Midterm
Business Law Bl343 with Wachtel at State University of New York - Fashion Institute of Technology
About this deck
By: Anonymous
Created: 2011-03-27
Size: 122 flashcards
Views: 87
Created: 2011-03-27
Size: 122 flashcards
Views: 87
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Essential Elements of a Legally Binding Contract- #1
1. Agreement- An offer that has been accepted. A meeting of the minds.
Essential Elements of a Legally Binding Contract- #2
2. Consideration- WHat you give, or give up, in exchange for what you will get. A something for a something. The basis for an agreement. A this for a that. A quid pro quo. An agreement not supported by consideration cannot be a contract.
Essential Elements of a Legally Binding Contract- #3
3. Contractual Capacity- The intellectual ability of the parties to understand that they are entering into a legally binding transaction from which they cannot back off without legal consequences.
Essential Elements of a Legally Binding Contract- #4
4. Legality of Subject Matter- The substance of the contract must be legal. We cannot use the law to break the law.
Express(ed) Contract
Both the offer AND the acceptance are made with words, or an expressive gesture
Implied Contract
The offer AND the acceptance are made by an action on the part of the parties
Bilateral Contract
Both the offer AND the acceptance are made in words. A promise (an obligation) for a promise.
Unilateral Contract
The offer is made in words, but the acceptance CAN ONLY be made by the actual doing of whatever is requested.
Valid (effective) Contract
All 4 elements of a contract are in place
Void Contract
One or more of the 4 elements is missing; therefore there is NO contract
Voidable Contract
Because one of the parties does not have "contractual capacity" that one party can choose to go ahead with the contract, or can choose to get out of it (avoid the contractual obligation) without suffering a penalty
QUASI Contract
(Quasi means "almost" in Latin). The parties did not actually make a contract; but if something happened because of an honest error, and one of the parties would become unjustly enriched at the expense of the other, the courts will treat the situation as though there had really been a contract, and the enriched party will be responsible (liable) for the "reasonable value" of whatever s/he received.
To be effective an OFFER must be:
a) Complete of all important respects > Where, when, how much, how many, how
b) Must be COMMUNICATED (received by offeree)
The ACCEPTANCE becomes the binding contract
WHEN IT IS SENT. As long as it is a mirror image of the offer. > MAIL BOX RULE
Counteroffer
Any attempted changes made in the purported "Acceptance" kill and destroy the original offer and become a COUNTEROFFER which must be accepted by the original offeror.
Reasonable Time
An offer may be accepted during the time specified, or within a "reasonable" time.
Revoked
The offer may be withdrawn (revoked) at any time by the offeror before it is accepted. The revocation, however must be communicated to the offeree.
Option Contract
The offeree may pay to have a fixed time to accept the offer. This is known as an "option contract". If the offeror accepts such payments s/he may not withdraw the offer during the specified time.
Agreement
When you agree to do something in the future (a service, a trade of goods) or to refrain from doing something which you have the right to do, you have made an agreement
Consideration
That which you wil do, exchange, or will not do is the consideration supporting the agreement.
Both parties must receive and give consideration. Something in exchange for something. This for that. Give and take. Quid pro quo.
1) legal value
2) Bargained-for exchange
No Consideration
If there is no consideration going to, or coming from both parties= no contract
An already existing obligation is no consideration.
Something done in the past is no consideration
There must be a contemporaneous (at the same time) exchange
Moral obligations are no consideration
Legal detriment
Giving up something which you have the legal right to do is a legal detriment and it is sufficient consideration
Promissory estoppel
The only exception is the doctrine of promissory estoppel which is somewhat similar to a Quasi contract. This occurs when someone promises to do something (make a gift, do a job) and receives no consideration in return; if the person to whom the promise was made (the promisee) is justified in believing such promise and does something which would result in an economic cost, then promissory estoppel will apply and valid contract may be said to exist.
