Test 1

Are civil or criminal cases more common?

Civil cases

What is the main difference between civil and criminal cases?

The actor’s intent

• The greater the degree of thought/planning, the more likely that an action/event will be considered a crime

Who are the parties in a civil case?

Plaintiff (¶)

Defendant (Δ)

Who are the parties in a criminal case?

Prosecutor

Defendant (Δ)

Do you get a free lawyer in a civil case? If so, why?

No

Do you get a free lawyer in a criminal case? If so, why?

Yes

• Possibly because the stakes are higher (possibility of jail) or going to trial is not voluntary

What is the purpose of a civil case?

$

What are the purposes of a criminal case?

1) Incapacitation: lock you up so you can’t do it again

2) Deterrence: deter someone from doing the same crime again by prosecuting the OG criminal

3) Retribution: like revenge

4) Rehabilitation

Do you have the right to a jury in a civil case?

Not at first

• First, have arbitration, then can appeal to a court w/ jury

Who has the burden of proof in a civil case?

The plaintiff

Who has the burden of proof in a criminal case?

The prosecuter

What is the burden of proof in a civil case?

Prove by preponderance of evidence that the defendant is guilty

What is the burden of proof in a criminal case?

Prove beyond a reasonable doubt that the defendant is guilty

What is it called when a civil case is filed?

Lawsuit/suing

What is it called when a criminal case is filed?

Prosecution/prosecuting

Who conducts prosecution?

The state

What are the two types of lawyers in a criminal case?

• Transactional lawyer: creates/negotiates deals

• Trial Lawyer: litigation/go to court

  • Basically used if something goes wrong with what the transactional lawyer did

When do you determine the intent of the defendant?

Find what their intent was before they acted, not after

Mens Rea

Bad intent/evil mind

From least to most Mens Rea, what are the intents/mindsets?

Accident, Negligence, Reckless, and Premeditation

Accident

• 0% mens rea

• No civil or criminal case

Negligence

minor deviation from the standard of care

• Possible civil case, no criminal case

• Like ~30% mens rea

• Ex: driving over the speed limit and hitting and killing a pedestrian who had the right of way

Reckless

gross deviation from standard of care

• Possible civil and criminal cases

• Like 70% mens rea

• Ex: driving under the influence while speeding and with bad breaks and then hitting and killing a pedestrian who had the right of way

Premeditation

• 100% mens rea

• 100% chance of civil and criminal case

In the execution of a civil contract, can it turn criminal?

Yes

Recklessness Fact Pattern

An act is reckless if…

• there are multiple acts of negligence

• there is one outrageous act of negligence

Agreement vs Contract

• Agreement: not legally binding

• Contract: a legally binding agreement 

  • Parties create enforceable duties or obligations by mutual agreement or assent

  • Form does not matter: can be oral (even without a witness), written, etc

What must be present in a contract?

An offer, acceptance, and consideration (something of value exchanged, usually $)

The Three Principles of Contract Law

1. Freedom of Contract: low regulations on contract creation and terms

   1. Your judgement in creating your contract overrides that of the court

2. Fairness: it doesn’t matter if its fair or not

   1. Incentivizes preparation and knowledge, decentivizes laziness

3. Intent: the intent behind the contract must match

Types of Proof

1. Documentary Evidence: tangible evidence (photo, letter, etc)

2. Testamentary Evidence: spoken evidence

   1. Must decide who is credible

   2. Just as strong as documentary evidence

Types of Contracts

1. Express Contracts

2. Implied Contracts

3. Quasi Contracts

Express Contracts

def: a formal deal with clear consent on both sides to be bound

• Most common

• Both sides agree upon specific facts

• Ex: mortgage, committing to a college, buying a car, joining the military, marriage

Implied Contracts

def: implied by conducts/acts

• No discussion or consent

• “By trade, custom, and usage”

• Ex: parking ticket, hospital visit, purchasing McDonald’s

Quasi Contract

def: a court imposed obligation to prevent unjust enrichment in the absence of a contract

• Not a true contract

• Does not have obvious value

• No consent or real intent of contract

• Burden of proof is on plaintiff

Bilateral Contract

def: a promise for a promise

• Contract occurs immediately, bound immediately, but contract does not need to be executed that day

