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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
Freedom of Contract: low regulations on contract creation and terms
Your judgement in creating your contract overrides that of the court
Fairness: it doesn’t matter if its fair or not
Incentivizes preparation and knowledge, decentivizes laziness
Intent: the intent behind the contract must match
Types of Proof
Documentary Evidence: tangible evidence (photo, letter, etc)
Testamentary Evidence: spoken evidence
Must decide who is credible
Just as strong as documentary evidence
Types of Contracts
Express Contracts
Implied Contracts
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
Material Misrepresentation
Material: something significant to the deal
Must be made clear to the other party
Of a fact (not opinion)
A: Made wit knowledge that its false
OR B: made with reckless indifference to the truth
Statement must be made with the intent that it will be relied upon by the listener
There is reasonable reliance by the listener
Listener believes in what the other party is saying
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
Note 
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