Untitled Flashcard Set
common law doctrine - primary source of law
primary vs secondary spurce of law
primary - is law
secondary - explains that law
Revocation - taking back your offer
counter offer - offer rejected, counter offer in new offer
option contract - irrevocable offer when offer stays open fo ra period of time, option stays open in retune for a payment to keep option open
Contract reqirements
agreement - offer and acceptance
consideration - each side giving something of value
contractual capacity - legal capable of entering into contract
legalitly - legal purpose
Void - not enforcable
voidable - one party able to walk away
Usury - charging mroe interest then is allowed
Unilateral contract - promise for an act
bilateral contract - a promise for a promise
mailbox rule - if parties communicate by mail, as soon as the person gives the acceptance to the post office, that is when the acceptance occurs
Uniform commerical code UCC - set of suggsrted laws for movible and tangable goods, all 50 states adopted it
shipment contract - title switches when the goods are givento the delivery service, standard unless otherwise agreed upon
destination contract - if seller agrees to deliver goods to a particukar destination, title passes when it gets to that destination, FOB
UCC open terms - intest to contract, know quanatity, resonanable certain basis court gratn an apporpriate remedy
substantial performance of a contract - some small omissions that were not upheld, can still be upheld
discharge by novation - replace one party of a contract with another party
discahrge by accord and satisfaction - you agree to pay them less and then you fo
Discharge of statue of limitations - ask courts to dismiss bc of time frame
discharge by impossiblilites of performance - impossible to complete the contract
Mutual recision n- both backs off of the offer
tender of delivery - make conforming goods availibe at a resonable hour and manner
insolvent - do not have the ability to pay for goods, bad financial position
perfect tender rule - you are responaible to give the goods exactly what you promised them , they can reject all, some, or accept all
right to cure - the contract is not deadline yet they can make it right
compensatiry damages - goal to put in same postion as if the contract were not breached
consquential or special damages - special circumstance that show the result of the breach
nominal damages - no actual damages, awarded to show the wronged party
liquidated damages - provision in contract specifies dollar amount paid if breach
punative - pnish
statement of opinion - someones opinion
express warrenty - making a reprensentation concerning the quality, condition, or description of the potential goods
as is - means there are no warrenties
warranties disclaimers - UCC allows you to disclaim a warrenties as logn as you say it straight up
Warrenty of titl - they have the right to sell something to you
implied warrenty - you get exactly what you saw advertised
warrenty of merchanibility - fit for the purpose
mechanic lein - if you mamke improvements, non movable physical things, you can put a lein on it
artisan lein - movable property, you must own it and then you can put hte lein it
judgement lein - a lawsuit if the person owes you money, you can garnes wages or bak account
writ of attachement - freezing the person from being able tosell their assets if they owe you meony
writ of execution - post judegemnt remedy order by court directing sheriff to seize non exempet property of the debtor, sell it, pay creditor, must be in courts jourisdiction
Garnishin wages - collecting money form wages because person is in debt, court ordered. debtor can retaim 75% of income
surety - co-signer, primarily liable, promise to be responsiblr for the debors obligation
guarantor - co signer, secondarily liable, only required to pay if the prinicple debtor defaults
right of subrogation - step into the shoes of creditor
right to reimburse - debtor repays
right of contribution - co surities pay their proportional share
bankrupsy - under federal law, two goal fresh start fo rdebtor and equitibek treatment of creditors
secure loan - a loan with colateral that they can take back
unsecird creditor - no secutiry and no collateral, nothing that thye. an take back
material modification - changing any terms of the original contract without suritys consent
payment or tender of debt - if paid or if money offered and refused, surity releases
chapter 7 bankrupsy stops everything for how many days? - 45 days after filing petition, go to credit counseling uo to 180 days before filing
means test - see if you have any extra monthly income to avoidi bankrupsy, makes surue people do not abuse bankrupsy by filing chapter 7
which bankrupy requires credit counseling? - any chapter, answer is chapter 7 tho
who can voluntarily file a chapter 7 - a fortune 500 compnay , person, or business, entity.
