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Business Law for Mortuary Science & Funeral Service Law > Fourth Quarter Final Exam > Flashcards

Fourth Quarter Final Exam Flashcards

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1
Q

Difference between civil and criminal law

A
  • Civil Law: Laws concerning private rights between individuals
  • Criminal Law: Laws concerning offenses against society as a whole
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2
Q

Law

A

rule of civil conduct commanding to do what is right and prohibiting what is wrong

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3
Q

Equity

A

relief sought in lieu of money damages which would be awarded by a law court. Ex: suit in equity for a restraining order

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4
Q

Administrative Agency Law

A
  • Commissions created by legislature
  • Enact rules to regulate business and industry
    (ex. FTC, OSHA ADA)
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5
Q

Defendant

A

person being sued

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6
Q

Summons

A

served upon defendant

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7
Q

Subpoena

A

served on a witness

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8
Q

Offer and Acceptance

A

offeror proposes terms to an offeree
Only the offeree can accept the offer

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9
Q

Acceptance

A

assent to an offer indicating an agreement to accept it’s term

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10
Q

Mailbox Rule

A

contract/agreement/paperwork must be postmarked by a certain time

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11
Q

Business Law

A

laws regarding the performance of business and commercial transactions

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12
Q

Common Law

A
  • History and source of American Laws
  • a custom which has become recognized by the courts as binding on the community. Still referred to today in some cases.
  • Laws the Pilgrims brought from England.
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13
Q

Case Law

A
  • Appellate court decisions
  • stare decisis (stand by the decision)
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14
Q

Civil Law

A

laws concerning private rights between individuals

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15
Q

Jurisdiction

A
  • subject matter
  • court must have authority to hear a particular case;
  • personal (over the parties)
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16
Q

Venue

A

location where a case is heard
(ie: state, county, city)

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17
Q

Classification of the State Court System

A

a)Trial court – court of original jurisdiction. Known by many names depending on the state and location
b) Appellate Courts
1. Court of Appeals
2. Supreme Court of the state

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18
Q

Are contracts with a minor valid?

A

Yes, voidable (the minor’s option) except for necessities

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19
Q

Are contracts from incompetent people valid?

A
  • Adjudicated Incompetent people= void
  • Nonadjudicated Incompetent people= voidable like a minor until person is adjudicated
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20
Q

Stare Decisis

A

the legal principle of determining points in litigation according to precedent.
- to stand by things decided

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21
Q

Requirements of a valid contract

A

mutual agreement
competent parties
consideration
legality

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22
Q

Bailment

A

Transfer of possession, but not title, to personal property from the owner to another for a particular purpose, such as protect, fix, use, store, or sell

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23
Q

Bailor

A

Owner of personal property

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24
Q

Bailee

A

The person to whom property is transferred

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25
Q

Types of Bailment and Liability of Bailee

A
  • Degree of liability of the bailee in the event of loss or damage
  • Sole benefit bailor
  • Sole benefit of bailee
  • Mutual benefit of both parties
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26
Q

Sole Benefit of Bailor

A

Slight degree of care

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27
Q

Sole Benefit of Bailee

A

Extraordinary care

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28
Q

Mutual Benefit of Both Parties

A

Reasonable ordinary care

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29
Q

What type of bailment should funeral homes possess?

A

Mutual benefit bailment and reasonable care must be exercised

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30
Q

Assignments

A

transferring rights under a contract to a 3rd party; assignor to assignee

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31
Q

Reason to Terminate Contracts

A
  • Performance: must be substantial and satisfactory to both parties
  • By Operation of Law: Bankruptcy, expiration of statute of limitations (5 years for verbal, 10 years for written), material alteration of a written contract
  • Impossibility of Performance: death (can have exceptions), insanity, illegality
  • Voluntary Agreement to terminate contract
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32
Q

What contracts are illegal by statute?

A

a) Gambling Contracts
b) Sunday Contracts
c) Usury
d) Unlicensed Operators
e)Sale of Prohibited Articles
f) Restraint of Trade

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33
Q

Types of Money Damages

A

compensatory
punitive
nominal
liquidated

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34
Q

compensatory

A

Actual damages you suffer.

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35
Q

Punitive

A

money awarded to punish the other party; over or above

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36
Q

Nominal

A

breach of contract but no one suffers

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37
Q

Liquidated

A

amount of money shown in contract if contract is breached

Ex. If you break your apartment lease, you have to pay 1000 dollars, the 1000 dollars is a liquidated money damages.

