FBLA Business Law

Agency Relationships

The _____________ is an area of commercial law dealing with a set of contractual, quasi-contractual and non-contractual fiduciary relationships that involve a person, called the agent, that is authorized to act on behalf of another (called the principal) to create legal relations with a third party.[1] Succinctly, it may be referred to as the equal relationship between a principal and an agent whereby the principal, expressly or implicitly, authorizes the agent to work under his or her control and on his or her behalf. The agent is, thus, required to negotiate on behalf of the principal or bring him or her and third parties into contractual relationship. This branch of law separates and regulates the relationships between:

agents and principals (internal relationship), known as the principal-agent relationship;

agents and the third parties with whom they deal on their principals' behalf (external relationship); and

principals and the third parties when the agents deal.

Agent

The law of agency is an area of commercial law dealing with a set of contractual, quasi-contractual and non-contractual fiduciary relationships that involve a person, called the agent, that is authorized to act on behalf of another (called the principal) to create legal relations with a third party.[1] Succinctly, it may be referred to as the equal relationship between a principal and an agent whereby the principal, expressly or implicitly, authorizes the agent to work under his or her control and on his or her behalf. The agent is, thus, required to negotiate on behalf of the principal or bring him or her and third parties into contractual relationship. This branch of law separates and regulates the relationships between:

agents and principals (internal relationship), known as the principal-agent relationship;

agents and the third parties with whom they deal on their principals' behalf (external relationship); and

principals and the third parties when the agents deal.

Authority:

Actual authority can be of two kinds. Either the principal may have expressly conferred authority on the agent, or authority may be implied. Authority arises by consensual agreement, and whether it exists is a question of fact. An agent, as a general rule, is only entitled to indemnity from the principal if he or she has acted within the scope of her actual authority, and may be in breach of contract, and liable to a third party for breach of the implied warranty of authority. In tort, a claimant may not recover from the principal unless the agent is acting within the scope of employment.

Express actual authority means an agent has been expressly told he or she may act on behalf of a principal.

Implied actual authority, also called "usual authority", is authority an agent has by virtue of being reasonably necessary to carry out his express authority. As such, it can be inferred by virtue of a position held by an agent. For example, partners have authority to bind the other partners in the firm, their liability being joint and several, and in a corporation, all executives and senior employees with decision-making authority by virtue of their position have authority to bind the corporation.

Apparent Authority:

Apparent authority (also called "ostensible authority") exists where the principal's words or conduct would lead a reasonable person in the third party's position to believe that the agent was authorized to act, even if the principal and the purported agent had never discussed such a relationship. For example, where one person appoints a person to a position which carries with it agency-like powers, those who know of the appointment are entitled to assume that there is apparent authority to do the things ordinarily entrusted to one occupying such a position. If a principal creates the impression that an agent is authorized but there is no actual authority, third parties are protected so long as they have acted reasonably. This is sometimes termed "agency by estoppel" or the "doctrine of holding out", where the principal will be estopped from denying the grant of authority if third parties have changed their positions to their detriment in reliance on the representations made.

Liability of agent to third party:

If the agent has actual or apparent authority, the agent will not be liable for acts performed within the scope of such authority, so long as the relationship of the agency and the identity of the principal have been disclosed. When the agency is undisclosed or partially disclosed, however, both the agent and the principal are liable. Where the principal is not bound because the agent has no actual or apparent authority, the purported agent is liable to the third party for breach of the implied warranty of authority.

Liability of agent to principal:

If the agent has acted without actual authority, but the principal is nevertheless bound because the agent had apparent authority, the agent is liable to indemnify the principal for any resulting loss or damage.

Liability of principal to agent:

If the agent has acted within the scope of the actual authority given, the principal must indemnify the agent for payments made during the course of the relationship whether the expenditure was expressly authorized or merely necessary in promoting the principal's business.

Independent Contractor

An independent contractor is a natural person, business, or corporation that provides goods or services to another entity under terms specified in a contract or within a verbal agreement. Unlike an employee, an independent contractor does not work regularly for an employer but works as and when required, during which time he or she may be subject to law of agency. Independent contractors are usually paid on a freelance basis. Contractors often work through a limited company or franchise, which they themselves own, or may work through an umbrella company.

Real Estate Broker

A real estate broker or real estate agent is a person who acts as an intermediary between sellers and buyers of real estate/real property and attempts to find sellers who wish to sell and buyers who wish to buy. In the United States, the relationship was originally established by reference to the English common law of agency, with the broker having a fiduciary relationship with his clients.

Bailment

Bailment describes a legal relationship in common law where physical possession of personal property, or a chattel, is transferred from one person (the 'bailor') to another person (the 'bailee') who subsequently has possession of the property. It arises when a person gives property to someone else for safekeeping, and is a cause of action independent of contract or tort.

Trustee

Trustee (or the holding of a trusteeship) is a legal term which, in its broadest sense, can refer to any person who holds property, authority, or a position of trust or responsibility for the benefit of another, also a trustee can be a person who is allowed to do certain tasks but not able to gain income.[1] Although the strictest sense of the term is the holder of property on behalf of a beneficiary,[1] the more expansive sense encompasses persons who serve, for example, on the Board of Trustees for an institution that operates for the benefit of the general public. Also a person in the local government.

Sole Proprietorship

The vast majority of small businesses start out as sole proprietorships. These firms are owned by one person, usually the individual who has day-to-day responsibility for running the business. Sole proprietorships own all the assets of the business and the profits generated by it. They also assume complete responsibility for any of its liabilities or debts. In the eyes of the law and the public, you are one in the same with the business.

Advantages of a Sole Proprietorship

• Easiest and least expensive form of ownership to organize.

• Sole proprietors are in complete control, and within the parameters of the law, may make decisions as they see fit.

• Profits from the business flow-through directly to the owner's personal tax return.

• The business is easy to dissolve, if desired.

Disadvantages of a Sole Proprietorship

• Sole proprietors have unlimited liability and are legally responsible for all debts against the business. Their business and personal assets are at risk.

• May be at a disadvantage in raising funds and are often limited to using funds from personal savings or consumer loans.

