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Fall 2019 > LAW Final > Flashcards

LAW Final Flashcards

1
Q

sources of law

—In the case of an agency making laws, what is that called?

A
  1. Administrative law - comes from agencies (State or federal) that when they are created, they are authorized to create rules that need to be followed
    o Ex. Of agencies = EPA, FAA (Federal Aviation administration), FDA
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2
Q

remedies

A

generally speaking 2 types of remedies - equitable and legal

  • —Equitable - if money is not sufficient, then you can ask judge for equitable remedy - only if legal remedy is not satisfactory
  • —-1. An injunction - a court order to stop doing something
  • —-2. Rescission - in case of breach of contract case = means CANCELLATION
  • —-3. Specific performance - there are circumstances when court will try to give you compensatory remedies…but if that is not enough you can ask for specific performance (but you will NEVER get in a PERSONAL SERVICES con-tract bc that is like slavery) — but you might qualify if you are the buyer of a piece of property bc every piece of property is UNIQUE
  • –When a contract is for the sale of a unique property, for instance, mere money damages may not remedy the purchaser’s situation. Example: Rina offers to buy Beth’s house and Beth accepts, but later decides to keep the property. Real estate is considered to be unique.

—Remedies of law - money - compensation for your injuries

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3
Q

federal jurisdiction

A

Federal

  • -things that are EXCLUSIVE to the federal courts - these MUST start in federal courts
    1. Federal crimes
    2. Cases against the U.S.
    3. Intellectual property
    4. Bankruptcy
    5. Anti-trust cases - competition laws - protect consumers from predatory business practices - making sure fair competition in markets
    6. Maritime - or admiralty (connected with the sea - covers all contracts, torts, or injuries that take place on navigable waters)

Two paths to federal courts - you have choice!! - CONCURRENT jurisdiction

  • —-1. Federal QUESTION JURISDICTION - any time there is question about federal law…you MAY start that case in federal court - but could also be in state court (not exclusive so you can have constitution questions and go to state)
  • —-2. FEDERAL DIVERSITY jurisdiction — two things to qualify (par-ties are from different states and 2. Money is at least over $75,000) - also remember that corp. are considered a person and could be residents of two places (Resident of state they were incorporated and state where they are HQ
  • —amount in controversy exceeds $75,000 and where the persons that are parties are “diverse” in citizenship or state of incorporation (for corporations being legal persons), which generally indicates that they differ in state and/or nationality.
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4
Q

things exclusive to state courts

A

• Family law, probate, divorce, state crimes

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5
Q

Personal jurisdiction

A

IN PERSONAM
–over the DEFENDANT
—corporations are residents
(resident and non-resident) jurisdiction
—–Procedural things you have to get over in order to get your lawsuit heard by the court
—–Easy for residents bc the court always has personal jurisdiction over its residents (means plaintiff can always go to where the defendant is to file a lawsuit, but whether the plaintiff can req. the defendant to come to where the plaintiff resides (meaning non-resident jurisdiction) depends on whether the defendant has had sufficient minimum contacts with the plaintiff’s jurisdiction
—min. contacts includes
1. conducting business w/in state
2. contracting to supply services
3. causing any injury within that state’s boundaries

non-residents - LONG ARM STATUTE
–due process - is it fair?

Ex. Lehi is probably going to get Sued by AT&T soon - AT&T HQ are Chicago or East  if AT&T wants to sue the Lehi it has to prove that Lehi has had min. contact with that jurisdiction (difficult so likely if they are going to sue us they are going to have to come to Utah…which personal jurisdiction is a huge advantage)

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6
Q

subject matter jurisdiction

A

o The easiest!!! Is it a breach of contract case, personal injury, criminal case? - it’s all about determining the type of case

property jurisdiction

  • -in rem
  • -quasi in rem

venue
–where is it most convenient to hear the case

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7
Q

Litigation - pleadings*

A

documents that are required to start a lawsuit (4 parts!!!)
1. Summons and Complaint
——Summons - more procedural - tell the defendant where to respond, which court it is, who they are being sued by, how much time they have to respond, etc.  but nothing about details of law-suit
—–Complaint** - tells details of lawsuit - to be valid must show: (if doesn’t have ALL THREE parts then court will kick it out)
o 1. Facts that show that the court has personal jurisdiction
o 2. Facts that show there is a valid cause of action - the CLAIM
o 3. A request for the remedy the plaintiff is seeking