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38
Q

Fraud

A
  • misrepresentation of a material fact made knowingly, or with the reckless disregard as to its truth or falsity.
  • Made to influence or induce someone to act on your statement/contract to their detriment
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39
Q

Duress

A

physical or economic threat to a person

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40
Q

Undue Influence

A

removing a person’s free will through a fiduciary relationship

(Ex. A husband forces a wife to sign her right to something away)

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41
Q

What three actions make a contract voidable?

A
  • Fraud
    -Duress
  • Undue Influence
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42
Q

What is a Contract of Sale?

A

concerns existing goods

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43
Q

Contract to Sell

A
  • concerns future goods, meaning not yet in existence or owned by seller at the time of the transaction.
  • title will pass at some point in the future, usually upon delivery to buyer
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44
Q

who bears the risk of loss during the transfer of goods to buyer?

A
  • when title passes, so does risk of loss
  • In a sale, title generally passes immediately when parties agree on the goods and the price
  • Note: parties can agree in the contract who will bear the risk of loss and when. This will control over the UCC.
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45
Q

Bearer Paper

A

Payable to the order of cash or bearer or to oneself

(Ex. A physical dollar)

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46
Q

Order Paper

A

Payable to the order of a named person; must be a legal entity

(Ex. A check)

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47
Q

Drafts

A

An order to pay

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48
Q

Promissory Notes

A

A promise to pay

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49
Q

Drawer

A

Executes (signs) a draft, makes the order to pay

(funeral home owner writes a check to an employee: the owner is the drawer)

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50
Q

Drawee

A

The one ordered to pay a draft
(The bank)

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51
Q

Payee

A

One to whom a payment is made

(employee)

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52
Q

Maker

A

Executes (signs) a promissory note

(Susan creates a promissory note to pay Joe $10: Susan is the maker)

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53
Q

Endorser

A

One who endorses an instrument on the reverse side

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54
Q

Endorsee

A

One who has an instrument made payable to them through an endorsement

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55
Q

Blank Endorsement

A

An endorsement that only needs the signature of the endorser

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56
Q

Special Endorsement

A

An endorsement MADE PAYABLE TO ANOTHER person

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57
Q

Restrictive Endorsement

A

An endorsement that limits the use of negotiation for a particular PURPOSE

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58
Q

Qualified Endorsement

A

An endorsement that limits the liability of the endorser for payment; “Without Recourse”

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59
Q

Negotiation

A

Transferring ownership of the negotiable instrument from one person to another

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60
Q

Issuing

A

The first negotiation to the original payee

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61
Q

How many requirements are there for an instrument to be negotiable?

A
  1. Signed Writing
  2. Order to pay if it is a draft/promise to pay if it’s a note
  3. Unconditional
  4. Sum certain in money, an national medium of exchange which is legal tender where payable
  5. Payable on demand (Immediately upon presentation or on a fixed future date)
  6. Payable to the order of a named payee or bearer
  7. Payee and drawee must be identified as real entities
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62
Q

Real Estate Mortgage Note

A

A promissory note secured by REAL property

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63
Q

Collateral Note

A

A promissory note secured by PERSONAL property

(Personal property: property that is not permanently affixed to land: e.g., equipment, furniture, tools and computers.)

(Ex. Car note)

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64
Q

Debenture

A

A promissory note issued by a corporation under seal but is NOT secured

  • promissory note under seal but not secured
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65
Q

Cashier’s Check

A

A draft in which the same bank is both drawer and drawee; it is drawn on bank’s own funds

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66
Q

Certified Check

A

A draft in which money is segregated out of an account and put in a separate account; bank stamps CERTIFIED on front

67
Q

Bank Draft

A

A draft that utilizes two banks; one is drawer, the other is a drawee

68
Q

Inland Draft

A

A domestic draft that is both drawn and payable within the U.S.

69
Q

Foreign Draft

A

An international draft that is either drawn or payable outside the U.S.

70
Q

Sight Draft

A

A draft payable immediately upon demand at the sight of drawee
(Ex. Check has current or past date on it so you can take it to the bank and deposit it.)

71
Q

Time Draft

A

A draft payable on a fixed future date or certain number of days after date

72
Q

Trade Acceptance

A

A draft involving sales of goods

73
Q

In a Trade Acceptance, who is the drawer?

