STRAT 3410 Final

Agency:

what is an agent: an agent is someone acting on behalf of someone else (principal)

what is a principal: a principal is someone who hires someone else to act on their behalf (agent)

what is the relationship between agent and principal: the relationship is one of mutual gain, with both parties having obligations towards one another

what are the 15 factors used to evaluate if someone is an independent contractor or an employee:
1. tax filings
2. who controls the safety of the work environment
3. who controls helpers/assistants hired
4. how is the worker paid
5. how frequent is the employment and how long does it last
6. are the principal and agent in the same field of work
7. can the principal assign additional work
8. does the agent receive benefits
9. what is the level of skill of the agent
10. what is the nature of the work
11. how many principals does the agent work for
12. who controls where the work is done
13. can the agent work multiple jobs
14. who brings/owns the tools
15. what is the agent’s degree of control over the work

would an employer rather consider someone an employee or an independent contractor: an employer would rather have an independent contractor because
1. tax benefits
2. not having to pay out benefits
3. having an easier time with the hiring and firing process

what are the 4 ways to create an agent/principal relationship:
1. express agreement
2. implied agreement
3. estoppel
4. ratification after the fact

what is an express agreement: an express agreement is an agreement that has been either written or verbally expressed that both parties acknowledge and agree upon

what is an implied agreement: an implied agreement is an agreement that was neither written or verbally expressed, but both parties acknowledge it's existence and agree upon it

what is estoppel: estoppel is the concept that one party has reasonably relied upon the fact that there was an agreement, and to fail to acknowledge an agreement would be an injustice

what is ratification after the fact: ratification after the fact is when one party acts on behalf of the other without the knowledge or approval of them and the other accepts this after it already happened, creating agreement and liability

what are the duties an agent owes to a principal:
- obedience
- loyalty
- good faith
- inform
- account
- competency/diligence
- avoid self dealing
- avoid competition with principal
- fiduciary
- anything else by contract

what are the duties a principal owes an agent:
- compensation
- reimbursement
- fiduciary
- good faith
- indemnification
- safe employment
- anything else by contract

can a court create agency: yes, the court can create agency if they see their is a need to based on the justice of the situation which happens with estoppel

what are the 7 ways an agent/principal relationship can be terminated:
1. completion of the work the agreement pertained to
2. agreement by both parties
3. death/incapacity
4. a material change in conditions which neither party caused
5. lapse
6. if there is a breach of duties
7. unilateral, which can be a breach of contract

what is apparent authority: apparent authority is the concept that the principal has acted in a way in which makes the agent seem as if they have some authority that they do not to a third party

what are irrevocable powers: irrevocable powers are those which are obtained in a way which makes them impossible to take away from someone else, for example if one buys your power of attorney from you

what does undisclosed mean: undisclosed means one which does not want to be publically identified

what is power of attorney: power of attorney is the ultimate form of agency, based on the type of power of attorney it allows the agent to BECOME the principal in certain situations

how is a principal responsible to 3rd party dealing with the agent: the principal is responsible in ascertaining that the agents that they hire to act on their behalf are qualified candidates who can be trusted to act reasonably

Property

what are the 3 distinct types of property:
1. real property, land and immovable items upon it
2. personal property, tangible, moveable things people own (chattels)
3. intangible property, intangible things that people can own, ideas the law protects

what does it mean to actually own something: to actually own something is a concept that the judicial system does not want to encroach upon, rather we see ownership as a type of relationship with factors to determine the issue

what are the 7 ways to become the owner of personal property:
1. capture
2. create
3. confusion
4. purchase
5. find
6. accession
7. gift

what are the 3 types of property you can find:
1. mislaid, left behind in run area with expectation of ability to retrieve it
2. lost, left behind in unrun area
3. abandoned, left behind intentionally with no intent to reclaim (has statutory time frame)

what are the requirements of a gift:
1. donative intent, the owner must want to give it away
2. actually delivery, does not have to be in-hand but on the way
3. acceptance, other person must accept gift

what is donatio inter vivo: donatio inter vivos is the concept of gifting during your lifetime to another person during their lifetime (no death involved)

what is donatio cause mortis: donatio cause mortis is the concept of making a donation upon your believed deathbed to another and if you do not die for whatever reason the item will remain in your possession

what is a testamentary gift: a testamentary gift is one which you proclaim during you lifetime via a testament or will that is to go to someone else upon your death

what are the elements of accession:
1. good faith, you are not a thief
2. additional labor to the property
3. an increase in value of the property due to labor

