Business Law & Ethics Final

What is law?

Enforceable rules of conduct in a society that typically reflect the culture and circumstances that create them

Morality

Values that govern a society’s attitudes towards right and wrong

Ethics

the means for determining what a society’s value ought to be

Common law

Judges try to ensure same law was common with others throughout the country (judge is required to follow earlier court decision when deciding case with similar circumstances")

Stare decisis

Let the decision stand (common law)

Statutory Law

Either tell citizens what to do (pay taxes) or what not to do (smoke in a public place)

Federal Statutes

Apply to all states

Laws passed by Congress and signed into law by POTUS

Every state follows these statutes

State statutes

Every state has it’s own legislature, governor

Ordinance

Pieces of legislation created by a town or city council

Judicial Review

Court decides if statute in line with U.S Constitution

3 Main types of Courts

Trial Courts

Appellate Courts

Supreme Court

Administrative Law

Federal and local governments want to regulate certain activities, but do not have the time to do so, create administrative agencies to do it for them (FDA)

Crime

Wrong against society

Tort

Wrong against an individual

Substantive Law

Defines specific offenses (laws/statutes)

Procedural Law

How consequences of breaking the law are processed or determined

Tim Berners-Lee

Inventor of World Wide Web

Cyberlaw

laws, or a specific law, relating to internet and computer offenses, especially fraud or copyright infringement

Lanam Act of 1976

Provides for the registration and protection of trademarks and copyrights

Trademark Dilution Act of 1996

Attempts to protect the holders of famous trademarks from effects of domain-page registrations that tend to confuse and dilute trademarks goodwill

Computer Fraud and Abuse Act

Often-amended act that pioneered treatment of computer-related crimes as unique offenses in United States code

Telecommunications Act of 1996

Communications Decency Act

Makes it criminal to knowingly transport obscene material through interactive computers or interstate or foreign commerce for sale or distribution

Child Online Protection Act of 1998

Makes it a crime for site operations to fail to use proper technology and methodology to prevent minors from accessing “harmful” material

Fraudulent Online Identity Sanctions Act of 2004

Increased potential prison sentences by up to 7 years for someone who “provided material and misleading false contact information to a domain name registror, domain name registry, or other domain name registration authority

Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003

Eliminated State-law based suits against spam for invasion of privacy and like causes of action and placed into effect requirements for unsolicited emails

Litigate

Allow the court to settle the dispute

Mediator/Arbitrator

Alternative to going to court

Appellate Courts

Reviews decisions of lower courts when a party claims an error of law was made (affirm, reverse, amend, or remand)

Cannot change factual determinations of a jury

Minors Tried as Adults

Minor has to be at least 14

Probable cause to believe that the child committed an act that is either “heinous or aggravated” or “part of a repetitive pattern of illegal acts”

Child is “beyond rehabilitation under juvenile justice system”

“In best interests of safety and welfare of community” that child be tried as an adult

Writ of Certiorari

Order compelling lower court to turn over record of the case

Miranda Rights

Miranda v. Arizona (1966, right to remain silent, etc)

Arrest

Person is deprived of his/her freedom

What does an officer need to arrest someone at any time?

Warrant (people who have been arrested before can be searched without warrant)

Bail

Money that is left with court to assure that a person who has been arrested, but released, will return to trial

Indictment

Written accusation charging the individual

Arraignment

Indictment is read, judge or grand jury has evidence and testimony of witnesses and decides if a crime has been committed

Preliminary Hearing

Motions/pleas to court to order some action or rule on some matter are made

Voir Dire

Preliminary exam of potential jurors, determine their ability to judge impartially

Who goes first in Opening Statements?

Prosecutor (plaintiff in civil cases)

Jury Instructions

Applicable burdens of proof

Credibility of witnesses

Manner of weighing testimony received

Deliberations (Jury)

Sequestered to review case and make a decision

4 Elements of a Tort

Duty

Breach/Violation of the Duty

Injury

Causation

Compensatory Damage

Factual damages, expenses

Punitive Damage

Pain and suffering, mental damages (usually higher than compensatory)

Intentional Torts

Defendant possessed the intent or purpose to inflict the resultant injury

Assault

One person intentionally puts another person in reasonable fear of an offensive or harmful

Battery

Harmful or offensive touching of another

False Imprisonment

Intentional confinement of a person against the person’s will and without lawful privilege

Defamation

False statement that injures a person’s reputation

What 3 Requirements of Defamation?