• May have a hard time attracting high-caliber employees, or those that are motivated by the opportunity to own a part of the business.

• Some employee benefits such as owner's medical insurance premiums are not directly deductible from business income (only partially as an adjustment to income).

Partnership

In a Partnership, two or more people share ownership of a single business. Like proprietorships, the law does not distinguish between the business and its owners. The Partners should have a legal agreement that sets forth how decisions will be made, profits will be shared, disputes will be resolved, how future partners will be admitted to the partnership, how partners can be bought out, or what steps will be taken to dissolve the partnership when needed; Yes, its hard to think about a "break-up" when the business is just getting started, but many partnerships split up at crisis times and unless there is a defined process, there will be even greater problems. They also must decide up front how much time and capital each will contribute, etc.

Advantages of a Partnership

• Partnerships are relatively easy to establish; however time should be invested in developing the partnership agreement.

• With more than one owner, the ability to raise funds may be increased.

• The profits from the business flow directly through to the partners' personal tax return.

• Prospective employees may be attracted to the business if given the incentive to become a partner.

• The business usually will benefit from partners who have complementary skills.

Disadvantages of a Partnership

• Partners are jointly and individually liable for the actions of the other partners.

• Profits must be shared with others.

• Since decisions are shared, disagreements can occur.

• Some employee benefits are not deductible from business income on tax returns.

• The partnership may have a limited life; it may end upon the withdrawal or death of a partner.

Types of Partnerships that should be considered:

1. General Partnership

Partners divide responsibility for management and liability, as well as the shares of profit or loss according to their internal agreement. Equal shares are assumed unless there is a written agreement that states differently.

2. Limited Partnership and Partnership with limited liability

"Limited" means that most of the partners have limited liability (to the extent of their investment) as well as limited input regarding management decision, which generally encourages investors for short term projects, or for investing in capital assets. This form of ownership is not often used for operating retail or service businesses. Forming a limited partnership is more complex and formal than that of a general partnership.

3. Joint Venture

Acts like a general partnership, but is clearly for a limited period of time or a single project. If the partners in a joint venture repeat the activity, they will be recognized as an ongoing partnership and will have to file as such, and distribute accumulated partnership assets upon dissolution of the entity.

Corporation

A Corporation, chartered by the state in which it is headquartered, is considered by law to be a unique entity, separate and apart from those who own it. A Corporation can be taxed; it can be sued; it can enter into contractual agreements. The owners of a corporation are its shareholders. The shareholders elect a board of directors to oversee the major policies and decisions. The corporation has a life of its own and does not dissolve when ownership changes.

Advantages of a Corporation

• Shareholders have limited liability for the corporation's debts or judgments against the corporation.

• Generally, shareholders can only be held accountable for their investment in stock of the company. (Note however, that officers can be held personally liable for their actions, such as the failure to withhold and pay employment taxes.

• Corporations can raise additional funds through the sale of stock.

• A Corporation may deduct the cost of benefits it provides to officers and employees.

• Can elect S Corporation status if certain requirements are met. This election enables company to be taxed similar to a partnership.

Disadvantages of a Corporation

• The process of incorporation requires more time and money than other forms of organization.

• Corporations are monitored by federal, state and some local agencies, and as a result may have more paperwork to comply with regulations.

• Incorporating may result in higher overall taxes. Dividends paid to shareholders are not deductible from business income; thus this income can be taxed twice.

Subchapter S Corporation

A tax election only; this election enables the shareholder to treat the earnings and profits as distributions, and have them pass through directly to their personal tax return. The catch here is that the shareholder, if working for the company, and if there is a profit, must pay his/herself wages, and it must meet standards of "reasonable compensation". This can vary by geographical region as well as occupation, but the basic rule is to pay yourself what you would have to pay someone to do your job, as long as there is enough profit. If you do not do this, the IRS can reclassify all of the earnings and profit as wages, and you will be liable for all of the payroll taxes on the total amount.

Limited Liability Company (LLC)

The LLC is a relatively new type of hybrid business structure that is now permissible in most states. It is designed to provide limited liability features of a corporation and the tax efficiencies and operational flexibility of a partnership. Formation is more complex and formal than that of a general partnership.

The owners are members, and the duration of the LLC is usually determined when the organization papers are filed. The time limit can be continued if desired by a vote of the members at the time of expiration. LLC's must not have more than two of the four characteristics that define corporations: Limited liability to the extent of assets; continuity of life; centralization of management; and free transferability of ownership interests.

Federal Tax Forms for LLC

Taxed as a partnership in most cases; corporation forms must be used if there are more than 2 of the 4 corporate characteristics, as described above.

In summary, deciding the form of ownership that best suits your business venture should be given careful consideration. Use your key advisors to assist you in the process.

Wages & Hours

Wages & Hours

The Fair Labor Standards Act (FLSA) prescribes standards for wages and overtime pay, which affect most private and public employment. The act is administered by the Wage and Hour Division. It requires employers to pay covered employees who are not otherwise exempt at least the federal minimum wage and overtime pay of one-and-one-half-times the regular rate of pay. For nonagricultural operations, it restricts the hours that children under age 16 can work and forbids the employment of children under age 18 in certain jobs deemed too dangerous. For agricultural operations, it prohibits the employment of children under age 16 during school hours and in certain jobs deemed too dangerous.

Workplace Safety & Health

The Occupational Safety and Health (OSH) Act is administered by the Occupational Safety and Health Administration (OSHA). Safety and health conditions in most private industries are regulated by OSHA or OSHA-approved state programs, which also cover public sector employers. Employers covered by the OSH Act must comply with the regulations and the safety and health standards promulgated by OSHA. Employers also have a general duty under the OSH Act to provide their employees with work and a workplace free from recognized, serious hazards. OSHA enforces the Act through workplace inspections and investigations. Compliance assistance and other cooperative programs are also available.

Migrant & Seasonal Agricultural Workers

The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) regulates the hiring and employment activities of agricultural employers, farm labor contractors, and associations using migrant and seasonal agricultural workers. The Act prescribes wage protections, housing and transportation safety standards, farm labor contractor registration requirements, and disclosure requirements. The Wage and Hour Division administers this law.

