Midterm Flashcards
Fiduciary rule
Fiduciary must act solely in the interest of other person’s property and interests
Higher than normal obligation to each other
Stare decisis
Prior decisions help determine current controversy
Jurisprudence
The study of legal philosophy
Idealist
Law should be a body of principles independent of human experience Natural law (an informed definition of what is fair and just)
Positivist
Separates the morals from the law
Historical
Law will embody society’s customs
Works under general agreement
Sociological
Reflects present human conduct
Realist
Law is the way law is enforced
What actually occurs
Economic
Good law reflects good economics
Concern for efficiency
Politico
Way judiciary perpetuates itself in order to maintain current socioeconomic order
Endless reevaluation of law
Non-feasance
Not doing/doing nothing
Malfeasance
Purposeful breaching of a duty
Misfeasance
Breaching a duty but NOT purposefully
Case of 1st impression
Matter not previously decided in that state
Marital consortium
Good company
Orbiter dictum
A remark by the way
Lacks precedential value, but may indicate what the court will do in the future
Res judicata
The matter has been decided
Extension of common law liability
Can’t follow cases that came before, must expand the law
Fruit of the poisonous tree doctrine
Evidence illegally obtained cannot be used in court proceedings
2 requirements for trial in federal court
Diversity of citizenship (plaintiff & defendant)
$75K plus controversy
Jurisdiction
Power to hear and decide case
Must have control over parties and subject matter
Minimum contact with state
Supreme Court cases come from
Federal courts or when Constitutional issues are involved in a state Supreme Court
Levels of appeal for each court
2
Civil case
Broken a statute, harmed society
Proof more likely than not
Remedy $
Criminal case
Relatively higher burden of proof
Must be beyond a reasonable doubt
Remedy fine or imprisonment
Statute of frauds
Certain contracts have to be evidenced in writing to be enforceable
- Greater than 12 mos to fulfill
- Real estate contracts
- Greater than 1 year lease
Mailbox rule
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
Bilateral
At the time the contract is made both sides are obligated
Unilateral
At the time the offer is made the only obligated party is the offeror
Detriment
Something you have to do now that you didn’t have to do before
Benefit
What you receive from doing the contract
Contract types
Express - explicit
Implied in fact - dentistry, barber shop
Implied in law - quasi contract, isn’t a contract but treated as if it is
Consideration
Must have promise and return of promise
Past consideration doesn’t apply
Must have mutual obligations
Only works if applied in full
Promissory estoppel
Detrimental reliance - must be reliance on promise, do something they otherwise wouldn’t
Reliance foreseeable by promisor
Injustice if promise is not enforced
Unconscionable contract
Throw out bits/ whole of contract deemed reprehensible
Substantial performance
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
Valid contracts
Enforceable
Void contracts
Not enforceable at face (contract for illegal act)
Voidable contract
Appear valid but really aren’t
Lack of capacity
Must understand to consent
Minors
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
Exceptions to minors’ lack of capacity
Student loans
Consent to adoption
Employment no compete
Necessities for household
Misrepresentation
Misstatement relied on by other side, causes financial injury
Need not be intentional
Rescission
Caused by misrepresentation
Voids contract and returns everything to status quo ante
Mutual mistake
Must be meeting of the minds
Unilateral mistake w/o misrepresentation/fraud allows contract to go forward
Duress
Contracts must be entered into with free will
- Actions/thoughts wrongful
- Did threat or free will induce contract
Undue influence
Dominant party substitutes their judgment for subservient party’s
Illegality
Against the law or against public policy
Parol evidence
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
Condition precedent
Must happen for contract to be valid
Condition subsequent
Contract later voided based on later condition unmet
Damages
Meant to put injured party in same financial position as if contract had been fulfilled
3rd party intended beneficiary
Can sue
Consideration not needed
Can collect if specifically named
3rd party incidental beneficiary
Cannot sue
Appellant
Party making appeal
Appalled
Defending appeal
Summary judgment
Even if you believe everything the other side says, they still have no cause against us
4 stages of lawsuits
Pleading
Discovery
Trial
Appellate
Complaint
Plaintiff against defendant
States the factual basis of the claim
Answer
Defendant against plaintiff
Admits or denies the allegations of the complaint; may also raise affirmative defenses
Counterclaim
Defendant against plaintiff
States basis for claim by defendant against plaintiff
Reply
Plaintiff against defendant
Answers counterclaim
Cross claim
Defendant against another defendant
States basis for claim
Impleader
Defendant against a nonparty
Defendant adds another party to the lawsuit
Intervention
Nonparty against a party
Another party seeks to join the lawsuit
Inter pleader
Plaintiff or defendant against two parties
Forces the court to determine rightful holder of monies
Discovery
Process where each party attempts to learn what the other party knows
Deposition
Only time before trial that attorneys can ask direct questions to the other side
Pretrial conference
Witnesses (names, scheduling issues)
Length and order of trial
Trial date
Executed
Contract done in full
Executory
At least one party still has work to do
Acceptance
Words or actions by which an offeree signifies that they intend to be bound by the offer
Specific performance
When subject matter of contract is UNIQUE, plaintiff can sue for item not $$$
2-201
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
