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Business Law Exam 2 > Exam 2 > Flashcards

Exam 2 Flashcards

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1
Q

All forms of civil liability are either _____ or ______

A

voluntary assumed, by contract
or
involuntarily assumed, as imposed by law (tort)

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2
Q

Tort Law

A

Gives a person relief from civil wrongs or injuries to their persons, property, and economic interests.

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3
Q

3 principle objectives of tort law

A
  1. to compensate persons who sustain harm or loss resulting from another’s conduct
  2. to place the cost of that compensation only on those parties who should bear it
  3. to prevent future harms and losses, thus the law of torts reallocates losses caused by human misconduct
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4
Q

tort is committed when…

A
  1. a duty owned by one person to another
  2. is breached
  3. proximately causing
  4. injury or damage to the owner of a legally protected interest
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5
Q

Purpose of a tort law

A

is to compensate the injured party, not to punish the wrongdoer

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6
Q

Tort Law is primarily….

A

Common Law

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7
Q

Intent

A

desire to cause the consequences of an act or knowledge that the consequences are substantially certain to result from the act

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8
Q

Does intent require a evil motive?

A

No

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9
Q

Examples of intent…

A
  1. If Mark fires a gun in the middle of the Mojave Desert, he intends to fire the gun, but when the bullet hits Steven, who is in the desert without Mark’s knowledge, Mark does not intend that result.
  2. Mark throws a bomb into Steven’s office in order to kill Steven. Mark knows that Carol is in Steven’s office and that the bomb is substantially certain to injure Carol, although Mark has no desire to harm her.

Mark is, nonetheless, liable to Carol for any injury caused Carol. Mark’s intent to injure Steven is transferred to Carol.

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10
Q

Infants are held liable for…

A

their intentional torts

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11
Q

Even if a defendant has intentionally invaded the interest of the plaintiff, the defendant will __________ if the conduct was privileged

A

not be liable

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12
Q

Examples of privilege…

A

self defense, defense of property, and defense of others

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13
Q

Battery

A

intentional infliction of harmful or offensive bodily contact

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14
Q

Assault

A

intentional conduct by one person directed at another that places the other in FEAR of bodily harm

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15
Q

Battery is more ____ while assault is more ____

A

physical; mental

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16
Q

false imprisonment

A

act of intentionally confining a person against her will within fixed boundaries if the person is conscious of the confinement or harmed by it

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17
Q

infliction of emotional stress

A

when a person is liable by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another

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18
Q

Recklessness

A

is a conduct that evidences a conscious disregard of or an indifference to the consequences of the act committed

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19
Q

Defamation

A

is a false communication that injuries a person’s reputation by disgracing them and diminishing the respect in which they held

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20
Q

Element of defamation…

A
  1. a false and defamatory statement concerning another
  2. an unprivileged publication to a third party
  3. depending on the status of the defendant, negligence or recklessness on her part in knowing or failing to ascertain the falsity of the statement
  4. in some cases, proof of special harm caused by the publication
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21
Q

Defamatory communication that is handwritten is designated as

A

libel

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22
Q

Defamatory communication that is oral is designated as

A

slander

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23
Q

the defense of privilege is…

A

immunity from tort liability granted when the defendant’s conduct furthers a societal interest of greater importance than the injury inflicted upon the plaintiff

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24
Q

What are the three kinds of privilege

A

absolute, conditional/qualified, and constitutional

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25
Q

Absolute privilege

A

protects the defendant regardless of his motive or intent, has been confined to those few situations in which public policy clearly favors complete freedom of speech

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26
Q

Conditional/qualified privilege

A

A person has a conditional privilege to publish defamatory matter to protect her own legitimate interest or, in some cases, the interest of another

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27
Q

Constitutional privilege

A

defamatory statements about public officials or public figures so long as it is done WITHOUT MALICE

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28
Q

Communications Decency Act of 1996

A

grants immunity to internet service providers from liability for defamation when publishing information originating from a third party

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29
Q

Invasion of a person’s right to privacy consists of four distinct torts…

A
  1. appropriation of a person’s name or likeness
  2. unreasonable intrusion on the seclusion of another
  3. unreasonable public disclosure of private facts
  4. unreasonable publicity that places another in a false light in the public eye
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30
Q

Appropriation

A

is the unauthorized use of another person’s name or likeness for one’s own benefit

unauthorized use of a person’s identity

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31
Q

Intrusion

A

the unreasonable and highly offensive interference with the solitude or seclusion of another

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32
Q

Public disclosure of private facts

A

liability is imposed for publicity given to private information about another, if the matter made public would be highly offensive and objectionable to a reasonable person