The Fair Labor Standards Act (FLSA) exempts agricultural workers from overtime premium pay, but requires the payment of the minimum wage to workers employed on larger farms (farms employing more than approximately seven full-time workers. The Act has special child-labor regulations that apply to agricultural employment; children under 16 are forbidden to work during school hours and in certain jobs deemed too dangerous. Children employed on their families' farms are exempt from these regulations. The Wage and Hour Division administers this law. OSHA also has special safety and health standards that may apply to agricultural operations.

The Immigration and Nationality Act (INA) requires employers who want to use foreign temporary workers on H-2A visas to get a labor certificate from the Employment and Training Administration certifying that there are not sufficient, able, willing and qualified U.S. workers available to do the work. The labor standards protections of the H-2A program are enforced by The Wage and Hour Division.

ADA

Americans with Disabilities Act of 1990

Reasons for Termination

1)

Consistent incompetence. If an employee just isn't able to do a competent job, and you have given the employee a reasonable opportunity to succeed, then termination will often be seen as appropriate.

2)

Violation of company policy. If you have established clear, legal, and consistent policies, and the employee obviously has violated them in a meaningful way, then termination is appropriate. Violation of antiharassment, discrimination, or confidentiality policies are particularly actionable.

3)

Repeated unexcused absenteeism or tardiness. Your company depends on its employees to show up for work and perform their jobs. Continual absence or tardiness jeopardizes the ability of an employee to complete important tasks. If absenteeism or tardiness is continual and unexcused, then termination may be justified. Be careful to investigate the reason for the absences. If they're the result of a medical condition, you may need to accommodate that condition, or at least attempt to do so.

4)

Physical violence. If an employee commits or threatens physical violence, you will want to fire him or her immediately. All employees are entitled to a safe work environment, and employers have a duty to take reasonable steps to provide for that.

5)

Drugs and alcohol. Depending on the circumstances, being under the influence at the office may be grounds for immediate suspension or termination. Some companies now offer treatment and rehabilitation counseling as an alternative to immediate firing. Conditions caused by the use of prescribed drugs may also require a more tempered response.

6)

Illegal acts. If you find the employee committing illegal acts, such as theft or embezzlement, immediate termination is justified. Before you fire the accused employee, however, make sure you know all the facts and have heard the employee's side of the story.

7)

Falsified information. Sometimes employees lie on their employment applications or resumes (they list fake degrees or jobs they've never held). When you discover this, and the falsification appears deliberate and material, termination of the employee is usually warranted.

8) Employment at will

Flat Organizational Structure

Flat Organizational Structure

Many small companies use a flat organizational structure, where very few levels of management separate executives from analysts, secretaries and lower-level employees. Flat organizations work best when a company has less than 20 employees, especially if the company employs one or two employees per department. One advantage of using a flat organizational structure for management is that decisions can be made relatively quickly. The flat organizational lacks the typical bureaucracy of taller organizational structures--those with many levels of management.

Functional Organizational Structure

Functional Organizational Structure

A functional organizational structure is centered on job functions, such as marketing, research and development and finance. Small companies should use a functional organization when they want to arrange their organizational structure by department. For example, a small company may have a director, two managers and two analysts in the marketing department. The director would likely report to the Chief Executive Officer, or CEO, and both managers would report to the director. In addition, each manager may have an analyst reporting to them. A functional organizational structure works well when small companies are heavily project-focused. Directors can assign certain projects to managers, who can then divvy up tasks with their analysts. The department can then more effectively meet their project deadlines.

Product Organizational Structure

Product Organizational Structure

A product organizational structure has managers reporting to the president or head of the company by product type. Product organizational structures are primarily used by retail companies that have stores in various cities. However, stores in each city may still need a local human resources or marketing department to carry out functions locally. For example, a small department store company may have a vice president of sporting goods, housewares and general merchandise at the corporate office. One manager may report to each vice president. However, each manager may oversee the work of one or more field marketing employees who travel and handle local marketing stores in several states. These field marketing employees may work for the sporting goods manager one week in League City, Texas, then do merchandising for the housewares manager another week in the Sugarland, Texas, market.

Board of directors

A board of directors is a body of elected or appointed members who jointly oversee the activities of a company or organization. Other names include board of governors, board of managers, board of regents, board of trustees, and board of visitors. It is often simply referred to as "the board".

A board's activities are determined by the powers, duties, and responsibilities delegated to it or conferred on it by an authority outside itself. These matters are typically detailed in the organization's bylaws. The bylaws commonly also specify the number of members of the board, how they are to be chosen, and when they are to meet. However, these bylaws rarely address a board's powers when faced with a corporate turnaround or restructuring, where board members need to act as agents of change in addition to their traditional fiduciary responsibilities

Corporate Officers

A Corporate Officer is a high ranking person in a given corporation that is assigned a title indicating his position within the corporation. While a corporation may have many positions under its purview, only the persons holding the highest ranking positions are considered "corporate officers" (or executives).

Most corporations include at least the following Officer or Executive positions:

Chief Executive Officer (CEO)

President

Secretary

Treasurer

Other common officer positions are:

Chief Financial Officer (CFO)

Chief Operating Officer (COO)

Chief Information Officer (CIO) and (Fractional CIO)

Chief Information Security Officer (CISO)

Chief Knowledge Officer (CKO)

Vice President

Director-General

Managing Director

Executive Director

Members of the Board of Directors can also be officers, but this is not mandatory nor necessarily so--the titles can be whatever the shareholders want them to be, though these must generally be outlined in the bylaws of the corporation. Further, many times positions can be combined with one person holding more than one title, and with various positions holding different reporting obligations (for example, in some cases, the President may be asked to report to the CEO, while in other organizations, the CEO may be asked to report to the President). Or they can even have multiple people holding the same title (which is often the case with the Vice President title).

Mergers

The combining of two or more companies, generally by offering the stockholders of one company securities in the acquiring company in exchange for the surrender of their stock.

consolidations

In business, consolidation or amalgamation is the merger and acquisition of many smaller companies into much larger ones.

conglomerates

A conglomerate is a combination of two or more corporations engaged in entirely different businesses that fall under one corporate group, usually involving a parent company and many subsidiaries. Often, a conglomerate is a multi-industry company. Conglomerates are often large and multinational.