• Ex: someone promises to paint your house, you promise to pay them

Unilateral Contract

def: a promise for an act

• No contract unless/until the act occurs

  • Offeree does not accept the offer by express agreement, but instead by performance (act)

• Basically just an offer dangling out there

• Fact Pattern: I promise to pay $10 to whoever walks over the Ben Franklin Bridge first

  • They cannot promise to go over the bridge

If you know about a benefit being bestowed and it is not of deminimus value (little value), you are obligated to _______

stop it because it has obvious value

• ex: house painting example

Officious Intermeddler

def: someone who unwantedly enters your life

• Usually not a valid party in a contract

• Contracts with them would void freedom of contract and law of intent

Are joke offers/excited offers offers that you can accept?

No, there must be serious intent

What factors must you look at to determine if you can accept an offer?

• Look at it from an objective standard: what would people generally think/what would a reasonable individual do in the same situation?

• Look at their statements and acts: what they’re saying and doing

• Look at the setting where the offer is made:

  • Business setting (formal, emphasis on making a profit), Social setting (casual), Domestic/Home setting (casual, less emphasis on money)

What must be present in an offer?

• Contractual Intent: present intent —> look for present verbs like “now”, not “soon” or “could”

• Definiteness: the offer and the resulting contract must be definite, clear, and certain so that it is capable of being enforced

• Communication of Offer to Offeree

Definiteness

def: the offer and the resulting contract must be definite, clear, and certain so that it is capable of being enforced

• All essential terms must be in the offer: subject matter, quantity, price, quality, parties, and sometimes time to perform

  • Ex:  subject matter of eggs, quantity of 5, price of $1, quality of grade A, parties of me and a farmer

• Leaving minor and nonessential terms for future determination does not make an agreement too vague to be a contract: payment method, shipment method, and sometimes time to perform

Can the court dictate non essential terms?

Yes

Are advertisements offers?

NO:

• They are invitation to negotiate

• Can be too vague, too many people can accept, may no longer be open when someone goes to accept the offer, etc

• Exception: if the advertisement is super specific, has all the essential terms, and language that says “first come first serve”, “only 5 left”, etc and you are the first one of one of the 5 to go to accept it 

Exceptions to Definiteness

def: sometimes you want a contract but in the situation, it is impossible to adopt definite terms in advance (market price, production, etc)

• Requirements Contract: contract to buy all requirements of the buyer from the seller

• Output Contract: contract of the producer to sell its entire production or output to a given buyer

What are the features of Requirements and Output Contracts?

• Usually a range

• Need to do Due Diligence: investigate the situation to get an accurate estimate of what can be produced/how much you’ll need

• Require an Implied Obligation of Good Faith and Fair Dealing: assumption that the parties involved will act honestly and fairly with each other so that both can benefit from the agreement

Implied Obligation of Good Faith and Fair Dealing

• Implied by law, present in every contract (does not need to be written out)

• Occurs in the execution of the contract, not in the negotiation of the contract

• Caveat Emptor: let the buyer beware

  • Good because it incentivizes knowledge and preparation

Arms Length Deal

def: parties are at arms length (they have no prior relationship, don’t know each other)

• No duty of disclosure, but once you have a deal, you are business partners and you need to execute the contract in good faith and fair dealing

Buddy Deal

def: prior relationship/know eachother before the deal

Are price quotes considered offers?

No

Is merchandise on display with a price tag considered an offer?

No

Freedom of Contract

def: you can contract with whoever you would like

Does someone need to given you a reason to why your offer is being declined?

No, but it cannot be a discriminatory reason except because you are LGBTQ+

Revocation (Rescission) of an Offer

you can revoke an offer BEFORE it is accepted

Does the form of revocation matter?

No

How do you bind an offer to stay open?

Make an option contract under the pending offer

• Option Contract: a binding promise to keep an offer open for a stated period of time or until a specified date

  • Requires that the promisor receive consideration (usually a sum of money) as the price for the promise to keep the offer open

Mirror Image Doctorine

def: an acceptance must be a clear, unequivocal yes (no emoji, wink, thumbs up, etc) to those specific terms

• Anything else could just be a counter offer

Who can accept an offer?