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33
Q

False light

A

imposes liability for highly offensive publicity placing another in false light if the defendant knew that the matter publicized was false or acted in reckless disregard of the truth

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34
Q

Three torts comprise the misuse of legal procedure that include…

A

malicious prosecution, wrongful civil proceedings, and abuse of process

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35
Q

malicious prosecution and wrongful civil proceedings impose…

A

liability for damages caused by improperly brought proceedings, including harm to reputation, credit, or standing

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36
Q

Abuse of process

A

consists of using a legal proceeding (criminal or civil) to accomplish a purpose for which the proceeding is not designed

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37
Q

Harm to property include torts of…

A
  1. trespass to real property
  2. nuisance
  3. trespass to personal property
  4. conversion
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38
Q

real property…

A

is land and anything attached to it

trespass or nuisance

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39
Q

A person is liable for trespass to real property if…

A
  1. enters or remain on land in possession of another
  2. causes a thing or a third person to so enter or remain
  3. fails to remove from the land a thing that he is under duty to remove

liability exists even though no actual damage is done to the land

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40
Q

Nuisance

A

Is a nontrespassory invasion of another’s interest in the private use and enjoyment of land

example would be air pollution

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41
Q

personal property

A

is any type of property other than an interest in land

trespass or conversion

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42
Q

Tort of trespass to personal property liability is when…

A
  1. dispossess the other of the property
  2. substantially impairs the condition, quality, or value of the property
  3. deprives the prossessor of use of the property for a substantial time
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43
Q

Tort of conversion

A

is an intentional exercise of dominion or control over another’s personal property that so seriously interferes with the other’s right of control as justly to require the payment of full value for the property

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44
Q

Interference with contractual relations

A

intentionally causing one of the parties to a contract not to perform the contract

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45
Q

The tort of disparagement

A

publication of false statements resulting in harm to another’s monetary interest

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46
Q

Fraudulent misrepresentation

A

false statement made with knowledge of its falsity and with intent to induce another to act

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47
Q

A misrepresentation is fraudulent if the maker of it

A
  1. knows or believes that the matter is not as he represents it to be
  2. knows that he does not have the confidence in the accuracy of his representation that he states or implies
  3. knows that he does not have the basis for the representation that he states or implies
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48
Q

A person acts negligently if…

A

the person does not exercise reasonable care under all the circumstances

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49
Q

An action for negligence consists of these five elements…

A
  1. duty of care
  2. breach of duty
  3. factual cause
  4. harm
  5. scope of liability
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50
Q

duty of care

A

that a legal duty required the defendant to conform to the standard of conduct established for the protection of others

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51
Q

breach of duty

A

that the defendant failed to exercise reasonable care

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52
Q

factual cause

A

that the defendant’s failure to exercise reasonable care in fact caused the harm the plaintiff sustained

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53
Q

Harm

A

that the harm sustained is of a type protected against negligent conduct

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54
Q

Scope of liability

A

that the harm sustained is within the “scope of liability,” which historically has been referred to as a “proximate cause”

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54
Q

breach of duty of care determine whether a given risk of harm was unreasonable…

A
  1. the foreseeable probability that the person’s conduct will result in harm
  2. the foreseeable gravity or severity of any harm that may follow
  3. the burden of taking precautions to eliminate or reduce the risk of harm
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54
Q

Reasonable person

A

is a fictitious individual who is always careful and prudent and never negligent

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54
Q

A child is…

A

is a person below the age of majority, which is almost all states has been lowered from 21 to 18

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55
Q

Physical disability

A

a disabled person’s conduct must conform to that of a reasonable person under the same disability

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56
Q

Mental disability

A

a person who is held to the standard of conduct of a reasonable person who is not mentally deficient

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57
Q

Duty to act

A

a person is under a duty to all others at all time to exercise reasonable care for the safety of the others’ person and property

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58
Q

Licensee

A

person privileged to enter or remain on land by virtue of the consent of the lawful possessor

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59
Q

invitee

A

person invited upon land as a member of the public or for a business purpose

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60
Q

Res ipsa loquitur

A

“the think speaks for itself,” permits the jury to infer both negligent conduct and causation

61
Q

but for test

A

the defendant’s conduct is a factual cause of the harm when the harm would not have occurred absent the conduct

62
Q

Superseding cause

A

intervening event that occurs after the defendant’s negligent conduct and relieves her of liability

63
Q

Harm to a legally protected interest

A

courts determine which interest are protected from negligent interference

64
Q

Contribuitory negligence

A

failure of a plaintiff to exercise reasonable care such that her failure is a legal cause of the plaintiff’s harm

65
Q

last clear chance

A

final opportunity to avoid an injury

66
Q

Comparative negligence

A

doctrine dividing damages between the plaintiff and defendant where the negligent of each has caused the harm

67
Q

express assumption of the risk

A

plaintiff’s express consent to encounter a known danger

68
Q

Strict liability

A

liability for non-intentional and non-negligent conduct

69
Q

What gives rise to strict liability?