Franchise

Franchising is the practice of leasing for a prescribed period of time the right to use a firm's successful business model and brand. The word "franchise" is of Anglo-French derivation—from franc, meaning free—and is used both as a noun and as a (transitive) verb.[1] For the franchiser, the franchise is an alternative to building "chain stores" to distribute goods that avoids the investments and liability of a chain. The franchisor's success depends on the success of the franchisees. The franchisee is said to have a greater incentive than a direct employee because he or she has a direct stake in the business.

Limited liability company

A Limited Liability Company (LLC) is a hybrid business entity having certain characteristics of both a corporation and a partnership or sole proprietorship (depending on how many owners there are). An LLC, although a business entity, is a type of unincorporated association and is not a corporation. The primary characteristic an LLC shares with a corporation is limited liability, and the primary characteristic it shares with a partnership is the availability of pass-through income taxation. It is often more flexible than a corporation, and it is well-suited for companies with a single owner.

SEC

The U.S. Securities and Exchange Commission (SEC) is an independent agency of the United States federal government. It holds primary responsibility for enforcing the federal securities laws, proposing securities rules, and regulating the securities industry, the nation's stock and options exchanges, and other activities and organizations, including the electronic securities markets in the United States.

The Federal Trade Commission

The Federal Trade Commission (FTC) is an independent agency of the United States government, established in 1914 by the Federal Trade Commission Act. Its principal mission is the promotion of consumer protection and the elimination and prevention of anticompetitive business practices, such as coercive monopoly. The Federal Trade Commission Act was one of President Woodrow Wilson's major acts against trusts. Trusts and trust-busting were significant political concerns during the Progressive Era. Since its inception, the FTC has enforced the provisions of the Clayton Act, a key antitrust statute, as well as the provisions of the FTC Act, 15 U.S.C. § 41 et seq. Over time, the FTC has been delegated the enforcement of additional business regulation statutes and has promulgated a number of regulations (codified in Title 16 of the Code of Federal Regulations).

Contract

In common law legal systems, a contract (or informally known as an agreement in some jurisdictions) is an agreement having a lawful object entered into voluntarily by two or more parties, each of whom intends to create one or more legal obligations between them. The elements of a contract are "offer" and "acceptance" by "competent persons" having legal capacity who exchange "consideration" to create "mutuality of obligation."[1]

Offer & Acceptance

In order for a contract to be formed, the parties must reach mutual assent (also called a meeting of the minds). This is typically reached through offer and an acceptance which does not vary the offer's terms, which is known as the "mirror image rule". If a purported acceptance does vary the terms of an offer, it is not an acceptance but a counteroffer and, therefore, simultaneously a rejection of the original offer. The Uniform Commercial Code disposes of the mirror image rule in §2-207, although the UCC only governs transactions in goods in the USA. As a court cannot read minds, the intent of the parties is interpreted objectively from the perspective of a reasonable person,[9] as determined in the early English case of Smith v Hughes [1871]. It is important to note that where an offer specifies a particular mode of acceptance, only an acceptance communicated via that method will be valid.[10]

Genuine Agreement

agreement to enter into a contract that is evidenced by words or conduct between the parties

Consideration

Consideration is the concept of legal value in connection with contracts. It is anything of value promised to another when making a contract. It can take the form of money, physical objects, services, promised actions, abstinence from a future action, and much more. Consideration to create a legally enforceable contract entails a bargained for, legal detriment incurred by the promisee OR a legal benefit to the promisor.[1] Under the notion of "pre-existing duties", if either the promisor or the promisee already had a legal obligation to render such payment, it cannot be seen as consideration in the legal sense.

Capacity

Sometimes the capacity of either natural or artificial persons to either enforce contracts, or have contracts enforced against them is restricted. For instance, very small children may not be held to bargains they have made, on the assumption that they lack the maturity to understand what they are doing; errant employees or directors may be prevented from contracting for their company, because they have acted ultra vires (beyond their power). Another example might be people who are mentally incapacitated, either by disability or drunkenness.[54] In these cases the contract is either void or voidable.

Contract Steps

1 Intent

2 Offer

3 Timeframe

4 Obligations

5 Representations

6 Consideration

7 Arbitration

8 Acceptance

Assignment

An assignment (Latin cessio) is a term used with similar meanings in the law of contracts and in the law of real estate. In both instances, it encompasses the transfer of rights held by one party—the assignor—to another party—the assignee.[1] The details of the assignment determines some additional rights and liabilities (or duties).

Discharge

Party may discharge after breach of contract

Void

A void contract cannot be enforced by law. Void contracts are different from voidable contracts, which are contracts that may be (but not necessarily will be) nullified. However, when a contract is being written and signed, there is no automatic mechanism available in every situation that can be utilized to detect the validity or enforceability of that contract. Practically, a contract can be declared to be void by a court of law.[1] So the main question is that under what conditions a contract can be deemed as void?

Voidable

A voidable contract, unlike a void contract, is a valid contract. At most, one party to the contract is bound. The unbound party may repudiate the contract, at which time the contract is void.

Uneforcable

An unenforceable contract or transaction is one that is valid, but which the court will not enforce. Unenforceable is usually used in contradistinction to void (or void ab initio) and voidable. If the parties perform the agreement, it will be valid, but the court will not compel them if they do not.

Express Contract

a contract in which all elements are specifically stated (offer, acceptance, consideration), and the terms are stated, as compared to an "implied" contract in which the existence of the contract is assumed by the circumstances.

Implied Contract

An implied contract is an agreement created by actions of the parties involved, but it is not written or spoken. This is a contract assumed to have been drawn. In this case, there is no written record nor any actual verbal agreement. A form of an implied contract is an implied warranty provided automatically by law. An implied warranty means that when a product is purchased, it is guaranteed to work for its ordinary purpose. For example, a refrigerator is fit to keep food cool.

Oral

An oral contract is a contract, the terms of which have been agreed by spoken communication. This is in contrast to a written contract, where the contract is a written document. There may be written, or other physical evidence, of an oral contract - for example where the parties write down what they have agreed - but the contract itself is not a written one.

