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Vocabulary practice flashcards covering criminal law and contract law, including crimes, constitutional protections, contract formation, capacity, legality, third-party rights, breach, and remedies.
Classification of crimes
Felonies (most serious); misdemeanors (typically less than a year in jail); violations/petty offenses (usually a fine)
General intent vs. specific intent crimes
Thinking about a crime is not a crime; a crime needs a criminal act (actus reus) plus criminal intent (mens rea). Intent is either specific-intent or general-intent.
Nonintent / strict liability crimes
Criminal liability imposed without finding intent; imposed for reckless or grossly negligent conduct that causes injury to another (e.g., involuntary manslaughter)
Arrest
Police need an arrest warrant based on probable cause; warrantless arrests allowed when police arrive during the crime, a person is fleeing the scene, or evidence is likely to be destroyed
First-degree murder
Intentional unlawful killing with premeditation, malice aforethought, and a willful act; can be punished by execution (capital murder)
Second-degree murder
Intentional unlawful killing that is not premeditated or planned in advance (some deliberation, but no long-term planning)
Voluntary manslaughter (third-degree murder)
Intentional unlawful killing, not premeditated, committed under circumstances that would cause a person to become emotionally upset
Felony murder rule
Murder committed during the commission of any felony may be prosecuted as murder, even if the perpetrator did not originally intend to kill
Robbery
Taking personal property from another person by use of fear or force; if a weapon is used it is aggravated robbery
Burglary
Taking personal property from another's home, office, or commercial or other type of building
Larceny
Wrongful and fraudulent taking of another person's personal property; includes tangible property, trade secrets, computer programs, other business property; force or entry into a structure not required; states distinguish grand vs. petit larceny by value
Embezzlement
Fraudulent conversion of property by a person to whom that property was entrusted
Extortion
Threat to expose something about another person unless that person gives money or property; blackmail is extortion of private persons
Elements of criminal fraud
(1) Misrepresentation of a material fact (2) person knows the fact is false (3) made with intent to defraud (4) victim justifiably relies on it (5) victim suffers actual loss from the reliance
RICO
Racketeer Influenced and Corrupt Organizations Act; includes Criminal RICO (federal crime to acquire or maintain an interest in, use income from, or participate in the affairs of an enterprise through a pattern of racketeering activity) and Civil RICO (private civil action to recover for injury to business or property)
Criminal conspiracy
Two or more persons enter into an agreement to commit a crime; liability requires an overt act in furtherance of the crime; the crime itself does not have to be committed
CFAA
Counterfeit Access Device and Computer Fraud and Abuse Act: federal crime to knowingly use a computer to obtain restricted federal government info, financial records of financial institutions, or consumer reports from consumer reporting agencies
Fourth Amendment
Protects persons and corporations from overzealous investigative activities by the government; unreasonable search and seizure is prohibited; search warrants based on probable cause required in most cases; government may not search businesses without a warrant
Exclusionary rule
Evidence obtained from an unreasonable search and seizure is prohibited from being introduced at trial against the person searched
Fifth Amendment: self-incrimination
No person shall be compelled in any criminal case to be a witness against himself or herself; protects only natural persons accused of crimes
Miranda rights
Rights a suspect must be informed of before being interrogated; ensures the suspect does not unwittingly give up Fifth Amendment rights
Fifth Amendment: double jeopardy
Persons cannot be tried twice for the same crime in the same jurisdiction
Sixth Amendment
Guarantees a criminal defendant a trial by an impartial jury of the state/district where the crime was committed; right to confront witnesses, assistance of a lawyer, and a speedy trial
Eighth Amendment
Protects criminal defendants from torture or other abusive punishment (cruel and unusual); does not prohibit capital punishment (lethal injection)
Contract
A promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes a duty; the terms become "private law" between the parties
Elements of a valid contract
(1) Agreement (2) Consideration (3) Lawful object (4) Contractual capacity
Uniform Commercial Code (UCC)
Comprehensive statutory scheme with laws covering aspects of commercial transactions
Bilateral contract
Offeror's promise is answered with the offeree's promise of acceptance ("promise for a promise"); no act of performance necessary
Unilateral contract
Offer can be accepted only by performance of an act by the offeree; no contract until the offeree performs the requested act