——If valid - the defendant files an ANSWER - admit/deny part
o 1. In answer defendant responds to allegations
o 2. Raises any defenses (like statute of limitations, self-defense, statute of frauds - the legal excuse to justify his/her behavior)
o 3. Raise any counter claims

—–If defendant puts forth a counter, claim then the plaintiff files a RE-PLY, which is the last part of pleadings

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8
Q

stages of litigation

A
  1. Pleadings
  2. Discovery
  3. Pre-trial stage
  4. Trial
  5. Post-trial stage
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9
Q

Three types of motions

1. MOTION FOR SUMMARY JUDGMENT

A

try to end the case w/o going to trials - PRE trial

  • —-SO common bc trials are so long and litigation is SO expensive - always worth it for one or both parties time to file for motion for summary judgment before trial goes through
  • —-The standard that court uses to grant that: there can’t be any DISPUTED ISSUES OF MATERIAL FACT (doesn’t mean you won’t dispute them later…but for purposes of the motion you have to basically say to the judge “your honor even if everything the plaintiff says is true, here is the law and the law dictates that I am the winner”
  • —Bc if there are no facts to dispute and I still win, then why do we need to take the time to go to trial? We don’t need a jury if there are no facts to figure out bc I am conceding the facts for the motion
  • —-Happens btwn the pleadings stage and the trial - usually happens in middle of discovery
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10
Q

Three types of motions

—the last 2!!

A
  1. Motion for a new trial - POST trial
    - —-Convince that SAME judge that he made mistakes that affected the outcome…so we have to do the same thing with a new judge
  2. Motion for JNOV - judgment notwithstanding the verdict (POST trial)
    - —-Not going to go back and do the trial again, but you are trying to dispute that no reasonable jury would have decided the way they did after hearing the evidence
    - —Ask court to take trophy away from whoever the jury decided was the winner and give it to you instead
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11
Q

Appellate proceedings

A

if you are the loser in the trial and want to be heard again to get an appeal

  • —-Diff. in appellate court is NO introducing new facts, evidence, new documents, new testimonies, new witnesses
  • —Appellate court makes their decision based on the RECORD or TRIAL TRAN-SCRIPTS
  • –1. Use trial transcripts
  • –2. Both sides can submit a written brief that lays out all the arguments
  • –3. Appellate court brings the attorneys in to have an oral argument
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12
Q

Constitutional review

A

—–depending on the kind of case it is (fundamental right, suspect class, protected class) - the Supreme Court first describes what level of Constitutional review to give it…which is ALMOST determinative - ex. They choose right the what type of three below to give)

  1. Strict Scrutiny - suspect classes
    - —Gov. has to have a COMPELLING INTEREST for the law it passed - compelling reason why it set up a classification based on a suspect class (race, religion, national origin, etc.) - if they can’t get over this HIGH hurdle, then the court is go-ing to RULE that the law is UNCONSTITUTIONAL and throw it out
    - —Two things - If law infringes on a fundamental right OR it sets up a suspect classification
  2. Intermediate - protected classes (Gender, pregnancy, sexual orientation) -
  3. Rational basis - if the law doesn’t set up suspect or protected class, and doesn’t classify
    - —Then only hurdle gov. has to pass by the court “is there a rational basis for the law”
    - —Almost everything passes the rational basis class - as long as you can keep a STRAIGHT FACE when you are in front of the law - it passes - low standard
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13
Q

equal protection

A 
when the gov. sets up a legal scheme where similarly situated groups are being treat-ed differently on basis of race, religion, national origin, etc.
Suspect classes (strict scrutiny)
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14
Q

due process

A

two aspects (substantive and procedural)- can’t deny you of fundamental rights of life, liberty and property w/o a due process of law

