business law test 2 Flashcards
what is debt owned jointly mean?
joint obligation
* This means that two or more debtors owe an obligation to the same single creditor
* Each debtor is fully responsible for their own share, in this case being Ernie and Bert each owe Big Bird a set amount that totals to $5000
what is penal clause?
- It is a secondary obligation that a debtor, in order to assure the performance of their primary obligation and to make the creditor feel more comfortable with the contract, binds himself to a certain penalty.
- penalty, punishment
- Example: Your visa bill comes to the door and you owe 100$. If you don’t pay by the due date, you will have to pay more.
what is public order?
- As fundamental values in society change over time, there is no true definition to public order
- Public order means that contraction parties have no other choice but to follow the law
- It is simply there to protect the rights and freedoms of each individual member of society
example: selling and buying drugs is against public order
what is enlightened consent?
- Consent must be defect free (enlightened)
- There must be no error, fear, or lesion in order to be defect free
- Example: in order for a marriage to occur, both the husband and wife must provide enlightened consent
what is a servitude?
a right by one land (dominant land) over another (servient land). The servitude binds the two lands and not the owners themselves.
example: : The owner of house A lives across the street from the lake, however there is another property owned being house B which blocks off access to the lake and forces the owner of house A to walk around the path which takes 45 minutes. A servitude is imposed on the land of house B which allows the owner of house A to access house B’s backyard as a pathway to the lake. This shortens the owner of House A’s walk to the lake from 45 minutes to 5 minutes.
what is a lesion?
- It is a result of one party taking advantage of the other party, in other words, the exploitation of the other party. * In court, a contract may be annulled or reduced if there is lesion involved. example: you purchase an item that is valuable from a child but that child does not understand the value of that object
what is cause or consideration?
- It is the objective reason for why you have entered into a contract
- It is not the subjective (moral) reason, this does not matter
- It is simply what you get out of the contract
- Example: josh wants to buy a car for 30,000$ and Jacob is selling the car. Josh wants the car whereas Jacob wants the money.
what are the two types of civil responsibility?
: individual and vicarious
what is individual respiosnibiliuty?
every person is responsible for his/her own actions, every person has a duty to follow the rules of conduct that lie upon him so as not to cause injury to another. ex; you by accidentally hit a lady in the eye with a baseball bat. Her eye is completely bruised and you have to take responsibility for the injury. Even though I did not mean to hurt the lady on purpose, I must take responsibility for the action.
what is vicarious responsibility?
a person is responsible for the actions of another person/thing that is under its care or control- usually parental authority which is liable for the reparation for injury caused by the act of their child who is a minor and under their authority.
ex: You take your cat which you are looking after on a walk, the cat runs around and bites a person in the leg, they are badly wounded by this bite, you are responsible for the injury as the cat is under your authority, even though it wasn’t you who did the action
what are the four ways of exctiction of an obligation>?
- By performance- you have completed your obligation and there is nothing more to do. It is simply the completion of the task at hand.
- By novation- a new obligation is created by something else being settled- A owes B, B owes C, therefore, A now owes C.
- By release- the creditor forgives the debtor of his debt, however, in order for the obligation to be extinct, the forgiveness must be clear and unequivocal
- By prescription- by a lapse of time, a creditor who does not receive their payment within a certain period of time loses his right against the debtor, it is then seen as a moral obligation (up to the debtor if he wants to complete it or not- moral decision)(amount of time varies depending on what type of actions whether immoveable or moveable)
what are characteristics of real rights?
May be perpetual (personal rights = not perpetual)
Others must forebear (l → can’t interfere with my right to own it
Limited number (personal rights = unlimited #)
Effective/opposable against third parties → person not owning right must respect owners rights (personal rights = no effect against third parties)
what does article 947 state about ownership
ownership is the right to use, enjoy and dispose of property freely, subject to limits & conditions of the law
what are the principle ways of ownership
co-ownership and superficies
what is co ownership?
a property is jointly owned by two or more people.
what is undivided co ownership?
when there is no physical division of the property
what is divided co ownership?
right of ownership is apportioned into fractions, with a physically divided private portion and a share of the common portions (ex: condo fees- bigger condo=higher fees but everyone uses pool, elevator)
what is usufruct?
right of use and enjoyment of property owned by another for a period of time (ex: farmer pick fruit off another person’s land)
what are examples of disememberents of the right of onwership
use, servitude and emphyteusis are dismemberments of the right of ownership and are real rights
what is the max amount of time that an usufruct can last for?
max 100 years
what is emphyteusis vs usufruct
Emphyteusis = A right to enjoyment of property with a given stipulation that the property will be improved or maintained in an agreed upon manner; long leasehold. usufruct = not building
what is immovable vs moveable property?
Immovable = land and buildings, movable = everything else
what type of ptoperty does the consumer protection law deal with?
moveable property only
what is corporeal property vs incorporeal property
Corporeal property → something that you can see & touch (has a body)
Incorporeal property → property rights (ex: patents, copyrights → doesn’t have a body)
in order for an obligation of a law to exist, what are the three requirements?
1) Must be two parties who agree to do something for each other
2) There must be a prestation (what you’re doing/not doing) that is the object of the obligation
3) There must be lawful reason for undertaking the obligation
what is prestation?
what the debtor must or must not do → ex: john sells sophie a car- john’s prestation is to sell the car, sophies is to pay the price
who is the debtor?
they owe the creditor the obligation
If the debtor fails to perform his obligation without justification, the creditor may:
1) Force specific performance of the obligation (must be unique)
2) Obtain the resolution or resiliation of the contract (can end it) or the reduction of his own correlative obligation (reduction of $ creditor gives debtor if debtor cannot complete)
3) Take other measures provided by law to enforce his right to the performance of the obligation
what happens when the creditor does not benefit from the right to force specific performance of the debtor,
he is entitled to the resolution or resiliation of the contract (can end the contract)
what are compensatory damages
using $ to compensate a creditor for loss