A

Seller

74
Q

In a Trade Acceptance, who is the payee?

A

Seller

75
Q

In a Trade Acceptance, who is the drawee?

A

Buyer

76
Q

How are order papers negotiated?

A

By endorsement and delivery
(sign the back of the check and take it to the bank)

77
Q

How are bearer papers negotiated?

A

By delivery alone
(take cash to the bank to deposit it; no signature needed)

78
Q

Where do you make an endorsement?

A

Along the trailing edge on the back of the instrument

79
Q

Allonge

A

Paper firmly attached to an instrument so as to become a part of it

80
Q

Holder in Due Course (HDC)

A

A holder who has superior rights on instrument

81
Q

What are limited defenses for non-payment (in exception of a HDC)?

A
  1. Ordinary Contract Defenses
  2. Conditional Delivery
  3. Payment
  4. Theft
  5. Fraud including execution of instrument
  6. Improper completion
  7. Non-Delivery
82
Q

What are universal defenses for non-payment (including a HDC)?

A
  1. Minority
  2. Fraud as to nature of instrument
  3. Discharge in bankruptcy
  4. Forgery
83
Q

ADA Requirements for Employees

A

– if 15 or more employees, funeral home must provide reasonable accommodation to do the job if does not cause undue hardship to funeral home

84
Q

Traditional Common Law Right of Disposition Order

A
  1. spouse
  2. competent adult children – majority rules
  3. competent parents
    4- competent siblings
    5- nearest next of kin in line of inheritance according to probate statute of the state. State statutes – vary by state
85
Q

State Statutory Exceptions to Right of Disposition

A
  1. Wishes of decedent: specific directions in a will, health care power of attorney or other directive.
  2. Other Directives: including, Special Power of Attorney, cremation authorization form, pre-need contract, and donation to medical science or directive pursuant to a state statute.
  3. 48 states allow a person to name in a directive or other document the person they wish to make decisions regarding their disposition. Read your own state statute.
86
Q

Specific Standards Applicable to Funeral Homes

A
  • formaldehyde monitoring (1988): PEL for TWA (.75), STEL (2.0), ACTION LEVEL (.5)
  • hazardous communication (1988):Disclosure law about hazardous chemicals for protection of employees
  • blood borne pathogens(1988): provide Hepatitis B vaccination and other requirements. Also, a disclosure law regarding diseases.
  • needlestick safety and prevention act of 2000:Requires F.H. to have needlestick exposure control plan updated annually and Sharps container requirements.
87
Q

General Price List (GPL) requirements from FTC

A
  • Heading : name, address and phone number of F.H., GPL and effective date
  • Must be a list of 16 goods and services separately priced that the funeral home offers
  • Six mandatory disclosures on GPL
  • Basic service charge
88
Q

What are the Six Mandatory Disclosures Required on the GPL?

A
  1. choice of goods and services
  2. non-declinable service fee
  3. embalming disclosure
  4. availability of casket price list
  5. availability of OBCPL
  6. alternative containers for direct cremation
89
Q

FTC Requirements for the Casket Price List (CPL)

A
  • CPL must have name of funeral home, title, effective date and include any alternative containers and any caskets offered for sale.
  • Does not have any mandatory disclosures
90
Q

FTC Requirements for the Outer Burial Container Price List (OBCPL)

A
  • OBCPL must have name of funeral home, title, effective date and any outer burial containers offered for sale
  • 1 mandatory disclosure: Outer Burial Containers are not required by law but may be a cemetery requirement
91
Q

Magnuson-Moss Warranty Act (1975)

A

allows Funeral Homes (sellers of merchandise) to disclaim warranties

if the seller does it by using specific language that is presented to consumers in a clear and conspicuous manner; federal statute governs warranties on consumer products. The law does not require any product to have a warranty (it may be sold “as is”), but if it does have a warranty, the warranty must comply with this law.