Contract Fraud

Contract fraud occurs when one party in a contract presents information to another that is incorrect, deceitful, or meant to confuse the other party. For example, contract fraud may be found when an individual claims that a contract is for the sale of a car, when in fact the terms of the contract specify that it is for the sale of boat.

Duress

threats, violence, constraints, or other action brought to bear on someone to do something against their will or better judgment.

Undue Influence

In jurisprudence, undue influence is an equitable doctrine that involves one person taking advantage of a position of power over another person.

influence by which a person is induced to act otherwise than by their own free will or without adequate attention to the consequences.

Mistake

A mistake is an incorrect understanding by one or more parties to a contract and may be used as grounds to invalidate the agreement. Common law has identified three different types of mistake in contract: common mistake, mutual mistake, and unilateral mistake.

A common mistake occurs when both parties hold the same mistaken belief of the facts. This is demonstrated in the case of Bell v. Lever Brothers Ltd.,[48] which established that common mistake can only void a contract if the mistake of the subject-matter was sufficiently fundamental to render its identity different from what was contracted, making the performance of the contract impossible.

A mutual mistake occurs when both parties of a contract are mistaken as to the terms. Each believes they are contracting to something different. The court usually tries to uphold such a mistake if a reasonable interpretation of the terms can be found. However, a contract based on a mutual mistake in judgment does not cause the contract to be voidable by the party that is adversely affected. See Raffles v. Wichelhaus.[49]

A unilateral mistake occurs when only one party to a contract is mistaken as to the terms or subject-matter. The courts will uphold such a contract unless it was determined that the non-mistaken party was aware of the mistake and tried to take advantage of the mistake.[50] It is also possible for a contract to be void if there was a mistake in the identity of the contracting party. An example is in Lewis v. Avery[51] where Lord Denning MR held that the contract can only be avoided if the plaintiff can show that, at the time of agreement, the plaintiff believed the other party's identity was of vital importance. A mere mistaken belief as to the credibility of the other party is not sufficient.

Non-disclosure

Witholding info

Misrepresentation

Misrepresentation is a concept in the contract law of England and some other Commonwealth countries, referring to a false statement of fact made by one party to another party, which has the effect of inducing that party into the contract. For example, under certain circumstances, false statements or promises made by a seller of goods regarding the quality or nature of the product that the seller has may constitute misrepresentation. A finding of misrepresentation allows for a remedy of rescission and sometimes damages depending on the type of misrepresentation.

Minors and Contracts

In the United States, persons under 18 are typically minor and their contracts are considered voidable; however, if the minor voids the contract, benefits received by the minor must be returned. The minor can enforce breaches of contract by an adult while the adult's enforcement may be more limited under the bargain principle

The statute of frauds

The statute of frauds refers to the requirement that certain kinds of contracts be memorialized in a writing, signed by the party to be charged, with sufficient content to evidence the contract.

Traditionally, the statute of frauds requires a signed writing in the following circumstances:

Contracts in consideration of marriage. This provision covers prenuptial agreements.

Contracts that cannot be performed within one year. However, contracts of indefinite duration do not fall under the statute of frauds regardless of how long the performance actually takes.

Contracts for the transfer of an interest in land. This applies not only to a contract to sell land but also to any other contract in which land or an interest in it is disposed, such as the grant of a mortgage or an easement.

Contracts by the executor of a will to pay a debt of the estate with his own money.

Contracts for the sale of goods totaling $500 or more.

Contracts in which one party becomes a surety (acts as guarantor) for another party's debt or other obligation.

This can be remembered by using the mnemonic "MY LEGS": Marriage, contracts for more than one Year, Land, Executor (or Estate), Goods ($500 or more), Surety.

Breach of Contract

Breach of contract is a legal cause of action in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party's performance.

Breach of Contract Remedies

Punitive & Compensatory & Liquidation

Sale

A sale is the act of selling a product or service in return for money or other compensation.[1] Signalling completion of the prospective stage, it is the beginning of an engagement between customer and vendor or the extension of that engagement.

UCC

The Uniform Commercial Code (UCC or the Code), first published in 1952, is one of a number of uniform acts that have been promulgated in conjunction with efforts to harmonize the law of sales and other commercial transactions in all 50 states within the United States of America.

Payment

A payment is the transfer of an item of value from one party (such as a person or company) to another in exchange for the provision of goods, services or both, or to fulfill a legal obligation.

Delivery

Delivery is the process of transporting goods from a source location to a predefined destination. There are different delivery types. Cargo (physical goods) are primarily delivered via roads and railroads on land, shipping lanes on the sea and airline networks in the air. Certain specialized goods may be delivered via other networks, such as pipelines for liquid goods, power grids for electrical power and computer networks such as the Internet or broadcast networks for electronic information.

Transfer of title of goods

Transfer (conveyance) of title to a good or property from its seller to its buyer. In trading, this transfer is determined by the terms of sale (such as FOB, CIF, C&F) and is ensured by the use of standard commercial terminology such as INCOTERMS.

Performance

The buyer's main duties are simple: payment of the purchase price and acceptance of delivery.

Just as the buyer is often unable to secure specific performance of the seller's duty to deliver, so the seller is not always able to enforce his claim for acceptance of delivery against a buyer who refuses to take delivery. Most countries do not object to such a claim, but in England and the United States the remedy is to refer the seller to the market: as long as he is still the owner of the goods, he should at least attempt to resell them at a reasonable price. Only if this is impossible or impracticable may he sue the buyer.

Marriage

Marriage (also called matrimony or wedlock) is a socially or ritually recognized union or legal contract between spouses that establishes rights and obligations between them, between them and their children, and between them and their in-laws.[1] The definition of marriage varies according to different cultures, but it is principally an institution in which interpersonal relationships, usually sexual, are acknowledged. In some cultures, marriage is recommended or considered to be compulsory before pursuing any sexual activity. When defined broadly, marriage is considered a cultural universal.

Marriage Age

18 or 16 with parental consent but the other partner must be 18 or older. Younger with judicial consent (with no strict minimum age). With parental consent, serious reasons are required for a minor to marry; without parental consent, the unwillingness of the parents has to constitute an abuse.

