Business Law Exam 1 Flashcards
What is Law?
- Rules of civil conduct commanding what is right prohibiting what is wrong. “Blackstone’s definition”
- It is a governmental rule prescribing conduct and carrying a penalty for violation.
What are the 2 bodies of Law?
- Criminal Law
* Civil Law
Criminal Law
- Laws dealing with crimes and the punishment of wrong doers
* Laws dealing with offense against society
Crime
- Is a criminal offense which is injurious to society as a whole
- Punishable offense against society
What are the 2 classifications of Crimes?
Felony
Misdemeanor
Felony
- Criminal offense punishable by confinement in prison or by death
- Murder
- Bank robbery
Misdemeanor
- Criminal offense which is neither treason nor a felony
- Speeding ticket
- Running a stop sign
Civil Law
- Legal proceedings concerned with the rights of public citizens
- Laws dealing with the enforcement or protection of private rights
What are the 2 types of Civil Law?
Tort Law
Contract Law
Tort Law
- Private or civil wrong, either intentional or caused by negligence, for which there may be action for damages
- Private wrong for which damages might be recovered
Basis for Tort Liability
Intentional
Negligence
Strict Liability
Intentional
• Deliberate and intentional action to cause harm
Negligence
- Failure to exercise or ordinary care
- “Act of omission”
- “Act of commission”
Strict Liability
- Liability for injury regardless of negligence or intent
- Product liability in which seller is liable for any and all defective or hazardous products which threaten a consumer’s personal safety
Act of Omission
- Failing to do something which a reasonable prudent person would do under ordinary circumstance
- Is negligence
Act of Commission
- Doing something which a reasonable and prudent person would not do under ordinary circumstances
- Is negligence
Contract Law
- Laws dealing with making contracts
- Business Law
- Property Law
Business Law
- Rules of conduct prescribed by a government and its agencies, in regulating business transactions
- Rules of conduct for the performance of business transactions.
Property Law
• Rules of conduct prescribed by a government and its agencies, in regulating transactions related to real and personal property
What are the 2 types of property?
Real property
Personal property
Real property
- Land and objects permanently attached to land
- Also known as REAL ESTATE
- Land, buildings, fences, trees, ect.
Personal property
- All property which is not real
* Car, furniture, jewelry, insurance, stocks, bonds, ect.
“The Pyramid of Law”
Stare Decisis Case Law Ordinances Administrative Law Police Power Statutory Law Constitutional Law Common Law
Common Law
- Customs which have become recognized by the courts as binding on the community
- Forms the historical foundation of United States Law
- Based on human experience and the “Common good” of all members of society
- Rooted in English and early colonial law
- “If it makes sense, it must be good law”
Constitutional Law
- Written document containing fundamental principles of a government
- It determines the powers and duties of a government
- Guarantees certain rights to the people
- “Law of the Land”
- Examples
- Federal Constitution of the U.S. of America
- Individual state constitutions
Statutory Law
- Laws enacted by legislative bodies
- Also know as: STATUTES
- Legislative bodies include federal, state, and local governments
- Federal Statutes
- U.S. Congress
- State Statutes
- Individual state legislatures
Police Power
- Inherent power of every government to make reasonable laws to protect the safety, health, morals, and general welfare of its citizens
- Mortuary Law
- Licensure
- Health standards
- Business operations
Administrative Law
- Body of law created by federal and state administrative agencies to implement their powers and duties in the form of rules, regulations, orders, and decisions
- Occupational Safety and Health Act (OSHA)
- Federal Trade Commission (FTC)
- Texas Funeral Service Commission (TFSC)
Ordinances
- Laws enacted by local municipalities
- Village, town, or city
- Parking ordinances
- No Smoking in public buildings
- Levels of Music
Case Law
- Court decisions that establish precedent principles
- Laws based on a court’s interpretation of federal, state, and local laws
- Determines “constitutionality” of the law
Stare Decisis
- Principle that decisions of a court should serve as a guide or precedent and control the decision of a similar case in the future
- Reliance on authority of established law
- “LIKE CASES ARE DECIDED IN LIKE MANNER”
- Applicable to mortuary law and court cases
Jurisdiction
- Authority of a court to hear a case
* Related to the subject matter and person(s) involved in a court case
Function of Courts
• To interpret and apply law to a given situation
Federal Courts
- Have exclusive jurisdiction over
- Bankruptcy
- Claims against U.S.