  1. Substantive - means the law itself that is trying to deprive you of your life, liberty and property must be CLEAR - cannot be VAGUE - have to be able to read the law and KNOW why certain behaviors are not being permitted by law
  2. Procedural - about the process by which gov. goes about trying to deprive me of my life, liberty, and property
    - —–1. Have to have NOTICE that gov. is doing that
    - —-2. Have to have OPP. TO BE HEARD to try to convince the gov. that they shouldn’t come in and deprive me
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15
Q

torts - assault and battery

A

ASSAULT

  • –fear or apprehension of an IMMEDIATE harmful (physical injury) or offensive (not everything in assault is physical - offensive means blowing smoke at you, or spitting in your face - doesn’t cause physical injury but is offensive) contact
  • —-Has to be immediate - can’t be happening tomorrow - the injury or offense comes rn
  • —Something that frightens you may not frighten someone else - so you have “apprehension” in the definition too bc if you see it com-ing and apprehend it then it is still assault

BATTERY
—the completion - the actual contact happening!!! - assault is the attempt and battery is the completion

You CAN have a BATTERY WITHOUT assault
o Ex. You get hit without seeing it coming = battery w/o assault
o Ex. He throws and I duck = assault w/o battery

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16
Q

invasion of privacy

A

4 different types and the question will want you to identify which one the hypothetical situation describes on test

  1. Intrusion upon seclusion - a peeping guy who is looking through the keyhole in the hotel room - someone invades a space where you have assumption of privacy
  2. Misappropriation - someone using your likeness commercially w/o your permission
    - —Ex. J-Lo’s name and testimony being used in a commercial when she never gave permission
  3. False light - if you write a news story that casts you in a false light - lead ppl to believe something about you that isn’t true
  4. Publication of private facts - EVEN if something is TRUE!! And it is something of private/sensitive nature (A reasonable person would expect that it should be kept private…even if its true) and it is PUBLICIZED then you can be liable for the tort - ex. Actress who had the eating disorder and it was published
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17
Q

4 elements of negligence

A
  1. Duty - you have a duty to act reasonably
  2. Breach - once you decide what standard for duty is, then can determine if you breach it
  3. Causation - two kinds (most difficult in negligence and BOTH have to met
    - —But-for - (actual) but for the defendant’s act, the plaintiff would not have been injured
    - —Proximate cause - we are only going to hold the defendant liable for injuries that were foreseeable when the defendant committed the act (helps to limit liability under BUT-FOR causation)
  4. Injury
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18
Q

comparative negligence

A

NO NEGLIGENCE PER SE ON TEST

comparative negligence

  • –where we take the fault of the plaintiff into account - we compare the relative negligence of both parties
  • —Historically if you were at all contributorily negligent, you couldn’t recover anything at all

Today states have adopted:
1. Pure comparative negligence - look at the % of the contributory negligence of the plaintiff and reduce his/her reward by that much % - so if injuries were $100,000 and plaintiff was 20% negligent…then we take 20% and plaintiff is rewarded $80,000

  1. Modified comparative negligence - the plaintiff has to be LESS NEGLIGENT than the defendant in order to recover
    - —So if it is 50/50 then the plaintiff gets NOTHING
    - —Once the plaintiff is below 49.99% negligent then plaintiff can STILL recover damages but we still reduce the reward by the % like pure
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19
Q

Business torts

A
  1. Tortious interference with a contract
    - —Ex. You have a contract with a company, a third party knows you have a contract and induces you to breach that contract (if termination early is allowed you just have to pay a fine = not a breach….so not this case!) but if the third party convinces you to breach the contract then the company you currently have a contract with can SUE the THIRD PARTY for tortious interference with a contract
  2. Bad faith
    - —Bad faith is short hand for - covenant of good faith and fair dealing
    - —Lehi city sued by AT&T example
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20
Q

double jeapardy*

A

when you are being charged twice for the SAME criminal act, episode, and circumstances
—-It is NOT that you are sued for a tort and charged for a crime based on the same act  that is ALLOWED legally bc of two purposes for the civil system and the criminal system