Prenup

A prenuptial agreement, antenuptial agreement, or premarital agreement, commonly abbreviated to prenup or prenupt, is a contract entered into prior to marriage, civil union or any other agreement prior to the main agreement by the people intending to marry or contract with each other. The content of a prenuptial agreement can vary widely, but commonly includes provisions for division of property and spousal support in the event of divorce or breakup of marriage. They may also include terms for the forfeiture of assets as a result of divorce on the grounds of adultery; further conditions of guardianship may be included as well.

Common-law Marriage

The original concept of a common-law marriage is a marriage that is considered valid by both partners, but has not been formally registered with a state or church registry, or a formal religious service. In effect, the act of the couple representing themselves to others as being married acts as the evidence that they are married. In jurisdictions recognizing common-law marriages, such a marriage is not legally distinct from a traditional ceremonial marriage enacted through a civil or religious ceremony in terms of the couple's rights and obligations to one another.

Annulment v. Divorce

There are two ways to legally end a marriage - annulment and divorce. An annulment is a legal procedure which cancels a marriage between a man and a woman. Annulling a marriage is as though it is completely erased - legally, it declares that the marriage never technically existed and was never valid.

Dissolution

A husband and wife may obtain a divorce through the simplified dissolution procedure only if all of the following statements are true about both spouses at the time that they jointly file a petition for simplified dissolution of marriage.

Grounds for Divorce

Sexual harassment

Adultery[3]

Alcoholism[3]

Disability[3]

Desertion[3]

Imprisonment[3]

Domestic violence

No-fault Divorce

Distribution of Property after Divorce

When the court grants a divorce, property will be divided equitably (not always equally) between the two spouses. This is decided under the Equitable Distribution Law. During the divorce both spouses have to tell the court about their income and any debts they owe.

Equitable distribution means fairly divided. When marital property is distributed equitably, it is divided between the two spouses as fairly as the court thinks is possible. Although this does not guarantee that the court will decide the property should be divided equally (50-50), this is usually what happens.

Separate property is property that one of the spouses owned before the marriage. For example, a bicycle that the wife had owned since before her marriage would be considered separate property. Any inheritance one spouse gets, even during marriage, is separate property. So are personal gifts (unless they came from the other spouse) and payments for personal injuries.

Child Custody

Residence and contact issues typically arise in proceedings involving divorce (dissolution of marriage), annulment and other legal proceedings where children may be involved. In most jurisdictions the issue of which parent the child will reside with is determined in accordance with the best interests of the child standard.

Child support

In family law and public policy, child support (or child maintenance) is an ongoing, periodic payment made by a parent for the financial benefit of a child following the end of a marriage or other relationship. Child maintenance is paid directly or indirectly by an obligor to an obligee for the care and support of children of a relationship that has been terminated, or in some cases never existed. Often the obligor is a non-custodial parent. The obligee is typically a custodial parent, a caregiver, a guardian, or the state.

Depending on the jurisdiction, a custodial parent may pay child support to a non-custodial parent. Typically one has the same duty to pay child support irrespective of sex, so a mother is required to pay support to a father just as a father must pay a mother. Where there is joint custody, the child is considered to have two custodial parents and no non-custodial parents, and a custodial parent with a higher income (obligor) may be required to pay the other custodial parent (obligee).

Spousal Support (Alimony)

Alimony (also called aliment (Scotland), maintenance (England, Northern Ireland, Wales, Canada), spousal support (U.S., Canada) and spousal maintenance (Australia)) is a legal obligation on a person to provide financial support to his or her spouse before or after marital separation or divorce. The obligation arises from the divorce law or family law of each country. Traditionally, alimony was paid by a husband to his former wife, but since the 1970s there have been moves in many Western countries towards gender equality with a corresponding recognition that a former husband may also be entitled to alimony from his former wife.

Children's Rights

Children's rights are the human rights of children with particular attention to the rights of special protection and care afforded to minors,[1] including their right to association with both parents, human identity as well as the basic needs for food, universal state-paid education, health care and criminal laws appropriate for the age and development of the child, equal protection of the child's civil rights, and freedom from discrimination on the basis of the child's race, gender, sexual orientation, gender identity, national origin, religion, disability, color, ethnicity, or other characteristics. Interpretations of children's rights range from allowing children the capacity for autonomous action to the enforcement of children being physically, mentally and emotionally free from abuse, though what constitutes "abuse" is a matter of debate. Other definitions include the rights to care and nurturing

Estate Planning

Estate planning is the process of anticipating and arranging for the disposal of an estate during a person's life. Estate planning typically attempts to eliminate uncertainties over the administration of a probate and maximize the value of the estate by reducing taxes and other expenses. However, the ultimate goal of estate plan is determined by the specific goals of the client and may be as simple or complex as the client's needs dictate.[1] Guardians are often designated for minor children and beneficiaries in incapacity.

Power of attorney

A power of attorney (POA) or letter of attorney is a written authorization to represent or act on another's behalf in private affairs, business, or some other legal matter, sometimes against the wishes of the other. The person authorizing the other to act is the principal, grantor, or donor (of the power).

Will

A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his or her estate and provides for the distribution of his property at death. For the devolution of property not disposed of by will, see inheritance and intestacy.

Though it has at times been thought that a "will" was historically limited to real property while "testament" applies only to dispositions of personal property (thus giving rise to the popular title of the document as "Last Will and Testament"), the historical records show that the terms have been used interchangeably.[1] Thus, the word "will" validly applies to both personal and real property. A will may also create a testamentary trust that is effective only after the death of the testator.

Trusts

In common law legal systems, a trust is a relationship whereby property is held by one party for the benefit of another. A trust is created by a settlor, who transfers some or all of his or her property to a trustee. The trustee holds that property for the trust's beneficiaries. Trusts have existed since Roman times and have become one of the most important innovations in property law.[1]

Living will

An advanced health care directive, also known as living will, personal directive, advance directive, or advance decision, is a legal document in which a person specifies what actions should be taken for their health if they are no longer able to make decisions for themselves because of illness or incapacity. In the U.S. it has a legal status in itself, whereas in some countries it is legally persuasive without being a legal document.

