final Flashcards
4 main sources of contemporary law
Common law
The constitution
Statutes
Administrative
common law
comes from England
stare decis- let the decision stand
the constitution
establishes 3 branches of government, checks and balances, fundamental rights
bill of rights
first 10 amendments of the constitution
checks and balances
each branch can check the power of the other branches
criminal law burden of proof
beyond reasonable doubt
civil law burden of proof
preponderance of the evidence
what gives the federal government the right to pass laws regulating state commerce?
Commerce Clause
dormant commerce clause
prevents states from passing laws not letting out of state companies do business in the state
what happens when a state law conflicts a federal law?
the Supremacy Clause says Federal law trumps State law
tort of defamation
- defamatory statement
- falsity
- communicated to a third party
- injury
harder for defamation against press to happen
compensatory damages
designed to compensate individuals who are injured
punitive damages
punishes people that cause injury
Must be on bad faith, fraud, gross negligence
There can be no punitive damages for mere negligence
business torts
tortious interference with contracts (one company suing another)
elements of business torts
Contract between plaintiff and third party
Defendant knew of contract
The defendant improperly induced the 3rd party to breach the contract
There was injury to plaintiff
negligence claims must prove
duty
breach
causation
damages
causation- must prove 2 types
factual
proximate
proximate causation
foreseeability
cannot be too remote
there can be more than one
duty
one for “reasonable care”
components of a contract
offer
acceptance
consideration
legality
capacity
consent
writing
quasi contract
the plaintiff gave some benefit to the defendant
the plaintiff reasonably expected to be paid
unjust enrichment
ways to terminate an offer
revocation
rejection
counter offer
expiration
party who made the offer becomes incapacitated
the subject matter is destroyed
there is no consideration if…
the promise if illusory (if I want to…)
there is a pre-existing duty
past consideration (completed act)
article 1
legislative branch
article 2
executive branch
article 3
judicial
fundamental rights
found in the bill of rights and after the amendments to the constitution
consideration
must be something of value that is bargained for
consideration examples
product
real estate
cash
inaction
action
exculpatory clauses in contracts
insulates party from future liability
must also be clearly written and visible
exculpatory clauses cannot
exclude liability for intentional wrongdoing
be enforced if activity is in the public interest
be enforced when there is unequal bargaining power
statute of frauds
must be in writing
statute of frauds examples
- Land Sale
- Cannot be performed within a year
- Debt of another
- Debts of an estate
- Marriage contract
- Sale of goods over $500.00 or more
principal
A person who has someone acting on their behalf.
agent
A person acting on someone’s behalf
creation of an agency relationship
the principal and agent must mutually consent that the agent will act on behalf of the principal and be subject to the principal’s control. establishing a fiduciary relationship
consent
An agent has to consent to act of behalf of the principal
control
the principal is the one who tells the agent what to do
fiduciary relationship
agent must act in good faith, be candid, and always act in principal’s best interests.
must always keep the principal’s secrets.
agency relationship does not require
a written agreement
a formal agreement
compensation
duty of loyalty
must put the principal first.
may not receive profits from a transaction unless the principal knows and approves.
must keep information confidential.
Unless otherwise agreed, an agent may not act for two principals.
must obey the principal’s instructions UNLESS they are illegal or unethical
owes a duty of “due care.”
has a duty to provide information to the principal that the agent reasonably expects that the principal would want to know and also a duty to make sure the information is accurate
gratuitous agent
An agent who is not compensated.
the standard is gross negligence
duties of principals to agents
pay for for reasonable expenses or damages.
pay for tort claims brought by third parties as long as the tort was not intentional
pay for attorney’s fees.
Cooperate
cooperate
don’t unreasonably interfere
pay the agent if there is an agreement for payment.
terminating the agency relationship
term agreement
If no agreement, either Principal or Agent can terminate.
Principal or Agent can terminate. But if it is wrongful (violates the agreement), the wronged party can sue for damages.
If one party can no longer perform his or her duties, then relationship ends.
Subject matter of agency relationship is destroyed.
a principal is liable to a third party for the action of her agent if
the agent has authority
the principal ratifies the actions of the agent
3 types of authority
express
implied
apparent
express authority
Principal grants authority to Agent or the Agent reasonably believes he has authority based on the words or actions of the Principal.
implied authority
has the implied authority to do whatever is reasonably necessary to accomplish his task.
apparent authority
A Principal can be liable for the unauthorized actions of her Agent if the Principal’s actions or conduct made the third party reasonably believe that the agent has authority.
ratification
if the principal accepts the benefits of an Agent’s actions
the Principal fails to reject the Agent’s actions
agent must always
disclose who they are acting on behalf of
respondeat superior
let the master answer
A Principal is liable for the negligent actions of his Agent in a tort case
business organizations
liability shield
flow through taxation
sole proprietorship
No corporate form at all
flow through taxation
NO liability shield
limited liability corps (LLC)
liability shield
flow through taxation
formed by a certificate of formation through the secretary fo state
usually have an operating agreement
members can be corporations or partnerships
piercing the corporate vail
“pierce” the liability shield and hold members or shareholders of a corporation individually liable
the court may pierce the liability shield if there’s
Failure to observe corporate formalities
Commingling of assets.