Contractual Capacity
Minors (parties under 18 yrs. of age in New York State) have the right to change their mind after entering into a contract. They can avoid, disaffirm their contractual obligations except for contracts dealing with: school loans, marriage, adoption, joining armed services, contracts for NECESSARIES
Contracts for NECESSARIES
What is a necessary, or isn't, is determined according to the particular facts or circumstances of each case, and it is decided by the jury, or judge
- generally a necessary is something that the minor absolutely needs, like food, shelter, etc. and that s/he cannot get from his/her parents
Minors
MInors have until their age of majority to disaffirm a contract, or a reasonable time thereafter. If they still have what they received they must return it. If through no fault of their own they no longer have the consideration received, they can still disaffirm.
Mentally Ill
People who are mentally ill are not competent parties. If a court has declared them incompetent, any contracts that they attempt to enter into are absolutely vid. If they are mentally ill but have not been declared judicially incompetent, their contracts are only voidable.
Intoxicated
Intoxicated (legally only), people may disaffirm their contracts if they were in a state of intoxication when they agreed to it. Unlike minors, they must disaffirm the contract made as soon as possible, and they must return whatever consideration they received.
Legality of Subject Matter
Contracts that violate the law are illegal and invalid.
Practicing a Profession
Practicing a profession that legally requires a license (medicine, the law, public accountancy) without such license violates the law. Required licenses vary from state to state.
Usury
Charging more interest than allowed by law is the crime of usury
Sundays
certain contracts cannot be legally entered into on Sundays. They vary from state to state and from county to county
Diminish (restrain) competition
Agreements that would diminish (restrain) competition are illegal unless the restraint is part of the sale of a business, or of some other reasonable exchange
Unconscionable
Contracts that would take serious and unfair advantage of a weaker party by the stronger one are unconscionable and will be treated as illegal.
Habeas Corpus
A person has a right to know what crime he's being charged with. And a court can demand that the government produce evidence indicating that there is a reason to hold that person
Public Law
One of the parties is the public (society) (represented by a government official)
Private Law
Both parties are private individuals
Criminal Law
Crimes
Purpose: To punish the commission of a criminal defense
(crime weakens the well being of a society)
Civil Law
Torts
Purpose: To compensate those who lose money, or have to spend money because of someones misdeed.
Crime Name
Menacing (threatening)
Criminal Assault
Kidnap
Robbery (theft)
Burglary
Murder
Tort Name
Assault
Battery
Unlawful Imprisonment
Conversion
Trespass
Wrongful Death
Crimes vs. Tort
For crimes, the accused must be proven guilty beyond reasonable doubt. For a tort, a preponderance of the evidence suffices.
Defamation
Writing or repeating falsehoods that would harm the reputation or the finances of a person, a business or an institution
Libel
if the falsehoods were made in writing that tort is libel and the one defamed need not prove that economic damages were suffered
Slander
If the falsehoods were made verbally the tort is slander and the one defamed must prove that economic damages were suffered, unless the defamation is one of the four exceptions named slander per se.
The only defense to a charge of defamation is that what was written, or said, was in fact the truth.
Negligence
For a charge of negligence, is must be proved that:
1. The one charged had a duty to be careful
2. That such duty was breached (ignored)
3. That the breach of the duty of care was the immediate (the most important) cause
4. Of someone's economic injury
Foresee
Persons, businesses, and institutions have the obligation to foresee (anticipate) the consequences of actions taken and are legally answerable for any injuries caused.
Burden of proof
The burden of proof is res ipsa loquitur (the thing speaks for itself)
Illegal consideration
A promise to refrain from doing an illegal act. Such a promise will not support a contract.
Illusory promise
A contract into which both parties enter but one or both of the parties can choose not to perform their contractual obligations. Thus, the contract lacks consideration. Also known as an illusory contract.
Past consideration
A prior act or performance. Past consideration (e.g. prior acts) will not support a new contract. New consideration must be given.
Preexisting duty
Something a person is already under an obligation to do. A promise lacks consideration if a person promises to perform a preexisting duty.