Right to die

The right to die is an ethical or institutional entitlement of any individual to commit suicide or to undergo voluntary euthanasia. Possession of this right is often understood to mean that a person with a terminal illness should be allowed to commit suicide or assisted suicide or to decline life-prolonging treatment, where a disease would otherwise prolong their suffering to an identical result. The question of who, if anyone, should be empowered to make these decisions is often central to debate.

Requirements for Will

Any person over the age of majority and of sound mind (having appropriate mental capacity) can draft his or her own will with or without the aid of a lawyer. (Estimates of the percent of Americans who write wills before they die range from 30 percent to 50 percent.[2]) Additional requirements may vary, depending on the jurisdiction, but generally include the following requirements:

The testator must clearly identify himself as the maker of the will, and that a will is being made; this is commonly called "publication" of the will, and is typically satisfied by the words "last will and testament" on the face of the document.

The testator should declare that he revokes all previous wills and codicils. Otherwise, a subsequent will revokes earlier wills and codicils only to the extent to which they are inconsistent. However, if a subsequent will is completely inconsistent with an earlier one, the earlier will is considered completely revoked by implication.

The testator may demonstrate that he has the capacity to dispose of his property ("sound mind"), and does so freely and willingly.

The testator must sign and date the will, usually in the presence of at least two disinterested witnesses (persons who are not beneficiaries). There may be extra witnesses, these are called "supernumerary" witnesses, if there is a question as to an interested-party conflict. Some jurisdictions, notably Pennsylvania, have long abolished any requirement for witnesses. In the United States, Louisiana requires both attestation by two witnesses as well as notarization by a notary public. "Holographic" or handwritten wills generally require no witnesses to be valid.

If witnesses are designated to receive property under the will they are witnesses to, this has the effect, in many jurisdictions, of either (i) disallowing them to receive under the will, or (ii) invalidating their status as a witness. In a growing number of states in the United States, however, an interested party is only an improper witness as to the clauses that benefit him or her (for instance, in Illinois).

The testator's signature must be placed at the end of the will. If this is not observed, any text following the signature will be ignored, or the entire will may be invalidated if what comes after the signature is so material that ignoring it would defeat the testator's intentions.

One or more beneficiaries (devisees, legatees) must generally be clearly stated in the text, but some jurisdictions allow a valid will that merely revokes a previous will, revokes a disposition in a previous will, or names an executor.

Revocation of Will

Intentional physical destruction of a will by the testator will revoke it, through deliberately burning or tearing the physical document itself, or by striking out the signature. In most jurisdictions, partial revocation is allowed if only part of the text or a particular provision is crossed out. Other jurisdictions will either ignore the attempt or hold that the entire will was actually revoked. A testator may also be able to revoke by the physical act of another (as would be necessary if he is physically incapacitated), if this is done in his presence and in the presence of witnesses. Some jurisdictions may presume that a will has been destroyed if it had been last seen in the possession of the testator but is found mutilated or cannot be found after his or her death.

A will may also be revoked by the execution of a new will. Most wills contain stock language that expressly revokes any wills that came before them, however, because normally a court will still attempt to read the wills together to the extent they are consistent.

Consumer Protection Agencies

The U.S. Consumer Products Safety Commission is an independent federal agency whose main purpose is to reduce injuries to consumers. The Commission issues consumer product safety alerts, and may have helpful information relative to your claim.

The Occupational Safety and Health Administration (OSHA) publishes numerous regulations and pamphlets on workplace safety and health standards, the use of industrial substances, and safety in industrial and construction operations. See OSHA FAQs to learn more.

The Environmental Protection Agency, which has the authority for air, water and pesticide standards, issues many publications on such topics. See Key Federal Environmental Laws to learn more.

The U.S. Food and Drug Administration establishes the standards for food, drugs, medical devices and cosmetics, and also has information on drug ingredients and food and drug manufacturing methods. See Food Recalls and Why Drugs Get Pulled from the Market to learn more.

The National Highway Traffic Safety Administration develops and issues safety standards for all new cars, conducts research on accident prevention, investigates motor vehicle defects and enforces notification of defects to owners of record. Numerous publications are produced by the Administration for consumers and their lawyers. See Car Safety Recalls to learn more.

The Federal Highway Administration is concerned with improving highway safety and conducts highway safety research relating to trucks and buses.

The Transportation Research Board will conduct a computerized search and furnish abstracts of all engineering articles pertaining to highway topics.

State police or highway patrols might also be able to provide information on regulations concerning the use and equipment of motor vehicles.

Most state fire marshals issue fire safety standards and basic building design and construction standards.

The United States Coast Guard sets standards, makes factory inspections and conducts investigations of consumer complaints of defective boats. The Coast Guard notifies boat owners when defects are found.

Bait and switch

the action (generally illegal) of advertising goods that are an apparent bargain, with the intention of substituting inferior or more expensive goods.

Usury

Usury is the practice of making unethical or immoral monetary loans intended to unfairly enrich the lender. A loan may be considered usurious because of excessive or abusive interest rates or other factors, but according to some dictionaries, simply charging any interest at all can be considered usury.[3][4][5] Someone who practices usury can be called a usurer, but the more common term in English is loan shark.

Identity theft

Identity theft is a form of stealing someone's identity in which someone pretends to be someone else by assuming that person's identity, usually as a method to gain access to resources or obtain credit and other benefits in that person's name.[1][2] The victim of identity theft (here meaning the person whose identity has been assumed by the identity thief) can suffer adverse consequences if they are held responsible for the perpetrator's actions. Identity theft occurs when someone uses another's personally identifying information, like their name, identifying number, or credit card number, without their permission, to commit fraud or other crimes.

Deceptive Service Estimates

Overcharging for services rendered

Fraudulent misrepresentation

Fraudulent misrepresentation occurs when one makes representation with intent to deceive and with the knowledge that it is false. An action for fraudulent misrepresentation allows for a remedy of damages and rescission. One can also sue for fraudulent misrepresentation in a tort action. Fraudulent misrepresentation is capable of being made recklessly.[17]

Strict liability

In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by her or his acts and omissions regardless of culpability (including fault in criminal law terms, typically the presence of mens rea). Strict liability is prominent in tort law (especially product liability), corporations law, and criminal law. For analysis of the pros and cons of strict liability as applied to product liability, the most important strict liability regime, see product liability.

