BUS 207 MIDTERM 1 IFNALLLLL

article 1

legislative, congress, enumerated powers, continuing resolution

article 2

executive, president, executing laws

article 3

judicial, courts, enforces law

federalism

separation of powers between state and federal government

administrative agencies

enforce laws

delegation clause

congress can delegate powers to administrative agencies

stare decisis

the judge’s decision stands

constitution

highest level of law

statutes

state and federal codes

common law

rely on past court decisions to make judgements

civil law

written laws and codes made by legislators to make decisions

CA Codes

29

ordinances

County laws enacted by the County Board of Supervisors and City laws enacted by the City Council

state courts

trial courts, courts of appeal, Supreme Court

federal courts

must involve federal questions and case has citizens from different states with disputes over 75k

U.S Supreme Court

has all power and can state law unconstitutional

pleadings

documents filed with the court from plaintiff and defendant

discovery

how parties get information from each other

disposition

a chance to ask questions before trial that must be answered under oath. forces witness to commit to story

interrogatories

written questions that must be answered in writing under oath

Request for Documents/Subpoenas

a way to find out what records the other side has

legal remedies

money damages

equitable remedies

remedies other than money

preliminary injunctions

ordered by courts when there is potential harm that might arise pending a trial. You must show likelihood of success and irreparable harm that cannot be fixed by later awards of money

specific performance

a court order compelling some action

declaratory relief

a court order determine who is correct on issue

compensatory damages

Intended to compensate the plaintiff for a loss or injury

punitive damages

Intended to send a message and punish the defendant

tort

civil claims when somebody violates another person's rights that isn’t under a contract

negligence

failure to use reasonable care. to prove that there was a legal duty of reasonable care that was breached and caused harm

standard of care

based on what a reasonable person would do

proximate cause

the legal cause of the injury, an act that has a strong enough connection to the injury to justify holding the actor legally responsible for the injury.

foreseeability

asks whether a person could or should reasonably have foreseen the harms that resulted from their actions

gross negligence

the lack of any care or an extreme departure from what a reasonably careful person would do, failing to act

tort law

provides relief for victims, imposes responsibility on parties

tortfeasor

the accused person of doing wrong

intentional tort

person intended to inflict harm or damage. ex: assault and battery

unintentional tort

person did not intend to inflict harm or damage. ex: negligence

premises liability

owner of property is responsible for injuries people suffer on their property

negligence hiring/supervision

The person was in a supervisory or hiring position and had knowledge of the employee’s propensity to do bad things

assault

an intentional, unexcused act that creates reasonable fear in another person of immediate harm or offensive contact

battery

when someone intentionally causes a harmful or offensive physical contact

defamation

Saying something that is untrue about another that could reasonably damage the person’s reputation

libel

written defamation

slander

spoken defamation

invasion of privacy

intrusion into another’s privacy

Intentional interference with a contract

Actions intentionally taken to disrupt an actual contractual relationship between two other parties

trespass

intentionally trespassing

conversion

intentionally taking personal property

fraud

deceiving someone for personal gain

scienter

the defendant had acted with an “intent to deceive” the plaintiff

Motion for summary and judgment

a motion a party makes that says the judge we don't need trial, this can be decided based on undisputed facts and law, purpose of that is to weigh evidence. 

contract

agreement between two or more parties

elements of contract

• Offer

• Acceptance

• Mutual agreement (assent) or “meeting of minds”

• Consideration

• Capacity

• Legality

bilateral contract

a promise for promise

unilateral

promise in exchange for action

executed contract

something finished and fully performed

executory contract

terms still need to be performed

offeror

party who makes offer

offeree

person who receives offer

offer

must indicate clear intent for contract, communication, and how long offer is open

advertisement

invitation to deal and can be treated like a contract offer

acceptance

must be clearly conveyed, counteroffers don’t mean acceptance

silence

generally a contract will not be enforceable if an offer is made and they do not receive a response

revoked offer

• An offer can be revoked any time before it is accepted unless:

  • Its an option contract (an offer that is actually a contract to hold open an offer for a set period of time)

  • Its an unilateral contract and there has been substantial performance by the offeree

  • Its a firm written offer by a merchant to buy or sell something for a set period time or a reasonable period of time

