Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Flashcards > Business Law > Flashcards

Business Law Flashcards

1
Q

What are the 6 elements of an express contract?

A

1) offer- which is made by offeror and accepted by offeree
2) acceptance- counteroffer
3) consideration- past considerations, promissory estoppel/detrimental reliance
4) capacity- void, voidable, unenforceable
5) Legality
6) intent- no mutual mistake, unilateral mistake

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What is a counteroffer

A

the offeree rejects the offer and comes up with a new offer and if the other person accepts then we will have a final offer

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What are considerations

A

contracts have to be supported by good consideration meaning both sides must give up and receive semi equal value

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What are past considerations

A

acting on an event before a contract or promise is made

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

what is an example of promissory estoppel/ detrimental reliance

A

they put down $200 and made a promise, you relied on it and then we harmed (They made a promise to a 10)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What is it when a void is put on a capacity

A

illegal, neither side can inforce it

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What is it when capacity is voidable

A

one side can choose to enforce it

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What is it when capacity is unenforceable

A

it is up to a judge to decide whether it is enforceable or not enforceable

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Contract Law is derived from what two sources?

A

-Common Law (case)
-Statutes (laws)
(both being part of regulating contracts)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What are the 5 types of capacities

A
  • minor
  • intoxication
  • insanity
  • undue influence
  • duress
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What are minor capacities and the 3 exceptions

A

voidable at the minors options;

1) student loans
2) if the minor is entering into business contracts
3) contracts of necessity including food, clothing, and shelter

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What is an intoxication capacity?

A

it is when contracts entered into by an intoxicated person is voidable at his option once sober

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What is an insanity capacity

A

There is a lack of capacity. If a prior court ruled you lack of capacity then any contract you enter into is considered void. If no prior court ruled lack of capacity it will be voidable at her guardian option.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What is undue capacity

A

To put a person in position of trust, played on trust to get what they want, it was not forced. Example is sucking up to get what you want.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What is duress capacity?

A

To be forced into contract, if you can prove this then it can be voided

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

What is an example of legality

A

if a title pawn shop charged 600% it would be considered illegal - is regulating maximum interest rates allowable
-usury, gambling

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What is it when there is intent

A
  • both parties need to be on the same page (both sides mistaking) no contract
  • no mutual mistake
  • but unilateral mistake
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What would consider breach of express contract?

A
  • existence of valid contract
  • breach
  • plaintiff notified defendant of breach
  • plaintiff performed all conditions precedent to filing action
  • damages
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

An express contract (if having all elements) can be represented in what 2 ways?

A

written or orally

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

What is an example of implied contract?

A

-Painting the fence because the guy never said not to paint the fence. It was implied that the job was wanted to be done because he never said not to do it.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

What is an implied contract in fact?

A
  • based on conduct

- is when the defendant conduct made it seem like acceptance

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

What is implied contract in law?

A
  • unjust enrichment, meaning quasi contract

- says you would be unjustly enriched if you don’t pay the bill

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What is an example of implied contract in law?

A

The hospital bill is $100,000. You have good insurance that pays 80%. You pay $20,000 and your deductible is met for that year. The insurance says the most you will ever have to pay is $20,000. Once getting the bill from the hospital in the mail, you contact the insurance company and the hospital to complain about the bill being absurd. You propose paying monthly fee for final amount to come out as $5,000 or send $4,000 with a letter and check clearly stating that the money meets the full satisfaction of debt $20,000. If they cash it they have 90 days to change their minds but otherwise you don’t owe any more money.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

What is an unconscionable contract?

A

-contract of adhesion, a one sided consumer contract where you have no ability to negotiate

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

What are the 5 examples of Boilerplate clauses discussed in class?

A

1) default and acceleration
2) choice of law
3) forum selection
4) attorney’s fee
5) severability/ savings

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

What is default an acceleration boilerplate clause?

A

the entire balance is due now; in the event any payment due hereunder is not paid when due, your account will be deemed in default. (very standard when there is a finance agreement ex. car, home, apartment)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

What is a choice of law boilerplate clause?

A

agreement governed by laws of the state of Washington, USA; (example, you would want to have the ability to have the venue and law to be in your state)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

What is a forum selection boilerplate clause?

A

where will it be?; (Example, you herby irrevocably consent to the exclusive jurisdiction and venue of courts in King County, Washington USA. In all disputes arising out of or relating to the use of the MSN Sites/ Services)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

What is an attorney’s fee boilerplate clause?

