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Legal Business > Final Review > Flashcards

Final Review Flashcards

1
Q

preformation contract

A

any contract before the entity is formed

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2
Q

novation

A

document declaring an entity is taking over a contract, usually a preformation contract

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3
Q

Who usually forms LLPs?

A

professionals (doctors, lawyers, accountants)

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4
Q

Malpractice

A

when a professional commits negligence, makes an error, or is reckless

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5
Q

What can members of an LLC lose if they are liable?

A

their initial investment

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6
Q

What are the two types of compensatory damages?

A

special and general

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7
Q

special compensation

A

for quantifiable numbers (ex: hospital bill, time lost at work, etc)

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7
Q

general compensation

A

for pain and suffering (ex: loss of an arm) non quantifiable

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8
Q

punitive damages

A

extra damages to make a point/punishment (not compesatory)

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9
Q

puffery

A

making something seem really good, flattery, selling it
NOT a mistatement of fact

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10
Q

What allows congress to create an administrative agency?

A

enabling legislation

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11
Q

notice-and-comment rulemaking

A

process for administrative agencies to make rules
1. post the proposed rule in the federal register
2. comment period for the public
3. post the final rule in the federal register

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12
Q

Do courts usually defer to the decisions of administrative agencies?

A

yes this is called defferance

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13
Q

principle of comity

A

one nation will defer and give effect to the laws and rulings of another country if that countries laws and judicial decrees are in line with their own

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14
Q

expropriation

A

when a foreign country takes the property of a U.S. citizen for a public reason and payed a fair price (this means the country is immune under act of state doctrine)

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15
Q

confiscation

A

when a foreign country takes a U.S. citizen’s property for no good reason and without paying a fair price (this means they can be sued because the act of state doctrine doesn’t apply)

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16
Q

act of state doctrine

A

the U.S. will not examine the validity of public acts by other country within it’s own territory UNLESS the country confiscated property

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17
Q

Direct exporting

A

when a business in the US deals directly with a foreign business

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18
Q

Indirect exporting

A

involves an agent/distributor in a foreign country (who is not a part of the full deal)

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19
Q

distribution agreement

A

A U.S. firm may wish to appoint a distributor located in a foreign country when it represents a substantial market (better for bigger markets)
the company that distributes the product is not the end user

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20
Q

license

A

an entity can pay a flat fee to use another’s technology, patent, method, etc

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21
Q

franchise

A

allow people to use your business name/concept but you still maintain full control (and get royalty/percentage of sales)

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22
Q

How can governments restrict exports?

A

quotas, technology limits, banning

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23
Q

tarriff

A

tax on imports

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24
Q

quota

A

certain limit on imports/exports

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25
Q

dumping

A

when a foreign business bring in product to the US at less than the fair market value to gain a larger share of the market

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26
Q

anti-dumping taxes

A

a tax of the foreign items to bring their price up to fair market value

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27
Q

How can the president limit or control administrative agencies?

A

executive agencies: president can select and fire the director

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28
Q

What are the two types of administrative agencies?

A

executive and independent

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29
Q

Where do administrative agencies get the power to exist

A

congress + enabling legislation

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30
Q

enabling legislation

A

creates administrative agencies and details their powers

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31
Q

The rules of administrative agencies cannot be ______

A

arbitrary and capricious

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32
Q

arbitrary and capricious

A

they can’t make rules that have no basis in research, are random, or consider irrelevant facts

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33
Q

If you have a dispute with an administrative agency you have to go through ______

A

administrative courts

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34
Q

the exhaustion doctrine

A

says that you have to go through administrative courts before you can appeal outside of their system

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35
Q

Administrative courts have the power to issue _____

A

subpoenas and warrants

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36
Q

two types of subpoenas

A

subpoena to come testify
subpoena documents

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37
Q

warrants

A

allow them to come search your property

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38
Q

What are the types of torts

A

assault, battery, false imprisonment, negligence, defamation, invasion of privacy, interference with contract, interference with business relationship, fraud, trespassing

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39
Q

What are the elements of negligence?

A

duty, breach, causation, damages

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40
Q

duty

A

defendant owed plaintiff a duty of care

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41
Q

breach

A

defendant breached their duty of care

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42
Q

causation

A

defendant’s breach caused injury

43
Q

damages

A

plaintiff suffered legal injury

44
Q

proximate cause

A

how foreseeable were the damages from the breach

45
Q

How is promixmate cause determined?

A

reasonable person standard
reasonable professional standard

46
Q

contributory negligence

A

if the plaintiff contributed tot he damages they don’t get any recovery

47
Q

comparative negligence

A

you deduct the plaintiff’s percent liability (if they are responsible for 30% of the damages they get 70% recovery)

48
Q

The 50% rule

A

if the plaintiff is responsible for 50%+ of the damages, they are barred from recovery

49
Q

transferred intent

A

when you intend to harm one person but you harm another the intent gets transferred (still an intentional tort)

50
Q

defamation

A

a false statement of fact meant to damage someone’s reuptation

51
Q

libel

A

write, recorded, or posted defamation

52
Q

slander

A

spoken defamation

53
Q

What are the defenses to defamation?

A

truth, absence of malice

54
Q

invasion of privacy

A
  • disclosure of private information
  • intrusion in an individual’s affairs
  • publication of information that puts them into a false light
    ex: using someones name/icutre
55
Q

interference with contract

A
56
Q

interference with business relationship

A

trying to destroy a business relationship in order to gain your own

57
Q

what are the elements of fraud?