  • If the other party reasonably relied upon the offer (a principle known as promissory estoppel

consideration

Something of value given in exchange for the agreement, could be money/promise/property

unenforceable

one of contract requirements missing

void

contract was not one that could be enforced

voidable

a contract that is only binding on one party

contract with minors

If under 18, the adult party to the contract can be bound to the agreement, but the minor is not legally obligated and has a right to leave or reject contract. must return goods or pay if contract with minor for necessaries, (unless minor lives with parents)

mental incapacity

a person measured below “cognitive standard” can leave contract but must return/pay items back if necessary

intoxication

person was obviously intoxicated to other party and could not understand their judgement/actions

contract violating law

contract can be broken if violates statutes or public policies

contracts of adhesion

standardized forms that don’t allow bargaining or changing of terms

procedural unconscionability

when there is unfairness or inequality in the formation of the contract, like a take or leave it form or a confusing contract with terms in small print

Substantive unconscionability

when there is unfairness or inequality ub substance of the agreement, like when a price is being agreed to that is much higher than the market value fir the item being purchased

reasons to appeal arbitration

Arbitrator was dishonest or Arbitrator was biased

arbitration

Alternative to go trial, people agree with arbitration since it’s cheaper and faster than a court

exculpatory causes

A contract term that states that one party is not liable for something like negligence or other potential wrongs

formation of contract

• Review of the requirements for formation of a contract

  • Was there a valid offer

  • Was there a valid acceptance

  • Was there consideration

  • was there mutuality? A “meeting of the minds”

  • Did both parties have capacity to contract

  • Is it legal

• Even if requirements met, it might be till be declared unenforceable

  • On the ground it is unconscionable

  • Is the dispute resolution agreement at issue unconscionable

  • MUST SHOW BOTH PROCEDURAL UNCONSCIONABILITY AND SUBSTANTIVE UNCONSCIONABILITY

duress

when there has been some kind of coercion, physical or mental, that means the other party did

undue influence

Occurs when a part takes advantage of another party because they have a superior position in a close relationship

breach of contract

If there is a valid contract and someone fails to comply with one or more term, this is a breach of contract. To establish a breach of contract claim, the plaintiff must show Breach of a term and Damages

material breach

party can declare a breach of contract

minor breach

A party to a contract cannot declare a contract in breach and avoid performing themselves because of a minor breach

mitigation of damages

A party to a contract can not sit back and let a beach of contract cause harm that can be avoided

promissory estoppel

if someone makes a clear promise to another person, and that person relies on the promise and suffers some kind of harm or loss as a result, the person who made the promise can be legally obligated to fulfill it, even if there was no formal contract. allows for a court to enforce a contract even though technically one was not legally created because consideration is missing. Must show reliance, promise, detriment suffered

Impossibility of performance

person can’t fulfill contract because of some valid reasons

mutual mistake

both parties made a mistake in contract

unilateral mistake

one party made a mistake that the other party knew was a mistake or should have known

Accord and satisfaction defense

When parties to a contract agree to discharge (extinguish or release) an existing obligation in a manner other than in accordance with the terms of their original contract.

repudiation

A defense is a party to a contract, without a just excuse, indicate that they will not perform their obligations under the contract Can be express or implied by the party’s words or actions

declaration

statement under oath and court can use it for testimony

sale contracts

• involves the buying and selling of a good. consists of seller (vendor) and buyer(vendee). Governed by general contract law and by article 2 of the Uniform Commercial Code (“UCC”)

• Consensual (can be enforceable based on evidence of consent)

• Bilateral (binds both parties)

• Mutual consideration (Buyer pays $, seller delivers the good

• Commutative (good is considered to be = Money paid for it)

• Designation (designated as a Sales contract)

• Validity (not dependent on the existence of other contracts)

a sale

the “passing of title from the seller to the buyer for a price

good title

when the seller owns the goods free and clear

void title

when the seller did not own the good (e.g stolen goods)

voidable title

when one party to the sale can declare the contract void (e.g. the buyer or seller is a minor)

UCC

9 sections or articles, Adopted to establish uniform rules to apply to commercial business transactions. All states except Lousiana had adopted the UCC in whole (Louisiana leftout Article 2 because they use french civil system)

UCC 2-105

moveable and tangible objects that are capable of being owned Ex: Refrigerators, paper, computers, cars