BLAW 2200 Final Exam

Precedent

A tool used by judges to make rulings on cases on the basis of key similarities to previous cases

Stare decisis

“Standing by the decision”; a principle stating that rulings made in higher courts are binding precedent for lower courts.

Ethical Dilemma

A question about how one should behave that requires one to reflect on the advantages and disadvantages of the optional choices for various stakeholders.

Public Disclosure Test

“Television test”, view it as a ray of sunlight that makes our actions visible rather than obscured.

Golden Rule test

idea that we should interact with other people in a manner consistent with the way we would like them to interact with us has deep historical roots.

Universalization test

The ethical guideline that urges us to consider, before we act, what the world would be like if everyone acted in this way.

WH Process

A useful set of ethical guidelines requires the recognition that managerial decisions must meet the following primary criteria.

Social Responsibility of business

The expecations that a community places on the actions of firms inside that community’s borders.

In personam (personal) jurisdiction

“Jurisdiction over the person” is a courts power to render a decision affecting the rights of a specific persons before the court.

subject matter jurisdiction

The power of a court over the type of case presented to it. Courts power to hear certain type of cases.

Federal question jurisdiction

require an interpretation of the U.S constitution, a federal statute, or a federal treaty.

Diversity-of-citizenship jurisdiction

Two contitions: The paintiff does not reside in the same state as the defendant, and the controversy concerns an amount in excess of $75,000.

Standing

The legal right of a party or an individual to bring a lawsuit by demonstrating to the court sufficient connection to and harm from the law or action challenged

Service of Process

The procedure by which a court delivers a copy of the statement of claim or other legal documents, such as a summons, complaint, or subpoena, to the defendant.

Default judgement

Judgment for the plaintiff that occurs when the defendant fails to respond to the complaint.

Interrogatories

A formal set of written questions that one party to a lawsuit asks the opposing party as part of the pretrial discovery process in order to clarify matters of evidence and help determine in advance what facts will be presented at any trial in the case.

Request to produce documents

In a lawsuit, the right of a party to examine and copy papers of the opposing party that are relevant to the case. A legal request may be made, and the categories of the documents must be stated to allow the other party to know what documents he or she must produce.

Deposition

A pretrial sworn and recorded testimony of a witness that is acquired out of court with no judge present.

Mediation

A type of intensive negotiation in which disputing parties select a neutral party to help facilitate communication and suggest ways for the parties to solve their dispute.

Arbitration

A type of alternative dispute resolution in which disputes are submitted for resolution to private nonofficial persons selected in a manner provided by law or the agreement of the parties. (Neutral party outside Judicial setting)

disparagement

A business tort that occurs when a statement is intentionally used to defame a business product or service.

intentional interference with contract

The tort that occurs when someone intentionally takes an action that will cause a person to breach a contract that they have with another.

fraudulent misrepresentation

The tort that occurs when a misrepresentation is made with the intent to facilitate personal gain and with the knowledge that it is false; A false representation of a material fact that is consciously false and is intended to mislead the other party.

negligence

Behavior that creates an unreasonable risk of harm to others.

proximate cause

The extent to which, as a matter of policy, a defendant may be held liable for the consequences of his or her actions.

compensatory damages

Money awarded to a plaintiff as reimbursement for her or his losses; based on the amount of actual damage or harm to property, lost wages or profits, pain and suffering, medical expenses, disability, and so on.

punitive damages

Compensation awarded to a plaintiff that goes beyond reimbursement for actual losses and is imposed to punish the defendant and deter such conduct in the future.

modified comparative negligence

A defense accepted in some states whereby the defendant is not liable for the percentage of harm that he or she can prove is due to the plaintiff’s own negligence if the plaintiff’s negligence is responsible for less than 50 percent of the harm; if the defendant establishes that the plaintiff’s negligence caused more than 50 percent of the harm, the defendant has no liability.

assumption of the risk

A defense whereby the defendant must prove that the plaintiff voluntarily assumed the risk the defendant caused.

strict liability

Liability in which responsibility for damages is imposed regardless of the existence of negligence. Also called liability without fault.

fee simple absolute

An ownership interest in which the holder has exclusive rights to ownership and possession of the land; the most comprehensive type of estate. The most complete estate a person has.

life estate

An ownership interest in which the holder has the right to possess the property until her or his death.

leasehold

A possessory interest, but not an ownership interest, transferred by contract.