* Public servants are under a preexisting duty to perform their functions.
Agreement
The manifestation by two or more persons of the substance of a contract.
Offer
The manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it
3 elements required-
1. The offeror must objectively intend to be bound by the officer
2. The terms of the offer must be definite or reasonably certain
3. The offer must be communicated to the offeree.
Objective theory of contracts
A theory that says the intent to contract is judged by the reasonable person standard and not by the subjective intent of the parties.
* I will buy your building for $2 million is a valid offer
* Are you interested in selling your building for $2 million is NOT an offer
Advertisement
An invitation to make an offer, or an actual offer.
Option Contract
To hold offer s/he could pay a portion
If the offeror accepts is is an option contract and the offer cannot be withdrawn
Tort
A wrong. There are three categories of torts.
1. Intentional torts
2. Unintentional torts (negligence)
3. Strict liability
Intentional Tort
A category of torts that requires that the defendant possessed the intent to do the act that caused the plaintiff's injuries.
Intentional infliction of emotional distress
A tort that says a person whose extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another person is liable for that emotional distress
Unintentional Tort
A doctrine that says a person is liable for harm that is the foreseeable consequence of his or her actions. Also known as negligence.
Tort of Fraud
a. Misrepresentation
b. Scienter (knows they are lying)
c. To induce your consent (get you to enter into deal)
d. Economic injury (costs you money)
Product disparagement
False statements about a competitor's products, services, property, or business reputation. Also known as trade libel, product disparagement and slander of title.
Tort of Battery
Unauthorized and harmful or offensive direct or indirect physical contact with another person that causes injury
Indirect physical contact
Assault (Intentional Tort)
1) The threat of immediate harm or offensive
2) Any action that arouses reasonable apprehension of immediate harm
Code of Hammurabi
First instance of written law- Roman Code
The Laws voted upon and enacted by legislators
Democracy
Came from Greeks
Romans
Devised the most complete and extensive system of law ever known and incorporated to its provisions in THE ROMAN CODE- prevalent system today in most of western world
Stare decisis (It has been decided)
Common law or Case Law- The law in Britain developed as a compilation of the decisions of the judges who used to travel from place to place listening to cases and rendering decisions.
Judge-made Law, Law by President
A constitution is a
written series of legal procedures and principles agreed upon by elected legislators- Statutory Law
U.S Today
Both common and statutory law are in place
How a law is created
Proposition- Bill is created-
Introduced in the House or Senate- studied and discussed
Passed by majority vote
Goes to other chamber where it did not originate
Once passed by each Chamber goes to President
President signs and makes law or veto
* if bill becomes a law it is an ACT
(If verto the chambers can vote again and pass by 67% vote w/o president signature
Branches of Government- Executive
Federal- President, Vice President
State- Governor, Lt. Governor
City- Mayor
Braches of Government- Legislative
Federal- U.S. Senate and House of Representative
State- NYS Senate and NYS Assembly
City- NYC Council
Branches of Government- Judiciary
Federal- Federal Court
State- State Courts
Federal Court Systems
HIghest Court- US Supreme Court
Intermediate Court- US Court of Appeals
Lowest Court- District Court
NYS Court Systems
Highest Court- NYS Court of Appeals
Intermediate Court- Appellate Division
Lowest Court- NYS Supreme Court
Ordinances
The Laws passed by the New York City Council
Law enacted by local governemtn
State Statute
Laws passed by state legislature
Federal Statute
Laws passed by federal government
Amendment
When a constitution is changed
All trials
begin in the lowest court
Prosecutor
Convinces people of guilt
Only reason to appeal
Judge made a technical mistake
Diversity of Citizenship
A means for bringing a lawsuit in federal court that involves a nonfederal question if the parties are 1. citizens of different states 2. a citizen of a state and a citizen of a foreign country
