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B Law > Test 1 > Flashcards

Test 1 Flashcards

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1
Q

Define Law

A

Set of enforceable laws that govern relationships between private parties and between individuals and society.

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2
Q

Sources of Law

A 
State:
Constitution
Executive Orders
Statutes
Cases
Administration
Federal:
Constitution
Executive Orders
Statutes
Cases
Administration
Civil Codes
Other:
Private Parties
Legal Scholars
Customs
Treaties
Natural
Theology
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3
Q

Natural Law

A

Universal, in your heart, determined by nature

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4
Q

Positive Law

A

Must be written down, man-made

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5
Q

Four Type of Cases When Federal Courts Have SMJ

A
  1. Diversity > $75,000
  2. Federal Issues
  3. State v. State
  4. Ambassadors
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6
Q

3 Types of ADR (Alternate Dispute Resolution)

A

Negotiation - no 3rd party
Mediation - 3rd party but does not have final decision
Arbitration - 3rd party that does have final decision

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7
Q

FIVE BOXES

A 
Cause of Action
Right of Action
Subject Matter Jurisdiction: federal or state
Personal Jurisdiction: minimum contacts
Venue: most reasonable location
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8
Q

Long Arm Statute

A

Can be held accountable to the extend that you have established minimum contacts

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9
Q

In Rem

A

One can be held accountable within a state where property is owned up to the amount of that property, “The Thing”, example: lives in MS but owns boat in LA - could be held accountable in LA up to value of boat

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10
Q

3 Types of State Courts

A

Trial
Appellate
State Supreme

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11
Q

3 Types of Federal Courts

A

Trail
Appellate
US Supreme Court

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12
Q

Federal Courts have jurisdiction over most…

A

Bankruptcy proceedings, federal income tax cases, maritime/admiralty cases

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13
Q

1st Amendment

A

Guarantees freedom of religion, speech and the press and the rights to assemble peaceably and to petition the government. Also protects consumers from being misled by companies through false advertising

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14
Q

2nd Amendment

A

States that the right of people to keep and bear arms will not be infringed

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15
Q

4th Amendment

A

Prohibits unreasonable searches and seizure of persons or property

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16
Q

5th Amendment

A

Guarantees the rights to indictment by grand jury, to due process of law and to fair payments when private property is taken for public use; prohibits compulsory self-incrimination and double jeopardy

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17
Q

10th Amendment

A

Establishes that those powers neither delegated to the federal government nor denied to the states are reserved to the states and to the people

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18
Q

14th Amendment

A

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

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19
Q

Article I

A

Congressional (Legislative - Makes Laws)

  • Commerce Clause
  • Powers: post offices, declare war, coin money, intellectual property
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20
Q

Article II

A

President (Executive - Carries Out Laws)

- Powers: state of the union, veto commander and chief, appoint federal judges

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21
Q

Article III

A

Federal Court (Judicial - Evaluates Laws)

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22
Q

The foreign state must have a substantial reason for treating a nonresident different from its resident citizen

A

Privileges and Immunities Clause

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23
Q

Each state shall give full faith and credit to the public acts, records and judicial proceedings of every other state

A

Full Faith and Credit Clause

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24
Q

the rule that a legal case must be done in a way that protects the rights of all the people involved. Relates to the limits that the law puts on SOME people

A

Due Process

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25
Q

provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. Relates to the limits that the law puts on ALL people

A

Equal Protection

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26
Q

Congress shall make no law respecting an establishment of religion

A

Establishment Clause

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27
Q

Clause that States Constitution is Supreme Law of the Land

A

Supremacy Clause

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28
Q

Tools for Pleadings (6)

A

1) Discovery= A phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial.
2) Depositions= The testimony of a party to a lawsuit or a witness taken under oath before a trial.
3) Interrogatories= A series of written questions for which written answers are prepared and then signed under oath by a party to a lawsuit, usually with the assistance of the party’s attorney.
4) Request for Admissions= A written request served upon the other party for an admission of the truth of matters relating to the trial. Any fact admitted is conclusively established as true for the trial.
5) Request for Documents= objects and entry to land – A party can gain access to documents and other items not in his possession in order to inspect and examine them. Also gain “entry upon land” to inspect the premises.
6) Request for Examinations= When the physical or mental condition of one party is in question, can ask the court to order a physical or mental examination by an independent examiner.

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29
Q

Contract v. Tort

A
  1. Both have four parts and provide a cause of action
  2. Contract is a consensual relationship, tort is not consensual
  3. Tort involves personal injury
  4. In contractual relationships damages are more precise and usually lower than torts
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30
Q

Four Parts of a Tort

A

Duty
Breach
Cause
Damage

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31
Q

Duty + Breach =

A

NEGLIGENCE

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32
Q

Reasonable Persons Standard (Tort)

A

Duty

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33
Q

Failed to Exercise Reasonable Care (Tort)

A

Breach

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34
Q

Types of Cause

A

In Fact and Proximate Cause

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35
Q

Type of Cause that relates to closeness or time, “forseeableness”

A

Proximate Cause

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36
Q

Actual Cause of Injuries

A

In Fact

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37
Q

Injury Sustained (Tort)

A

Damage

38
Q

Types of Torts

A

Intentional, Negligence, Strict Liability

39
Q

Types of Intentional Torts

A 
Assault
Battery
Trespass
False imprisonment
TICR

Other: Defamation, Intentional Infliction of emotional distress

40
Q

Threat of violence is enough to constitute; no physical contact is necessary

A

Assault

41
Q

Physical Contact, to cause physical harm

A

Battery

42
Q

Any intentional confinement or restraint of another person’s movements without justification