Absolute liability

To be convicted of an ordinary crime, in certain jurisdictions, a person must not only have committed a criminal action, but also have had a deliberate intention or guilty mind (mens rea). In a crime of strict liability (criminal) or absolute liability, a person could be guilty even if there was no intention to commit a crime. The difference between strict and absolute liability is whether the defence of a mistake of fact is available: in a crime of absolute liability, a mistake of fact is not a defence. Strict or Absolute Liability- also can arise from inherently dangerous activities or defective products that are likely to result in a harm to another, regardless of protection taken. Negligence is not required to be proven. Example: Owning a pet rattle snake.

Vicarious liability

Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency - respondeat superior - the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. It can be distinguished from contributory liability, another form of secondary liability, which is rooted in the tort theory of enterprise liability.

Quality Assurance

Quality Assurance (QA) is a way of preventing mistakes or defects in manufactured products and avoiding problems when delivering solutions or services to customers. QA is applied to physical products in pre-production to verify what will be made meets specifications and requirements, and during manufacturing production runs by validating lot samples meet specified quality controls. QA is also applied to software to verify that features and functionality meet business objectives, and that code is relatively bug free prior to shipping or releasing new software products and versions.

Grades and standards

In United States agricultural policy, grades and standards refers to the segregation, or classification, of agricultural commodities into groupings that share common characteristics. Grades provide a common trading language, or common reference, so that buyers and sellers can more easily determine the quality (and therefore value) of those commodities.

Truth in advertising

When consumers see or hear an advertisement, whether it's on the Internet, radio or television, or anywhere else, federal law says that ad must be truthful, not misleading, and, when appropriate, backed by scientific evidence. The Federal Trade Commission enforces these truth-in-advertising laws, and it applies the same standards no matter where an ad appears - in newspapers and magazines, online, in the mail, or on billboards or buses. The FTC looks especially closely at advertising claims that can affect consumers' health or their pocketbooks - claims about food, over-the-counter drugs, dietary supplements, alcohol, and tobacco and on conduct related to high-tech products and the Internet, such as the dissemination of spyware. The FTC also monitors and writes reports about ad industry practices regarding marketing of food, violent movies, music, and electronic games to children.

Implied warranty

In common law jurisdictions, an implied warranty is a contract law term for certain assurances that are presumed to be made in the sale of products or real property, due to the circumstances of the sale. These assurances are characterized as warranties irrespective of whether the seller has expressly promised them orally or in writing. They include an implied warranty of fitness for a particular purpose, an implied warranty of merchantability for products, implied warranty of workmanlike quality for services, and an implied warranty of habitability for a home.

Express warranty

An express warranty is a verbal or written statement that guarantees that a product is of a certain quality or will work in a certain way or for a certain amount of time. Most express warranties say something like, "This product is warranted against defects in materials or workmanship" or "We will repair or replace parts that are defective in materials or workmanship" for a specified time.

Full warranty

Any company offering a full warranty must repair or replace the product during the specified warranty period. Federal and some state laws mandate that if a company plans to fix the covered item, they must do within a reasonable amount of time and it must be reasonably convenient for the consumer to get the item to and from the place where it will be repaired. Typically, this is handled through the mail or a private parcel delivery service.

Limited warranty

As its name implies, a limited warranty is limited to just the specified parts, certain types of defects, or other conditions. But since it can mean virtually anything the retailer decides, it is important to fully understand the meaning of "limited" when buying such a product. Often, it covers just the parts and not the labor required to fully fix something. A limited warranty also may include the stipulation that the manufacturer and the consumer split the cost of repairs for a given period of time.

Honesty

Honesty refers to a facet of moral character and connotes positive and virtuous attributes such as integrity, truthfulness, and straightforwardness, including straightforwardness of conduct, along with the absence of lying, cheating, theft, etc. Furthermore, honesty means being trustworthy, loyal, fair, and sincere.

Integrity

In ethics, integrity is regarded by many people as the honesty and truthfulness or accuracy of one's actions. Integrity can stand in opposition to hypocrisy,[2] in that judging with the standards of integrity involves regarding internal consistency as a virtue, and suggests that parties holding within themselves apparently conflicting values should account for the discrepancy or alter their beliefs.

Law

Law is, generally, a system of rules which are enforced through social institutions to govern behaviour.[2] Laws can be made by legislatures through legislation (resulting in statutes), the executive through decrees and regulations, or judges through binding precedents (normally in common law jurisdictions).

Ethics

Ethics, sometimes known as moral philosophy, is a branch of philosophy that involves systematizing, defending and recommending concepts of right and wrong conduct, often addressing disputes of moral diversity.

Statutory law

Statutory law or statute law is written law (as opposed to oral or customary law) set down by a legislature (as opposed to regulatory law promulgated by the executive or common law of the judiciary) or by a legislator (in the case of an absolute monarchy).

State Courts

Of cases filed annually in the U.S., about one million cases are filed in federal courts, while more than 30 million are filed in state courts. Most legal cases are handled at the state court level because state courts have power to hear almost all types of cases involving citizens of that state -- including almost all of the following types of cases:

Family law cases (including divorce, child custody cases, and adoptions)

Personal injury cases (i.e. lawsuits for injury from car accidents and defective products)

Estate planning and probate matters

Criminal law matters (including all felonies and misdemeanors that arise from state criminal statutes)

Traffic violations

Federal Courts

State courts do not have power to hear certain kinds of cases -- including those involving bankruptcy, immigration, patents, copyrights, and violations of federal criminal law. These types of cases are handled exclusively by federal courts.

Appellate Courts

If the judge made a mistake in the law or the trial procedure, the parties can appeal the case to the appellate court. It is important to note that courts of appeal are not set up to re-hear cases in their entirety. Instead, courts of appeal typically address whether a lower court made serious mistakes of law. Additionally, an appellate court can usually take cases from courts of special jurisdiction as well.