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21
Q

Burglary
robbery
larceny

A

BURGLARY
unauthorized entry
—usually into a dwelling with the INTENT to commit a theft, an assault or another felony
—don’t have to break and enter anymore…smash window or pick the lock
—if there is an unlocked door and you go in with THAT INTENT then that is burglary

ROBBERY
—threat of force or fear to deprive people of their personal property – mugging

LARCENY/THEFT
—pickpocket - no force or fear - you steal from someone w/o them knowing about it or realizing it

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22
Q

responsible corporate officer

A

you can be charged for a crime that’s not your crime

  • —If you are a corp. officer and you are doing that “negligently” - ex. You could have stopped criminal behavior if you had been paying attention
  • —“negligent supervision” and you can get charged alongside the employees who committed the crime
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23
Q

criminal procedure*

A
  1. Arraignment - finally get to court -
    - —-Where you get a copy of your charging document (called diff. names depending where it comes from)
    - —-If the GRAND JURY issued that charged called an INDICTMENT*
    - —If prosecutor issued the charge is called an INFORMATION
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24
Q

bilateral v. unilateral contracts

A

BILATERAL

  • –promise for a promise
  • –I promise to do something in exchange for a promise EVEN IF ACTU-AL PERFORMANCE IS coming later
  • —Contract formed and binding as soon as promises are made

UNILATERAL

  • –contract created that you accept not by promising to perform but once you ACTUALLY PERFORM
  • —Contract is BINDING as soon as you START performing
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25
Q

Express v. implied in fact*

A

EXPRESS = oral or in writing

IMPLIED IN FACT*

  • –John comes around neighborhood offering to mow lawns regularly - he comes and I see him from window doing it but don’t stop him - then I don’t pay him either = can be sued for breaching implied in fact contract
  • —Plaintiff offers a good/service and expects to be paid
  • —Defendant KNOWS THAT plaintiff expects to be paid - defendant has an opp. To reject and DOESN’T
26
Q

Offer
inquiry*
conditional acceptance*

A

imp. To distinguish btwn offers, inquiries and conditional acceptances)
1. OFFER - prof. Wood I will buy your car for $1000

  1. Inquiry - Prof. Wood, would you be interested in selling your car for $1000? An inquiry but NOT an offer
    - —-If he says YES to this question, not an ACCEPTANCE of contract = can’t’ accept inquiries…only offers!
  2. CONDITIONAL ACCEPTANCE*
    - —Prof. Wood says, “I will sell you my car for $1000.” Then you say “ok but your tires are looking old. I WILL accept offer if you fix the tires”
    - —Conditional acceptance is SAME AS A COUNTEROFFER!!! - Prof. Wood would have to accept my counteroffer in order to form a contract
27
Q

options

A

I have NO LEGAL OBLIGATION to keep an offer open unless you give me CONSIDERATION - EVEN IF I HAVE PROMISED TO KEEP IT OPEN

  • —ask for a week to think about the offer…he says yes - but unless you give him some form of consideration…he is not obligated to keep it open for a week
  • —-But once you give him something of value (meets elements of consideration) - then we have formed an OPTION CONTRACT and he is legally bound to keep it open for the option period
28
Q

4 ways to terminate an offer

A
  1. Reject - offeree rejects offer
  2. Revocation - offeror revokes the offer
  3. Lapse of time - offer open for certain amt. of time and it passes
  4. Counteroffer** - is a rejection and a new offer which orig. offeror has to accept

Don’t need to know operation of law stuff

29
Q

mailbox rule

A

general rule is that acceptances are EFFECTIVE when they are dispatched (or sent!! In the mail)
—–Two exceptions

  1. If the offeror says in the offer letter that acceptance is ONLY val-id when he/she RECEIVES IT
  2. If the offeree sends a REJECTION FIRST then sends an acceptance…it is whichever one gets there first WINS!!
    - —But if he sends an acceptance FIRST then that is effective once dispatched
30
Q

consideration**

A

3 forms of VALID consideration = sufficient consideration

  1. Promise to perform in bilateral contract
  2. Actual performance in unilateral contract
  3. Forbearance** - giving something up that you otherwise have the legal right to do
    - —-Ex. Prof. wood says he will give you $10 if you don’t take the final…then you don’t and fail
31
Q

sufficiency and adequacy

A

Sufficient means is there consideration - one of those three conditions above is MET - if they are then = yes!

