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Business Law 3500 > Midterm > Flashcards

Midterm Flashcards

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1
Q

Fiduciary rule

A

Fiduciary must act solely in the interest of other person’s property and interests
Higher than normal obligation to each other

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2
Q

Stare decisis

A

Prior decisions help determine current controversy

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3
Q

Jurisprudence

A

The study of legal philosophy

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4
Q

Idealist

A 
Law should be a body of principles independent of human experience
Natural law (an informed definition of what is fair and just)
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5
Q

Positivist

A

Separates the morals from the law

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6
Q

Historical

A

Law will embody society’s customs

Works under general agreement

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7
Q

Sociological

A

Reflects present human conduct

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8
Q

Realist

A

Law is the way law is enforced

What actually occurs

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9
Q

Economic

A

Good law reflects good economics

Concern for efficiency

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10
Q

Politico

A

Way judiciary perpetuates itself in order to maintain current socioeconomic order
Endless reevaluation of law

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11
Q

Non-feasance

A

Not doing/doing nothing

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12
Q

Malfeasance

A

Purposeful breaching of a duty

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13
Q

Misfeasance

A

Breaching a duty but NOT purposefully

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14
Q

Case of 1st impression

A

Matter not previously decided in that state

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15
Q

Marital consortium

A

Good company

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16
Q

Orbiter dictum

A

A remark by the way

Lacks precedential value, but may indicate what the court will do in the future

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17
Q

Res judicata

A

The matter has been decided

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18
Q

Extension of common law liability

A

Can’t follow cases that came before, must expand the law

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19
Q

Fruit of the poisonous tree doctrine

A

Evidence illegally obtained cannot be used in court proceedings

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20
Q

2 requirements for trial in federal court

A

Diversity of citizenship (plaintiff & defendant)

$75K plus controversy

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21
Q

Jurisdiction

A

Power to hear and decide case
Must have control over parties and subject matter
Minimum contact with state

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22
Q

Supreme Court cases come from

A

Federal courts or when Constitutional issues are involved in a state Supreme Court

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23
Q

Levels of appeal for each court

A

2

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24
Q

Civil case

A

Broken a statute, harmed society
Proof more likely than not
Remedy $

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25
Q

Criminal case

A

Relatively higher burden of proof
Must be beyond a reasonable doubt
Remedy fine or imprisonment

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26
Q

Statute of frauds

A

Certain contracts have to be evidenced in writing to be enforceable

  1. Greater than 12 mos to fulfill
  2. Real estate contracts
  3. Greater than 1 year lease
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27
Q

Mailbox rule

A

An offer is effective when it is received
A cancellation is effective when it is received
An acceptance is effective when it is sent/dispatched

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28
Q

Bilateral

A

At the time the contract is made both sides are obligated

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29
Q

Unilateral

A

At the time the offer is made the only obligated party is the offeror

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30
Q

Detriment

A

Something you have to do now that you didn’t have to do before

31
Q

Benefit

A

What you receive from doing the contract

32
Q

Contract types

A

Express - explicit
Implied in fact - dentistry, barber shop
Implied in law - quasi contract, isn’t a contract but treated as if it is

33
Q

Consideration

A

Must have promise and return of promise
Past consideration doesn’t apply
Must have mutual obligations
Only works if applied in full

34
Q

Promissory estoppel

A

Detrimental reliance - must be reliance on promise, do something they otherwise wouldn’t
Reliance foreseeable by promisor
Injustice if promise is not enforced

35
Q

Unconscionable contract

A

Throw out bits/ whole of contract deemed reprehensible

36
Q

Substantial performance

A

When party doing the performance falls short of full performance obligation IN GOOD FAITH and the purposes of contract were SUBSTANTIALLY PERFORMED
Recovery based on quasi contract, reasonable value

37
Q

Valid contracts

A

Enforceable

38
Q

Void contracts

A

Not enforceable at face (contract for illegal act)

39
Q

Voidable contract

A

Appear valid but really aren’t

40
Q

Lack of capacity

A

Must understand to consent

41
Q

Minors

A

Lack of capacity, can void contracts within a reasonable time after reaching age of majority
Can ratify contracts after reaching age of majority by committing an action consistent with contract

42
Q

Exceptions to minors’ lack of capacity

A

Student loans
Consent to adoption
Employment no compete
Necessities for household

43
Q

Misrepresentation

A

Misstatement relied on by other side, causes financial injury
Need not be intentional

44
Q

Rescission

A

Caused by misrepresentation

Voids contract and returns everything to status quo ante

45
Q

Mutual mistake

A

Must be meeting of the minds

Unilateral mistake w/o misrepresentation/fraud allows contract to go forward

46
Q

Duress

A

Contracts must be entered into with free will

  1. Actions/thoughts wrongful
  2. Did threat or free will induce contract
47
Q

Undue influence

A

Dominant party substitutes their judgment for subservient party’s

48
Q

Illegality

A

Against the law or against public policy

49
Q

Parol evidence

A

In any full integrated argument (whole meant to be in writing) any prior negotiations and representations are merged into the contract
Protects sanctity of written contract
Doesn’t apply to modification of contract
Evidence of void ability permmissable

50
Q

Condition precedent

A

Must happen for contract to be valid

51
Q

Condition subsequent

A

Contract later voided based on later condition unmet

52
Q

Damages

A

Meant to put injured party in same financial position as if contract had been fulfilled

53
Q

3rd party intended beneficiary

A

Can sue
Consideration not needed
Can collect if specifically named

54
Q

3rd party incidental beneficiary

A

Cannot sue

55
Q

Appellant

A

Party making appeal

56
Q

Appalled

A

Defending appeal

57
Q

Summary judgment

A

Even if you believe everything the other side says, they still have no cause against us

58
Q

4 stages of lawsuits

A

Pleading
Discovery
Trial
Appellate

59
Q

Complaint

A

Plaintiff against defendant

States the factual basis of the claim

60
Q

Answer

A

Defendant against plaintiff

Admits or denies the allegations of the complaint; may also raise affirmative defenses

61
Q

Counterclaim

A

Defendant against plaintiff

States basis for claim by defendant against plaintiff

62
Q

Reply

A

Plaintiff against defendant

Answers counterclaim

63
Q

Cross claim

A

Defendant against another defendant

States basis for claim

64
Q

Impleader

A

Defendant against a nonparty

Defendant adds another party to the lawsuit

65
Q

Intervention

A

Nonparty against a party

Another party seeks to join the lawsuit

66
Q

Inter pleader

A

Plaintiff or defendant against two parties

Forces the court to determine rightful holder of monies

67
Q

Discovery

A

Process where each party attempts to learn what the other party knows

68
Q

Deposition

A

Only time before trial that attorneys can ask direct questions to the other side

69
Q

Pretrial conference

A

Witnesses (names, scheduling issues)
Length and order of trial
Trial date

70
Q

Executed

A

Contract done in full

71
Q

Executory

A

At least one party still has work to do

72
Q

Acceptance

A

Words or actions by which an offeree signifies that they intend to be bound by the offer

73
Q

Specific performance

A

When subject matter of contract is UNIQUE, plaintiff can sue for item not $$$

74
Q

2-201

A

Contract for sale of goods of $500 or more must be in writing unless
Between merchants within a reasonable time
Goods specially manufactured to buyer specifications and not suitable for resale
Party to whom sale was made admits contract for sale up to a certain amount (only this amount is then collectible)
Goods for which payment has been made/received and accepted

Business Law 3500 (1 decks)

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