A
  1. performing abnormally dangerous activities
  2. keeping animals
70
Q

What is not a defense to strict liability?

A

Contributory negligence

71
Q

Agency

A

is a consensual relationship authorizing one party to act on behalf of the other party subject to the principal’s control

72
Q

Principal

A

person who authorizes another to act on her behalf

73
Q

Scope of agency purposes

A

whatever business activity a person may accomplish personally he generally may do through an agent

74
Q

Employment relationship

A

one in which the employer has the right to control the manner and means of the employee’s performance of work

75
Q

Independent contractors

A

person who contracts woth another to do a particular job and is not subject to the other’s control over the manner and means of conducting the work

76
Q

Gratuitous agency

A

an agency created without consideration

77
Q

Formalities

A

usually no particular formality is required in a contract of agency, although appointments of agents for a period of more than one year must be in writing

78
Q

Power of attorney

A

written, formal appointment of an agent who is know as an attorney in fact

states an agent’s authority

79
Q

Capacity of the principal

A

if the principal is a minor or an incompetent not under a guardianship, his appointment of another to act as an agent is voidable, as are any results contracts with third parties

80
Q

Durable power of attorney

A

is a written instrument that expresses the principal’s intention that the agent’s authority will not be affected by the principal’s subsequent incapacity

81
Q

Capacity to be an agent

A

any person able to act may act as an agent since the act of the agent is considered the act of the principal

82
Q

Duty of obedience

A

an agent must act in the principal’s affairs only as authorized by the principal and must obey all lawful instructions and directions of the principal

83
Q

Duty of good contract

A

within the scope of the agency relationship, an agent must act reasonably and refrain from conduct that is likely to damage the principal’s enterprise

84
Q

Duty of diligence

A

an agent must act with reasonable care, competence, and diligence in performing the work which he is employed

85
Q

Duty to inform

A

an agent must use reasonable efforts to give the principal information material to the affairs entrusted to her

86
Q

Fiduciary duty

A

an agent owes a duty of utmost loyalty and good faith to the principal

87
Q

Compensation

A

a principal mist compensate the agent as specified in the contract, or for the reasonable value of the services provided, if no amount is specified

88
Q

Indemnify

A

duty owed by principal to pay for losses agent incurred while acting as directed by principal

89
Q

Reimburse

A

duty owed by principal to pay agent for authorized payments made on principal’s behalf

90
Q

Tort duties

A

include the duty to provide an employee with reasonably safe conditions of employment

91
Q

Power given as security

A

such a power - including an agency coupled with an interest - is irrevocable

92
Q

Power

A

ability of an agent to change the legal status of his principal

93
Q

Disclosed principal

A

one whose existence and identity are known

the agent usually has no rights under the contract against the third party

94
Q

Unidentified principal

A

one whose existence is known but whose identity is not known

95
Q

Undisclosed principal

A

one whose existence and identity are not known

96
Q

Actual authority

A

power conferred upon agent by actual consent manifested by principal to the agent

97
Q

Apparent authority

A

power conferred upon agent by act or conduct of principal that reasonably lead a third party to believe that agent has such power

98
Q

Express authority

A

actual authority derived from written or spoken words of principal communicated to the agent

99
Q

Implied authority

A

actual authority inferred from words or conduct manifested to agent by principal

100
Q

Subagent

A

person appointed by agent to perform agent’s duties

101
Q

Actual notice

A

knowledge actually and expressly communicated

102
Q

Constructive notice

A

knowledge imputed by law

103
Q

Ratification

A

affirmation by one person of a prior unauthorized act that another has done as her agent or as her purported agent

104
Q

Direct liability of principal

A

a principal is liable for his own tortious conduct involving the use of agents

105
Q

Authorized acts of agent

A

a principal is liable for torts that she authorizes another to commit or that she ratifies

106
Q

Unauthorized acts of agent

A

a principal is liable for failing to exercise reasonable care in employing agents whose unauthorized acts cause harm

107
Q

Vicarious liability

A

indirect legal responsibility for the act of another

108
Q

Respondeat superior

A

let the superior respond; and employer is liable for unauthorized torts committed by an employee in the scope of his employment

109
Q

Agent acts with apparent authority

A

a principal is liable for torts committed by an agent in dealing with third parties while acting within the agent’s apparent authority

110
Q

Torts of independent contractor

A

a principal is usually not liable for the unauthorized torts of an independent contractor

111
Q

Authorized criminal acts

A

the principal is liable if he directed, participated in, or approved the criminal acts of his agents

