104

1. Past Consideration 2. Pre-Existing Duty Rule 3. Promissory Estoppel

Answer 105

-This is NOT consideration -Giving something up already in the past doesn't count

Answer 106

-If it is part of someone's job to do what is being offered -ex: missing person, family member offers something for the police officer to find the person: the police officer already has a pre-existing duty to find the missing person so not consideration

Answer 107

-If the offeror makes a promise to the offeree and the promise is relied by the offeree, if the promise is not seen to fruition and would cause a detriment to the offeree then this would meet consideration -If you give up something when relying on the promise then there is consideration, if not then it’s not

Answer 108

Implied/Expressed Valid/Void/Voidable Unilateral/Bilateral Quasi-Contracts Executed/Executory

Answer 109

Implied: implicit by its very nature Expressed: verbal or written contract

Answer 110

Valid: a contract that is valid under the law Void: an illegal contract

Answer 111

Unilateral: a promise in exchange for an act (extremely rare) Bilateral: a promise in exchange for a promise (usually bilateral)

Answer 112

a fictitious contract created by the court to prevent an unjust enrichment ex: pool built at the wrong house, contract needs to be created to prevent the unjust enrichment of getting a pool for free

Answer 113

Executed: contracts that are fully performed by both sides Executory: only one party has performed

Answer 114

a mutual agreement by both parties to contract (offer, acceptance and consideration OR mutual assent and consideration)

Answer 115

Capacity Mistake Fraud Undue Influence Duress Unconscionable Contracts

Answer 116

Minors – cannot contract with minors Exceptions: emancipated minor (under the law deemed an adult), at the option of the minor (the choice of the minor if they want to keep the contract going) Intoxication – have to be of sound mind Mental state of mind – have to be mentally stable and of sound mind

Answer 117

Unilateral Mistake – where the nonmistaken party either knew or should have known of the mistake Look for scrivener's error Bilateral Mistake – mutual mistake/ both parties are mistaken of the underlying facts of the contract

Answer 118

Where one party uses their position of power over another Ex: caregivers, family members, etc. and can go hand and hand with duress

Answer 119

Through violence or threat to entice another to do something they would not otherwise do Ex: attorneys, priests, etc.

Answer 120

-Contracts that are heavily favored towards one party -Arbitration agreements are contracts

Answer 121

Contracts that must be in writing in order for them to be deemed valid 1. Marriage 2. Realty 3. Answering for the debt of another 4. Contracts by their very terms cannot be completed within one year 5. Goods of $500.00 or more

Answer 122

1. Signed Writing --something tangible to indicate writing 2. Part Performance --partially or fully performed 3. Main Purpose Doctrine --must benefit the party, change or improve/give money 4. Full performance -- the contract is fully performed 5. Receipt in full or part payments or of the goods themselves

Answer 123

Signed Writing -- for all statue of frauds) Part Performance -- Realty Main Purpose Doctrine -- Answering for the debt of another Full Performance -- Contracts by their very terms cannot be completed within one year Receipt in full or part payments or of the goods themselves --Goods of $500 or more

Answer 124

Condition Precedent: One party performs first Condition Subsequent: One party performs second Condition Concurrent: Both parties perform at the same time

Answer 125

1. Impossibility/Impracticability 2. Waiver/Modification 3. Novation 4. Rescission 5. Frustration of Purpose 6. Performance

Answer 126

-When conditions cause the reasoning to be impossible for a party to perform -This can allow the contract to be pushed back or destroyed

Answer 127

-Waiving a right your entitled to (ex: arbitration) -Change or alter post contracting

Answer 128

A third party must step in the shoes of one of the original contracting party, relieving that party of responsibility or liability, and seeking consent from all three *Always have a waiver and a modification*

Answer 129

When both parties mutually agree to rescind the contract

Answer 130

Both parties know and understand the underlying purpose of the contract

Answer 131

Complete: both parties have performed their side of the contract Substantial: not complete performance but almost completed all the obligations under the contracts

Answer 132

Shipping terms/agreements (who owns the title or who bears risk of loss) Common carrier – takes either an item or a person from point A to point B

Answer 133

1. Free on board the common carrier 2. Free alongside the common carrier 3. Cost of insurance and freight 4. Sale on approval

Answer 134

Once the person puts the item on board the common carrier, its as if the buyer already has possession of it (ex: on a plane)

Answer 135

When the good is alongside the common carrier, it's as if the buyer already has possession of it (ex: on a boat or train)

Answer 136

If one party assumed the cost of insurance then they are liable up until it is in possession Ex: usually the seller assumes the cost of insurance so if the good or item is lost while being delivered they are liable

Answer 137

Once you have received the good and there is valid verification that it was delivered and approved then the seller is no longer liable

Answer 138

with contracts for the sale of a good, the uniform commercial code applies

Answer 139

Goods: movable items Good Faith: having honest intentions

Answer 140

a merchant is one who deals in goods of a kind, non-merchants do not

Answer 141

only need QUANTITY term, the court can use gap fillers to fill in the areas that lack the requirements for certain and definite terms

Answer 142

nothing changes, stays the same

Answer 143

Goods of $500 or more

Answer 144

1. 3rd party beneficiaries 2. Assignments 3. Delegations

Answer 145

Intended = Vesting rights, allows the intended beneficiary (the third party) to do whatever the original contracting party could have done. They have a stake in the claim. Ex: life insurance policies, trusts, wills etc. Incidental = No vesting rights, they have no stake in the claim, the party wasn't named, considered or known during the contracting process.

