BUS 207 w/Eppright - Midterm 1 (Winter 2023)

Tort

means wrong - red lights, lies

Goal of legal system

protect rights and resolve disputes according to rules by society

Public policy

what they think is right - public is what drives laws

Mediation

process where parties have a facilitator and try to negotiate

Majoritarianism

laws generally reflect majority view = greater compliance

Representative Democracy

we elect people to decide we do not get to decide

Common law

law evolving through interpretation

Legislator

lawmakers, people we elect to make laws

ADR (Alternative Dispute Resolution)

methods of resolution other than courts

Arbitration

you agree on an arbitrator to help settle the dispute

Federalism

Diffusion of power between state and federal gov

Civil Law code system of laws

contrasting from our law system, Countries in Europe often follow systems from the past that are more eye for eye

Common law system of laws

Used in the US, judges make laws based on ones already in place

Stare decisis

the decision stands: judges follow decisions of past higher courts

Codes

Like a rule book in monopoly = used to settle disputes. These are subject to judicial interpretation.

Problem with codes

when there is no rule in the rule book and there is a gray area.

Administrative regulations

to fill in gaps for laws passed by legislators.

First 3 articles of constitution

A1(Legislative) - First power given to congress was to levy and collect taxes. A2(Executive) - President must faithfully execute laws set forth by congress. A3(Judicial) - Judicial branches given the power to interpret laws.

Bill of rights

(aka. first 10 amendments) focus on specific protections

Statutes

federal and state laws - must comply with constitution

Ordinances

an order or decree

Regulations

health and safety regs, etc.

Cases

judicial decisions or "common law"

State courts

trial courts (superior Ct), courts of appeal, state supreme court

Federal courts

trial courts (94 District Ct), Courts of appeal (11 Circuit Courts/DC Circuit), US Supreme Court (you have to appeal and they don't have to hear you)

Cert

supreme court has to grant cert inorder for your case to be herd

Parties in a lawsuit

Plaintiff(files case) vs defendant(party against them)

Pleadings

docs filed with the court

Discovery

how parties get their information. Includes deposition, interrogation, and request for documents.

Depositions

parties ask witnesses questions not in court

Interrogatories

written questions answered in writing under oath

Request for documents

get docs from the other side you don't have

Court remedies

court can grant legal or equitable remedies to parties in a lawsuit.

Legal remedies

money for damages

Equitable remedies

remedies other than money. Ex. stop sending stuff to my customers until the court date

Injunctions

intended to maintain status quo until case. For this you must: (1) show likelihood of success (2) show that there will be irreparable harm that can't be fixed later

Preliminary vs. Permanent injunction

the court can issue a preliminary injunction at the start of the case, this may later become permanent

Preemption

when state laws conflict with federal law and the federal government can preempt (override) it. Includes express preemption, conflict preemption, and field preemption.

Express preemption

when congress intends to preempt all state laws

Conflict preemption

When conflict means you cant comply with both

Field preemption

congress passes comprehensive law that covers it

What is a contract?

An agreement (express or implied) between two or more parties that can be enforced in court

Types of contracts (bilateral vs. unilateral)

Bilateral = a promise for a promise. Unilateral = one person promises and the other person acts.

Types of contracts (executed vs executory)

executed = fully performed. Executory = terms still need to be performed.

Specific performance remedy

they are being asked to do something. Generally you would just be asked to pay damages, but in some cases there is not an appropriate monetary value that can be given to replace it.

Types of contracts(Unenforceable / void / voidable)

Unenforceable = one of the requirements is missing. Void = contract was not one that can be enforced (Ex. non-competes are illegal in CA so if a company tries to enforce one that contract would be void and they have no case). Voidable = contract is only binding on one party (Ex. if a contract was signed by a 17yo, they can claim that its voidable)

Elements for a contract to be enforceable

offer, acceptance, mutual assent, consideration, capacity, and legality

Parties to the contract

Offeror = party who makes an offer. Offeree = the party to whom the offer was made. Ex. in a job offer the employer is the offeror and you are the offeree

For a contract offer to be valid

(1)indicates clear intent to enter contract, (2) sufficiently definite so court can determine intent of parties, (3) offer was communicated to the other party.

For a contract acceptance to be valid

Must clearly accept the offeror's terms with no additional qualifications

Mutual assent

Agreement by both parties to a contract. (The court will look at outward expression and the evidence that reflects the reasonable assumption.)

The objective theory of contracts

what somebody thinks doesn't matter only what is clear outwardly and is stated

The holding

(watch for this when you read a case): the legal issue that the court decided when hearing the case

The standard of proof

in a civil case the plaintiff has to show that it is more likely than not that a fact is true.

Consideration

Something of value given in exchange for the agreement. Can be money, property, a promise to do something or a promise not to do something

Right of disaffirmance

If a person is [intoxicated/incapacitated/underage/etc.], they can declare the contract voidable if they can prove two things (1) that the intoxication meant that the person could not understand what he or she was doing (2) that the intoxication was obvious to the other party. The intoxicated party still must pay for or restore what they received.

Contracts with minors

Minor's have a right of disaffirmance meaning the adult is bound by the contract and the minor is not. This is considered "voidable" because is is a contract that one of the parties (the minor) can refuse to honor.

