Business Law Midterm Flashcards
What are the different types of law systems?
- Civil Law
- Common Law
- Customary Law
- Religious Law
- Common and Civil Law
- Unknown
Which empire started the Civil law system?
Roman Empire
The _____ empire started the common law system.
British
It’s important to note that law has a strong ______ context.
Historical
Define law.
- A predictable system of rules enforced by courts
- Uses words like ‘shall’ and ‘may’
- Dictates not just what you do, but how you do it
- Control and restrict behaviours
- Manage and resolve disputes between citizens (defines who is right and wrong, based in the concept of fault)
Define policy.
The ethical/moral/social reason (goal) behind the law
Define jurisdiction.
Where the law speaks; determined by constitution and legislation
Personal - who can do it?
Ability - what can they do?
Geographic - where can it be done?
“Who has the power to do what, where?”
What is sovereignty?
Supreme God-appointed rule; “this area has the ability to govern itself”
Good example: borders
Differentiate between individuals and persons.
Persons include corporations, partnerships and other forms of organizations.
Individual is a flesh and blood being.
An obligation to pay, deliver or act is known as a ______.
Liability
What are the three factors to differentiate civil vs criminal law?
- Parties involved
- Onus of proof
- Remedies
Differentiate criminal and civil law.
Civil law:
- Parties: person vs person (plaintiff and defendant)
- Onus: plaintiff must prove their case on the balance of probabilities (something happened that created liability on part of defendant)
- Remedy: damages compensable by payment of money or delivery of property
Criminal law:
- Parties: state vs person (crown attorney and an accused)
- Onus: state has to prove beyond a reasonable doubt that the particular action took place within the requisite state of mind
- Remedy: Freedom; penalties, incarceration and limitation of movement
What are the general areas business law is divided into?
Tort law - injury to others
Contract law - day-to-day operations
Business organizations - formation and operation
Land law - purchasing/leasing premises
Intellectual and industrial property law
Environmental law
Public law is similar to ____ law; private law is similar to _______.
Criminal. Civil.
Define societal control
Legislators sometimes establish laws that are not in response to demands of citizens; this represents social engineering and:
- Restricts individual rights and freedoms
- Transfers rights and power to governing body
- Law may reflect desires of politicians at a given point in time
What are the three functions law can be subdivided into?
- Settling disputes
- Establishing rules of conduct
- Providing protection for individuals
Rise of city-states created the need for a system of ________________.
Law enforcement
Laws gradually established in form of consistent decisions are known as _____________.
Customary laws.
_____________ is law as found in the recorded judgments of the courts and known as “case law”
Common Law.
Define “Stare decisis”.
“to stand by a previous decision”
It is a Principle requiring a judge to apply judgement of a previous case when a later case presents similar facts, providing the decision was:
- From the judge’s own court,
- Form a court of equal rank, or
- From a court of higher rank
________ is law developed by church courts to deal with matters that fell within their jurisdiction.
Canon Law.
Large body of law relating to commerce gradually became part of the Common Law came from _________.
Merchant Law.
Define statute law.
Laws established by governing body of particular jurisdictions; an advantage of which is that statute law is relatively easy to change (debated and voted upon).
Bonus: From Latin “statutum” meaning, “it is decided”
_______ are procedural rules made under a statute.
Regulations.
Distinguish between a right and a privilege
Right – are things we can do with impunity (entitlement enforced by court, others have a duty not to interfere. e.g. freedom of speech)
Privilege – earned under certain circumstances and if improperly exercised it can be taken away by the State (e.g. driver’s license)
Rights can become privileges by social pressure or state’s desire for funds
_________ is inherent in the idea of law.
Fairness
What are the classification (categories) of laws?
Substantive Law - All laws that set out the rights and duties of individuals
Procedural Law - Procedures taken to enforce a substantive law
Substantive Right - An individual right enforceable at law
Public Law (Administrative Law) - Relates to relationship between governments and persons; has unique procedures
Private Law - Relates to relationship between individuals
Judicial interpretation and application of “statute law” creates _________.
Case law
Court systems have _________, __________ and _________.
Structure, Jurisdiction, Hierarchy
At the top of Canada’s court system is the ______________________.
Supreme Court of Canada
_____________ sets out basic rights and freedoms of all Canadians that governments are to respect; is entrenched in the Constitution – difficult to change.
Charter of Rights
List 5 types of courts.
Federal Courts,
Provincial Courts,
Criminal Courts,
Provincial Supreme Courts,
Civil Courts,
Small Claims Courts,
Family Courts
Written statements prepared by parties that set out facts and claims are known as __________.
Pleadings.
Describe the two types of witnesses.
Ordinary Witness (someone who saw the incident take place)
Expert Witness (someone whose profession enables them to provide information regarding the case)
Regarding Charter Rights
____ rights are not absolute
____ can be overridden with notwithstanding clause
S.1
S.33
Courts have jurisdiction based on what?
