MIDTERM Flashcards
What are the four sources of law in the US?
- US and State Constitutions
- Statutes passed by Congress and State and City Legislatures
- Regulations created by Administrative Agencies
- Case Law / Common Law (Court Decisions)
What / who is bound by the US constitution?
The people in the Federal Government and the State Government / private companies that take federal funding (e.g. a construction company working on the behalf of the government or a private school taking federal funding for a certain task)
Is the right of judicial review expressly set out in the US Constitution?
The Judicial Review is not mentioned in the US Constitution.
Which alternative dispute resolution looks most like a trial?
Arbitration
What is driving the trend toward more ethical business practices in the US?
Younger people are looking for jobs at companies that are ethical
With regard to ethical business practices what is meant by tone at the top?
Tone at the top is a term that is used to describe an organization’s general ethical climate. It sets forth a company’s cultural environment and corporate values.
Top level executives set the tone for ethical decisions in their company.
Does business ethics vary from country to country?
Yes, depending on the country taken into account, business ethics can be very different (ex.corruption, facilitation payments, it goes with the flow). Many countries adopt CSR (corporate social responsibility) when doing business in countries that have little law and regulation especially in regards to security.
What are the four reasons why a company should behave ethically?
Business Ethics focuses on what constitutes right or wrong behavior in the business world and how business people apply moral and ethical principles to situations that arise in the workplace. Companies should behave ethically according to four main reasons:
- Legal Implications (texes, illegal discrimination..)
- PR Impact
- Safety Risks
- Financial Implications
What are the five components of a well-structured corporate compliance program?
- Anti-corruption and anti bribery
- Product trade and import compliance
- Antitrust
- Privacy
- Corporate practices
What trend has the younger members of the work-force encourage in respect to a corporate focus?
Younger gen is demanding and driving change to more ethical business practices
- The continuing distribution of organizations
- The availability of enabling technologies and social collaboration tools
- The coming shortage of knowledge workers
- The demand for more work flexibility
- Pressure for more sustainable organizations and workstyles
What is the tort of trespassed land?
Enters onto, above, or below the surface of the land that is owned by another without the owner’s permission or legal authorization.
What is the tort of wrongful interference with a contractual relationship?
A valid, enforceable contract must exist between two parties
A third party must know that this contract exists.
If a third party must intentionally induce a party to breach the contract. (Intentionally getting someone to default on an agreement)
What is the tort of wrongful interference with a business relationship?
Business persons devise countless schemes to attract customers, but they are prohibited from unreasonably interfering with another’s business in their attempts to gain a share of the market.
What are the two forms of two types of defamation?
Libel (written)
Slander (spoken)
What is the tort of invasion of privacy?
Implied right in the constitution and also safeguarded by tort law
4 acts included: Appropriation of Identity. Ex) Using the name, likeness, photos of another person without permission.
false light
Public disclosure of private facts
Appropriation of identity
Intrusion into an individual’s affairs or seclusion
Tort of invasion of privacy
Intrusion into an individual’s affairs or seclusion. Ex) Invading someone’s home or wrongfully searching someone’s briefcase
False light. Ex) publication of information placing someone in a false light
Public disclosure of private facts. Ex) A person publicly discloses private information about someone else. Release private celeb photos.
Appropriation of Identity. Ex) Using name, likeness, photos of another person without permission.
Which is a defense to a crime mistake of fact or mistake of law?
Mistake of fact IS a defense (you don’t have the guilty mind)
(Mistake of law NOT a defense because you’re presumed to know it)
What Is the definition of a contract?
What Is the definition of a contract?
What are the four elements of a contract?
- Agreement → offer and acceptance
- Consideration
- Contractual capacity
- Legality
Can an open offer be revoked by the passage of a reasonable amount of time?
A contract can be revoked if the deadline is missed or even if you don’t and a reasonable amount of time passes, the offer can be revoked.
What’re the two elements of an agreement?
Offer (proposal offer)
Acceptance (agreeing to the offer)
What factors would result in a person lacking capacity for the purpose of entering into a contract?
Contractual Capacity - The persons involved must be sober, mentally stable, 18+
If you are intentionally drunk, is that treated differently than if you are unintentionally drunk for the purpose of capacity?
