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Hospitality Business Law > Exam 1 > Flashcards

Exam 1 Flashcards

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0
Q

Jurisdiction

A
  • the difference between federal and state courts are defined mainly by jurisdiction
  • refers to kinds of cases a court is authorized to hear

-concurrent jurisdiction= when action could give rise to both a federal and state case

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1
Q

Commerce Clause

A

•an enumerated power listed in US Constitution

•states that US Congress shall have power:
“to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”.

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2
Q

Concurrent Jurisdiction

A

When an action could give rise to both a federal and state case

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3
Q

Felony

A
  • max. sentence if convicted is 1 year+ in prison
  • more significant crimes
  • jury of 12
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4
Q

Misdemeanor

A
  • max. sentence if convicted is less than 1 year
  • crimes, but less serious
  • jury of 6
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5
Q

Separation of Powers

A
  • 3 branches of govt

* separation of authority between national and state govt

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6
Q

3 Branches of Government

A

1) legislative- Congress (senate + house of rep)
2) executive- President
3) judicial- Supreme Court

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7
Q

Bill of Rights

A

A non-exhaustive list of our rights as people

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8
Q

Venue

A

• where you can properly file a lawsuit(?)
•location where case is tried (criminal or civil)
–not jurisdiction, not about who’s authority case falls under, but about physical place

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9
Q

Statute of Limitations

A

Sets max. Time after an event that legal proceedings based on the event may be initiated

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10
Q

Arbitration

A

Process of resolving a dispute or grievance outside of the court system by presenting it to an impartial third party

•an alternative to the govt. sponsored forum for dispute resolution

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11
Q

Evidence

A

A degree of proof required in cases

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12
Q

Criminal Law

A 
Focus is about crime and punishment
•society criminalizes behavior that we wish not to tolerate
•we thus seek to deter certain behavior
•try to safeguard rights of accused
•burden of persuasion on govt.
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13
Q

Civil Law

A

Anything not criminal in nature
•law of contracts, property, torts, employment, divorce, inheritance, tax, etc.
•govt. still has important roll in promoting civil law
-forum for resolution of disputes
-enforcement of these resolutions

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14
Q

(Standard) Burden of Proof

A

Standard which must be met for win/conviction

CRIMINAL
•beyond a reasonable doubt
•jury must be persuaded of guilt to level beyond probability (2/3)
•govt. is responsible for meeting this standard

CIVIL
•preponderance of the evidence
•slightly more evidence on one side (50.1%)
•plaintiff is responsible for this proof

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15
Q

Statutory Law

A

Representative pass law in form of statutes and codes

  • ALL criminal is statutory
  • some civil law is statutory, most is common law
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16
Q

Common Law

A
  • courts make new law based on the way they (judges) interpret the law
  • MUCH of civil law is common law
  • case law
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17
Q

US Constitution

A

-ratified in 1789
-established the federal govt. as we know it
-limits power of federal govt.
•enumerated powers
•article 1, section 8

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18
Q

Commerce Clause

A

Enumerated power of federal govt. listed in Constitution

-to regulate commerce amongst the several states

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19
Q

Police Powers

A

All other powers not enumerated in constitution were reserved for states
•known collectively as the police powers
•contracts, property, business associations, liquor liability
•10th Amendment

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20
Q

Federal Court System

A

Primarily engaged in addressing disputes that arise out of federal law

  • National govt. is one of limited authority
  • lawsuits against the United States and those involving specific federal laws: criminal, antitrust, bankruptcy, patent copyright, and crimes against US govt.
  • when federal govt. takes action, it’s supreme to state laws
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21
Q

State Court System

A

Addresses all other disputes not under jurisdiction of federal law

  • “the powers not delegated to he United States by the Constitution, nor prohibited by the United States, are reserved to the States”
  • have broad jurisdiction
  • individual cases citizens involved in are: robberies, traffic violations, broken contracts, family disputes, etc.
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22
Q

Jurisdiction

A

Differences between federal and state courts are defined mainly by jurisdiction
-refers to kinds of cases a court is authorized to hear

Authority
-federal vs. state, etc

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23
Q

TYPES OF LAW | Constitutions

A

Set of government structure and prevent other units from passing laws

24
Q

TYPES OF LAW | statutes

A

Acts as part of legislature

25
Q

TYPES OF LAW | common law

A

Law made and applied, leading to precedents

26
Q

TYPES OF LAW | equity

A

Accomplishes “rough justice”

-injunctions, specific performance, reformation, rescission

27
Q

Bill of Rights

A

A non-exhaustive list of our rights as people

First 10 Amendments to the Constitution
•adopted almost immediately after constitution was ratified
•balance against power of the govt.

