Business Law Final

What are examples of Alternative Dispute Resolutions? How do they differ from one another and from litigation?

a. Legal disputes are settled outside of court. These methods have became increasingly popular recently due to increased case load (some judges even require attempts at ADR before trial due to demand), lower costs, less risky (not left to judge/jury deciding the case - the parties have more of a say in ADR), and they are private (court trials are required to be public).

b. The three methods degree at how much they require third parties. Direct negotiation involves the parties meeting in good faith to discuss the issues, present facts/data, and arrive at mutual solutions (no third party). Mediation is negotiation facilitated by middleman/mediator who understands how the law relates to the facts of the case, mediator does not decide facts or make legal rulings, successful mediation usually ends with contract. Arbitration is the most structured and the third party conducts formal hearings and their decision is usually legally binding, arbitrator often has legal experience; it usually happens in a private forum and acts similar to a public trial.

What is the legal dividing line between independent contractor and employee? In what circumstances is it important? How does it affect the employer/employee relationship? What are the advantages and disadvantages for each party?

a. If the employer can exercise complete control over the way a worker completes a job they are likely an employee, unlike how independent contractors can control how they do their work. Independent contractors are generally unsupervised, set their own hours, and are not trained by the employer. Employees are often hired for longer periods of the time while independent contractors are not.

b. Employees are protected by state wage and hour laws, workers’ compensation, unemployment insurance, disability insurance, and social security. They can seek assistance from state agencies to enforce rights by these laws. However, independent contractors are not protected by any of these things and would have to go to court to settle wage disputes or enforce other rights.

c. The employer/employee relationship is vastly different, primarily on control over the employee’s tasks and how they complete them, as independent contractors have much more freedom in how they work. Employees often have far more job security, but they have less independence in many regards.

What is a fiduciary relationship? What is the impact of the relationship on business ethics and contractual relationships?

Creates duties from one party to another, it’s a relationship with special trust and confidence. An attorney and their client are in a fiduciary relationship, same with doctor and patient. Business ethics are held to a higher standard and contractual relationships are held more firmly due to this relationship. It is one of special trust and confidence, meaning duties are owed between one party and another.

Covenant not to compete

Let’s say Tom sells barber shop for 1 million, you have to wait at least a reasonable amount of time (let’s say 3 years) before opening another one within a certain radius. This protects this barber let’s say from all of the clients leaving vs them rolling over to the new owners.

Promissory estoppel

An agreement that lacks consideration but will be enforceable. A charitable subscription is subject to this, for example. It is when a promise is given, it reasonably induces a change in circumstance due to reasonable reliance on promise. It’s foreseeable that a promise will induce change of circumstance, the promise is entitled to the amount of detrimental reliance.

At will employment

You can be fired at any time for any reason, for no reason, or for a bad reason, just not an illegal reason. An employee can also quit at any time. This type of employment is most people, and is different from a term employee who is hired under contract for x time

Pre-existing legal duty

Let’s say there’s a reward out for capturing a criminal and a policeman finds the criminal and wants the reward, they don’t get it since that’s already their job. Consideration is not present when someone has preexisting legal duty do to something.

Statute of frauds

Says certain contracts must be in writing to be enforceable, it’s goal is to prevent fraud and other injuries

Statute of limitations

Time limit to bring an action, if someone runs you over today you only have a limited amount of time (ie. 3 years) to sue them. If not, this has run out and it is like they never ran them over. This statute is for freshness of evidence & many other reasons.

Mitigation of damages

Prevents injured party from recovering damages that could have been avoided through reasonable efforts. This duty is most often employed in tort and contract law. Damages are often mitigated when an injured party must take reasonable action to limit the harm they suffered due to a defendant.

Punitive damages

This is what the cost would have been for the other person. We saw this with the coffee case where the damage was two days worth of coffee sales.

Respondeat superior

Let the superior respond for the acts of their inferiors. This has to do with if an employee does something wrong, in many cases the company will get sued and not the individual employee.

Article 2 of the UCC

o This refers to the sale of goods, not services. It can be either merchant (a person who deals goods by occupation) or between merchants (both parties are chargeable with knowledge/skill of merchants). This article’s purpose is to facilitate trade, enforce good faith, and fill gaps in contracts for the sale of goods.

o Things that are not goods under this are real estate, services, and intangible assets like stocks or bonds. For this to apply, the sale must involve the transfer of goods such as cars, furniture, electronics, and food from the seller to a buyer for a price.

o This governs the sale of moveable goods, providing standardized legal framework for contracts between buyers and sellers. It simplifies commerce by filling gaps in contracts, defining responsibilities, and setting rules for things like warranties/ delivery/breach.

Bailments

Transfer of personal property from one party (bailor) to another (bailee). The bailee is to do whatever the bailor wishes. The railroad industry is built on this with the bailee being train owners. There is negligence if you receive goods and don’t return them or do return them damaged.

Intestate succession

Intestate means to die without a valid will or assets not effectively disposed of by your will. The order depends on a bunch of factors like whether or not you have a living spouse, children, grandchildren, parents, or other close relatives.

Liquidated damages

The amount of money that is agreed on before you know if anyone will breach, it says if you breach this is what it will cost you.

Disparate Impact Discrimination

Allows workers to hold employers responsible for illegal discrimination, without proving the employer actually meant to discriminate. Workers just have to show that the employer’s policy has a discriminatory effect on a group of protected workers.

BFOQ

Bonified operational qualification, there’s something called a business necessity. Can hire all jews if it is a synagogue, this is a BFOQ not discrimination.

Business necessity

Legal term for legitimate business purpose that justifies an employment decision as effective and needed to optimally achieve the organization’s goals and ensure safe/efficient operations