Necessaries

items necessary to live like food, clothing, housing, healthcare, and some education expenses. In these contracts, minors can still disaffirm but there are limitations.

Ratification

minor turns 18 and accepts the obligation of the contract either verbally or by his conduct (Ex. making payments before and after birthday). Now the contract can not be disaffirmed.

Claiming insanity

Effects enforceability of a contract, Does not require medical diagnosis, A temporary mental infirmary can count, effects contract adhesion similarly to minors.

Contracts of adhesion

standardized forms, on a take it or leave it basis→can't bargain or change terms. These are not automatically unenforceable but might be determined to be unconscionable.

Unconscionability

to claim that a contract is unconscionable you must show procedural unconscionability and substantive unconscionability

Procedural unconscionability

unfairness or inequality in the formation of the contract. (Ex.take it or leave it contract, with confusing terms and small print)

Substantive unconscionability

unfairness or inequality in substance of the agreement. (Ex. price is agreed to that is much higher than market value)

Dures

Applies when there is some kind of coercion, physical or mental, meaning they did not enter the contract under their own free will.

Undue influence

Occurs when one party 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 with one or more terms. To establish you need (1) breach of term AND (2) damages.

Mitigation of damages

you can't sit idly you have to try to mitigate the damages of the contract

Damages must be foreseeable

you can't come up with stuff after, they have to be reasonable and foreseeable for when the contract was made

Lack of consideration

If the contract did not provide for one party to give any consideration, then there is no contract→ cannot be enforced.

Failure to convey the consideration

If the contract provides for consideration, and one party fails to deliver→breach of contract.

Preexisting duties rule

can't agree to do what you are already legally obligated to do. (Ex. Teacher said you can come to OH for $20 even though the university already requires them to hold OH).

Past consideration

If I already did something or paid something, I cannot expect that this will be accepted as consideration in the future. *note: past consideration is not sufficient to enforce a contract, but a court may say it is if it seems unfair not to.

Promissory Estoppel

when a promise is made without any consideration, but the promisee reasonably relied on that promise and should not suffer the loss.

Motion to remove a case

If you are sued in one state you can make a motion to remove it to federal court Must be a dispute over 75k, Must be regarding federal law, ie. can't work if you are suing for CA minimum wage.

Diversity of citizenship

people/companies are in different states / get sued in separate states. In this case you would probably make a motion to remove the case.

Declaratory judgment

telling parties who is right and who is wrong. (ex. Rexing asked for this for having refused the eggs)

Motion for summary judgment

a motion (brought by either party) that can be filed before trial and is a way to avoid having to go all the way through trial. These are very rare because you generally don't want a judge to make a decision without seeing all the evidence - must be based on indisputable evidence.

sales contracts

A contract to sell goods, governed by general contract law and the UCC.

UCC

Published in 1952. Establishes uniform rules to apply to commercial business transactions. All states except Louisiana Have adopted it in whole. This allows the courts to fill the gaps so there are less disputes over sales contracts.

Sale

the passing of title to property from the seller to the buyer for a price.

Merchant

Someone (entity or corporation) who is engaged in the purchase and sale of goods.

UCC definition for Merchant

someone who deals in the kind of goods being sold under a sales contract or who holds themselves out as having skill or knowledge in a particular goods being sold under a sales contract.

Lease

One person(the lessor) agrees to transfer the right to the possession and use of the property to another person (the lessee) in exchange for rental payments.

Indefinite terms in sales contracts

in general this would make a contract invalid, but under the UCC, it will not fail if (1)The parties intended to make a contract; and (2) There is a reasonably certain basis for the court to grant an appropriate remedy.

UCC flexibility

Under common laws it is easy to not enforce a contract, under UCC it is easier to argue that there is a contract and a judge is able to help to enforce said contract

open price term (UCC)

if parties so intended, they can conclude a contract for sale even though the price is not settled. In such case the price is a reasonable price at the time for delivery

Does UCC trump common law

Yes, but you can only use the UCC for the the sale of goods

What is a good?

Tangible property that can be bought and sold

Tangible property

something that has physical quality, like a car *Note: This does not apply to land property or houses, but would apply to a trailer

intellectual property

C UCC does not apply to intellectual property, but would apply once that intellectual property gets put into a medium that can be bought and sold. ie. turning a computer program into an app, or turning music into a CD

Merchantable properties

a good that can be bought and sold

UCC application to services tied to goods

ie. tech support for a computer. Services are not governed by the UCC, but if it is decided that the contract is mainly about goods and the UCC applies, then it will be applied to the entire contract.

Output contract

we agree that we will sell all of the things. May be disputed if the output is wildly off from what is reasonably expected.

Requirement contract

we will buy all that we require. May be disputed if you did not buy anything because zero is wildly off from what is reasonably expected.

Warranties according to UCC

any affirmation made by seller or buyer relating to the goods becomes an express warranty -don't have to say "warrant" or "guarantee"

Buyers right to cancel

"whenever non-conformity or default with respect to one or more installments substantially impairs the value of the whole contract."

Rescission

cancel (like rescinding a contract)

UCC right of rescission

A party may rescind a contract for the sale of goods only where: (1) The injured party is not in default; (2) The breach is substantial and goes to the heart of the contract (3) Legal remedies (i.e. money damages) are inadequate.

FOB

Means "Free on Board." determines when the seller's rights and responsibilities end and when the buyers begin.