A

the winning side gets the fee; In the unlikely event of litigation and appeals, the prevailing party can recover all reasonable attorneys fees and costs. (if you have this within your business people will be scared to cross you)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

What is a serveablility/ savings boilerplate clause?

A

Says judge cut out or serve the bad part of the contract then save the rest; If any part of this argument is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

What is a modification/ merger boilerplate clause?

A

Unless otherwise specified herein, this argument constitutes the entire agreement between the user and Microsoft with respect to the MSN Sites/Services and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and Microsoft with respect to the MSN sites/services. May only be modified if done so in writing and signed by both parties

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

What is an assignment boilerplate clause?

A

clause with and without recourse

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

What is a covenant not to complete boilerplate clause?

A

it shows 3 things if you quit, get laid off, or fired then…

1) cant have a job in the same title
2) within 3 year
3) within a geographical region of company choosing

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

What clauses are generally combined together

A
  • non solicitation
  • non disclosure
  • convenant not to complete
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

What are types of clause Damages

A

1) Compensatory
2) Consequential
3) Punitive
4) Liquidated
4) Nominal
5) Anticipatory Repudiation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

What are compensatory damages

A

actual damages; Ex-the beer that the guy put the rat in , company sued him for their loss in profit, it was an actual damage to their company

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

What are consequential damages?

A

Lost profits

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

What are punitive damages?

A

there are no punitive damages allowed; an example would be fraud

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

What is liquidated damages?

A

it is a fixed amount written into a contract in the event of breach. It must be a reasonable amount and not a penalty, otherwise the court will throw it out

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

What is nominal damages?

A

it is token damages, it is where the judge found liability but not damages. Ex-the GM case they found pain and suffering but parents didnt want the money so the reward was $1

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

What is anticipatory repudiation damages?

A

cause of action. Example, a breach of contract or compensatory repudiation. You gave 1 million dollars down payment to a guy who said he would give you a car, you try to contact him for 3 weeks and he ignores you then you can file under anticipatory repudiation based on good information that he will breach the contract.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

What is statute of fraud

A
  • tells us which contracts must be in any form of writing
    1) all contracts come with real estate, land/homes must be in writing, personal property talking about movable goods
    2) any contract which can not be performed within one year
    3) any sale of goods not services over $500 and in GA over $5,000
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

What is Uniform Commercial Code (UCC)

A

set of contract laws between merchants and merchants and consumers
-it is incorporated in OCGA- GA statutes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
44
Q

What is article 2 of the UCC

A

transactions involving the sale of goods (not services)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
45
Q

What are two forms of warrantees?

A

Express Warranty and Implied Warranty

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
46
Q

What is an express warranty

A

it is a sellers promise or guarantee that a buyer relies on when they purchase an item; doesn’t necessarily have to be written but can be

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
47
Q

What is an implied warranty?

A
  • merchantability- the reliability that the product actually works, consumers get this but it is not specifically told to you
  • but considered different when buying a used product “as is”
48
Q

describe mitigation of damages

A

a person who has suffered an injury or loss should take reasonable action to avoid additional injury or loss . Example if you contact a farmer to buy 100 bushels of corn for $10 per/bushel and then he runs out of corn and then you have other farmers 1)offering $12 p/b 2)offering $12 3)offering $12 p/b 4)offering $15 p/b and you choose #4 b/c he’s a good friend then the 1st farmer that you used owes you only $200 instead of $500 because you were given a cheaper offer than $15 p/b
- it is a Deffence to breach contract or negligent actions, saying that the plaintiff has a duty to reduce defendants damages

49
Q

What is article 9 of the UCC

A
  • discusses secured transactions
    • secured creditor
    • unsecured creditor
    • secured agreement/financing agreement
    • collateral
50
Q

example of secured creditor

A

any creditor that takes collateral for the extensions of a credit , example financing a car (look up in book)

51
Q

example of unsecured creditor

A

example credit card (look up in book)

52
Q

What is a collateral

A

something that can be taken from you, prior to judgment; if you default ; Example if you default on your car payments then they can take away the car and then sue you

53
Q

How does a creditor “perfect” a security interest- priority as to goods or land

A

1)Goods- UCC 1 financing statement- filled with clerk of superior court- lasts 5 years
fixture filling-a good attached to real estate so much that it becomes part of the real estate
2)Land- deed and mortgage is filled in public records in the county, showing that the bank owns the land

54
Q

What is bankruptcy chapter 7?