Easement

An irrevocable right to use some part of another’s land for a specific purpose without taking anything from it.

pure comparitive negligence

A defense accepted in some states whereby the defendant is not liable for the percentage of harm that he or she can prove is due to the plaintiff’s own negligence.

adverse possession

An involuntary property transfer in which a person acquires ownership of property by treating a piece of real property as his or her own, without protest or permission from the owner.

Trademark

A distinctive mark, word, design, picture, or arrangement that is used by a producer in conjunction with a product and tends to cause consumers to identify the product with the producer.

Trade Dress

The overall appearance and image of a product.

Copyright

The protection of the expression of a creative work; that is, protection of the fixed form that expresses the ideas.

Fair use doctrine

The lawful use of a limited portion of another’s work for purposes of criticism, comment, news reporting, teaching, scholarship, and research that does not reduce the commercial value of the protected property.

Patent

Protection that grants the holder the exclusive right to produce, sell, and use the object of the patent for 20 years; can be obtained for a product, process, invention, machine, or a plant produced by asexual reproduction.

Trade Secret

A process, product, method of operation, or compilation of information that gives a businessperson an advantage over competitors.

Bilateral Contract

A promise exchanged for a promise.

Unilateral contract

A promise exchanged for an act.

Requirements for a valid contract

y

option contract

An agreement whereby the offeree gives the offeror a piece of consideration in exchange for the offeror’s agreement to hold the offer open for the specified period of time.

mirror image rule

The principle that holds that the terms of the acceptance must mirror the terms of the offer; if the terms of the acceptance do not mirror the terms of the offer, no contract is formed, and the attempted acceptance is a counteroffer.

Promisssory Estoppel

The legal enforcement of an otherwise unenforceable contract due to a party’s detrimental reliance on the contract.

Illusory promise

A situation in which a party appears to commit to something but really has not committed to anything. It is not a promise and thus not consideration.

Past Consideration

no consideration at all. work done in the past, by definition, has already been preformed. A promise cannot be based on consideration that was provided before the promise was made.

Liquidated debt and Partial payment

there is no dispute about the fact that money is owed and the amount of money owed.

Accord and satisfaction

An arrangement between contracting parties whereby one of the parties substitutes a different performance for his or her original duty under the contract.

Procedural unconscionability

Unconscionability that derives from the process of making a contract. Ex. Hard to read print

Substantive Unconscionability

Unconscionability that derives from one-sided, unjust, or overly harsh substance in a contract.

Adhesion Contract

A contract created by a party to an agreement that is presented to the other party on a take-it-or-leave-it basis. Such contracts are legal but are sometimes rescinded on the grounds of unconscionability and the absence of one party’s free will to enter a contract.

Exculpatory clause

A statement in a contract that frees one party (usually the drafter of the agreement) from all liability arising out of performance of the contract, generally based on factors such as consumer ignorance or a great deal of unexplained fine print that serve to deprive the less powerful party of a meaningful choice.

Severable contract

A contract that contains multiple parts that can each be performed separately.

indivisible contracts

A contract that requires complete performance by both parties.

Unilateral mistake

The result of an error by one party about a material fact, that is, one that is important in the context of a particular contract.

mutual mistake

The result of an error by both parties about a material fact, that is, one that is important in the context of a particular contract.

innocent misrepresentation

A false statement about a fact material to an agreement that the person who made the statement believed to be true.

negligent misrepresentation

A false statement of material fact made by a party who thinks it is true but who would have known the truth about the fact had he or she used reasonable care to discover or reveal it.

nondisclosure

A failure to provide pertinent information about a projected contract.

undue influence

The situation in which one person has taken advantage of his or her dominant position in a relationship to persuade the other person unduly to the extent that the dominant person’s persuasive efforts have interfered with the other person’s ability to make his or her own decision.

duress

Any unlawful act or threat exercised on a person whereby the person is forced to enter into an agreement or to perform some other act against their will.