Adequacy = is there enough - is it FAIR - did somebody get ripped off?

  • —Ex. What if someone has buyer’s remorse bc the day after they formed the contract the realized they paid too much or the other person realizes they received too little — now they want to challenge the contract based on consideration
  • —If it is an issue of ADEQUACY the court will not care whether you got a good deal - they only care about promise to perform, actual performance, or forbearance
  • —The ONE EXCEPTION TO THIS is equitable unconscionability - there are situations where it is just SO bad that the unfairness shocks the conscious of the court - they will grant some relief to the breaching party (the one that refuses to perform)
32
Q

three things that look like consideration that AREN’T**

A
  1. Past Consideration rule - if promise to pay/perform comes AFTER the act upon which the promise is being made then it is TOO late - that is past consideration
    - —–The promise has to come with the promise of the consideration when forming a contract
  2. Pre-existing Legal Duty**- if I promise to do something that I ALREADY have the legal duty to do bc of my job/title - can’t ask for more or consideration
    - —-Ex. Firefighter asking for money to go inside a burning building
33
Q

three things that look like consideration that AREN’T

3. Accord and satisfied***

A

Accord and Satisfaction** - if we try to resolve an undisputed debt…one party is not getting anything out of that deal that they weren’t already entitled to

  • —-Ex. Two mechanics - there is no dispute that you owe me $500, but you say you are only going to pay me $100
  • —I can take that and still sue you for the extra $400  bc when I accept and take your $100…there is no ADDITIONAL CONSIDERATION - his promise to take $100 is not supported by consideration bc you owe him $500
  • —-But if there is a DISPUTE about what you owe! - he thinks its $1000 and I think its $500 - you say lets split it and each take $750 – we solve the dispute by both giving something up = called accord and satisfaction
34
Q

legality

—license**

A

license**
—-if you enter into a contract w/ somebody that is not licensed and is required to be
• If the purpose of having them licensed is in the public interest (to protect the public) then that contract is VOID!!!!! - surgeon ex.
• If purpose of license is to raise revenue for the licensing authority then that contract is still valid - even though there might be some penalty on unlicensed person

35
Q

Defenses to contract formation

—unilateral v. bilateral mistake of fact

A

Unilateral mistake of fact
—-one party is saying “I was mistaken” - that is NOT a defense to contract performance - UNLESS (three exceptions)
o 1. The non-mistaken party KNOWS there was a mistake made
o 2. The mistake is an ordinarily negligent clerical error (honest mis-take in calculating or accounting)  then let it slide
——–If it was intentional clerical error - we are not going to let you out of the contract if you were grossly negligent
o 3. Unconscionability
——General rule on unilateral!!! - the mistaken party cannot be let out of contract unless one of those three things are met

Bilateral mistake of fact - both parties are mistaken = so “really never had a meeting of the minds” - either of the parties can cancel the contract

36
Q

mistake of value**

A

• mistake about what it IS = mistake of fact…mistake about what it’s WORTH = mistake of value
• there is NO SUCH THING AS A DEFENSE OF MISTAKE OF VALUE
• in circumstances where mistake of what it is LEADS to a mistake of value = still a mistake of fact — baseball card example

37
Q

duress v. undue influence**

A

DURESS

  • —threat of a wrongful or illegal act - forced (not always physically) into forming a contract
  • —threaten to hurt them, frame them, share private info., etc.

UNDUE INFLUENCE***

  • —I have a fiduciary relationship with this party and I use this relationship to persuade them against their better judgment to enter into a contract
  • —-No physical threat, not threatening to frame them - I am sup-posed to be looking out for their best interests and instead I unduly persuade them to enter into a contract
38
Q

fraud v. puffery**

A

FRAUD

  1. criminal fraud
  2. civil fraud
    - —-defense to contract formation - intentional misrepresentation that someone relies on to their detriment - reasonably rely on the INTENTIONAL misrepresentation of a FACT and it harms them!!!