The contract would be voidable at the option of the intoxicated person in all circumstances.(No, it doesn’t matter, as long as they understand the terms of the contract). Hustlers & Wolf of Wall St. Examples.
What is the statue of fraud?
A state statute that requires certain types of contracts to be in writing to be enforceable.
What is economic duress?
It occurs when the other party is stuck, as there are no other practical options but to agree to the new terms of the contract
- wrongful improper threat
- no reasonably alternative but to accept persons terms
- actually induced to enter to the contract by threat
- cause financial distress
WHAT IS UNDUE INFLUENCE?
Undue influence occurs when an individual is able to persuade another’s decisions due to the relationship between the two parties. Often, one of the parties is in a position of power over the other due to elevated status, higher education, or emotional ties. The more powerful individual uses this advantage to coerce the other individual into making decisions that might not be in their long-term best interest.
Anna Nicole Smith Example
WHAT IS THE PAROL EVIDENCE RULE?
The parol evidence rule prevents the introduction of evidence of prior negotiations and agreements that contradict, modify, or vary the contractual terms of a written contract when the written contract is intended to be a complete and final expression of the parties’ agreement.
- Prohibits courts to look at evidence outside of the four corners of the contract
- They will look outside of the contract only if there is an ambiguity
WHAT KINDS OF CONTRACTS ARE REQUIRED TO BE IN WRITING IN ACCORDANCE WITH THE STATUTE OF FRAUDS?
- Land Contracts
- Sale of Goods in Excess of $500
- Contracts Lasting More than One Year
- Collateral promises
- Promises in consideration of marriage
WHAT IS THE STATUTE OF FRAUDS?
The purpose is to prevent fraud and other injuries and must be in writing.
Applicability - fall under the Statute of Frauds and must be in writing to be enforceable
- Contracts involving interest in land - The statute applies to any contract for an interest in reality, such as a sale, lease or a mortgage
- Collateral promises - The statute applies only to express contracts made between the guarantor and the creditor whose terms make the guarantor secondarily liable * Exception the “main purpose” rule
- Promises made in consideration of marriage - The statute applies to promises to make a monetary payment or give property in consideration of a promise to marry and to prenuptial agreements made in consideration of marriage. (Prenups, dowries)
- Contracts for the sale of goods priced at $500 or more - under the Statute of Frauds provisions in Section 2-201 of the Uniform Commercial Code
WHAT IS THE ASSIGNMENT OF RIGHTS UNDER A CONTRACT?
An “assignment of all rights” or an “assignment of the contract” is often construed to mean that both the rights and duties arising under the contract are transferred to a third party.
MAY A CONTRACT BE DISCHARGED BY SUBSTANTIAL PERFORMANCE OF THE OBLIGATIONS IN THE CONTRACT?
YES
A contract may be discharged by complete strict performance or by substantial performance. In some instances, performance must be to the satisfaction of another. Totally inadequate performance constitutes a material breach of the contract, An anticipatory repudiation of a contract allows the other party to sue immediately for breach of contract.
What are special or consequential damages?
Damages beyond the contract themselves, the damages must have been foreseeable, the parties must have known that there was a potential for the damages.
What are the rights of parties with respect to limitations that of liabilities?
Can contractually agree to limit damages
What are the common law liabilities of a professional to her client?
Breach of Contract
Negligence
Fraud
What is Sarbanes-Oxley?
A federal law that established sweeping auditing and financial regulations for public companies.
The Sarbanes-Oxley Act was created as a result of several corporate accounting scandals between 2000 and 2002 (the key example is widespread fraud at Enron). It set these new standards for public accounting firms, corporate management, and corporate board of directors.
What is the world trade organization?
The World Trade Organization is a global organization made up of 164 member countries that deals with the rules of trade between nations. Its goal is to ensure that trade flows as smoothly and predictably as possible, but cannot interfere with it.
Urges companies to pass law
Has no power the countries
What are 6 common provisions that should be included in a cross border or international contract?
Choice-of-Language Clause Forum-Selection Clause Choice-of-Law Clause Force Majeure Clause Arbitration Currency Conversion