Parol Evidence Rule

A common law rule that states that oral evidence of an agreement made prior to or contemporaneously with a written agreement is inadmissible when the parties intend the written agreement to be the complete and final version of their agreement.

Assignment

A contracting party’s transfer of his or her rights to a contract to a third party.

Delegation

A contracting party’s (a delegator’s) transfer of his or her duty to perform to a third party who is not part of the original contract (a delegatee).

Intended beneficiaries

A third party to a contract whom the contracting parties intended to benefit directly from their contact.

incidental beneficiaries

One who unintentionally gains a benefit from a contract between other parties.

Creditor Beneficiaries

A third party who benefits from a contract in which the promisor agrees to pay the promisee’s debt.

Donee beneficiary

A third party who benefits from a contract in which a promisor agrees to give a gift to the third party.

Condition precedent

In a contract, an event that must occur for a party’s duty to arise.

Condition Subsequent

In a contract, a future event that terminates the obligations of the parties when it occurs.

Substantial performance

Contract performance that occurs when nearly all the terms of the agreement have been met, there has been an honest effort to complete all the terms, and there has been no willful departure from the terms of the agreement.

Material Breach

if a party fails to substantially perform his obligations, thereby justifying thst the nonbreaching party be discharged from the contract

Anticipatory repudiation

Sometimes, a contracting party may decide not to complete the contract before the actual time of perfromance.

Novation

In a contract, the substitution of a third party for one of the original parties; the duties remain the same under the contract, but one original party is discharged and the third party takes that original party’s place.

Commercial Impracticability

arises when because of an unforeseeable event, one party would incur unreasonable expense, injury, or loss if that party were forced to carry out the terms of the agreement.

Consequential damages

In a contract, foreseeable damages that result from special facts and circumstances arising outside the contract itself. The damages must be within the contemplation of the parties at the time the breach occurs. Also called special damages.

duty to mitigate damages

to recover damages in a breach of contract case, the plaintiff must demonstrate that he used reasonable efforts to minimize the damage resulting from the breach.

Specific performance

asking the court to force the other party to actually carry out (perform) their specific duties under the contract

Fiduciary

A person who has a duty to act primarily for another person’s benefit.

agency by estoppel

forms when a principle leads a third party to believe that another individual serves as their agent but the principle had made no agreement with the so-called agent.

Constructive trust

An equitable trust imposed on a person who wrongfully obtains or holds legal right to property they should not possess.

Apparent Authority

an agent has authority because a third party reasonably believes the agent has the power to represent the principa

Contractual Liability

disclosed principle

A principal whose identity is known to a third party. The third party is aware that the agent is making an agreement on behalf of the principal.

Partially disclosed principle

A principal whose identity is not known by a third party, although the third party is aware that the agent is making an agreement on behalf of a principal. Also called unidentified principal.

undisclosed principle

A principal whose existence is not known by a third party. That is, the third party does not know an agent is acting on behalf of a principal.

respondeat superior

Latin for “let the superior speak,” the principle by which liability for harm caused by an agent/employee is held by the principal/employer.

frolic and detour

actions an employee takes during work hours that are outside of their normal job duties.

Sole propriotorship

A business in which one person (sole proprietor) is in control of the management and profits.

General Partnership

A partnership in which the partners divide profits and management responsibility and share unlimited personal liability for the partnership’s debts.

Limited Partnership

A partnership consisting of at least one general partner and at least one limited partner in which the general partners assume all liability for the partnership’s debts, and the limited partners assume no liability beyond their originally invested capital.

Limited Liability Partnership

A partnership in which all the partners assume liability for any partner’s professional malpractice to the extent of the partnership’s assets.

Corporation

A legal entity formed by issuing stock to investors, who are the owners of the corporation.

S Corporation

A corporation that enjoys the tax status of a partnership.

Limited Liability Company

An unincorporated business that is taxed like a partnership, with the members paying personal income taxes, and has the limited liability of a corporation.

Duty of care