1. Be false
2. Be communicated to a 3rd person
3. Bring the motion into disrepute, contempt, or ridicule by others

Slander

Spoken defamation

Libel

Written defamation

Negligence

Intent to injure not required, most common tort

Reasonable-Person Standard

Requires that you act with the care, prudence, and good judgement or a reasonable person so as not to cause injury to others

Defenses to Negligence

1. Contributory Negligence
2. Comparative Negligence (Comparative Fault)
* Does not apply if state/government is a party and to healthcare providers (malpractice)
3. Assumption of Risk

Strict Liability

Defendant can be held liable if he or she merely engaged in a particular activity that resulted in injury, regardless of whether or not he or she was negligent (abnormally dangerous activities, ownership of dangerous animals)

Ultra-Hazardous

1. Activity involves a high degree of risk or harm
2. Gravity of that risk
3. Whether the risk can be eliminated by exercise of reasonable care
4. Whether activity is matter of common usage
5. Whether activity is appropriate to place where it is carried out
6. Value of activity to community

Contract

Legally binding agreements between two or more parties that create obligations

6 Requirements of a Contract

1. Offer
2. Acceptance
3. Genuine Assent
4. Legality
5. Consideration
6. Capacity

Term

Time/Length of a Contract

Material Facts

Details important to the offer and acceptance

Executed Contract

Fully performed

Executory Contract

Has not been fully performed, something agreed upon remains to be done by one or both parties

Express Contract

All terms are stated verbally or in writing

Implied Contract

Terms are inferred from the parties’ acts

Unilateral Contract

One party promises something in return for the other parties performance and indicates that this performance is the way acceptance is to be made

Bilateral Contract

Mutual exchange of legally binding promises, the promises bind the agreement and act as acceptance

Offer

Proposal to do something, provided something is done or not done in exchange

Offeror

Party making the offer

Offeree

Party the offer is made to

3 Tests that an offer must pass

1. Contractual Intent
2. Must be communicated to offeree
3. Essential terms must be complete and definite

Contractual Intent

Has to be “real” and serious

Ways an Offer can be Terminated

1. Revocation
2. Time Stated
3. Reasonable Length of Time
4. Rejection
5. Counteroffer
6. Destruction of Subject Matter
7. Death

Option

Offeree gives the offeror something of value in return for a promise to keep the offer open

Acceptance

When a party to whom an offer is made agrees to the proposal

Mirror Image Rule

Terms must match exactly

Genuine Assent

True and complete agreement (no genuine assent=voidable contract)

Rescission

Get back what has already been put into the contract

Ratification

Confirms an intent to be bound by the contract

Duress

One party uses an improper threat or act to obtain an agreement

4 Types of Duress

1. Threats of illegal or tortious conduct
2. Threats to report crimes
3. Threats to sue
4. Economic Threats

Undue Influence

The dominating party to a confidential relationship exerts irresistible pressure on the dominated party to enter into a contract

Material facts

Important facts that influence the parties’ decisions about a contract

Questionable Consideration

Certain forms of consideration are only legally binding in proper circumstances

Requirements Contract

Seller agrees to supply all of the needs of a particular buyer

Consideration

What a party demands and generally must receive in order to make their promise legally binding

3 Requirements for Consideration

1. Must make a promise, perform an act, forbear
2. Must be in exchange for something else
3. What is being exchanged must have legal value

Gift

Transfer of ownership without receiving anything in return

Output Contract

Buyers sometimes agree to purchase all of a particular producer’s production

Illusory

If a contract contains a clause that allows you to escape the legal obligations, the promise creating the obligation is said to be…

Nominal Consideration

Token amount (one dollar and other good and valuable consideration)

Requirements Contract

A carburetor manufacturer may agree to supply all the carburetors needed for the production of a certain make of vehicle

Liquidated debt

Parties agree that the debt exists and on the amount of debt

Accord and Satisfaction

Payment offered in full settlement by the debtor and accepted by a creditor settles the claim

Release

Often due to financial pressure, an injured party in the tort will agree to discharge another from liability for the tort in return for a monetary payment or other consideration

When is consideration NOT required?

1. Promises to charitable organizations
2. Statutes of Limitations
3. Promissory Estoppel

Promissory Estoppel

If a person cannot claim they did not get what they demanded in return for being bound to their promises, then those promises can be enforced against them

Existing Duty

A person sometimes promises to do something he or she already is obligated to do by law or prior contract

Capacity

The ability to understand the consequences of a contract

3 Main groups that don’t have capacity

1. Minors
2. Mentally Incapacitated
3. The Intoxicated