Bailment

what are the 3 elements of bailment:
1. bailor transfers possession of property to bailee
2. item is delivered
3. bailee expected to return item to bailor in the same condition it was delivered in

what are the 3 different types of bailment:
1. mutually beneficial bailment, average liability
2. exclusive benefit to the bailor, less liability
3. exclusive benefit to the bailee, more liability

what are three businesses in the business of bailment:
1. common carriers
2. innkeepers
3. warehouses

does a business of bailment carry strict liability: yes, a business of bailment carries strict liability in almost all cases exceptions being
1. criminal acts of a third party
2. acts of god
3. items they say they will not bail (broken terms)

can businesses of bailment except themselves for certain property they wont carry: yes, businesses of bailment can exempt themselves of things they will not carry as long as the list is publicly posted and easily accessible

Real Property

what is a fee simple absolute: a fee simple absolute is an estate in which a person completely and totally owns a property and therefore the rights to sell the property as well

what is a transfer fee simple: a transfer fee simple is when a piece of property is owned as a fee simple, which means right to they also fully have the rights to transfer ownership of it

what is reverter interest: reverter interest is the right of the original estate owner to take back ownership of the estate after certain events do/do not happen

what is a life estate: a life estate is when ownership of a property is under a person until their death

what is life estate pour autre vie: life estate pour autre vie is the concept of a life estate for another person

what is an example of life estate pour autre vie: me handing off my estate to my brother until the death of our grandfather

what is vested remainder interest: vested remainder interest is the concept of a future interest in an estate once the current interests in the estate are completed

what is an example of vested remainder interest: my house going to my husband after my death and my daughter after his death, daughter has vested remainder interest

what is a qualified fee estate: a qualified fee estate is an estate which that is defeasible based on a contingent interest

what is an example of a qualified fee estate: my daughter can have my house as long as she goes to college and graduates with a degree

what is a contingent interest: a contingent interest is an interest in an estate that states that the property will revert back to the original owner if a condition does/does not happen (reverter interest)

what is a defeasible interest: a deferrable interest is an interest in an estate that can be taken away at the occurrence or non occurrence of any specific events

what is the difference between a contingent interest and a defeasible interest: a contingent interest is a future interest that may or may not become vested based on an event, while a defeasible interest is a present interest that can be terminated or altered based on current conditions

what is ameliorative waste: ameliorative waste are modifications or adjustments to the property that are made by a tenant without permission of the land owner that increase the value of the property

what is deteriorative waste: also referred to as waste, are modifications or adjustments to the property that lower the value of the property and happen without the permission of the landowner

what is concurrent ownership: concurrent ownership is the concept of two people owning a property together at the same time

what are the two main types of concurrent ownership:
1. tenancy in common
2. joint tenancy

what is tenancy in common: tenancy in common is the most common type of property ownership where the initial investment into the property determines the percent of ownership, does not include survivorship rights, some states include right of first refusal

what is joint tenancy: joint tenancy is the default form of ownership for a married couple in which both owners own 100% interest in the company, does include survivorship rights that are not taxed

what is the default way people own property together: for people that are not married, tenancy in common is the default; if two people are married, joint tenancy is the default

what is the difference between a deed and a title: a title is the legal concept of ownership and the deed carries the title

what are the 3 varieties of deeds:
1. general warranty deed
2. specific warranty deed
3. quitclaim deed