PUFFERY** - a stmt. of OPINION - what we expect used cars salesman to tell us when we go in to buy a car

39
Q

statute of frauds**

A

(MYLGGS)
—–certain contracts that HAVE TO BE IN WRITING to be enforceable in the court

  1. marriage
  2. contract that can’t be performed under a year!!
    - —-at time of contract formation…if it CANNOT be performed in under a year (IMPOSSIBLE)
    - —-if it is POSSIBLE, even if it is UNLIKELY, that it will be completed in a year…then it does NOT have to be in writing
  3. contract for LAND
    - —-partial performance exception - if it was NOT in writing and one party starts to add value (improve the land) then the court can use that to say they will NOT undo the contract even though it violated the statute of frauds
  4. contract for goods over $500
  5. contract for a guaranty** - contract to pay debt of another
    - —-if the reason I promise to pay someone’s debt is to benefit MY-SELF then it doesn’t have to be in writing to be enforceable
  6. contract to pay a debt that has already been discharged in bankruptcy or statute of limitations has already been run
40
Q

promissory estoppel**

A

—-equity - we do not want to be arguing promissory estoppel - would rather be arguing that we have a contract and it is clear that other party breached it
—-but if that’s not the case - then in promissory estoppel you are trying to prove that you relied on the representations of the other party to my detriment
o doesn’t mean they lied to me (Fraud) - they made representations that I relied on and now they are refusing to perform — now I am asking for equity…the court to do something that will make this fair

41
Q

assignment and delegation**

A

ASSIGNMENT

  • –transfer of a contract right
  • —-CAN’T assign personal service contracts - ex. piano teach-er…can’t transfer my right of having teacher come teach my kids to my neighbor’s kids
  • —-CAN’T assign contracts that alter the risk - ex. insurance contract - I have car insurance but I can’t transfer that right to you bc you might be much riskier than I am

DELEGATION**
—-transfer of a contract duty
o CAN’T delegate a personal service contract
o CAN’T delegate a contract duty that would materially vary from the expectation of the person who is receiving performance
—–ex. you hired me to come sing at your wedding and I try to transfer the duty to someone else who is not a good singer - doesn’t work

42
Q

third party contracts**

A

INTENDED third party beneficiary - can tell bc their name will be in the contract lang. (ex. I will pay you $10 to wash my MOM’s car - my mom is intended beneficiary)
—–intended third party rights - have privity in the contract - rights un-der the contract to sue if the other party breaches

INCIDENTAL** - if I decide to build a fence or put sidewalk in front of my. house - yes that improves value of my neighbor’s home but that is not why I did it - neighbor is incidental beneficiary
—-incidental third parties do NOT have rights to sue

43
Q

three conditions on contracts**

A

we can form a contract and I can lock it in…but I can say either I only have to perform if this happens…or I do NOT have to perform if this happens

  1. PRECEDENT - first identify what the condition is. Then ask “if this happens, do I now HAVE to perform” = precedent if you do
    - —-ex. developer comes in and says “I have a property and am look-ing for a zone change” - they don’t actually have property yet, they have contract with the landowner that has a condition precedent – once the Lehi city council zones this commercial area, then their contract moves forward!!!
    - —-contract that is subject to some condition first before it moves for-ward
  2. SUBSEQUENT** - if condition happens and now you no longer have to per-form
    - —I will buy your car unless the mechanic says it is in bad shape
    - —or I will buy your house unless the bank denies me
  3. CONCURRENT - if they happen at the same time
44
Q

remedies part 1

—compensatory, incidental, nominal

A
  1. COMPENSATORY - Expectation damages - puts you in the position you expected to be in if the contract had been performed
  2. INCIDENTAL** - damages that arise through mitigating your damages that you seek relief from
    - —–there is a breach and now in order to mitigate your damages you have to (sell again, get it washed, or advertised again, etc.) which costs more money you want to get back
    - —-incidental are part of compensatory
  3. NOMINAL - you won the legal case but the court only awards you $1 bc you don’t really have any damages
    - —ex. Taylor Swift suing for sexual assault - really suing on the principal, not bc she wanted any money
45
Q