- Patent & Copyright cases
- District courts
- Federal (circuit) courts of appeal
- U.S. Supreme court
- Special courts
District Courts
• Trial courts of the federal court system
• Largest class of federal courts
• Deal only with criminal cases involving violation of federal law
• Or civil suits that meet specified criteria
o Cases brought by the U.S. Government
o Cases arising under the
• U.S. Constitution
• Federal Laws
• Treaties
Federal (Circuit) Courts of Appeal
- Courts that hear appeals in the federal court system
- 12 federal judicial districts
- Hear appeals from cases originating in federal district courts
- Or federal administrative agencies and departments within its circuit
- Decisions have precedence over lower courts
U.S. Supreme Court
- Highest court in the United States
- Court of original jurisdiction in cases involving ambassadors, public ministers, consuls, and cases in which a state is a party
- As well as cases appealed from federal courts of appeal
- Supreme decision over all lower courts
Writ of Certiorari
- Order to produce the record of a case
* Only such cases will be heard by the U.S. Supreme Court
Federal Special Courts
• Federal trial courts with limited jurisdiction
• Limited by laws of Congress creating them
o Bankruptcy court
o Tax court
o Court of International Trade
o U.S. Court of Federal Claims
State Courts
- Inferior courts
- Courts of original general jurisdiction
- Appellate courts
- Special Courts
Inferior Courts
- Trial courts that hear only cases involving minor criminal offenses and disputes between citizens
- DISTRICT, MAGISTRATE, COUNTY, MUNICIPAL, SMALL CLAIMS, JUSTICE, TAX COURTS
Courts of Original General Jurisdiction
- Court in which a case is first heard
- Maintain an official record of all proceedings
- Broad jurisdiction over disputes between two or more parties
- Criminal offenses against the state
- Hear witnesses
- Receive evidence
- Try a case
- TRIAL COURT, COURT OF RECORD, CIRCUIT COURT, DISTRICT COURT, SUPERIOR COURT.
Appellate Courts
- Courts hearing cases appealed from lower state courts
- COURTS OF APPEAL
- STATE SUPREME COURT
State Special Courts
- Courts with limited jurisdiction
- Probate courts
- Juvenile courts
- Domestic relations courts (family)
Courts may be classified according to their function
- Trial courts
* Appellate courts
Procedural Law
• Laws specifying how actions are filed and what trial procedure to follow
Attorney/ Lawyer
• Person licensed to represent others in court
Complaint
- Written request initiating a civil suit
* PETITION
Court Procedures consist of?
Summons
Answer
Judgment
Execution
Summons
- Notice of complaint given to a defendant defining the complaint and a time frame in which a response, or answer, must be filed
- Serves the purpose of conferring personal jurisdiction over the defendant
- PROCESS
Answer
- Response of the defendant to a complaint
* MOTION
Judgment
• Decision of a court
Execution
• Carrying out or completion of some task
Plaintiff
• Individual who initiates a civil action
Defendant
• Person against whom legal action is brought
Contract
o Agreement between two or more competent persons (parties) which is enforceable by law
Classification of contracts are based on
- Formation
- Performance
- Enforceability
What are the 4 contract types of Formation
o Express
o Implied
o Formal
o Simple
Express Contract
o Parties express their intentions, either orally or in writing, at the time of the agreement
o ORAL CONTRACT
o WRITTEN CONTRACT
Implied Contract
o Terms of the contract are implied by acts or conduct of the parties
o Also called:
• Contract Implied In Fact
o Example is:
• A “First Call” when the family makes the first call requesting the services of the funeral home staff
Formal Contract
o Those with a special form or produced in a certain way
o Contract “under seal”
o Today, most contracts are “formal contracts”
• Real Estate Contracts
• Negotiable Instruments
Simple Contract
o Any contract which is not a formal contract
Classification of Contracts Performance
o Unilateral o Bilateral o Executory o Executed • By Stages
Unilateral Contract
o Calls for an act in consideration for a promise
o One promise is given in exchange for an act
o You find my lost dog; I pay you $100
Bilateral Contract
o Mutual exchange of promises
o Exchange a promise for a promise
o You agree to buy my car for $5,000
o Car is your when you give me the money
Executory Contract
o Terms of the contract have not been completely executed or fulfilled by the parties
Executed Contract
o Those contract in which the terms have been fulfilled by the parties
• Fully performed contract
Types of enforceability
o Valid
o Void
o Voidable
o Unenforceable
Valid Contract
o A contract which will be enforceable by the court
• Contract enforceable by law
Void Agreement
o Agreement with no legal effect
o Contract to rob a bank
o Sometimes referred to as a: Void Contract
Voidable Contract
o Contract which would be an enforceable agreement, but due to circumstances, may be set aside by one of the parties
o Party to a contract is declared “mentally incompetent”
o Adult contracts with a minor
o Minor contracts with another minor
Unenforceable
o Agreement which is not in the form required by law, but can be made so by the parties
• A contract that is not currently binding
o Simple contract made into a formal contract