Geography
Subject matter
Monetary amount
Appeals court hear appeals from higher courts. True or False?
False.
What is ADR and when is it used?
Alternative Dispute Resolution (two types: mediation & arbitration)
Used in business for advantages it offers to litigation (quicker, cheaper, confidential)
What makes something fair?
Within the ideas of equality and consistency (predictability)
Falls within idea of good faith
Two classifications for courts of law are:
Trial courts (legal action first brought before singular judge)
Appeal courts (higher courts, no new evidence, multiple judges - odd number - majority wins)
What are Contingency Fees?
A lawyer’s fee payable on the condition of winning the case
An action where a single person represents the interests of a group, who will share in any reward is known as _____________.
Class Action.
Define the legal professions.
Attorney - common US term for a lawyer
Solicitor - preparer of documents (couldn’t appear in courts in England)
Barrister - lawyer who appeared in court
(In Canada all lawyers are both solicitors and barristers)
Business is a _____ law matter.
Civil
Name the type of torts to do with intentional interference. Give an example of each.
All have to do with body, property or reputation.
Property: trespass/conversion, slander of goods, intentional interference with contracts
Reputation: slander, libel, defamation generally
Body: Assault, battery, false imprisonment, wrongful death
What is the relationship between tort law and criminal law?
Similarity: Many torts became crimes over time & many crimes create tortious civil liability
Distinction: Criminal law is public (crown brings the action; public wrongs or wrongs against society) whereas
Tort law is private (injured party brings the action in civil court; private wrongs or wrongs against the individual)
How does the onus of proof differ in criminal and civil law?
Criminal: State has to prove beyond reasonable doubt an action (Actus Reus) took place in requisite state of mind (Mens Rea); accused doesn’t have to prove anything
Civil: Plaintiff must prove their case on balance of probabilities with a preponderance of evidence
How does remedies differ in criminal and civil law?
Criminal: Findings of guilt; about freedom - incarceration and limitation of movement
Civil: Findings of liability; about damages - compensable by payment of money or delivery of property
List the aspects of every tort relevant to case studies.
Components/Elements of the tort that must be proven
Defenses against the tort
Damages/Remedies to the losses from the tort
__________ has to do with unintentional torts.
Negligence.
Differentiate slander and libel.
Both to do with false statements that injure a person’s reputation (defamation)
Slander - spoken statement or gestures
Libel - published or printed
Name some business torts (at least 2)
Breach of confidence
Restraint of Trade
Slander of Title
Deceit/Fraud
Fraudulent Conversion
Negligence tort requires:
Duty
Standard for that duty
Breach of that duty
Causal damages
Provide some examples of defenses against negligence tort (at least 3)
Contributory negligence, Voluntary assumption of risk, Act of God, Waiver, Statute of limitations, Release form
List types of remedies.
Compensatory(money)
- pain and suffering, motor vehicle accidents, class actions
Nominal (plaintiff legally correct but no monetary compensation)
Punitive (intended to punish for wrongdoing)
Court Orders
Define a professional in terms of business torts.
Possesses skills not possessed by most; usually has an accompanying professional body; system of accreditation, education and training.
Professional liability may arise under contract but usually under the tort of negligence or a breach of fiduciary duty
May find themselves liable to third parties
Created by contract, this relationship entails duty/duties of a professional to perform. Negligent performance is a breach of said contract. What is this relationship knows as?
Professional-Client Relationship
Define fiduciary duty and the tort duty of care?
Fiduciary:
- duty to place another’s interest above the professional’s own interests; avoids conflict on interests
Duty of Care:
- professional must perform duty according to accepted industry standards; determined by the self-regulating body
What two determinations define who is owed a duty?
- Relationship (client/patient; no duty owed to a third party)
- Reliance (on the professional by the person)
___________ states that a professional must perform their duties according to the standard of skill, knowledge, and judgment of a professional of like training and experience
Standard of Care
Property is divided into two major categories: ________ and ________.
Real property (such as land and fixtures permanently attached) and personal property (everything else).
What is a patent?
Exclusive right (monopoly) to ownership for 20 years of an invention that is new, useful, and non-obvious
A _________ is the exclusive use of marks to identify and distinguish someone’s goods or services.
Trademark
A copyright, or the “right to copy”, protects literary and artistic works for a period of the author’s lifetime plus ____ years.
50
What is a franchise?
A type of license to use trademarks and trade names in return for royalties and other fees.
Define the following terms:
Fee simple
Life estate
Leasehold
Condominium
Fee simple – highest form of ownership; all land owned by Crown
Life estate – holds title for life
Leasehold – landlord/tenant relationship
Condominium – part owned by self; co-ownership
A possessory right to the property of another that may be acquired by the passage of time is known as __________.
Encroachment
_______ is the reversion of land to the Crown when a person possessed of the fee dies intestate and without heirs.
________ refers to the forceful taking of land by a government or government agency for public purposes
Escheat
Expropriation