remedies part 2

–consequential, punitive, rescission and restitution

A
  1. CONSEQUENTIAL** - you can get in addition to compensatory for fore-seeable damages
    - —not related to the contract price or lang. of contract - but breach-ing party knows that it is FORESSEEABLE that if they breach there will be other damages in the future (ex. lost profits is most common)
    - —-So in order to make you whole we have to give you compensa-tory and consequential (foreseeable) damages
  2. PUNITIVE** - when there is a tort involved in a contract case
    - —most common when there is FRAUD involved
    - —-not related to the damages from the breach of contract - but the amt. the jury sees fair to punish the breaching party who committed the tort
    - —-camel v. state farm case - BAD FAITH - tort of breaching the covenant of good faith and fair dealing
  3. RESCISSION AND RESTITUTION - putting you back where you were before you entered the contract
    - —-if you’ve already given he goods, you will get them back - if you’ve already made the pmt., you will get it back
46
Q

agency - principal/agent liability

–contracts***

A

CONTRACTS
Fully disclosed agency
—–a contracting third party knows 1. that agent is acting for a principal and 2. the identity of the principal
—-In this case the contract is btwn the principal and the third party - so principal is liable and agent is not

Partially disclosed agency

  • —contracting third party knows that agent is acting for a principal but does not know identity of principal (either intentionally does not identify principal or agent forgets)
  • — In this case BOTH principal and agent are liable on third-party contracts - its bc third party has to rely on agent’s reputation, integrity and credit bc the principal is unidentified

Undisclosed agency** - contracting third party does not know of either the existence of the agency or the principal’s identity

  • —-Ex. Used in cases when wealthy party wants to purchase property but does not want the seller to know bc they could raise the price of identity were revealed
  • —-BOTH principal and agent are liable - if principal fails to perform contract, third party can recover from principal or agent - if agent has to pay, agent can recover indemnification (compensation for harm/loss) against principal
47
Q

agent-principal relationship for torts**

A

negligence - looks at coming and going rule

  • —detour (w/in) v. frolic (not)**
  • –dual purpose = both liable

intentional torts - two tests: **motivation and work-related tests!! depends on which rule the state or case law has adopted

Agent is ALWAYS LIABLE in all cases

1. Negligence - principal is liable under doctrine of Respondeat superior if committed w/in scope of employment
2. Intentional tort - motivation test and work-related test determine if principal is liable
3. Misrepresentation - principal is liable by agent if he/she acts w/in scope of his/her authority
48
Q

general partnerships

A

Liability of P’s - partner is liable for the acts of the other partners - personally and un-limited liability for losses or torts
—–when partnership is dissolved - make sure you give NOTICE so you aren’t liable for APPARENT AUTHORITY

49
Q

GP v. LLP’s v. LP/s

A

General partnerships - just general partners - everyone has unlimited personal liability

LP’s - limited partners** that contribute money and DO NOT manage the partnership and have limited liability up to their capital contribution
—–and have GENERAL PARTNERS who manage the business and have unlimited personal liability

LLP’s - limited liability partnerships - one category of partners - all have UNLIMITED liability for the negligence of other partners (but always unlimited personal liability for your own torts)

50
Q

LLC’s

A

limited liability company - a MEMBER has limited liability for the liability that is incurred by ANOTHER member or the LLC - but UNLIMITED liability for his/her own torts

Operating Agreement - not required but functions like bylaws - dictates the internal workings of the LLC

But DO HAVE TO FILE the ARTICLES of organization to form an LLC!!