what is a general warranty deed: a general warranty deed is the most expansive cover a deed can offers and guarantees the ownership rights to the property and the transfer of those rights is legitimate and covers the property as a whole

what is a specific warranty deed: a specific warranty deed covers just the ownership of the property and the transfer of that ownership

what is a quitclaim warranty deed: a quitclaim warranty deed covers basically nothing except whatever interest the grantor has in the property is now passed onto the grantee

after you have a deed does this make you the owner: the court seems to be hesitant to weigh in on this topic, but a deed seems to be one of the best ways to prove you are the owner of a property

what are non-possessory interests: non-possessory interests are interests that one has on an estate that are not ownership interests, rather interests that allow you to control certain aspects of the estate

what is an easement: an easement is a non-possessory interest that allows one use of another’s land that is created by the acts of the parties or law

what are the 2 types of easements:
1. appurtenant easements
2. easements in gross

what is an appurtenant easement: an appurtenant easement is an easement which is connected to the specific tenants that created it

what is an easement in gross: an easement in gross is an easement that is connected to the land that the easement is on, rather than the people that made it

what are the 3 ways an easement can be obtained:
1. purchase, you purchase the use of the land from the owner
2. court order, the courts decide an easement is necessary and order it
3. prescriptive, you use the land enough undisputed that an easement is formed

what is adverse possession: adverse possession is the process of claiming already owned land

what are the 5 conditions of adverse possession:
1. possession is actually adverse, you never had a right to be on the land
2. occupation is public, you do not hide that you are occupying the property
3. occupation of the property is continuous, you are on the property continuously as an actual owner would reasonably be
4. occupation has lasted to/past the statutory time frame
5. you pay taxes on the property

what is eminent domain: eminent domain is the federal governments right to take over any piece of land as long as 2 conditions are met
1. land is to be used for “public use”, can be economic
2. the owner of the land is justly compensated

what is a leasehold estate: a leasehold estate is one in which the owner (landlord) sells the right for someone else to use their estate (tenant)

what are the 4 kinds of leasehold estates:
1. periodic lease
2. define term lease
3. tenancy at will
4. tenancy at suffrage

what is a define term lease: a define term lease is one which ends after a predetermined time (stated in the lease), there is no need for notification of termination at end of term

what is a periodic lease: a periodic lease is one which the lease continues for terms (stated in the lease) and there is renewal every period, requires adequate notification for termination

what is tenancy at will: tenancy at will is the concept of a lease that can end at the termination of either party, most jurisdictions require notice

what is tenancy at suffrage: tenancy at suffrage is a tenancy in which the tenant is occupying the property after having broken a covenant of the lease, therefore having no lease, before the eviction process is started

when is an eviction an appropriate course of action: an eviction is an appropriate course of action when the tenant has broken a covenant of the lease, usually compensation

what are the steps to an eviction:
1. provide tenant with notice
2. file a complaint with the courts
3. wait 10 calendar days for response
4. take eviction to the sheriff/sheriff’s deputy to execute the eviction

what are the 5 duties a tenant owes in a tenant/landlord relationship:
1. compensation
2. maintenance
3. can’t disturb other tenants
4. no subletting or assigning
5. not commit waste

what are the 5 duties a landlord owes in a tenant/landlord relationship:
1. quit enjoyment
2. maintenence
3. safe living environment
4. actual possession
5. anything else by contract

Constitutional Law

why was the constitution created: the constitution was created in response to the failings of the articles of confederation as it failed to provide a strong central government the United States needed

what is the importance of the 4th of July: the 4th of July was the day the last revision were made to the Declaration of Independence, which took months to get fully signed

when was the constitution written and enacted: the constitution was written in 1787 and finally enacted in 1789

what does the constitution do: the constitution lays out the powers of the federal government such as the power to tax, pay off debt, and create a common defense

what can taxes be used for according to the constitution: taxes can be used for common defense and general welfare according to the constitution, general welfare can easily be expanded

what is the commerce clause: the commerce clause is arguably the most important clause in the articles of the constitution, as it grants congress the power to control interstate commerce including all things that effect it