who canno file voluntary bankruosy - banks, railroads, savings and loans, insuranec compamnies
Involuntariy cannot force who into bankrupt - family farms, charitable instatutuins
chapter 11 - for business who want to stay open and reorganize
automatic stay - everything stops in bankrupsy until they figure evrything out
trustee appointed - look at your estate to see what can be liquidated
Exemptions from bankrupsy - portion of hime, car, clothes, jewelry, tools of trade, pensions, unpaid but earned wages, public benefits, damages awarded for personal injury
not expemt from bankrupsy - bank accounts, family airlooms, collectables, extra car, vacation homes
reaffirmation - renewing the debt
not dishachargeable in bankrupsy - back taxes, domestic support obligations, retirement loans, government fines and penalties, federal student loans
if discharge was a result of fraud or dishonesty - court has one year to revoke discharge
small busienss exeption - when you do nto own or manage real estate with liabilities no texceeding $2.7 million
cram down provision - the court crams this paln down your throat
Least expensive and complicated bankrupsy- chapter 7 debotr initiated
LOOK AT ALL BANKRUPSY CHAPTERS 7,11,13
Joint liability - joint liability fo rpartnership obligations
unifrom partnership act - govern partnership in absense of express agreement, most states. everyone votes
dissociation - im leaving the partnership
shareholders - ownt eh corporation
members - in LLC
partners - general partenerships
Directors - member on board that runs busienss
C Corp - double taxation, not liable legal entity created and recognized by state law
S Corp - flow through entity, not liable
LLC -you are not liable, the entity is. felxible in taxation, you can choose to be taxed as C or partenrship, can be pass through
Sole proprietorship - owner is business, liable for all
General Partnership - one or more people, is laiable
foreign corporation - doing business in other state
public corporation - owned by government
publically held corpotation - stock traded on the stock market
nonprofit corpotation - form not to make profit but to accomplish something
closed corporation - chooses to be taxed under S rules, becomes a flow through entity
Piercing the corporate veil - you are liable if it is fraud, you cannot hide behind protections of these froms if you are doing criminal things
FEderal trade commision act - regulates unfari advertising
half truth - appears to be based on fact, but is not true
bate and switch - advertising oen things and then not offereing it and offering something else
puffery - vauge generalities and obvious exagerations, completely allowed
false advertising claims under lanham act - you haev to prove there was false advertising that influenced purchasign decisions
Telephone consumer protection act - prohibits telephone solicitation using auto telephone dialing system
telemarketing and consumer act - they ahve to tell you what they are selling adn give you correct informaton
cooling off laws - FTC and various state laws permit the buyer of goods sold door to door to cancel contract within three business days
telephone order merchandise rule - must give selelr estamated shipping time, no estimate must ship within 30 days
truth in lednign act - discliosure reqirement
equal crdit opportunity act - you cannot discriminate on teh usual things
credit card rule - cardholder is not liable for up to $50 if someone steals and uses it
fair credit reporting act - designed to protect you from inaccurate credit reports
fair and accurate credit transaction act - effor to combat identity thrft with free copy of their credit report once a eyar
fair debt collection practice act - limis collection practices by collection agencies, must send valadation notice, cannot: call you rplace of employemnt, harrass you, call at crazy times
stick market crash 1929 - crashed stock market and caused great depression
security - any instrament that shows you own stock or bonds
debt securities - represent borrowed money that must be repaid
equity securitires - an ownership position in a publically traded corporation
US Securities act of 1933 - geverns initial sale by businesses, must register these stocks at the first time
Howey test - to determine if it is security, is it: invet, common enterprise, reasonablt expecting a profit, derived primarily from others efforts
Registration statement - all securites must register before sellign to tpublic, must give prospectus, prefilinf , no selling , waiting period, offer for sale, post effective period, approved to sell
prospectus - what you are buying and what are the risks
Edgar - SEC online database, for gathering analysis and retrieval, all must registart online
Well knwon seasoned issuer - outstadnign stock valued at $700 milllions in the last 3 years you can skip the waiting to sell
exempt transactions - nonpublic offerings, crowd fudnign act, second sellers
Violations of the 1933 act - criminal penalty up to $10,000 and imprisioned for up to 5 years, civil, they can sue you and stop further sales
Securities Excahgen act of 1934 - continuous periodic disclosures by publically held comanies
Section 10b-5 - no fraud, covers almost all securities, must have scienter, covers insider fraud
Scienter - wrongful state of mind, you meant to do wrong
insider fraud - access to infomration of a non public nature and trades accordingly
tipper/tipee - someone tells you the inside secret
The private securities litigation reform act 1995 - meaningful cautionary statements that is your opinions and what you think might hapen , this is ok
Violation of 1934 act - criminal individual up to $5mill and 20 years, corp $25mill officers for 25 5years. civil penalty up to tripple profits from gain or loss by guilty party
Security fraud online - must tell that there is a paid advertizement
ponzi scheme - take money from one ivestor and give to the other, money runs out eventually
Corporat governance - teh relationship between the corporationa dnt eh shareholders, looks into what the board of directors are doing
Board of directors - have to amek sure the busienss is running correct
stock option to big whigs - goal to motivate person to make more money for the comapny, problem they might want to commit fraud to raise stock
Audit comittee - oversee the corporations accoutnign and financial process, includes both internal and external memebers
compensation committee - determines compentation of the compaiens officers
Sarbanes-Oxley Act 2002 - because of Enron/Worldcom, goals to increase the coprorate accountability by imposeing strict rules. Requires CEO and CFO to take responsibility that the financial reports and info in compkletey true, it protects whislteblowers, must establish interanla control for those oevr $75 million, no loans to direct officers
penatlites for SOX - $1mill in fines and or 10 years in prision