51
Q

corporation

A

Duties and Role of Officers, Directors, Shareholders
1. officers - agents of the corp. - hired by the directors - VP, CEO

  1. directors - only have authority as the MAJORITY of the directors make resolutions together in a meeting - they guide the general POLICY DIRECTION of the corp.
    - —-decide BIG things - whether to merge, whether to issue dividend, whether to dissolve the org. - directors first then shareholders
  2. shareholders - owners of corp.
    - —-proportional right to control by voting, share of profits by dividends, or equitable proportionate share of assets which they realize if corp. dissolves

Financing Options = equity (Stock), debt = loans

52
Q

business judgment rule and derivative lawsuits**

A

Business Judgment Rule***
—-protects officers and directors (agents of corp.) form bad business decisions as long as they were made with good faith and with the best inter-ests of the corp. at the time - don’t look back!!! NO hindsight analysis

Derivative Lawsuits**

  • —brought by a shareholder in behalf of the corp. have to prove three things
    1. they were a shareholder at the time of injury
    2. they fairly represent the interests of the corp. at the whole
    3. they made a written demand on the officers and directors to fix the problem FIRST and they failed to respond
53
Q

secured debt - mortgage**

A

for real property the doc. that creates the security interest = MORTGAGE - dictates the rights btwn the creditor and debtor

  • —mortgage gives the creditor the right to foreclose if there is a default
  • —if the creditor wants to make sure he beats OTHER CREDITORS that may have security interest in the property then he needs to RECORD the mortgage at the county recorder’s office

Foreclosure Sale - upon default the creditor can judicially sell the property
• right of redemption - of the debtor but has to bring ENTIRE LOAN IN FULL

mechanic’s lien
—-if someone has made improvements to the real property and doesn’t get paid they can put a mechanic’s lien on the property and eventually if they choose force the foreclosure sale to get the lien paid off

54
Q

collection remedies**

A

applies in any kind of transaction - judicial

  1. writ of attachment** - freezes the assets of the debtor
  2. write of execution - when you want to go collect against the debtor’s assets - property in the possession of the debtor
  3. writ of garnishment - when you want to collect property in possession of the third parties - checking accounts, savings accounts, etc.
55
Q

security agreement**

A

security agreement is what creates the security interest in personal property (like a mortgage does in real property)

  • —don’t have security interest in the collateral until it ATTACHES - meaning if you don’t have rights in the collateral then I don’t either - attachment usually happens immediately…but can also have a security interest in your inventory that you will acquire later!! - until you actually acquire it I do not attach
  • —-the security agreement controls creditor’s rights upon default - if you de-fault I can go repossess the collateral, keep it, or sell it
56
Q

perfecting a security interest**

A

only if you are interested in beating out OTHER creditors should you want to perfect - three ways to perfect

  1. Filing it with a financing stmt.
    - —–Doc. Filed by secured creditor - gives constructive notice of security interest in personal property - effective for 5 years from filing date
  2. Possessing the collateral - makes sense in some circumstances but not all - bc if collateral is inventory you don’t want to possess it bc then would stop them from selling it – don’t need fin.
  3. if you create a purchase money security interest – as the creditor I have loaned you money to buy something from ME…if what I loaned you money to buy was a consumer good ** then it is perfect automatically
57
Q

priority of claims and default and remedies

A

Priority of Claims
• Secured ALWAYS BEATS unsecured
• Perfected ALWAYS BEATS unperfected
• First to perfect ALWAYS BEATS later to perfect

Default and Remedies
—–I repossess the collateral, can keep it, can sell it - or ignore all of this and sue you judicially

58
Q

5 types of ethical reasoning

—Kantian ethics***

A

Kantian ethics

  • –being consistent - do unto others as you would have them do it unto you - Golden rule and apply it consistently - with reversibility
  • —-ppl can use reasoning to reach ethical decisions - ppl should apply a CATEGORIAL IMPERATIVE (do unto others as you would have them do unto you”
  • —-consistency - all cases treated alike w/ no exceptions
  • —-reversibility - actor must abide by rule he/she uses to judge the morality of someone else’s conduct - exception for yourself be-comes exception for others
59
Q

5 types of ethical reasoning

ethical relatvism

A

ethical relativism

  • —as long as each person follows their own ethical rules then we have complied with that
  • —a person must decide what is ethical based on his/her own feelings of what is right or wrong
  • —-no universal ethical rules to guide a person’s conduct
60
Q

4 categories of corporate social responsibility

A
  1. moral minimum
    - —still want to make money for the shareholders but don’t want to harm anyone in the process - corp. duty is to make a profit while avoiding harm to others

Fall 2019 (10 decks)

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