Implied-in-law contract (quasi contract)
Equitable doctrine whereby a court may award monetary damages to a plaintiff for providing work or services to a defendant even though no actual contract existed
Valid offer requirements
(1) Offeror objectively intends to be bound (2) terms are definite or reasonably certain (3) offer is communicated to the offeree
Option contract
Offeree pays the offeror compensation to keep the offer open for an agreed period of time; prevents the offeror from revoking during the option period (exception to the rule that an offer can be revoked before acceptance)
Mirror image rule
Offeree must accept the terms exactly as stated in the offer; any attempt to accept on different terms is a counteroffer rejecting the offer
Mailbox rule
An acceptance is effective when dispatched/sent, even if lost in transmission; overnight delivery and fax are also governed by this rule
Valid consideration
Legal value plus a bargained-for exchange
Illusory promise
Both parties enter a contract, but one or both can choose not to perform their contractual obligations
Preexisting duty
A promise to do something the party is already obligated to do; arises when a party to an existing contract tries to change the terms during performance
Past consideration
A prior act or performance that does not support a new contract; a promise to pay additional compensation for past work is not enforceable
Accord and satisfaction
Accord = agreement to accept something different in satisfaction of the original contract; satisfaction = performance of the accord. If the accord is not satisfied, the other party can enforce either the accord or the original contract
Promissory estoppel
Equitable doctrine preventing a promisor from withdrawing a promise when the promisee has adjusted their position in justifiable reliance on it; also called detrimental reliance
Infancy doctrine
Minors may disaffirm (cancel) most contracts they have entered into with adults; the contract is voidable by the minor and the adult party is bound by the minor's decision
Duty of restoration
A minor is obligated only to return the goods or property they received from the adult, in whatever condition they are in at the time of disaffirmance
Duty of restitution
If a minor transferred money or property before disaffirming, the adult must return the value to the minor (status quo); if consideration was sold or depreciated, the adult must pay the cash equivalent; results may differ if the minor misrepresents their age
Adjudged insane
Declared legally insane by a proper court or administrative agency; a contract entered by such a person is void
Insane but not adjudged insane
Insane but not declared so by a court or agency; the contract is generally voidable; the person is liable in quasi contract for the reasonable value of necessaries received
Usury laws
Laws that set an upper limit on the interest rate that can be charged on certain loans; protect unsophisticated borrowers from loan sharks
Exculpatory agreement
Contract provision relieving a party from tort liability for ordinary negligence (release of liability); cannot cover willful conduct, intentional torts, fraud, recklessness, or gross negligence
Covenant not to compete (noncompete)
Agreement that an employee or seller of a business will not engage in a similar occupation or business within a specified geographic area for a specified period following sale or termination of employment
Noncompete lawfulness test
Lawful if reasonable in 3 aspects: line of business protected, geographic area/market protected, and duration of the restriction
Unconscionable contract
Contract (or clause) so oppressive or manifestly unfair that courts refuse to enforce it in part or at all; may not be used merely to save a party from a bad bargain
Unilateral mistake
One party is mistaken about a material fact regarding the subject matter; contract generally is not voidable unless the other party knew of the mistake, it was a clerical or mathematical error not due to gross negligence, or enforcing it would be unconscionable
Mutual mistake of material fact
Both parties are mistaken about a material fact important to the subject matter; contract can be rescinded; also covers ambiguity (a word with more than one logical interpretation) and no "meeting of the minds"
Mutual mistake of value
Both parties know the object of the contract but are mistaken as to its value; the contract remains enforceable
Elements of fraud
(1) False representation of a material fact (not an opinion or prediction) (2) intent to deceive (3) innocent party justifiably relied (4) innocent party was economically injured
Fraud in the inception
Party is deceived about the nature of their act and does not know what they are signing; the contract is void
Fraud in the inducement
Party knows what they are signing but was fraudulently induced to enter the contract; the contract is voidable by the innocent party
Undue influence
Equitable doctrine; occurs when one person takes advantage of another's mental, emotional, or physical weakness (a vulnerable person), usually in a fiduciary or confidential relationship
Statute of Frauds mnemonic (MYLEGS)