Inadequate capitalization.
Fraud
business judgement rule
The managers of a corporation owe a fiduciary duty to, and must act in the interest of, both the corporation and the shareholders
goals of business judgement rule
allows managers to do their jobs.
keeps judges out of corporate management
encourages managers to want to manage.
you have not violated the business judgement rule if you
act in good faith
use the care a reasonable person would use
there is reason to believe you are acting in best interest of the corp
you are not liable to your shareholders if one of the following occur
1.The disinterested members of the board of directors approve the decision.
2.Disinterested shareholders approve it.
3.The Courts say your decision was fair.
practical application of the business judgement rule
cannot do something illegal
no self-dealing
no corporate Opportunity
must make rational decisions
must make informed decisions
ways to take over a company
Buy all of the assets
Merge two companies
Buy stock from the shareholders. This is a tender offer.
company in a tender offer
the target
buyer in a tender offer
bidder
securities
any transaction where the buyer invests money and expects to earn a profit through the efforts of others.
stocks, bonds, treasury securities
the security exchange commission (SEC) regulates
the sale of securities
RULE 10 (b) (5)
civil actions brought by the SEC or shareholders.
elements of RULE 10 (b) (5)
omission of a material fact.
Scienter
Purchase or sale
Reliance.
Economic loss
Causation
types of insider trading
short swing
classic
misappropriation
short swing
insider must get rid of profits earned within 6 months to the company.
classic insider trading
material, non-public information and breaches a fiduciary duty to his company by trading on that information, whether or not he makes a profit.
misappropriation insider trading
anyone who obtains confidential information through their workplace and reveals that information or trades on it is guilty of misappropriation.
can also be held liable if you obtain confidential information from a personal relationship.
types of intellectual property
Patents
Copyrights
Trademarks
Trade Secrets
patent
gives an inventor a way to protect against others using the invention until such time as it expires
eventually expires.
types of patents
design
plant
utility
design patent
protects the appearance of an item, not its function
utility patent
protects how the invention works
requirements of utility patents
Novel
Non-obvious
Have Utility
tangible
copyright
gives the creator the exclusive right to reproduce, distribute and perform her original work for a limited time
copyright elements
copyrights to the presentation of the work, not the underlying ideas behind the work
Valid for 70 years after the death of the author.
automatically created once they are written down.
Only have to register the copyright if you want to bring a copyright infringement case.
copyright infringement
The infringer copied the work
infringer had access to the work
the works are “substantially similar.”
defenses of copyright infringement
First Sale doctrine- if you own a lawfully made copy of the material, you can sell it.
Fair use- p. 1071
The amount of the work copied
The effect of the use on the market place.
trademarks
Any combination of words and symbols that a business uses to identify its products or services and distinguish itself from others. affixed to goods
types of trademarks
trademarks
servicemarks
certification marks
collective marks
servicemarks
Identify services
certification marks
Good Housekeeping seal of Approval
collective marks
used to identify members of an organization.
trade secrets
information that gives the owner an advantage over competitors who do not know it
determining a trade secret
How difficult and expensive is the information to obtain?
Does the information create an important competitive advantage
Did the company make a reasonable effort to protect it.
real property consists of
Land
Buildings
Plant life
Fixtures- goods attached to real property.
a good is a fixture if
removing it would damage the property
It was especially made or adapted to the property
The owner of the property clearly intends for the item to remain permanently.
owning property outright all by yourself
Fee Simple Absolute.
free to sell it or use it in any way you want.
types of concurrent estates
tenancy in common
joint tenancy
tenancy in common
most common form of joint ownership
the owners own equal shares of the property.
can sell their share or give it to their heirs.
They all have the right to partition the property if approved by court
joint tenancy
“right of survivorship.” upon the death of one of the joint tenants, the other tenants automatically get that share.
If the joint tenant sells his interest in property, the joint tenancy is severed and the new owners are now all co-tenants and own the property as Tenants in common
life estate
the owner of a fee simple absolute title to property can convey the property to another individual for them to use during their life.
once they die, the property then reverts back to the owner
property cannot be realized during the life of the person who has the life estate.
easement
non-possessory interest in property
allows someone to enter the land and use it but not take anything from it. Typically easements run with the land
how an easement is created
Express- this means the owner grants the easement to another person.
necessity- this arises when land is subdivided in such a way as to imply the existence of an easement. Boat ramp example.
Prescription or custom- Easement is created through continuous and open use for a period of time.
adverse possession
Entry and Exclusive possession.
Open and Notorious Possession.
A claim adverse, or hostile, to the owner
Continuous possession for the statutory period. In Mississippi, that is 10 years.
eminent domain
government can take private property for the public use. All levels of government have this power
5 amendment
the government cannot take your land without paying you a “fair price.”
If the owner refuses to sell, then the government may file suit seeking to “condemn the property” for public use. This means they just take it from you and pay you the fair market value as determined by the Court.
self dealing
can’t make decisions solely because they benefit you or a company you’re interested in
corporate opportunity
can’t take opportunity because it benefits you or another company UNLESS you offer it to your company first