A

to lie about something specific you rely on
- misrepresentation of material facts
- intent
- relies on misrepresentation
-causation
- damages

58
Q

trespass to property

A

coming on someone’s property without permission
overstaying on someone’s property
causing something to be put on the property (ex: rocks)
taking someone’s property without permission which becomes theft or conversion if you keep it

59
Q

What are the defenses to torts

A

signing a waiver or release
self defense
truth (for defamation)

60
Q

Advantages of a Sole Proprietorship

A

no legal formality
taxed on personal income tax statement

61
Q

Disadvantages of a Sole Proprietorship

A

personal assets at risk
limited ability to raise capital
business dies when owner dies
difficult to get investors
limited to personal funds and loans

62
Q

partnership

A

Arises from an agreement between two or more persons to carry on a business for a profit
Partners are co-owners of the business who have joint control over its operation and the right to share in its profits

63
Q

partnership agreement

A

identifies the rights and obligations of partners and the partnership

64
Q

The Uniform Partnership Act

A

governs the partnership in the absence of a partnership agreement

65
Q

What are the rights of partners in a partnership?

A

Management Rights
Interest in the partnership
Compensation
Inspection of the Books
Assets/Profits
Property Rights

66
Q

fiduciary duties

A

duty of care and duty of loyalty

67
Q

Duty of care

A

duty of care is limited to refraining from “grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of law”
Partner is not liable for simple negligence or honest errors in judgment in conducting partnership business.

68
Q

duty of loyalty

A

requires a partner to account to the partnership for “any property, profit, or benefit: derived by the partner in the conduct of the partnership’s business or from the use of its property

69
Q

liabilities of partnerships

A

partners are personally liable for the debts of the partnership

70
Q

joint and several liability (partnership)

A

Third party has the option of suing all of the partner together (jointly, so they can use partnership assets to satisfy judgment) or one or more of the partners separately (severally)

71
Q

liability of incoming partners

A

a new partner is not liable for an partnership obligations incurred before they became partner (ex: debt)

72
Q

Partnership taxation

A

pass through entity (each partner pays taxes on their personal tax return)

73
Q

Events that cause dissociation

A

voluntary notice
triggering event (violating contract)
unanimous vote
court/arbitrator order (wrongful conduct)
bankruptcy

74
Q

Buyouts

A

contact that determines how remaining partners will buy out partner interest in advance

75
Q

Ways of partnership termination

A

dissolution
dissociation
winding up and distribution of assets
partnership buy-sell agreements

76
Q

LLC owners are called ____ and their ownership is called _____

A

members, interest

77
Q

Advantages of an LLC

A

limited liability of members
flexibility in taxation

78
Q

Flexibility in taxation (LLC)

A

two or more members can choose to be taxed as a partnership (pass through) or corporation (double tax)

79
Q

Disadvantages of an LLC

A

lack of uniformity with state laws (difficult for businesses that operate in multiple states)
- investors typically dont invest in LLCs

80
Q

Alter ego doctrine

A

courts may hold the owners of a business personally liable for its debts (pierce the corporate veil) to achieve justice

81
Q

How does a court decide jurisdiction for an LLC?

A

citizenship of its members

82
Q

LLP

A

hybrid form of business for professional who normally do business as partners in a partnership

83
Q

taxation (LLP)

A

pass through entity, but limits personal liability

84
Q

Formation of an LLP

A

formed in compliance with state statutes
certificate of limited partnership
file with state agency
name including LLP

85
Q

Liability (LLP)

A
  • avoid personal liability for the malpractice of other partners
  • partners are still liable for their own wrongful acts
  • partners who supervised someone who committed a wrongful act are also liable
86
Q

general parter (LLP)

A

assumes management responsibility for the partnership and all it’s debts
- EXCEPT in states that allow a corporation to be the general partner

87
Q

limited partner (LLP)

A

contributes cash or other property and owns an interest in the firm BUT is not involve in management or liable for debts beyond their investment

88
Q

rights and duties (LLP)

A

right to participate in management (general only)
right to inspect the books
owe duty of care and loyalty

89
Q

corporation

A

a legal entity created and recognized by state law

90
Q

Advantages of Corporation

A
  • best for seeking investors
  • best for growth
  • best for limited liability
91
Q

Corporation owners are called ____ and their ownership is called _____

A

shareholders, shares

92
Q

taxation (corporation)

A

double taxation

93
Q

what is the management of a corporation called?

A

the board of directors

94
Q

assault

A

any intention and unexcused threat of immediate harmful or offensive contact

95
Q

battery

A

the completion of assault (directly by the defendant or set in motion by the defendant)

96
Q

defenses to assault and battery

A

consent, self-defense, defense of others, defense of property

97
Q

false imprisonment

A

intentional confinement of another person
- through barriers, restraint, or threat of physical force

98
Q

Intentional Infliction of Emotional Distress

A

An intentional act that amount to extreme and outrageous conduct resulting in severe emotional distress to another

99
Q

What must the plaintiff do in order to sue for slander

A

prove economic loss

100
Q

duty of landowners

A

landowners must exercise reasonable care to protect persons on their property from harm

101
Q

good samaritan statues

A

protect someone who renders aid to an injured person from being sued for negligence

102
Q

assumption of risk

A

when the plaintiff assumes the risk and cannot collect recovery

103
Q

What must an administrative agency have in order to conduct an investigation?

A
  • legitimate purpose
  • relevant to what their regulating
  • specific in the testimony and documents they require
104
Q

when can an agency conduct a warrantless search?

A
  • highly regulated industries (firearms/liquor)
  • hazardous situations
  • emergency situations
105
Q

adjudication

A

after conducting investigation or rule violation an agency my take administrative action

Legal Business (1 decks)

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