92
Q

Tort

A

An offense against a person or their property

93
Q

Elements of Proof for an Intentional Tort

A
  • volitional act
  • intent
  • causation
  • injury
94
Q

Elements of Proof for a Negligent Tort

A
  • duty of care
  • breach of the duty
  • causation
  • damages/injury
95
Q

Pallsgraf Case

A
  • element of “foreseeability”
  • Forsee that your actions may cause injury
96
Q

Difference between Law and Ethics

A
  • Laws set a lower standard of what is acceptable conduct
  • Ethical standards are higher
  • An unethical action is not necessarily a crime
  • A crime is generally an unethical act
97
Q

Ethical Conduct as Applied to Funeral Homes

A
  • A primary goal should be more than just making a profit
  • Funeral homes held to a higher ethical standard than other businesses
  • Conduct should emphasize “best service possible”
  • courts have held funeral homes to a higher degree of care than normal because of the mental suffering that the family is already experiencing when they come to your funeral home
  • Practice “Total Quality Management”; ensure that all employees practice ethical conduct
  • Comply with “Ethical Rules” enacted by State Department of Professional Regulation
98
Q

What law allows one to donate themselves?

A
  • The Revised Uniform Anatomical Gift Act (UAGA)
  • Allows those 18 and up to donate their organs/tissues for medical purposes
  • A person who signs to have themselves donated signs a “first person consent”. It is legally binding
99
Q

Does the funeral home have to notify survivors or get their permission for donation under the UAGA?

A

no

100
Q

Revocabable Pre-Need

A

A pre-need contract that can be canceled and refunded

101
Q

Non-Revocable Pre-Need

A

A pre-need contract that can not be canceled and refunded

102
Q

Guaranteed Pre-Need

A
  • the costs of certain individual items or the cost of the total package will never be more to your family or estate.
  • Funeral home agrees to “freeze” their prices and can not charge family what their charges are at time of death
103
Q

Non-guaranteed Pre-Need

A

the funeral home will not guarantee today’s price’s for future needs, the account will still gain interest, but additional money may be due at the time of the at-need funeral arrangements.

104
Q

Tax Consequences for Pre-Need Contracts

A

interest earned on trust is taxable, but not on insurance

105
Q

When must funeral homes have OSHA training?

A

All OSHA standards require yearly employee training with training records to be kept for 5 years.

106
Q

How long must funeral homes keep the medical records of their employees?

A

Medical records must be kept for 30 years from date employee left work for whatever reason

107
Q

Householder

A
  • Owner of the property where the deceased resided at the time of death.
  • May have a right if not a duty, if there is no one else.
108
Q

Truth in Lending Act

A
  • Mandates that all businesses that extend credit (pay over time) to consumers apprise them of all aspects of the credit arrangements.
    (Funeral Home must give you a thorough financial statement if you’re taking out a loan/paying over time)
109
Q

What is the only non-declinable charge on the GPL?

A

Basic service charge

110
Q

Personal Property

A

Property that is movable

111
Q

Real Property

A
  • Property that can not be moved
  • includes the land and any permanent improvements to the land like buildings, fences, landscaping, driveways, sewers, or drains.
112
Q

Fixtures

A

personal property permanently attached to the land or a permanent structure

113
Q

Methods of Acquiring Property

A
  • Purchase
  • Inherit
  • Gift
  • Accession
  • Creation
  • Accretion
114
Q

Joint Tenancy with Right of Survivorship

A
  • Owned together equally, but if one dies, the survivor receives the entire property
  • Joint tenancy overrides a will/probate
115
Q

Tenancy in Common

A

property is owned by multiple people, but if one dies, that persons heirs receive that part of the property

116
Q

Tenancy by the entirety

A

like joint tenancy, but for spouses only.
if one owner dies, the creditor can not go after the survivor who now owns the property

117
Q

Warranty Deed

A
  • A deed that guarantees complete ownership of the property
  • Best Deed to receive
  • guaranteeing that they have a defensible ownership interest in the property and can therefore transfer their ownership interest to the other party (the buyer).
118
Q

Quitclaim Deed

A
  • Transfers whatever interest the grantor may have
  • a quitclaim deed makes no ironclad promise about the title status of a property, or any liens against it or encumbrances.
  • usually done between people who are related (husband and wife, siblings etc.)
119
Q

Trust Deed or Deed into a Trust

A
  • Owners (trustors) put the deed (quitclaim) to the property in a trust but name themselves or others as beneficiaries
120
Q

Trustee’s Deed

A

A deed executed by a trustee.
- Transfers ownership from the trust to a third party

121
Q

Fee Simple

A
  • Type of ownership that survives your death and becomes part of your estate
  • If you die, the ownership goes to your heirs
  • Best type of ownership to have
122
Q

what type of carrier are funeral homes?