when was the Bill of Rights ratified: the Bill of Rights was ratified in December of 1791

what circuit is Utah in: Utah is in the 10th circuit court of appeals

what circuit is D.C. in: D.C. has its own circuit of appeals, the 13th

how many justices serve on the Supreme Court at a time: 9 justices serve on the supreme court

where is the burden of proof for civil cases: in civil cases, the burden of proof is on the plaintiff and they only need to prove to “a preponderance of the evidence” (51% wins over 49%)

where is the burden of proof for criminal cases: the burden of proof is on the defendant in criminal cases and they have to prove the case “beyond a reasonable doubt”

what are the 7 articles of the constitution:
1. legislative branch
2. executive branch
3. judicial branch
4. states, citizenship, new states
5. amendment process
6. debts, oaths, religious tests, supremacy
7. ratification

what are the 27 amendments of the constitution:
1. freedom of speech, press, petition, assembly, and religion
2. right to bear arms
3. no quartering soldiers
4. no illegal search and seizure
5. no self incrimination or double jeopardy
6. fair and speedy trial
7. trial by jury of your peers
8. no cruel and unusual punishment
9. rights reserved to the people
10. rights reserved to the states
11. states cannot sue each other
12. president and vice president are voted for on the same ballot
13. abolition of slavery
14. former slaves are granted citizenship
15. all men can vote regardless of race
16. income tax is a power of congress
17. senators are voted for by the public
18. prohibition
19. women gain the right to vote
20. established voting procedures and inauguration day
21. repeal of prohibition
22. set a two term limit on the presidency
23. D.C. can vote for presidency
24. poll taxes are abolished
25. establishes presidential line of succession
26. 18 year olds are granted the right to vote
27. senators cannot change their income until the next term

Torts

what is a tort: a tort is an affirmative and volitional act

what does affirmative mean: affirmative means a real action, the thing actually happened

what does volitional mean: volitional means done with intention, does not need to be intention to harm but rather intention to commit the act

what is prima facie: prima facie is the concept that the plaintiff has to prove all the elements of a tort to be there for the case before it gets to trial

what are the elements of battery: battery is
- an affirmative and volitional act
- with the intent to cause a harmful or offensive contact with the plaintiff or a third person
- that directly or indirectly causes a harmful or offensive contact with the person of the plaintiff or an object closely identified with the plaintiff’s body

what are the elements of assault: assault is
- an affirmative and volitional act
- with intent to cause harmful or offensive content or intent to cause apprehension of a immediate harmful or offensive connate
- which creates reasonable apprehension

what are the elements of false imprisonment: false imprisonment is
- an affirmative and volitional act
- with the intent to confine the plaintiff within boundaries set by the defendant
- which there is no reasonable means to escape
- and plaintiff is aware of confinement

what are the elements of intentional infliction of emotional damage: intentional infliction of emotional damage is
- an affirmative and volitional act
- with intent or reckless disregard
- with the purpose of inflicting severe emotional damage or with a substantial certainty that severe emotional distress will occur or a deliberate disregard of the actions
- by extreme and outrageous conduct
- the plaintiff must have suffered severe emotional distress
- need to be able to prove severe emotional damage (therapist testify, lost job, grades dropping)

what are the elements of trespass: trespass is
- an affirmative and volitional act
- intent to enter or remain upon land that belongs to another
- without permission (or to cause some other person or thing to enter or remain upon land)

can children be held liable for trespass: no, children cannot be held liable for trespass and are owed the same liability as invited persons

what are the elements of conversion: conversion is
- an affirmative and volitional act
- with intent to exercise dominion or control over personal property that belongs to someone else without permission
- the dominion or control was so great as to render the only equitable remedy the repayment of the full value of the property in question
- total destruction or total deprivation of ownership

what does dominion mean: dominion means control or power over

what are the elements of trespass to chattels: trespass to chattels is
- an affirmative and volitional act
- with intent to assert dominion or control
- which either harms the owner, harms the chattel, or deprives the owner of the use of their chattel
- not total control or total deprivation