Only the offeree to whom the offer is made

• Someone who inserts themself between the offerer and offeree is an officious intermeddler

Must the offeree be aware of the offer in order to accept it?

Yes: the offeree must be aware of the offer and acting in furtherance of a contract before he performs

• You cannot learn of the offer after the fact and expect to receive it

Does the method of acceptance matter?

it depends on what the offerer asks for: if no specific way is stated, then use a reasonable method

Does silence equal acceptance

NO!

Acceptance by Dominion

def: when you keep something from the other party in the contract in your domain without necessarily accepting the offer and you know of the items value, then you are accepting the offer

• If item is of diminimus value (low cost to a reasonable person) you can keep it, throw it away, send it back, etc

• If the item is abandoned after a reasonable amount of time, you can keep it

Mailbox Rule

• Acceptance: an acceptance is effect (a contract) the moment it is sent, not when it is received/known

  • Acceptance is fast

• Revocation: a revocation is affection if it is received and known by the offeree

  • Until then, the offeree can still accept

  • Revocation is slow

Undue Influence

def: influence that is asserted upon another person by one person who dominates that person

• Includes blackmail and implied threats

• Creates a lack of free will → lack of intent → lack of legal capacity

• Voids genuine assent

What person standard do you use when deciding if there was Undue Influence?

Subjective person standard: consider what or how the individual person thinks, not the average person

Duress

def: unfairly forcing a deal

• Two types: physical and economic

Physical Duress

def: threat of physical harm to person (or someone they know) or property

Economic Duress

def: threat of financial loss

What does NOT constitute duress?

• A deal that was merely disadvantageous

• A deal with some reluctance

How much must you disclose during a negotion?

Nothing, you have no duty to disclose any more information than you want to

• You cannot lie outright (fraud)

• Caveat Emptor

• Some exceptions

Caveat Emptor

def: let the buyer beware

• You know that in certain situations, people will try to get everything they can from you (like buying a car)

Exceptions to Nondisclosure

• Fiduciary Relationship (Trust Relationship)

• Serious Defect

• Actively Concealing

Fiduciary Relationship (Trust Relationship)

def: you are held to a higher standard of disclosure because a gross power imbalance or prior dealing is present

• Children, mental handicap, attorney client relationship, doctor patient relationship

Serious Defect

you must disclose if there is a serious defect in some state but not in others

• If the defect is obvious, you do not need to disclose it (responsibility of the other party to notice it)

Actively Concealing

you cannot actively conceal a serious problem or detail (fraud)

Promissory Estopal

def: when you make a promise to someone and they change their positon because of it and you are aware of that

• You are not liable if they change their position after you tell them not to yet

Is Deception/Fraud/Misrepresentation civil or criminal?

It can be present in either type of case

Elements to Prove Fraud

you must prove ALL the elements for it to be considered fraud

1. Material Misrepresentation

   • Material: something significant to the deal

     • Must be made clear to the other party

2. Of a fact (not opinion)

3. A: Made wit knowledge that its false

   OR B: made with reckless indifference to the truth

4. Statement must be made with the intent that it will be relied upon by the listener

5. There is reasonable reliance by the listener

   • Listener believes in what the other party is saying

6. The listener sustained damages not of de minimus value

How do you determine if a minor, mentally ill, or drunk/high person made a valid contract?

If they can understand the terms and know that they made a contract

What is the general rule of contracts made by minors?

Contracts made by minors can be voided if the signee desires it

• Done to protect children

What happens when a minor who signed a contract becomes 18?

They must decide to reaffirm/ratify or void a contract

• Must be done in a reasonable period of time after turning 18: if they stay silent/take too long, its considered reaffirming/acceptance

• If voided and received goods in contract, must return goods

What contracts can minors NOT disaffirm?

Complex business deals and student loans

Can liars disaffirm contracts?

Yes if they made the contract while a minor

No if above 18 when making the contract

Can cosigners on a minor’s contract disaffirm the contract?

No, because they are above 18

The minor can disaffirm though

Can someone who is mentally ill disaffirm a contract?

Yes, ONLY if they are 100% out of it

• Can disaffirm a beneficial or disadvantageous contract, does not matter

Can someone who is drunk/high disaffirm a contract?

Yes, ONLY if they are super super severely incapacitated

• Use subjective person standard: people have different limits