112
Q

Unauthorized criminal acts

A

the principal may be liable either for a criminal act of a managerial person or under liability without fault statutes

113
Q

Disclosed principal

A

the agent is not normally a party to the contract she makes with a third person if she authorized or if the principal ratifies an unauthorized contract

114
Q

Authorized contracts

A

the agent is not normally a party to the contract she makes with a third party if she has actual or apparent authority or if the principal ratifies an unauthorized contract

115
Q

Unauthorized contracts

A

if an agent exceeds her actual and apparent authority, the disclosed principal is not bound but the agent may be liable to the third party for breach of warranty or for misrepresentation

116
Q

Agent assumes liability

A

an agent may agree to become liable on a contract between the disclosed principal and the third party

117
Q

Unidentified principal

A

an agent who acts for a partially disclosed principal is a party to the contract with the third party unless otherwise agreed

118
Q

Undisclosed principal

A

an agent who acts for an undisclosed principal is personally liable on the contract to the third party

119
Q

Non existent or incompetent principal

A

a person who purports to act as agent for a principal whom that agent knows to be nonexistent or completely incompetent is personally liable on a contract entered into with a third person on behalf of such a principal

120
Q

Tort liability of agent

A

the agent is liable to the third party for his own torts

121
Q

Labor law

A

provides the general framework in which management and labor negotiate terms of employment

122
Q

Norris La Guardia Act

A

established as U.S. policy the full freedom of labor to form labor unions without employer interference and withdrew from the federal courts the power to issue injunctions in nonviolent labor disputes

123
Q

Labor disputes

A

any controversy concerning terms or conditions of employment or union representation

124
Q

Unfair labor practices

A

conduct on which an employer or union is prohibited from engaging

125
Q

Unfair employer practices

A

conduct in which an employer is prohibited from engaging

126
Q

Labor management relations act

A

the act (1) prohibits unfair labor practices by a union, (2) prohibits closed shops, and (3) allows union shops

127
Q

Unfair union practices

A

conduct in which a union is prohibited from engaging

128
Q

Closed shop

A

employer can hire only union members

129
Q

Union shop

A

employer can hire nonunion members, but the employee must join the union

130
Q

Right to work law

A

state statute that prohibits union shop contracts

131
Q

Labor management reporting and disclosure act

A

aimed at eliminating corruption in labor unions

132
Q

Equal employment opportunity commission

A

EEOC
enforcement agency for federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex, national origin, age, disability, or genetic information

133
Q

Equal pay act

A

prohibits an employer from discriminating between employees on the basis of gender by paying unequal wages for the same work

134
Q

Civil rights act of 1964

A

prohibits employment discrimination on the basis of race, color, gender, religion, or national origin

135
Q

Employment discrimination

A

hiring, firing, compensating, promoting, or training of employees based on race, color, gender, religion, or national origin

136
Q

Affirmative action

A

active recruitment of a designated group of applicants

137
Q

Reverse discrimination

A

employment decisions taking into account race or gender to remedy past discrimination

138
Q

Comparable worth

A

equal pay for jobs of equal value to the employer

139
Q

Executive order

A

prohibits discrimination by federal contractors on the basis of race, color, gender, religion, or national origin on any work the contractors perform during the period of the federal contract

140
Q

Age discrimination in employment act

A

prohibits discrimination on the basis of age in hiring, firing, or compensating

141
Q

Disability law

A

provide assistance to the disabled in obtaining rehabilitation training, access to public facilities, and employment

142
Q

Genetic information nondiscrimination act

A

forbids discrimination on the basis of genetic information with respect to any aspect of employment

143
Q

Employee termination at Will

A

under the common law, a contract of employment for other than a definite term is terminable at will by either party

144
Q

Statutory limitations

A

have been enacted by the federal government and some states

145
Q

Judicial limitations

A

based on contract law, tort law, and public policy

146
Q

Occupational safety and health act

A

enacted to ensure workers a safe and healthful work environment

147
Q

Workers’ compensation

A

compensation awarded to an injured employee whose injury arose out of and in the course of his employment

148
Q

Social security

A

measures by which the government provides economic assistance to disabled or retired employees and their dependents

149
Q

Unemployment compensation

A

compensation awarded to workers who have lost their jobs and cannot find other employment

150
Q

Fair labor standards act

A

regulates the employment of child labor outside of agriculture

151
Q

Works adjustment and retraining notification act

A

WARN
federal statute that requires an employer to provide sixty days’ advance notice of a plant closing or mass layoff

152
Q

Family and medical leave act

A

requires some employers to grant employees leave for serious health conditions or certain other events

153
Q
A

Business Law Exam 2 (1 decks)

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