what are the element of fraudulent misrepresentation: fraudulent misrepresentation is
- an affirmative and volitional act
- consisting of material facts or conditions
- with the knowledge of the falsity or reckless abandon for the truth of the statement
- with justifiable reliance upon the misrepresentation
- and there are damages stemming from the misrepresentation

what does it mean to represent: to represent means to assert with some kind of reliability, real or not

what are material facts: material facts are facts that matter to the case at hand

what are the elements of defamation of a private person: defamation of a private person is
- an affirmative and volitional act of publication
- that was of and concerning the plaintiff
- and the plaintiff was actually harmed by the statement

what are the elements of defamation of a public person: defamation of a public person is
- an affirmative and volitional act of publication
- of a statement that tends to harm the reputation
- that was of and concerning the plaintiff that was false
- the defendant acted with either malice or with reckless disregard for the truth or falsity of the statement

what is per se defamation: per se defamation is to say that the plaintiff has committed a serious crime or has a loathsome disease

what are the elements of misappropriation: misappropriation is
- the affirmative and volitional act
- with intent to use the identity of the plaintiff without permission
- for advertisement

what are the elements of intrusion: intrusion is
- an affirmative and volitional act
- with intent to intrude in the plaintiff’s private affairs
- through unreasonable and improper means
- and confidential information was obtained or almost obtained

what are the elements of public disclosure of private facts: public disclosure of private facts is
- an affirmative and volitional act
- with intent to disclose information about the plaintiff
- the information was private and a reasonable person would not want it to be public
- must be to a wide audience

what are the elements of false light: false light is
- an affirmative and volitional act
- with intent to publicize information to a wide audience
- that paints the plaintiff in a false light
- which would be highly offensive to the reasonable person
- and the defendant had knowledge of the falsity or was acting with reckless disregard to the truth of the statement
- no need for actual malice

what is respondeat superior: respondeat superior is the concept that when an employee commits a tort against you, if certain conditions are met you can sue the company

what are the 5 conditions of respondeat superior (must only prove 1):
1. employee was acting within scope of employment
2. action was under direct order of a superior
3. the actor was a manager
4. the actor was unfit for the duty assigned
5. the act was ratified after the fact by the employer

what are the 6 defenses to torts:
1. consent
2. self defense
3. defense of others
4. defense of property
5. public necessity
6. private necessity

what does consent mean: consent is the permission to do something to another person

what are the 4 types of consent:
1. express consent
2. implied consent
3. informed consent
4. emergency privilege

what are the conditions of self defense: self defense must only use equal or lesser than force, you can only use deadly force if you are convinced you are about to die

what are the conditions of defense of other: defense of other uses the same rules as self defense

what are the conditions of defense of property: defense of property insist on the use of equal or lesser than force and never permits the use of deadly force

what are the conditions of public necessity: public necessity is when you commit a tort for the necessity of someone else

what are the conditions of private necessity: private necessity is when you commit a tort in the necessity of protecting yourself

Negligence

what is negligence: negligence are unintentional torts, therefore are only affirmative acts

what are the elements of negligence:
- duty
- breach of duty
- actual cause
- proximal cause
- harm

what is duty: duty is considered the responsibility to act reasonably to those around you

who has differing levels of duty: professionals, minors, and land owners have differing levels of duty

what kind of duty do professionals have: professionals have a higher standard of duty which is to match a professional in good standing

what kind of duty do minors have: minors have the duty to act as a reasonable minor with the mental, physical, and experience of a similar age unless the minor is engaging in an adult activity that is inherently dangerous
- minors are those above the age of 7 and younger than 16

what kind of duty do landowners owe: landowners owe anyone that enters their land (trespass or not) that they will refrain from willful, wanton, or reckless conduct, they must always warn of concealed traps, and they always owe children a duty of reasonability (0-6)