M = promises made in consideration of marriage (e.g., prenuptial agreements); Y = contracts that cannot be performed within one year; L = contracts involving interests in real property (land); E = contracts involving agents (equal dignity rule); G = sale of goods (500+) / lease of goods (1,000+); S = promise to guarantee another's debt (surety/guaranty)
One-year rule
Executory contract that cannot be performed by its own terms within one year must be in writing
UCC Statute of Frauds
Contracts for the sale of goods priced at 500 or more must be in writing; leases of goods requiring payments of 1,000 or more must be in writing
Part performance
Equitable exception: an oral contract for the sale of land that has been partially performed may be specifically enforced to avoid injustice; most courts require that the purchaser either pay part of the price and take possession, or make valuable improvements on the property
Parol evidence rule
If a written contract is a complete and final statement of the agreement, prior or contemporaneous oral or written statements that alter, contradict, or add to its terms are inadmissible in court
Merger (integration) clause
Clause stating the contract is the complete and exclusive expression of the parties' agreement; parol evidence may not be introduced to explain, alter, contradict, or add to its terms
Assignment
Transfer of rights under a contract to a third party
Contracts that cannot be assigned
Personal service contracts (a specialized service cannot be assigned to someone else); assignment of a future right (e.g., being named a beneficiary in a living person's will); contracts where assignment would materially alter the risk (e.g., car insurance); assignment of a legal action
Delegation
Transfer of contractual duties by the obligor to another party for performance
Donee beneficiary
Third party on whom a benefit or gift is intended to be conferred by the contract
Creditor beneficiary
Original creditor who becomes a beneficiary under the debtor's new contract with another party (e.g., debtor sells the item to a third party who promises to pay the remainder of the loan)
Incidental beneficiary
Party unintentionally benefited by other people's contracts; has no rights to enforce or sue on the contract
Condition precedent
Condition that requires the occurrence of an event before a party is obligated to perform a duty (e.g., getting a degree before starting a job)
Condition subsequent
Condition whose occurrence or nonoccurrence automatically excuses performance of an existing contractual duty; failure to meet it relieves the other party from the obligation
Novation
Agreement that substitutes a new party for one of the original contracting parties and relieves the exiting party of liability on the contract
Force majeure clause
Clause in a contract in which the parties specify certain events (e.g., floods, earthquakes) that will excuse nonperformance
Substantial performance
Performance that deviates only slightly from complete performance; a minor breach; nonbreaching party can sue for damages (deduct cost of repair from the unpaid price)
Inferior performance
Material breach: party fails to perform express or implied obligations and impairs or destroys the essence of the contract; nonbreaching party may rescind and seek restitution, or sue to enforce and seek damages
Anticipatory breach (repudiation)
A party indicates in advance (expressly or by conduct) that they will not be able to perform when due; the nonbreaching party's obligation is immediately discharged and they may sue right away without waiting until performance is due
Compensatory damages
Award of money to compensate the nonbreaching party for the loss of the bargain; e.g., seller breaches: market price minus contract price; places the nonbreaching party where they would have been had the contract been fully performed
Consequential damages
Foreseeable damages arising from circumstances outside the contract (also called special damages); the breaching party must know or have reason to know the breach will cause them; can be disclaimed in sales or license agreements
Liquidated damages
Parties agree in advance that certain damages will be available if the contract is breached; actual damages must be difficult to determine; the amount must be reasonable; if actual damages are easy to determine it is a penalty and unenforceable
Mitigation of damages
Nonbreaching party has a duty to avoid or reduce damages caused by the breach; e.g., a wrongfully terminated employee must try to find comparable substitute employment (compensation, rank, status, job description, location)
Specific performance
Equitable remedy ordering the breaching party to perform the acts promised in the contract; available if the subject matter is unique (land, art, antiques, rare coins, stamps, heirlooms); not granted for personal service contracts
Intentional interference with contractual relations
Tort that arises when a third party induces a contracting party to breach their contract
Covenant of good faith and fair dealing
Parties are held to the express terms of the contract and also must act in good faith and deal fairly in all aspects of it