28
Q

Burden of Persuasion

A

WHO must bear the standard of proof in a case

  • who must prove their version of the facts
  • criminal: prosecutor
  • civil: plaintiff
29
Q

Contract Elements

A

-a legally enforceable agreement between 2 or more competent parties to do or not do something that is possible to be done, that is not unlawful, and which is supported by consideration

2 or more parties
-MSU English can’t sue MSU math because they are 2 branches or same party

Competency

  • age 18 in all states
  • when a minor enters a contract its a voidable contract

It’s a perishable item or a necessity it can’t be cancelled

30
Q

Agreement

A
  • offer and acceptance
  • must be at same time
  • acceptance must mirror offer
31
Q

Statute of Frauds

A

-a law that requires certain contracts to be in writing, signed by the party to be charged, with sufficient content to evidence the contract

  • nothing prohibits a contract from being in writing
  • written contract supersedes oral statements

-it is enforceable to say “any agreement between parties must be in writing”, but most are NOT in writing

32
Q

Injunction

A

Order to stop doing something

Competition

33
Q

Specific Performance

A

Remedy for Breach
-person who did not follow the contract may be asked to perform a certain performance or produce what was promised

  • contract case (put them back into original financial state)
  • Mural example ($1000 means nothing… Paint the mural)
34
Q

6 Types of Agreements in Writing

A

1) involves an interest in “real property”
2) for sale of goods that exceeds $500
3) for sale of services that exceed $5000
4) in contemplation of marriage
5) contract cannot be fully performed in 1 years time
6) agreements to pay debt of another person

35
Q

Promissory Estoppel

A

When a person believes that a promise will be upheld (even though a contract isn’t in place)

  • promissory estoppel put in place to prevent injustice
  • fairness measure

An argument made when something with the contract isn’t complete (one party didn’t sign)

-and the court can allow you to get your money back for what you put into the agreement (advertising, initial cost, etc.)

36
Q

Motions to Dismiss

A

Saying something just to hurt the view of another

-ex: Scott steals sweater and I want jury to hate him so I say he hates gays… Information Dismissed

37
Q

Appeals Court

A

Criminal and civil have automatic right to appeal
-right of appeal when someone loses a case

Make sure law was properly followed at trial

“Remanding the case” means to send it back down

38
Q

Trial Courts

A
  • every case begins here
  • to resolve A FACT DISPUTE
  • to determine facts and turn jury
  • decision made based on court
  • lowest level of court
39
Q

Juries

A
  • Ask them to determine the facts not the law
  • juries are society’s representative
  • judge determines the law
40
Q

Breach of Contract

A

2 forms

1) nonperformance
2) unreasonable performance - inadequate, performance hasn’t met reasonable expectations

41
Q

Hearsay

A
  • Statement made out of court and not under oath which is offered as proof that what is being proposed is true
  • second hand evidence which the witness is not telling what he/she knows personally, but what others have said to them
42
Q

Remedies for Breach of Contract

A

-Legal & equitable remedies

Types

1) money/economic damages (most civil suits)
2) specific performance
3) injunction

Basic premise is to set things right, essentially make the situation what it would/should have been if there were no breach of contract

43
Q

Civil Disputes

A
  • generally looking for money
  • brought by an individual
  • rarely involves punishment
44
Q

Criminal case

A

Only the govt. can bring a criminal case

-individual may go to police, but govt. must charge someone and prove guilt to jury for conviction

45
Q

Unlawful action

A

Not illegal, just unlawful

  • ex: breaking contract, liability, etc.
  • don’t go to jail
46
Q

Criminal action

A

Breaking a code, found guilty and sent to jail for your action

47
Q

All business transactions are based upon ?

A

Contract law

48
Q

Liquidated damages

A

Contracts will sometimes include what the economic damages will be if the contract is breached
- these are liquidated damages

49
Q

Arbitrator

A

Neutral third party who reviews all relevant information and issues the final decision in favor of one of the parties in process of arbitration

50
Q

Elements of a Contract

A

1) offer
2) acceptance
3) legal purpose
4) mutuality of obligation
5) authorized to enter a contract
6) certainty of the subject matter

51
Q

Contract Elements

A

1) consideration
2) manifestation of intent to uphold the contract
3) agreement

52
Q

Contracts required to be in writing (statute of frauds)

A

1) property or land
2) purchase of a good over $500
3) service to be performed greater than $5000
4) marriage
5) when someone agrees to pay the debt of another person
6) when a service takes more than 1 year to be performed

53
Q

Compensatory Damages

A

What is remedy intended to fix, remedy is intended to compensate injured party so that it’s like contract wasn’t breached in the first place

54
Q

Penalties

A

Specify a certain amount to be paid in the event of a default or breach of contract

  • also designed to penalize the breaching party
  • that’s how it’s different than liquidated damages
55
Q

Specific performance

A
  • Equitable remedy to breach of contract
  • calls for the performance of the act promised in contract
  • remedy in cases where consideration is:
    1) unique
    2) scarce, or
    3) not available remedy in contracts for personal services
56
Q

Economic damages

A

Money provided to compensate for money lost on an objective standard (ex: wages lost)

57
Q

Non Economic Damages

A

Money paid to compensate for damages that can’t be objectively quantified
(Ex: pain and suffering)

Hospitality Business Law (4 decks)

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