what conditions call for strict liability: the owners of wild animals, the producers of products, and those conducting abnormal dangerous activities are held to strict liability

what are the duties of rescuers: there is generally no duty to rescue, if you have began a rescue you must complete it, and you are protected by good samaritan laws

what is breach: breach is when you question if the defendant meet their level of duty or not, including assessing special duty rules

what is actual cause: actual cause is the but for argument, if I did not do this would this have happened

what is proximal cause: proximal cause is though of as the butterfly effect, was the harm foreseeable by the reasonable person

what is harm: harm is real, provable damage

what are the 5 defenses to negligence:
1. comparative negligence
2. contributory negligence
3. express assumption of the risk
4. implied assumption of the risk
5. failure to mitigate damages

what is comparative negligence: comparative negligence has two elements, pure and 50% rule

what is pure comparative negligence: pure comparative negligence is the concept that whatever you are deemed responsible for you cannot get damages for

what is 50% rule comparative negligence: 50% rule comparative negligence is the concept that if you are deemed above 50% responsible, you are not owed any compensation

what is contributory negligence: contributory negligence is the concept that if you are deemed to be even 1% responsible you are not owed any compensation

what is express assumption of the risk: express assumption of the risk is the concept that the risk is either written or vocally told to you

what is implied assumption of the risk: implied assumption of the risk is the concept that if the incident fell within what was expected of the event, the opposing party may not be liable

what is failure to mitigate damages: failure to mitigate damages is what happened when the plaintiff failed to act in a way that would lessen the damages, and therefore the money owed

what are the 3 requirements for an effective waiver of liability:
1. must have been clear, unambiguous, and explicit
2. the act of negligence must be reasonably related to the purpose of the waiver
3. the waiver must not be contrary to public policy

Contracts

what are the 3 essential elements of a contract:
1. offer
2. acceptance
3. consideration

what is an offer: an offer is a manifestation of present contractual intent
- there is certainty and definiteness to the terms
- communication to the offeree

what is acceptance: acceptance is given to the offeror by the offeree in the manor laid out in the offer
- offeror may accept by promise or performance

what are other responses to an offer:
- rejection
- lapse
- death or incapacity
- counteroffer, which makes a new contract

what is consideration: consideration is the concept that the parties must each have to do some they they would not otherwise have done (mutual detriment)
- must be upon moment of acceptance
- past consideration is no consideration

what are problems to consideration: problems to consideration include
- illusory promises, not detailed
- pre-existing duties
- contract modifications
- past consideration
- gift is not consideration

what are the 3 species of contracts you encounter:
1. express contracts
2. implied in-fact contracts
3. quasi-contracts

what is a quasi-contract: a quasi-contract is a contract that is brought about by unjust enrichment, it is used when there is not real contract in place but equity demand the law to act as though there is

what happens if there is ambiguity with the contract: if there is ambiguity with the contract there are 3 inquiry to remedies
1. the course of normal dealings between parties
2. standards within the industry
3. parol evidence (extra/external evidence)

what are the 5 contracts that must be written due to the statute of frauds:
1. sales over $500
2. sales of real property
3. leases to be longer than one year
4. contracts not to be fully performed within one year
5. promises to pay the debt of another

what are the 5 elements of tortuous interference with contracts:
1. there is the existence of a valid contract or business relationship
2. there is the knowledge of that contract or business relationship by the defendant
3. there is intentional efforts by the defendant to induce on of the parties to breach
4. there is actual breach of the contract
5. there is actual harm to the non-breaching party

what are the 10 excuses to non-performance of a contract:
1. unilateral mistake
2. mutual mistake
3. illegality
4. frustration of the purpose
5. impractivability
6. impossibility
7. unclean hands
8. laches
9. fraud
10. unconscionability

what are the 9 remedies to non-performance of a contract:
1. actual damages
2. benefit of the bargain damages
3. liquidated damages
4. punitive damages
5. nominal damages
6. restitution
7. specific performance
8. legal fees and costs
9. injunctive relief