A

False Imprisonment

43
Q

2 Types of Strict Liability

A

Abnormally dangerous (ex: pet tiger), products liability

44
Q

Types of Products Liability

A

Failure to warn
Defective Design
Defective Manufacturing

45
Q

TICR and requirements

A

Tortious interference with a contractual relationship

  1. Valid contract must exist
  2. Third party must know about the contract
  3. Third party must entice person to break contract
46
Q

Breach of a statute

A

Negligence per se

47
Q

Defenses to torts

A 
Contributory Negligence (playing hockey w/o a helmet)
Assumption of Risk (playing hockey)
48
Q

A method to allocate damages

A

Comparative Fault

49
Q

Points of Traditional Contract Law

A
  1. Retain the Mirror Image Rule
  2. Need All Material Terms
  3. Modifications require consent and consideration
  4. Option contracts require consideration
  5. SOF varies
50
Q

Points of UCC-2

A

Uniform Commercial Code - Movable and Tangible

  1. Abandons Mirror Image Rule
  2. Only Quantity is required
  3. Modifications only require consent
  4. Sign written offers are irrevocable
51
Q

Refers to the requirement that some kinds of contracts be in writing and signed by both parties, unless contact is fully executed

A

Statute of Frauds

52
Q

Types of Contracts that must be in writing in LA

A
  1. UCC 2
  2. Nuptials
  3. Guaranteeing the debt of another (unless for personal benefit)
  4. Sale of immovable property
  5. A contact that cannot be performed within 1 year
53
Q

Parts of a Contract

A

Agreement
Consideration
Capacity
Legality

54
Q

Agreement must have…

A

an offer and an acceptance (can be expressed or tacit)

55
Q

Part of a contract that could potentially make it voidable

A

Capacity

56
Q

Part of a contract that could potentially make it void

A

Legality

57
Q

Who Lacks Capacity?

A

Minors, mentally impaired, duress, lucid intervals (alzheimer’s), some intoxication cases

58
Q

What destroys an offer?

A

Revocation, rejection, counteroffer, lapse of time, destruction of subject matter, death

59
Q

Rejection of a contract plus a new offer

A

Counteroffer

60
Q

Attributes of A Contract

A

Unilateral v Bilateral
Formal v Informal
Express v Implied
Executory v. Executed

61
Q

Implied “in law” contract, rectifies occurrences of unjust enrichment or detrimental reliance

A

Quasi Contracts

62
Q

Types of Mistakes

A

Unilateral v Bilateral

Mistake of fact v mistake of value

63
Q

Generally, either party can rescind with this mistake

A

bilateral mistake of fact

64
Q

Mistaken party cannot rescind with this type of mistake (unless fraud)

A

unilateral mistake of fact

65
Q

Substitution of one party for a third party agreed upon by all parties

A

novation

66
Q

Monetary Damages/Remedies

A
  1. Compensatory (cover price - contract)
  2. Consequential (loss profits)
  3. Punitive (rare)
  4. Nominal (small)
  5. Liquidated (built into contract)
67
Q

Equity Damages/Remedies

A
  1. Specific Performance
  2. Injunction
  3. Rescission
  4. Reformation
  5. Combination
68
Q

Rewrite or strike provisions of the contract to make it legal, responsible etc.

A

Reformation

69
Q

Restore the parties to the status quo prior to the formation of the contract

A

Rescission

70
Q

Prevention of something (harassment), restraining or cease and desist order

A

Injunction

71
Q

Remedy for a unique situation, faberge egg, heirloom gold watch, house, etc.

A

Specific Performance

72
Q

A tax term mandating that a taxpayer is liable for income, which has not been physically received, but has been credited to the taxpayer’s account or otherwise becomes available for him or her to draw upon in the future. Prevents taxpayers from deferring tax on income or compensation they have not yet utilized.

A

Constructive Receipt

73
Q

Determines the time at which an offer is accepted, states that an offer is considered accepted at the time that the acceptance is mailed.

A

Mailbox Rule

74
Q

A complete agreement between two competent parties

A

Genuine Assent

75
Q

Rule that states if contract is in writing, no oral evidence will be considered

A

Parol Evidence Rule

76
Q

Exceptions to Parol Evidence Rule

A

Verbal testimony is allowed to cover ambiguities in written contract
Verbal modifications to agreement (after signed)

77
Q

Ways to Discharge A Contract

A

Performance
Substantial Performance
Judicial Discharge
Mutual Termination

78
Q

Wrongs against society as a whole

A

Criminal Law

79
Q

Permits a predictable relatively quick and fair resolution of cases, using previous cases

A

Stare Decisis

80
Q

Common Law System

A

Case Law, uses previous cases to determine verdict in new cases

81
Q

Civil Law System

A

Uses codes and statutes to determine verdict in new cases

82
Q

Requires giving an individual due process for taking away their fundamental rights

A

Substantive due process

83
Q

Type of due process that makes sure proceedings are fair

A

Procedural Due Process

84
Q

Requires that the terms of acceptance must exactly match the terms of offer to form a valid contract

A

Mirror Image Rule

85
Q

Detrimental Reliance (Ex: Agree to move in, knocks down wall, does not move in)

A

Promissory Estoppel

86
Q

When the terms of a contract do not bind the promisor to do anything, no consideration

A

Illusory Contract

87
Q

When a lender makes a loan at a rate above the lawful maximum

A

Usury

88
Q

A contract clause attempting to absolve a party of negligence or wrongs (agree not to sue)

A

Exculpatory Clause

89
Q

A contract in which one side has all the bargaining power

A

Adhesion Contract

90
Q

This occurs when a person unknowingly misrepresents information

A

Innocent misrepresentation

91
Q

Suspends a contractual duty that has not been discharged.

A

Accord

B Law (4 decks)

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