Lawsuit Price
$75,000 or less must sue in state where defendant lives
$75,000 or more can go to federal sysytem
Supreme Court (trial court for NYS)
1. Criminal Court- hears crimes
2. Civil Court- sue people for $$
3. Family Court- don't always need attorney (alimony NO, custody YES)
4. Housing Court- better no lawyer
5. Motor Vehicle Court- depends on situation
6. Surrogate Court- need lawyer- represents rights of those that cant represent themselves
7. Small claims Court- sue for $$$ (many bring attorneys but dont always need)
When you file a lawsuit you are
Plaintiff
People who take part in trial
PARTIES
Common Law
Case Law
Statutory Law
Statutes enacted by elected legislators
Seperation of Powers
Federal government broken down into three braches-
1. Legislative
2. Executive
3. Judicial
Checks and Balances
Make sure one branch doesn't become too powerful
Beyond unreasonable doubt
Guilty not guilty- 90% or higher (no verdict- HUNG jury)
Verdict
All jury agrees
Job of District Attorney
Convince jury- need 12 out of 12
Preponderance of Evidence
Tort
Unlike criminal law that needs to be 12 out of 12 a civil case needs 7out of 12 to be convinced of guilt
Tort of False Imprisionment
Unreasonably preventing someone from going where they want to g
Not all
crimes are torts and vice versa. Can be tried for crime, tort or both
Different names: ex Oj Simpson
criminal law- murder
civil law- wrongful death tort
Strict Liability
Tort
Makes manufacturers, distributors, retailers and wholesalers etc in charge of a defective product liable for the damages caused by the defect
Merchant Protection Statutes
Statutes that allow merchants to stop, detain and investigate suspected shoplifters.
1. reasonable grounds 2. for a reasonable time 3. investigation conducted in a reasonable manner
Tort of misappropriation of the right to publicity
An attempt by another person to appropriate a living persons name or identify for commercial purposes.
Disparagement or Trade Libel (not defamation)
False statements about a competitors products, services, property, or business reputation.
Tort of Fraud
1. Misrepresentation
2. Scienter (know lying)
3. To induce your consent
4. Economic injury
Intentional infliction of emotional distress
A tort that says a person whose extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another person
Malicious Prosecution
A lawsuit in which the original defendant sues the original plaintiff. in the second lawsuit, the defendant becomes the plaintiff and vice versa
Unintentional Tort
A doctrine that says a person is liable for harm that is the foreseeable consequence of his or her actions. ALso known as negligence.
Res ipsa loquitur
Thing speaks for itself
Negligence per se
A tort in which the violation of a statute or an ordinance constitutes the breach of the duty of care
Agreement must
BE COMPLETE AND COMMUNICATED
must be a mirror image of offer
Invitations
eBay, Amazon
Ads are not offers, only invitations
Option Contract
To hold the offer, pay a portion `
Mail box rule
The person who sends the acceptance is accepting as soon as offer is sent
offer not effective until received
Consideration
What you give in exchange for what you get
Past consideration
NO consideration
A prior act or performance
Illegal consideration
No consideration
Illusory promises
A contract in which both parties enter but one or both parties can choose not to perform contractual obligations
No consideration
can choose
Cannot sue for breach of contract until valid contract
remember to check all 4 points
1. agrement, consideration, contractual capacity, legality of subject matter
Objective standard
What a reasonable person understood
Established heads of state must provide education
ROMANS
About this deck
By: Anonymous
Created: 2011-03-27
Size: 122 flashcards
Views: 87
Created: 2011-03-27
Size: 122 flashcards
Views: 87
About StudyBlue
STUDYBLUE makes things that make you better at school.
Things like online flashcards with photos and audio.
Things like personalized quizzes and friendly reminders about when (and what) to study next.
Think of it as a digital backpack™: access to all of your study materials online and on your phone.
STUDYBLUE exists to make studying efficient and effective for every student, for free. Join us.
“Simply amazing. The flash cards are smooth, there are many different types of studying tools, and there is a great search engine. I praise you on the awesomeness.”
Dennis
Dennis