Answer 146

You are assigning a right away that you are entitled to

Answer 147

-You’re delegating a duty that you owe to another -It cannot be too personal in nature Ex: you hire picasso to paint you and he delegates his duty over to someone else, this duty is too personal in nature, there's only one picasso

Answer 148

Implied Warranty of Merchantability = the good you buy should be what you expect it to be Implied Warranty of Fitness for a Particular Purpose = you relied on a merchant and the merchant did not provide the good you expected Express Warranty = expressly states verbally or in writing

Answer 149

Fiduciary Relation = means that the relationship involves trust and confidence between the parties Principal/Agent = agency relationship commonly exist between employers and employees -Principal (employer/master) -Agent (employee/servant) Respondeat Superior = the principal (employer) is responsible/liable for the acts of its agent (employee) that caused a 3rd party hard during the course and scope of employment. (not applicable for intentional torts unless the job indicates)

Answer 150

Indirect liability is put onto the principal (employer) holding the principal vicariously liable for the tortious/contractual acts caused by the agent (employee) during the course and scope of employment Frolic and Detour: if the employee frolics they are liable, if the employee makes a detour the employee is till liable

Answer 151

Are not deemed employees because those who hire them have no control over the detail of their work. Therefore no respondeat superior/vicarious liability.

Answer 152

Express -- expressed by employer Implied -- implied by employer Ratification -- an employee acts on behalf of the employer without expressed or implied authority, however the employer acknowledged and accepts the employees actions Agency by Estoppel -- an employee gives the impression to a third party that they are acting as an employee for another person or business ad they must be given the power to act on their behalf *once formation of the agency -- look for what authority was given -- expressed and.or implied*

Answer 153

Performance Notification Loyalty Obedience Accounting

Answer 154

Compensation Reimbursement Indemnification Cooperation Provide a safe working environment *Liability for contract and tortious acts: (unless intentional torts and the exception to the rule if the job dictates) ex: police officer, bouncer, bartender, and so forth.

Answer 155

Death Insanity Notice Given Agreement Fulfilled Lapse of Time Purpose Achieved

Answer 156

Shareholders (owner of the corporation) → Board member → Officers *respondeat superior: the corporation is vicariously liable for torts and contracts

Answer 157

1. Domestic– incorporated/formed and conducts business in the same state 2. Foreign– incorporated/formed in one state and does business in another state 3. Alien– a corporation formed in another country but does business in the U.S. 4. Closed– one who shared are held by relatively few persons (often family members)

Answer 158

Expressed/Implied

Answer 159

So they won't be liable they seek = Ratification: an agreement to each contract Novation: ratification leads to this so promoter no longer liable Indemnification: promoter should be reimbursed for out of pocket expenses if still held responsible for the contract even after novation

Answer 160

Due process: right to be heard Equal protection: right not to be discriminated against Attorney client privilege: an entity needs to be represented 5th Amendment

Answer 161

1. Promoters 2. Incorporation Procedures --State of Incorporation: file with the secretary of state, name of corporation, purpose, initial number of directors, articles and bylaws of the corporation, then receive a seal of approval

Answer 162

Dejure (majority of jurisdiction) = the corporation substantially complied with all the corporation formalities (did almost everything required there was just a slight error) Defacto (minority of jurisdiction) = the corporation colorably complied with all the corporate formalities (slight defect in the corporation formality, small error) Corporation by estoppel = the individuals who started up their corporation did not know, in good faith, that they needed to be adequately formed.

Answer 163

Exceeding the powers of the corporation. Acts that are beyond its expressed or implied powers are deemed ultra vires Ex: acts involving contract for unauthorized purchases

Answer 164

The owner uses a corporate entity to perpetrate a fraud or in someway accomplish an illegitimate objective for their own benefit.

Answer 165

The courts piece the corporation veil of the corp. Entity to avoid an injustice or fraud that would result from the wrongdoers (shareholders/officer/board members) board of directors so that they cannot hide behind limited liability

Answer 166

The majority owes a duty not to sell to looters

Answer 167

1. Right to Attend Annual Meetings 2. Right to Vote 3. Approval of Fundamental Changes in Corporate Structure 4. Right to Proxies 5. Election and Removal of Directors 6. Preemptive Rights 7. Inspection of Books and Records 8. Adoptions and Modification of Bylaws 9. Right to Collect Dividends 10. Right to Dissolve the Corporation 11. Right to Shareholder Suits

Answer 168

Fiduciary duty of care– a officer or board member that acted negligently and it wasn't helpful of the company, even though they breached they still had that duty of care to the company Fiduciary duty of loyalty– commingling of funds, conflict of interest, usurpation of a corporation opportunity

Answer 169

1. To hold office until next election 2. Removal with cause at modern law, without cause at common law 3. Right to compensation and indemnification

Answer 170

1. To carry out business without interruption 2. Election and removal by the board 3. Compensation and Indemnification

Answer 171

10B5 16B 14A

Answer 172

Insider Trading (common law fraud) Ex: knowing information and using it to one’s advantage before it is publicly announced –Selling shares knowing before it is going down or bankrupt –Buying shares while its low knowing before it is going to go up

Answer 173

Short swing profits -- profits within a short period of time, the company must have at least 4 million dollars in profits

Answer 174

quorum (a majority of the shareholders) must be present

Answer 175

Revocable Proxies: can revoke the proxies right Irrevocable Proxies: cannot revoke the proxies right Proxies: third parties who are voting for the shareholders right to vote -one share = one vote

Answer 176

Direct -- right to sue against company if any rights are violated) Derivative -- a shareholder finding out about a breach and the company doesn’t sue, the shareholder can step in the shoes of the corporation and sue -Majority of jurisdictions require… Step 1: shareholder demand on the board Step 2: contemporaneous ownership in the corporation at the time of the injury Minority of jurisdictions require… Step 1 and 2 Step 3: must demand other shareholders