A

Private Carriers

123
Q

Consignor

A

Gives goods to carrier to transport

124
Q

Consignee

A

Person to whom goods are shipped

125
Q

Bill of Lading

A

Contract between consignor and the carrier

126
Q

Liability of Common Carrier Goods

A

Strict liability for loss to goods regardless of fault

127
Q

Liability of Common Carrier of People

A

Not strict liability, must be showing of negligence
- for planes and trains etc: duty of care is reasonable when in the terminals and highest degree of care when on board

128
Q

General Agency

A

Can do all of the principal’s business of a particular kind

129
Q

Special Agency

A

Only authorized to do a specific act or acts

130
Q

Partnership

A

Association of two or more people to carry on a business for profit

131
Q

General Partnership

A
  • Most common form of partnership
  • Created under the Uniform Partnership Act (UPA)
  • Partnership ownership is tendency in common
132
Q

Limited Partnership

A
  • At least one partner is limited as to their liability
  • state must have a limited partnership act
133
Q

Trading Partnership

A

Deals in goods
ex. casket manufacturer

134
Q

Non-Trading Partnerships

A
  • Deals in services
  • funeral homes are considered non-trading partnerships
135
Q

Secret Partnership

A
  • Partner is not known to the public but has a voice in management
136
Q

Silent Partner

A
  • Partner not is known to the public and has no voice in management
137
Q

Dormant Partner

A

Combination of both silent and secret partner

138
Q

Nominal Partner

A
  • Partner in name only.
  • Known to the public and has no voice in management
139
Q

Liability of Partners

A

Fiduciary relationship (a relationship of trust)

140
Q

Capital Stock

A

Declared value of outstanding stock

141
Q

Common Stock

A

Has voting privileges
- Proxy: authoriation given to someone by a common stockholder to vote on their behalf

142
Q

Preferred Stock

A
  • Special advantages for dividend and capital
  • Has not voting privileges
143
Q

Par Value Stock

A

Has assigned face value

144
Q

Treasury Stock

A

Stock reacquired after saile

145
Q

Watered Stock

A

Stock paid for with property of inflated value

146
Q

Testator

A

Man that is making a will

147
Q

Holographic Will

A

A will that is written in the handwriting of the testator/testatrix
- not recognized in all states

148
Q

Noncupative

A

An oral will
- can include dying declarations
- must be witnessed and usually only applies to personal property
(ex. soldiers’ or sailors’ will)

149
Q

Codicil

A

A witten amendement to a will

150
Q

Abatement

A

A certain percentage of a gift is deducted to comply with terms of the will

151
Q

Probate Court

A

Court that administers and oversees the distribution of an estate

152
Q

Devise

A

A gift of real property

153
Q

Devisee

A

The one that inherits the gift of real property

154
Q

Legacy/ Bequest

A

Gift of personal property

155
Q

Legatee

A

One who inherits personal property

156
Q

Executor

A

One named in the will by the testator to administer the estate

157
Q

Administrator

A

One appointed by the court to administer the estate

158
Q

Per Stirpes Distribution

A

the beneficiary’s share of the estate will pass to the beneficiary’s descendants or heirs

ex. if aunt betty dies before granny, aunt betty’s share of granny’s estate will go to Tavia

159
Q

Per Capita Distribution

A
  • all living members of the beneficiary group receive an equal share.
  • If a beneficiary dies before the testator, the deceased beneficiary’s share is returned to the estate and distributed evenly among the surviving beneficiaries

ex. if aunt betty dies before granny, her share is not passed to Tavia. It will be given to aunt Janet

160
Q

Intestate Succession

A
  • Occurs when someone dies without leaving a valid will
  • Distribution of estate will go by the probate acts of each state (will go through probate court and they will follow the laws of the state according to distribution)
161
Q

When can a Small Estate Affidavit be used?

A
  1. Deceased owned no real property and…
  2. Value of all personal property is usually not more than $100,000 (depends on state statute)
  3. Can avoid going to court
162
Q

Transfer on Death Instrument

A

A deed that takes effect when you die

163
Q

Insolvent Estate

A

Value of an estate’s assets are less than the total debts and liabilities owed

164
Q

Solvent Estate

A

Enough money in estate for funeral expenses

Business Law for Mortuary Science & Funeral Service Law (21 decks)

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