Midterm Flashcards
define agency
agent is authorized to make contracts on behalf of and/r represent the principal.
- principle lets agent act on their behalf
- fiduciary relationship based on high level of trust and confidence
two parts of an agreement
valid offer
valid acceptance
agency by estoppel
pricipal causes a third person to believe that another person is the pricnipal’s agent
- third person acts to her detriment in reliance on that belief
-
LLP limited liability partnership
- partners are not liable for negligent acts of other partners or negligent acts of employees
acceptance under the uCC
definite expression of acceptance or written confirmation which is sent within a reasonable time EVEN IF it states terms additional to or different from those offered
- offer can be accepted in any manner, any medium
- even by shipping the goods
how are agency relationships terminated
MA POOL
mutual agreement
act of parties
purpose achieved
operation of law
occurrence of a specific event
lapse of time
define undue influence
- contract is the product of unfair persuasion AND
- victim is under the domination of the person exercising the persuasion
piercing the veil
creditors try to pierce veil of LLC or corp. to gain access to personal assets of the members / shareholders
- to do this : creditors have t prove that members did something bad
EXAMPLES :
personal use of LLC assets
- absence of company records
- nonobservance of formalities
2 ways to lack capacity to contract
1) person enters the contract before reaching age of majority may disaffrirm it when they’re older
2) person lacks mental capacity
consumer protection law
- deal with individuals who purchase goods and services for personal or household use
- federal, state, local laws
define negotiation
the give and take people engage in when coming to terms with each otehr
define misrepresentation
party claiming it have been induced by justificable reliance:
- On the other party’s misrepresenattion
- material fact ( does not include opinions)
- can be concealment of fact
what terms can be used as gap fillers
- parteis agreed on contract BUT their agreement left open one or more contract terms
- acceptance contains different terms frmo the offer
voidable contract
valid contract in which one or both of the parties has the option of avoiding their legal obligations
AVOIDED = both parties released
RATIFIED = both parties must perform
when is principal contractually liable but not agent
third party knows that an agent is acting on behalf of principle AND knows identity of principal
3 equitable remedies
1) recission
2) injunction
3) specific performance
CPSC
protects public against unreasonable risks of injuries and deaths associated with consumer products
- conducts research on the safety of individual products
- keeps track of risks associated iwth products
statue of frauds definition
to be enforceable certain contracts must be in writing
consideration
2 parties bargain to give each other something or don’t do something
NOT VALID : promise made in recognition of a benefit that promisor has already received
NOT VALID : promise to do something someone is already legally obligated to do.
define UCC
applies to sale of goods. adopted by all states
- codify state contract rules
- ONLY applies to sale of goods, tangible personal property
three elements to confirm intent for an offer
LOT
language of present commitment
offer is communicated
terms are fairly definite
business judgement rule
- protects directors and officers against risk for personal liability for business decisions made that SH do not agree with
AS LONG AS they acted on an informed basis, in good faith, scope of their authority
what are the different types of scrutity to regulate speech?
SIR
strict scrutiny
intermediate scrutiny
rational basis
what does the FTC do
prevent unfair or deceptive acts or practices and unfair methods of competition
- regulate all kinds of ADS (especially misleading)
recision
equitable remedy
- contract has been terminated, parties are neither obligated to perform duties OR entitled to demand performacne
LLC limited liability company
- seperate legal identity
- limited liability
- file articles of org.
- limited life
- operating agreement SHOULD SPECIFY HOW the llc will continue if members leave
- pass through entity. profits and losses on individual tax returns
what is the commerce clause? purpose?
- national gov can regulate virtually every commercial enterprise in the U.S.
- states ACTUALLY regulate their areas
- cannot pass legislation that burdens interstate commerce
promissory estoppel
party can enforce a promise if contract elements are missing IF the second party was substantially relying on it
why is contract law needed
to ensure complaince with a rpomise OR o entitle a non- breaching party to relief when a contract is breached
parole evidence rule
- when the parties have a written agreement , oral evidence of prior communications will NOT be permitted to alter the terms of the contract UNLESS the language is ambigous
define rational basis
the court is highly differential to gov interest in restriction speech
define arbitration
resolution of a dispute by a neutral third party
- usually binding to the 2 parties but can be nonbinding
- no right t o appeal it unless the arbitrator is involved in fraud
when do offers terminate
lapse of time
operation of law
revocation
rejection
define duress
contract induced by improper threat
victim had no reasonable alternative but to enter into the contract
unenforceable contract
valid contract that cannot be enforced due to certain legal defenses
what are the types of speeches and their protections
political speech - highest degree
commercial speech - intermediate protection CANNOT BE FALSE!
obscene speech - no protection
specific performance
equitable remedy
- court orders party to carry otu contractual duties
ONLY AVAILABLE WHERE MONETARY DAMAGES ARE INADEQUATE
officers
- take direction from diretcors
- run business day to day
- can commit corp. to perform services, sell goods
- work directly with external parties
- hire managers + employees
what are some things arbitration clauses should stipulate
- binding or nonbinding?