A

Liquidation-For corporations and individuals, but since a new law, individuals no longer have a right to file a 7, only committed if the person has an extreme hardship and will no longer have ability to pay, making them file a 13 instead

55
Q

What is a bankruptcy chapter 11

A

corporate reorganization- making an agreement with creditors to pay x amount of money over x period of time, the company stays in business

56
Q

What is bankruptcy chapter 13?

A

individuals reorganization- for individuals similar to chapter 11

57
Q

What is intellectual property?

A

intangible property rights- mostly governed by federal statures- things you cannot touch; copyrights, trade marks, trade secrets, and patents

58
Q

What are elements of infringement for copyrights?

A
  • ownership; best thing to do is file for $3500
  • have to show the defendant’s access to your work
  • have to show copyright/substantial similarity
  • damages
59
Q

When is something considered copyrighted?

A

once it is recorder in a fixed form like on a computer or written on paper

60
Q

What are the advantages of registration on a copyright?

A

-within 3 months of production work…
->attorney fees-winning party gets the attorney fees
-> election of statutory damages-if you register your work you can ask for $750-$150,000 per violation to copy infringement
-

61
Q

What is the defenses of copyright?

A

1) permission
2) public domain-copyright expired
3) fair use - ex professor using small amount of a book to teach class; parody

62
Q

A copyright lasts life of author plus _____ years

A

-70

63
Q

Work for hire or anonymous work- shorter period of ______ years from date of publication or ____ years from date of creation

A
  • 95

- 120

64
Q

What is work for hire and who owns the IP?

A

-work for hire is done by an independent contractor who waves international property. If no contract is offered to hire then the creator owns it, if there is a contract then the buyer owns it
Businesses need WfH Agreement and have the Independent Contractor agree that your business owns the IP. Have that person sign a Transfer of IP agreement

65
Q

what is the claim section?

A

a special section describing what your product can do, this section must be written perfectly,only patan atternies can give you advise

66
Q

What is a utility paten

A

the invention must be non-obvious, novel, or useful

67
Q

can plants be patented?

A

yes

68
Q

what does it mean when a design can be patented by law?

A

the ornamental design is protected

69
Q

What is the application process of getting a patent?

A

you must present a claim section describing your product

70
Q

Patents last _____ years (Design lasts ____) from date applied, not granted. (could take )_____ months to ______ years to receive a patent.

A
  • 20
  • 14
  • 6
  • 3
71
Q

How long do trade secrets last?

A

Forever, as long as they stay a secret, you use it in commerce, and renew it

72
Q

rank from hardest to least hardest to obtain: federal trade marks, trade secrets, trademarks

A

1) federal trade marks
2) trademarks
3) trade secrets

73
Q

What do trademarks do? What do Service marks do?

A
  • protect product

- protect service

74
Q

What are trademark levels of protection?

A

1) common law
2) state
3) federal
4) international

75
Q

trademark common law is the use of

A

TM and SM

76
Q

trademark state law is the use of ____ and the limit action is _____; secretary of state office-renewable every_____ years

A
  • TM and SM
  • can only file it when you are using it in a business
  • 10 years
77
Q

trademark federal law is renewable every____ years, your have an intent to use __(_______)____- use it within _____ months, and it is the use of _____ symbol

A
  • 10
  • not at state level
  • 6
  • R
78
Q

What must you do for a trademark international law , if infringement occurs it is known as _______

A
  • you must look up which treaties cover which countries, must file in every place that covers the treaty
  • treble damages
79
Q

Strength in the trademark is determined by?

A

Distinctive- make up a word thats new but describes your product “Netflix”
secondary meaning- provide secondary meaning to old words, “Apple”
generic- stay away from generic names like “shoe”

80
Q

What is Anti-Cybersquatter law

A

someone who registers company domain name in bad faith, 1999, filled by injunction plus damages

81
Q

What does the company need to do to take you to domain arbitration?

A

prove all three things:

1) the domain name is identical or substantially similar to the trade name
2) the domain name holder acted in bad faith
3) the DNH has no legitimate use for the site

82
Q

what is a typosquatter?

A

a cybersquatter that preys on you inability to type

83
Q

what is an independent contractor?

A

having no benifits but you control hours, work of others, and you pay your own taxes

84
Q

what is vicarious liability

A

holding one person responsible for the axe of another

85
Q

what is respondent superior?