- timetable
- rules and procesures
- scope of discovery
limited partnership
- limited partners have lmited liability
- general partners have unlimited liability
- need a document to form LIMITED partners
directors
- make high level decisions
- hire corporate officers.
- determine when to declae dividends
- operate by commitee
define strict scrutiny
restriction on the speech must promote a compelling interest AND
must be the least restrictive means to further the articulated interest
define intermediate scrutiny
restriction should be narrowly tailed to serve a substantial interest BUT does not have to be the least restrictive means available
what are the three forms of ADR
N A M
negotiation
arbitration
mediation
how can agencies be formed
- agreement
- ratification
- estoppel
define ADR
- the cost of taking legal action (litigation) is very expensive and takes too much time : a different way to reach a solution
injunction
equtable remedy
- court order requiring someone to do something OR to refraid from doings omething
sole proprietorship
- unlimited liability. creditors of the business have access to owner’s assets
- reports financial affairs on owner PERSONAL tax return
valid offer
agreements to agree if parties clearly intended to be bound by agreements
invalid offer
expressions of opinion statements of intention preliminary negotiations ads offers made in ANGER, JEST, undue excitement
statue of frauds categories
aka those that must be in writing
- marrgiage
- suretyship
- intrest in land
- contracts that cannot be perofmred within one year
- contracts for the sale of goods > $500
what is the constitution and what does it do
sets up the legal foundation on which the GOV and entire country functions
- describes structure and powers of gov and components
- establishes and protects freedoms
what is contract law and 4 elements
LACC
- shows what promises or commitments our society believes should be legally binding
- what excuses society accepts for breaking of promises
- what kinds of promises will be considered agianst public policy, legally void
1) legality 2) agreement 3) consideration 4) capacity
DEFINE unconscionability
contract in whole or part is void because one party is forced to accept terms that are unfairly burdensome AND unfairly benefit the dominant party
- procedural : during negotions and formation
- substantive : contract terms or as a whole
shareholder’s derivative suit
legal claim brought by SH of corp. against the directors and officers.
- D + O did not discahrge their duties to the beenfit of the CORP. (fraud, mismanegemtn,)
- difficult to prove. court doesn’t wanna get into MGMT decision making process
what is the central hudson test?
system for court to evaluate free speech claims. 4 part analysis and company has to pass all 4.
what amendment is the freedom of speech and what is the purpose
first amendment
- protects symolic speech too (gestures, clothing)
elements that msut be there for promissory estoppel
1) a promise
2) promisee justifiable reliance on the promise
3) reliance of a substantial and definite character
4) justice is better served by the enforcement of the promise
types of damages for contracts
damages for expectation interest
damages for reliance inetrest
damages for restitution interest
compensatory, consequential, punitive, liquidated
valid acceptance
EXACT terms of offer unless sale of goods
silence is NOT valid unless stated in advance
what is a merchant
person who deals goods of the kind being sold / otherwise by his occupation has knowledge or skill peculiar to the practices or goods involved in the trans
define mediation
parties themselves reach a agreed upon resolution with the assistance of a third person AKA MEDIATOR
- most popular form of ADR
agency formed by agreement
formed through express consent (oral or written), or implied by conduct
three types of authority an agent has
express authority
implied authority
apparent authority (there appears to be authority despite the fact that there is not, based on what principal implies)
exceptions for statue of frauds
- promissory estoppel
- part performance
- merchant memo for sale of goods
- specifically manu. goods
when are both the principal and agent contractually liable
- when the third party does not know the agent is acting on behalf of a principal
- when third party knows tahta gent is acting on behalf of pincipal but does not know identity of principal
agency formed by ratification
principal either by act or agreement APPROVES the conduct of a person that was originally unathorized.
general partnership
- does not have separate legal identity
- creditors of business have access to partern’s person assets
- partnership agreement
- profits and losses on partner’s individual income tax returns
- file information tax return