A

employers are liable for employees negligence committed in the scope of employment

86
Q

what is an express agency

A

having actual authority whether orally or written down; tells the employee exactly what their job is; job description

87
Q

what is an implied agency?

A

?

88
Q

what is sole proprietor liability

A

the person can be personably liable if not protected.

89
Q

what is an example of domestic corporation

A

working in Georgia

90
Q

what is an example of foreign corporations

A

out of state but doing business in Georgia

91
Q

what is an example of alien corporations

A

out of country but doing business in Georgia

92
Q

what is common stock

A

the voting stock

93
Q

what is preferred stock?

A

no voting stock
advantages include1)probably pays higher dividends 2)in the case of liquidation they get paid out before common sharholders

94
Q

what are examples of shareholder agreements in a small company

A

pre emptive rights- a right of first refusal to purchase shares up to your percentage interest
voting bloc agreement- A and B agree to vote together on all important decisions

95
Q

what is business judgment rule?

A

individuals on the board are not personally liable for committing negligence or entering itnto bad contracts however they are personally liable if they commit fraud or gross negligence

96
Q

what is piercing the corporate veil? and what are the factors

A

trying to prove that company is the alter ego of another company or person

1) we need to show the court that it is an undercapitalization (shell)
2) both companies have commingling of funds
3) is there improper corporate filing
4) unlawful bulk transfer

97
Q

describe a sole proprietor and General Partnership

A
  • biggest problem-unlimited personal liability
  • taxed only on profits
  • fictitious name-recorded in the county clerks office of the superior court
  • GP: all partners liable for negligence of any partner
  • easy to form
98
Q

describe a limited partnership

A
  • one or more general partners involved in the day-to-day operation
  • unlimited liability
  • partners have little to no involvement and cannot loose more than their investment
99
Q

describe Subchapter C Corporations

A
  • many forms of shares
  • taxed on profits and dividend distribution-a double tax
  • shield from personal liability
  • file article of incorporation with secretary of state
100
Q

describe subchapter S Corporations

A
  • taxed only on profits
  • shield from personal liability
  • file articles of incorporations with secretary of state
  • limits on number of shareholders permitted
  • limitations on who can be a shareholder, only one class of stock permitted which is common stock
101
Q

Describe Limited Liability Company

A
  • taxed only on profits
  • shield from personal liability
  • professional malpractice- non M committing professionals is not personably liable
  • fewer limitations than SC Corporation
  • Members file Articles of Organization with Secretary of State
102
Q

Describe Limited Liability Partnership

A
  • taxed only on profits
  • shield from personal liability
  • professional malpractice
  • fewer limitations than SC corporation
  • to convert from GP to LLP, partners file Certificate of Election In County Clerks Office of the Superior Court
103
Q

what are practical concerns with S, C, LLC, and LLP Corporations?

A

-creditors will likely have shielded officers/members sign personal guaranty. /if the corporation defaults then you are personably liable. Thus removing their personal shield from liablility

104
Q

what are bylaws

A

rules of how company operates

105
Q

Are private corporations sold on the stock exchange?

A

they are not sold on the stock exchange

106
Q

Describe a public corporation?

A
  • shares can be bought by public
  • file many documents including the prospectus with the securities and exchange commission
  • there may be risk of investing in that company
107
Q

what are the two forms of raising money within corporations?

A
  • promissory nots (also called debt securities)

- stocks (equity securities)-by giving away equity of the company

108
Q

what is par value

A

the minimum amount of money that the share can be sold for

109
Q

what is authorized stock

A

number of shares that the articles permit

110
Q

what is issued stock

A

number of shares sold

111
Q

what is outstanding stock

A

number of shares in the hands of a shareholder

112
Q

what is treasury stock

A

stock that the company can buy back by a certain date

113
Q

___________ corporation is an international entity doing business in Georgia

A

Alien

114
Q

when a corporation “goes public” a/n __________ is filled with the SEC, listing the financials and risks of investing in that company

A

prospectus

115
Q

A federal trademark lasts forever if:

A

it is used in commerce

it is renewed every 10 years

116
Q

An individual writing a novel can seek copyright protection lasting his/her life plus ______ years

A

70

117
Q

What are two advantages of an LLC as compared with a Subchapter S corp

A
  • fewer limitations

- the malpractice issues for professionals

Flashcards (4 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions