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Business Law
Definition | Term |
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A set of principles that; (1) have general application to society, (2) developed by legit authority, (3) threatens sanctions against those who don't comply. | Law |
Determines rights/duties of those in society. | Substantive Law |
Sets the rules by which courts hear and determine what happens in civil, lawsuit, criminal or administrative proceedings. | Procedural Law |
Concerned with the punishment of those who commit crimes. | Criminal Law |
Concerned with private duties people owe each other (including corporations). | Civil Law |
Defines duties people owe each other. | Tort Law |
Monetary compensation for loss/injury. | Damages |
Damages awarded in a lawsuit when the defendant's acts were grossly reckless. | Punitive Damages |
Counterbalancing influences by which a system is regulated, typically ensures that power isn't concentrated. | Checks & Balances |
Declares that when state laws conflict with federal laws; federal laws prevail. | Supremacy Clause |
Permits Congress to regulate interstate and foreign commerce. | Commerce Clause |
Congress has power under Article I, Section 8 to lay and collect taxes, duties, imposts and excises, to pay debts and provide general defense/welfare. | Taxing Power |
Under the 16th Amendment, Congress can collect taxes on incomes from any source. | Taxing Power |
First 10 Amendments to Constitution. | Bill of Rights |
Guarantee certain rights to the people (ex. Free speech, freedom of religion and privilege against unreasonable search and seizure). | Bill of Rights |
5th & 14th Amendment say no one shall be "deprived of life, liberty or property without due process of law." | Due Process Clause |
A system of government in which entities such as states share power with a national government. | Federalism |
Makes up the entire criminal law, the law applicable to sales of goods and almost all law limiting business activities. | Statutory Law |
Cities and counties also have the power to legislate, their enactments are called ordinances. | Ordinances |
Agencies that're constitutionally part of the Executive branch but independent of presidential control. | Independent Agencies |
A President's or Governor's declaration that has the force of the law. | Executive Orders |
Usually based on existing statutory powers and requires no action by Congress or state legislature. | Executive Orders |
The body of English law as adopted and modified by the U.S. states and federal government. | Common Law |
A body of law that concerns issues that fall outside the jurisdiction of Common Law. | Equity |
A judge may render a legal rule unenforceable by declaring it in conflict with the Constitution. | Judicial Review |
Higher courts may decide that lower courts may decide that lower court decisions are invalid. | Judicial Review |
People can create legally binding obligations with each other through their power to contract. Courts generally enforce the terms as long as they're legal. | Private Law |
Combines analytical thinking with recognition of the special features of the legal system. | Legal Reasoning |
(1) Look to the plain meaning of the language. (2) Examine the legislative history of the rule. (3) Consider the purpose to be achieved by the rule. (4) Try to accommodate public policy. | Legal Interpretation |
The plain meaning of the contact will be followed where the words—written or oral—have a clear meaning. | Plain Meaning |
Most courts refer to this when a statute's language is unclear. | Legislative History |
Involves an examination of investigative committee reports, legislative hearings and press announcements. They also may look at discrepancies between how a bill was introduced and how it was enacted for help interpreting its meaning. | Legislative History |
Courts investigate a law's legislative history to figure out the point of the rule. Judges generally don't wish to interpret a law in a manner that conflicts with its original objectives. | Purpose |
The principle that injury to the public good is a basis for denying the legality of a contract or other transaction. | Public Policy |
The Constitution prohibits these laws. This means a new statute applies only to actions taken after it becomes effective. | Ex Post Facto Laws |
This doctrine says that a court, when making decisions, should follow the rulings of prior cases that have similar facts. | Stare Decisis |
The refusal by a judge to sustain an objection by an attorney during trial. | Overrule |
To prove a case that is cited as applicable to the case currently disputed is really inapplicable because the two cases are different. | Distinguish |
The theory of law. | Jurisprudence |
Sees law as the command of legit authority and believe it must be enforced to the letter. | Legal Positivism |
Confine their analysis to the plain meaning of the words and, when needed, its legislative history. | Legal Positivism |
Disagree that law and morality are separate. Judges that adhere to this view may refuse to enforce statutes they find unjust. | Natural Law |
One criticism is that it does not offer the same predictability of legal positivism because each judge's sense of morality may differ. | Natural Law |
Stress the need for law to keep pace with changes in society. | Sociological Jurisprudence |
Look beyond the plain meaning of the words and fully consider the legislative purpose and their perceptions of prevailing public policies. | Sociological Jurisprudence |
Focuses on law in action rather than on the theoretical rules themselves. | Legal Realism |
Suggests that decision makers hide the motives for their decisions behind laws. | Legal Realism |
Premised on the notion that the truth and justice, will prevail, if each party to a legal dispute is represented by legal counsel. | Adversary System |
Prevents an attorney from telling confidential information told to the lawyer by a client/potential client. | Attorney-Client Privilege |
Protects materials prepared in anticipation of legislation from discovery discovery by opposing counsel. | Work Product Privilege |
Breach by a member of a profession of either a standard of care or a standard of conduct. | Malpractice |
Business managers retain lawyers to help them plan to avoid emergencies and to comply with the growing mass of legal rules imposed on business operations. | Preventive Law |
Discussion aimed at reaching an agreement. | Negotiation |
They are generally quicker, cheaper, less complicated procedurally and receive less publicity. | Alternative Dispute Resolution (ADR) |
Because they are not as adversarial, they facilitate a continuation of business between the parties after settlement of the dispute. | Alternative Dispute Resolution (ADR) |
Unlike trial where there must be a winner and a loser, it more readily adapts to compromise solutions. | Alternative Dispute Resolution (ADR) |
The parties to the dispute choose a 3rd party to assist them in settling it. | Mediation |
Often tries first to communicate the positions of the parties to each other then proposes a basis or several bases for settlement. | Mediator |
They merely facilitate negotiation; no award or opinion on the merits of the dispute is given by the mediator. | Mediator |
If a mediation is successful, it can result in this. | Mediation Agreement |
Is another widely used alternative to settling disputes in court. It can be used after mediation fails or instead of it. | Arbitration |
Unlike mediation, the 3rd party to whom the dispute is submitted decides the outcome. | Arbitration |
The U.S. and most of its trading partners are signatories to this treaty, which is the legal framework by which the international community regulates the enforcement of arbitral agreements and awards. | 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards |
The international body dealing with the rules of trade between nations. Its goal is to supervise and expand international trade, monitor national trade policies, and provide technical assistance to developing nations. | World Trade Organization (WTO) |
Established a mechanism for resolving trade disputes through the use of bi-national panels. | North American Free Trade Agreement (NAFTA) |
Contains elaborate provisions for settling two distinct types of disputes: (1) Anti-dumping and countervailing duty matters and (2) Conflicts over a country's interpretation or application of the treaty. | North American Free Trade Agreement (NAFTA) |
(1) Executives of the disputing companies, who have settlement authority, hear a shortened presentation of the case by the lawyers for each side. (2) The executives then meet with the lawyers to negotiate a settlement. | Mini-Trial |
If a settlement is not reached, they will render a non-binding opinion regarding how the dispute is likely to end it goes to trial, and how the court is likely to rule on factual and evidentiary issues. After this, the parties again try to negotiate. | Mini-Trial |
Conducted under court guidance whereas the mini-trial is voluntarily conducted by the parties themselves. | Summary Jury Trial |
A 6-member mock jury empaneled by the court hears a shortened presentation of the case by the lawyers for each side and renders an advisory verdict. | Summary Jury Trial |
A hired judge (often a retired judge) renders a binding opinion after hearing the proofs and arguments of the parties. | Private Judging |
An individual appointed within an organization to settle disputes, to private panels, to small claims court. | Ombudsperson |
A form of arbitration in which the arbitrators start as a mediator but in the event of a failure of mediation, the arbitrator imposes a binding decision. | Med/arb |
When events occurring after the filing of the lawsuit have made decision beside the point. | Moot |
The authority of a court to hear and determine disputes. | Jurisdiction |
Generally does not exist unless the defendant has some close connection with the territory where the suit is brought. | Personal Jurisdiction |
Is likely to exist if the defendant is a resident of the territory where the court is located or if a non-resident defendant is physically present in that territory. | Personal Jurisdiction |
Becomes complicated when a lawsuit is filed against a non-resident who wasn't physically present in the territory served by the court. In those cases, the court isn't likely to have personal jurisdiction unless it can show defendant has close connection. | Personal Jurisdiction |
Concerns where within a jurisdiction a suit must be heard. These rules are established by the states and tell the county where plaintiff must file suit. | Venue |
Parties who feel they cannot get a fair trial in the designated area can ask the courts for a change of venue. | Change of Venue |
At common law, any jurisdiction which has the power to fine and imprison, is a court of record. | Courts of Record |
Most minor criminal violations and civil disputes involving small amounts of money are handled by courts that keep no record (transcript) of the testimony or proceedings. They are not courts of record. Without a record there can be no appeal. | Courts of Record |
A form of appeal in which the appeals court holds a trial as if no prior trial had been held. It is common on appeals from small claims court judgments. | Trial De Novo |
May be called municipal courts in urban areas and justice of the peace courts in rural areas. | Inferior Courts |
A lower court which usually tries criminal misdemeanors and civil lawsuits involving lesser amounts of money than superior, district or county courts. The authority, importance and geographical area covered differ from state-to-state. | Municipal Courts |
In these courts, the procedures are informal, the parties may argue their own cases and the judicial officer (may not be a lawyer) determines both the facts and the law and renders a decision. | Small Claims Courts |
These courts handle civil matters involving a limited amount of money. Therefore, they offer a quick, inexpensive and easily accessible forum for the settlement of minor disputes. | Small Claims Courts |
A body of procedural law that provides rules for courts to follow in deciding which state's law to apply. | Conflict of Laws |
An appeal from a district court is taken here, usually to the designated court for the region. They only review legal conclusions reached by lower federal courts. They also hear appeals from many federal administrative agency decisions. | U.S. Court of Appeals |
There are 13. Twelve of the circuit courts have general federal appellate jurisdiction. One of these serves D.C. because many appeals arise there. | U.S. Court of Appeals |
Usually a case is heard by a panel of 3 judges but some may be heard en banc (by all the judges of that circuit). The 13th circuit, the U.S. Court of Appeals for the Federal Circuit, hears a wide variety of specialized appeals. | U.S. Court of Appeals |
The highest court of the land. It has final responsibility for interpretation of the Constitution and federal statutes. | U.S. Supreme Court |
If the Court does hear a case, an opinion is usually published. In most cases the justices don't all agree. Then there may be a concurring opinion and a dissenting opinion. These opinions don't have the force of the law and can't be cited as precedent. | U.S. Supreme Court |
The primary way a case can be appealed to the Supreme Court. If there have been conflicting decisions in similar cases by different courts of appeals, the Court may grant cert. | Writ of Certiorari (Cert.) |
It may also grant cert. in a case from the highest court of a state where a right is claimed under the Constitution or where the validity of a federal statute is in question | Writ of Certiorari (Cert.) |
States the reasoning of those who agree with the result | Concurring Opinion |
Minority opinion. | Dissenting Opinion |
Comprised of the complaint, answer and reply. They are the first documents filed with the court, they start and define a lawsuit. They serve two major functions: (1) Inform the parties of each other's claims and (2) form the basis for a trial. | Pleadings |
Only those matters included are tried in court. If a fact material has been omitted, a court may permit a party to amend it. | Pleadings |
Lawsuits can have more than one plaintiff and/or defendant. Sometimes when a defendant's actions have injured many plaintiffs, their claims may be consolidated into a class action lawsuit. | Class Action Lawsuit |
Tends to the worry that plaintiffs' attorneys abused the class action system to the harm of class members by capping the amount of fees attorneys may get in cases where a settlement implies for recovery of coupons by members to amount of coupons regained. | Class Action Fairness Act (CAFA) |
The judge must hold a hearing and make a written finding that the settlement is fair, reasonable and adequate for class members. Courts may also require the distribution of unclaimed coupons to charitable or governmental organizations. | Class Action Fairness Act (CAFA) |
Also bans favoritism to certain plaintiffs though greater payments to some based on geographic proximity. | Class Action Fairness Act (CAFA) |
Requires that suits be heard in federal court is there diversity of citizenship and the amount in controversy exceeds $5 million. | Class Action Fairness Act (CAFA) |
The first step in starting a lawsuit is filing this with the court. Information about the claim of the plaintiff and the remedy requested, usually damages of a certain amount, are listed in numbered paragraphs. | Complaint |
It must contain sufficient facts to show that the plaintiff is entitled to some legal relief and to give the defendant reasonable notice of the nature of the plaintiff's claim. | Complaint |
No evidence will be permitted to be given at a trial that is not related to a material fact stated in it. | Complaint |
The serving of this on a defendant gives notice to the defendant of the suit, informs them who the plaintiff is and states the time within the defendant must make an appearance. In most states, the complaint must be served with it. | Summons |
Usually served by the sheriff or other public official and only inside the court's jurisdiction. In state courts this is normally a county. In some cases, service by mail or leaving it at the defendant's residence or place of business is allowed. | Summons |
The defendant usually has to make this by filing an answer to the complaint. This is ordinarily done by their attorney. If they fail to do so, the plaintiff is entitled to a default judgment. | Appearance |
This has the same effect as if the plaintiff had won in court everything requested in the complaint. | Default Judgment |
Generally responds to the complaint paragraph-by-paragraph. Each allegation of the complaint is admitted or denied, or the defendant may disclaim knowledge and leave the plaintiff to prove allegations made. It may also state an affirmative defense. | Answer |
A rule of law enabling defendant to win even if all of plaintiff's allegations are true. It must be supported by facts presented in the same manner as in a complaint. | Affirmative Defense |
A new claim stating that plaintiff owes defendant damages because of harm resulting from the incident alleged in the complaint. | Counterclaim |
The defendant can do this instead of give an answer. If it is clear that plaintiff has no case, it would be wasteful for the case to continue and the motion would be granted. | Motion to Dismiss |
Answers paragraph-by-paragraph the affirmative defense or counterclaim of the defendant. In some jurisdictions the plaintiff is allowed or required to respond to defendant's affirmative defense or counterclaim. | Reply |
The phase of a lawsuit during which the parties gather the evidence they'll use at trial to prove or disprove the allegations made in the pleadings. | Discovery |
Modern rules are designed to ensure that both parties have equal access to the facts so that the case can be judged on its merits. Thus, an attorney can request a copy of almost any relevant document, file, photo, etc. that the other party may rely on. | Discovery |
A procedural device designed to narrow issues to be proved at trial or to facilitate a settlement. Was created to help deal with the increasing congestion in most civil courts. It is held in the judge's chambers. The parties & witnesses aren't present. | Pretrial Conference |
The judge's try to get the parties' atorneys to stipulate to as many of the material facts as possible. The judge may find that there is no true disagreement on some facts. The judge may also try to persuade the parties to settle the case before trial. | Pretrial Conference |
Agree to. | Stipulate |
Frequently, cases have to be postponed and another date set for any one of several reasons. | Continued |
After the jury, if any, is picked and sworn, the attorneys make initial statements, with plaintiff's attorney going first. They clarify the nature of the case and what they plan to prove. They're more complex and likely more rousing when a jury is there. | Opening Statements |
Each witness is sworn and then examined by the plaintiff's attorney. | Direct Examination |
The defendant's attorney may then examine each witness, trying to raise doubts as to the person's credibility or trustworthiness. | Cross-Examination |
The plaintiff's attorney can examine witnesses after a cross-examination to clarify the plaintiff's view of the facts and perhaps minimize any negative effects created in cross-examination. | Redirect Examination |
Following the end of testimony by witnesses for the plaintiff, the defendant's lawyer frequently makes this motion. The judge grants the motion only if plaintiff's evidence is inadequate to support their allegations. | Directed Verdict |
If the motion is granted, a trial ends. If motion is denied and trial goes on then there's direct examination of the defendant's witnesses by the defendant's attorney, followed by cross-examination. This is mostly followed by trying this motion again. | Directed Verdict |
The duty of a party in a trial to produce the evidence that will shift the conclusion away from the default position, to that party's own position. | Burden of Proof |
A norm that must be met by the prosecution's evidence in a criminal prosecution: that no other clear explanation can be taken from the facts except that the defendant did the crime, thereby beating the belief that a person is innocent until proven guilty. | Beyond a Reasonable Doubt |
The plaintiff must have shown that it is more likely than not that what was alleged is true. | Preponderance of the Evidence |
Jurors aren't permitted to leave the supervision of the court until excused to keep outside influences away. Once there is unanimous agreement (or the legal majority is required) on a verdict, the jury foreperson reports this to the judge. | Sequestered |
When the jury can't come to a verdict. | Hung Jury |
Claim that a reasonable jury couldn't come to that verdict based on the evidence shown. The losing party in a civil case can make a motion for it but it's rarely granted. The state can't make such a motion if the defendant is acquitted in a criminal case. | Judgment Notwithstanding the Verdict (Judgment N.O.V.) |
Orders the sheriff to seize and sell enough of the defendant's property to satisfy the judgment. All states have exemption laws that exempt certain classes and amounts of a debtor's property from execution. | Writ of Execution |
Is designed to reach things belonging to the debtor that are in the hands of 3rd parties (ex. wages). When property needed to satisfy the judgment is out of state, the plaintiff has to use that state's procedures. | Writ of Garnishment |
The offense of being disobedient to or disrespectful of a court of law and its officers. | Contempt of Court |
An official direct and verbatim written record of what was said, as in a court of law or other judicial proceedings, or even private conversations. | Transcript |
A written argument by both parties attorneys supporting their claims when appealing. | Brief |
In order to successfully appeal, the party must show that the errors that were made were, ________/important enough to possibly change the trial outcome. | Material |
Uphold. | Affirm |
This sends the case back to the trial court for more proceedings and a new trial is then needed. It may be remanded on a narrow question of fact or it may be a retrial of the case. Usually the parties settle their issues here rather than a new trial. | Reverse and Remand |
Focuses on the actions or process, rather than the consequences. | Rights Theory / Deontological Ethical Theory |
Focus on the consequences of a decision when deciding if it's ethical. | Teleological Ethical Theories |
Judging an action by applying it universally. | Categorical Imperative |
Always act to treat humanity, whether in yourself or in others, as an end in itself, never merely as means. In short, don't manipulate others for our own self-interest. | 2nd Categorical Imperative |
Believe that there may be circumstances when actions like lying and killing could be morally acceptable. One popular theory believes that you should abide by a moral rule unless a more important rule conflicts with it. | Modern Rights Theories |
Argued for a just distribution of society's resources | A Theory of Justice by John Rawls |
Each person has an equal right to basic rights and liberties. | Greatest Equal Liberty Principle |
Holds that social inequalities are acceptable only if they can't be eliminated without making the worst-off class even worse off. | Difference Principle |
Under this theory, the decision maker's choices are to be guided by fairness and impartiality; however, the focus is on the outcome of the decision. | Justice Theory |
Under this theory, an ethical decision is one that maximizes utility for society as a whole. | Utilitarianism |
Under this theory, the decision maker considers each action separately, assessing its costs and benefits to society. | Act Utilitarianism |
Under this theory, the action is viewed as part of a rule or habit. | Rule Utilitarianism |
A teleological theory based on the laissez faire theory of capitalism first espoused by Adam Smith. It contends that business managers should maximize a business's long-run profits within the limits of the law and that will optimize total social utility. | Profit Maximization |
Under this theory, the primary objective of a business corporation is to maximize profits. | Allocational Efficiency |
Profit maximization can result in harm to employees, consumers, communities, the environment and society as a whole. | Criticism of Allocational Efficiency Rationale |
A group of people who must reach a consensus on an acceptable level of risk often decide on a level of risk higher than the risk they would accept as individuals. | Risky Shift |
The tendency for members of a group to internalize the group's values and perceptions and to suppress critical thought. | Groupthink |
An attempt to prevent bribery and other questionable payments. It makes it a crime for any American firm to offer, promise or make payments or gifts of anything of value to foreign government officials. | Foreign Corrupt Practices Act (FCPA) |
Also establishes record-keeping and internal-controls requirements for any corporation (foreign or domestic) whose shares are publicly traded in the U.S. | Foreign Corrupt Practices Act (FCPA) |
The FCPA allows a company to pay governmental officials to secure routine governmental action. These payments aren't illegal if the recipient has no discretion in carrying out a governmental function. | Grease Payments |
Whenever a U.S. company retains foreign agents to solicit business abroad, it should establish a: | FCPA Compliance Program |
Agents should have a system for checking agents. This should include research of the agent's reputation for honest conduct. Since payments to government officials mostly are forbidden, it's vital to check the bond linking the agent and foreign government. | Background Check |
To discourage the likelihood of corrupt payments, a company should check the expenditures of its agents regularly. | Regular Audits |
Conducted within a state's borders - state law applies, unless a preemptive federal law applies. | Intrastate Commerce |
Crosses state lines and is within the federal government's authority to regulate if it chooses. | Interstate Commerce |
Occurs when a legislature expressly states that only the state can pass an ordinance, and that localities are forbidden from passing them. | Express Preemption |
Raised when a legislature has been silent on the issue. | Implied Preemption |
The U.S. Constitution, in both the 5th & 14th Amendments, prohibits the government (federal, state and local) from taking real or personal property for public use without paying just compensation. | The Takings Clause |
This clause has three primary components: (1) There must be a taking, (2) it must be for a public purpose, and (3) the private property owner is then entitled to just compensation. | The Takings Clause |
The government forces private property holders to sell their land os it may be dedicated to public use. | Eminent Domain |
This clause in the 5th Amendment prohibits the federal government from depriving any person "of life, liberty, or property, without due process of law." The 14th Amendment applies the same standard to the states. | The Due Process Clause |
The government can attain its intentions only by using fair procedures. Fair notice, the right to a hearing before an impartial tribunal and adherence to set procedures were needed when the government interfered with the rights of people. | Procedural Due Process |
Government actions that are procedurally fair may still be unconstitutional if they are substantively unfair. This notion protects people from arbitrary/unreasonable government interference with their life, liberty or property rights. | Substantive Due Process |
When governmental rules limit only economic rights (property rights), the government is granted great discretion. When life or valued liberty interests are at stake, the governmental action will be struck down unless it passes rigorous judicial scrutiny. | Substantive Due Process |
The states are barred from discriminating against persons by this clause in the 14th Amendment. A like restraint against the federal government also exists since the courts have interpreted the Due Process Clause as including an equal protection section. | Equal Protection Clause |
Courts use this analysis when assessing legislation limiting economic interests or inequity on the basis of non-suspect classifications. This is an highly lenient level of scrutiny that presumes the regulation is constitutional. | Rational Basis Analysis |
Courts generally presume that governmental action is unconstitutional when it denies people fundamentally important constitutional rights. | Strict Scrutiny Analysis |
In determining if a right fits this label, the inquiry is whether the right involved is such that it cannot be denied without violating the fundamental principles of liberty and justice. | Fundamental Right |
These levels of analysis lie somewhere between rational basis and strict scrutiny analysis. This level of scrutiny usually requires that the classification serves important governmental goals. and is subtantially related to the achievement of those goals. | Intermediate Scrutiny Analysis |
The courts have given this type of speech the highest degree of constitutional protection. Governmental restrictions on this kind of speech must undergo strict scrutiny analysis. | Non-Commercial Speech |
In the 1970s, the Supreme Court held this type of speech was entitled to some constitutional protection. Beyond the need for it to be truthful, the courts also analyze regulations with an intermediate scrutiny. | Commercial Speech |
The act created a bipartisan administrative agency that was designed to provide expert and continuing enforcement of federal anti-trust policies and to prevent unfair competitive practices in the marketplace. | The Federal Trade Commission (FTC) Act |
a document sent to an individual or business to halt purportedly illegal activity and not take it up again. The FTC has the power to issue these. | Cease and Desist Order |
Laws enacted by both federal and state governments to promote unrestrained competition among businesses. The FTC has the power to issue these and most of them are issued in the area of consumer protection. | Trade Regulation Rules |
Private (civil) wrongs against persons or property | Torts |
Persons who are injured by the tortious act of another may file a civil suit for this kind of damages. | Actual/Compensatory Damages |
These kind of damages are used to punish the defendant and deter the defendant and others from repeating behavior that is particularly offensive. | Punitive Damages |
When both sides have presented their evidence, the greater weight of the believable evidence must be on the plaintiff's side. | Preponderance of the Evidence |
Types of behavior that indicate either the wrongdoer's conscious desire to cause harm or the wrongdoer's knowledge that such harm was substantially certain to result. | Intentional Torts |
This tort protects a person's right to be free from injurious or unpleasant physical contact with others. It is an intentional, unconsented-to touching that is harmful or offensive. | Battery |
This tort is designed to protect people from threats of battery. It is putting another in apprehension of an imminent threat to their physical safety. No contact is necessary. | Assault |
This tort protects both physical and mental interests. It is the intentional confinement of a person for an appreciable time without the person's consent. | False Imprisonment |
Occurs when a person substantially restricts another person's freedom of movement. A partial obstruction of a person's progress is not false imprisonment. | Confinement |
Substantially certain to produce severe emotional distress in a person of ordinary sensibilities. | Outrageous Conduct |
Written defamation. | Libel |
Oral defamation. | Slander |
When a statement exposes a person to hatred, contempt or ridicule. | Defamation |
False statements about the quality of a company's products or services may give rise to a cause of action. | Disparagement |
In U.S. law, this is a condition required to establish libel against public figures/officials and is defined as "knowledge that the information was false" or that it was published "with reckless disregard of whether it was false or not." | Actual Malice |
Private persons who are famous or have involved themselves in some public controversy. | Public Figures |
The concept that one's personal information is protected from public scrutiny. | Right to Privacy |
Intrusion on a person’s solitude or seclusion. | Invasion of Privacy |
Gives a remedy for the financial, emotional and reputational harm that can result when criminal proceedings are wrongfully brought. | Malicious Prosection |
Compensates for similar damages arising from wrongufully brought civil suits. | Wrongful Use of Civil Proceedings |
This does not require that the suit terminate in the defendant's favor or that there be no probable cause in order for the person wrongfully sued to win. | Abuse of Process |
Proof that the suit was brought for a key purpose other than one for which proceedings are geared is needed. It often involves cases which the person leading the suit is trying to force the defendant to take an action unrelated to the point of the suit. | Abuse of Process |
Any entry by a person onto land in the possession of another, unless the entry is done with the possessor's permission or is privileged. | Trespass |
The unlawful taking of or exercise of control over the personal property of another person. | Conversion |
False statements about the quality of a seller's product or services, or the seller's ownership of goods offered for sale may give rise to this tort. | Tort of Disparagement |
This tort seeks to shield the sanctity of private contractual bonds. One who knowingly gets a person breach a contract with another or who stops performance of another's contract may be liable in damages to the party denied of the profits of the contract. | Interference with Contract |
Intentional interference to drive away a person's customers or employees. | Interference with Economic Expectations |
An unintentional breach of duty by the defendant that results in harm to another. A plaintiff in this kind of suit must prove these to recover: (1) the defendant had a duty not to injure the plaintiff (2) the defendant breached that duty, | Negligence |
We must conduct ourselves like a "reasonable person of ordinary prudence in similar circumstances." | Objective Standard |
Generally, people who do not do what a statute requires are considered to be this because they are not acting as the "reasonable person" would. | Negligent Per Se |
A person is guilty of this if they expose another person to a foreseeable, unreasonable risk of harm, something the "reasonable person" would never do. | Breach of Duty |
The actual or direct clause—of an incredible series of losses to numerous people. | Cause in Fact |
The idea of placing a legal limit on the extent of a negligent person's liability. | Proximate Cause |
Usually, the courts say that an intervening force was this, it will not excuse the defendant from liability. | Foreseeable |
"The thing speaks for itself." This puts the burden on the defendant to show that the injury was not caused by their negligence. If the defendant fails to do so, they may be found liable. | res ipsa loquitur |
Failure of an injured plaintiff to act prudently, considered to be a contributory factor in the injury suffered, and sometimes reducing the amount recovered from the defendant. | Contributory Negligence |
Arises when a plaintiff knowingly and freely assumes a risk of harm linked to the negligence of the defendant. If plaintiff has taken the risk, they can't get damages for harm resulting from defendant’s conduct, even if defendant was negligent/reckless. | Asssumption of Risk |
This doctrine holds that even though plaintiff was negligent, they can still recover if it can be shown that the defendant had the "last clear chance" to avoid the harm. | Last Clear Chance |
Recently, most states have abandoned contributory negligence and last clear chance and adopted this system. This is seen as fairer because it distributes the cost of the accident according to the degree of both parties' fault. | Comparative Negligence |
When a defendant's behavior indicates a "conscious disregard for a known high degree of probable harm to another," the defendant is guilty of this. | Recklessness |
Means that a person who participates in certain kinds of activities is held responsible for any resulting harm to others, despite the use of the utmost care and caution. | Strict Liability |
Deals with the rules for securing and enforcing legal rights to inventions, designs, and artistic works. | Intellectual Property Law |
Provide their owners with the exclusive right to make, use or sell an invention or process during the patent period. It is generally effective for 20 years from the filing date. It deprives rivals of the opportunity to use the invention without consent. | Patents |
Under this approach, the exclusive rights over patentable subjects belong to the inventor of the product or process, rather than to the first individual to file an application. | First to Invent Standard |
Rewards the first person to apply for a patent, even when that person isn't the inventory. | First to File Standard |
This certificate doesn't entitle its holder to exclusive use of the creation, it does require all users to pay royalties to the holder if they exploit the invention. | Inventory's Certificate |
When a government allows someone else to produce the patented product or process without the consent of the patent owner. | Compulsory Licensing |
A distinctive word, name, symbol or device used by a business to distinguish its goods from those of its competitors. | Trademarks |
Descriptive terms that identify the businesses themselves, rather than their products or services are called this. | Trade Names |
A legally registered name or designation used in the manner of a trademark to distinguish an organization's services from those of its competitors. | Service Mark |
A trademark owner can lose its protection if the name or symbol becomes so widely used that it acquires a generic meaning. | Distinctive |
Bear no logical or suggestive relation to the actual characteristics of the goods. | Arbitrary Terms |
Suggest rather than describe the characteristics of the goods. | Suggestive Terms |
Describe a characteristic or ingredient of the article to which they refer. | Descriptive Terms |
Function as the common descriptive name of a product class. | Generic Terms |
Under this principle, priority ordinarily comes with earlier use of a mark in commerce. | First in Time Equals First in Right |
Says that priority of trademark rights in the U.S. depends solely upon priority of use in the U.S., not on priority of use anywhere in the world. Earlier use in another country usually doesn't count. | Territoriality Principle |
These laws shield "distinctive/famous" marks from unauthorized uses even when confusion isn't likely to occur. This is because the laws focus on shielding the investment of trademark owners, while traditional trademark laws intended to shield consumers. | Trademark Dilution Laws |
Prohibits the unauthorized reproducttion of creative works such as books, magazines, drawings, etc. It generally lasts for the life of the author plus 70 years, because of various amendments, the precise life of a copyright may vary. | Copyrights |
Occurs when a person without authorizaton reproduces, distributes, displays, or performs a copyrighted work, or prepares a derivative work based on a copyrighted work. | Direct Copyright Infringment |
The doctrine that brief excerpts of copyright material may, under certain circumstances, be quoted verbatim for purposes such as criticism, news reporting, teaching, and research, without the need for permission from or payment to the copyright holder. | Fair Use |
One who knowingly causes or materially contributes to copyright infringement, by another but who hasn't participated in the infringing acts themselves, may be held liable as a contributory infringer if they had knowledge of the infringement. | Contributory Copyright Infringement |
Are usually made by a firm over the course of its business life. Sometimes called know-how or propriety information, it includes secret formulas, devices, etc. It usually doesn't get legal safety unless its owner took fair precauations to keep it secret. | Trade Secrets |
The person who owns the intellectual property. | Licensor |
in return for some type of payment, the licensor permits another to produce, use or sell the intellectual property. | Licensee |
This clause indicates the scope of the license. It generally describes in detail what rights are to be transferred. It states whether a license is exclusive or non-exclusive. It also determines if the licensee may grant sub-licenses in the technology. | Granting Clause |
The licensor cannot license the technology to others in the licensee's territory. | Exclusive License |
The licensor can license the technology to others in their territory. | Non-Exclusive License |
Requires the licensee to transfer any inventions it derives from the licensed technology to the licensor. When a patent licensee improves on patented technology covered by the agreement, it must assign the new intellectual property rights to the licensor. | Grant-Back Provision |
Requires the licensor to supply various types of assistance throughout the life of the agreement. | Technical Service Clause |
When the licensed technology is a trade agreement, this clause restricts the licensee's right to disclose the information. | Confidentiality Clause |
While the licensee may wish to fully exploit the licensed technology throughout the world, the licensor often prefers to reserve certain markets for itself or for the other licensees. | Territorial Restriction |
Prevent licensees from purchasing goods, services or technology from other sources other than the licensor. These provisions sometimes prvent a licensee from developing its own technology. | Requirements Clauses |
Prohibits a licensee from providing goods or services that are competitive with those supplied by the licensor. | Exclusive Dealings Clause |
Payment is made to the legal owner of the property, patent, copyrighted work or franchise by those who wish to make use of it for the purposes of generating revenue or other such desirable activities. | Royalty Payments |
A legally enforceable promise or set of promises. However, not all promises are contracts. | Contract |
Applies to all contracts for the sale of goods. | Article 2 |
The Code defines this on a case-by-case basis. "If a person regularly deals in the kind of goods being sold, or pretends to have some special knowledge about the goods or employs an agent in the sale who fits either of these two descriptions" | Merchant |
A contract that meets all the legal requirements for a contract. They are enforceable in court. | Valid Contract |
A contract that meets the basic legal requirements for a contract but will not be enforced due to some other legal rule. The law says some kinds of contracts must be in writing to be enforceable. | Unenforceable Contract |
A contract is one that may be canceled by one or both of the parties. It is enforceable against both parties unless a party with the right to cancel the contract has done so. | Voidable Contract |
A contract that lacks one or more of the basic requirements for a contract. Such an agreement has no legal force/effect. | Void Contract |
A contract where only one of the parties makes a promise. | Unilateral Contract |
A contract where both parties make a promise. | Bilateral Contract |
The status of a contract when all the parties have fully performed their duties under the contract. | Executed |
The status of a contract as long as it has not been fully performed. | Executory |
A contract where both parties have directly stated its terms at the time the contract was formed. | Express Contract |
A contract where the surrounding facts and circumstances indicate that an agreement has in fact been reached. | Implied Contract |
An obligation of one party to another imposed by law independently of an agreement between the parties. | Quasi-Contract |
A legal principle that a promise is enforceable by law, even if made without formal consideration, when a promisor has made a promise to a promisee who then relies on that promise to his subsequent detriment. | Promissory Estoppel |
A "meeting of the minds" between two parties is the main thing courts look for in deciding if parties entered into a contract. | Agreement |
Offer + Acceptance = | Agreement |
A person who has made an offer. | Offeror |
A party who has received an offer. | Offeree |
A definite proposal that is certain in its terms; and communication of the offer to the identified, prospective offeree. If any of these elements are missing, there is no offer to form the basis of a contract. | Present Intent to Contract |
A separate contract for the limited purpose of holding the offer open. The offeree, as with any other offer, is free to accept or reject the offer; they have simply purchased the right to accept or reject within the stated period. | Option |
Any attempt by the offeree to change the material terms of the offer to add significant new terms to the offer. | Counteroffer |
May be either expressly authorized—expressly stipulated in the offer—or impliedly authorized by the facts and circumstances surrounding the situation. | Authorized Means of Communication |
When an offeror specifies how acceptance should be made. | Express Authorization |
Acceptance by the stipulated means is effective upon dispatch. Any method other than the stipulated means does not create a contract. | Stipulated Means of Communication |
If no means of communication is specified, then these are generally accepted. | Reasonable Means of Communication |
If an authorized means of acceptance is expressly or impliedly present, any attempt by the offeree to accept in a different manner is not effective until the acceptance is actually received by the offeror. | Non-Authorized Means of Communication |
A person that makes a promise. | Promisor |
The person to whom a promise was made. | Promisee |
Requires a promise to pay the "price" the promisor asked for in order to gain the right to enforce the promisor's promise. | Requirement of Consideration |
Can have legal value if (1) the promisee does/agrees to do something they had no prior legal duty to, in exchange for the promsior's promise. (2) The promisee agrees not to do something they have a legal right to do in exchange for the promisor's promise. | Consideration |
Nominal Consideration | |
The greatest number of these cases involve contractual duties. These cases usually occur when the parties attempt to modify an existing contract but no new consideration is furnished to support the agreement to modify. | Pre-Existing Duty Cases |
Generally, a court will enforce a modification that is not supported by new consideration if a contracting party has run into this and it makes their performance impossible or highly impractible | Unforeseeable Difficulties |
a debt that is due and certain, which means there is no dispute about the existence or amount of the debt. | Liquidated Debt |
The general rule is that a promise to discharge this kind of debt for the part payment o the debt at or after its due date is unenforceable due to lack of consideration. | Liquidated Debt |
A honest dispute about the existence or amount of a debt makes the debt this. | Unliquidated Debt |
The legal term for settling a disputed claim. | Binding Accord and Satisfaction |
Agreements between a debtor and two or more creditors who agree to accept a stated percentage of their liquidated claims against the debtor at or after the due date, in full satisfaction of their claims. | Compositions |
Generally treated as binding on the parties to the agreement, despite the fact that doing so appears to be contrary to the general rule on liquidated debts. | Compositions |
Creditors usually enter these when they believe that not doing so may result in the debtor's bankruptcy, in which case they might recover a smaller % of their claims than that agreed to in the this. | Compositions |
Some courts and legislatures have created an exception to the past consideration rule for these. | Moral Obligations |
These promises are worded in a way that allows the promisor to decide whether or not to perform the promise. A bilateral agreement based on these is unenforceable due to lack of mutuality. They can't serve as consideration. | Illusory Promises |
The law uses this word to describe the ability to do a legally valid act. | Capacity |
Certain classes have this because the law sought to protect them in their contractual relations with others. Three major classes are: (1) Minors, (2) The mentally impaired and (3) Intoxicated persons. | Limited Capacity |
Cancel. | Disaffirm |
Minors can cancel their contracts, this makes it this type of contract. | Voidable Contracts |
The term used to describe the termination of a parent's right to receive services and wages from a child and to generally control them. | Emancipation |
Generally defined as those things that are essential to a minor's continued existence and general welfare. | Necessaries |
Even if the facts and circumstances surrounding a case indicate that the parties reached an agreement, the agreement must be this to be enforceable. | Voluntary |
Contracts entered into as a result of misrepresentation, fraud, duress, undue influence and certain kinds of mistakes are this. | Voidable Contracts |
An injured party (or parties) may cancel a contract. | Rescind (Cancel) |
If no performance has yet been rendered when the grounds for rescission are discovered, the injured party may notify the other party that they deny the validity of the contract. | Disaffirm (Deny the Validity of) |
The person who waits for an unreasonable time after discovery to complain may be held to have done this to the contract and may lose the power to rescind. | Ratified (Validated) |
The elements of this are ordinarily given as: misrepresentation of a material fact justifiably relied on to the detriment of (causing harm to) the person relying. | Misrepresentation |
Intentional misrepresentation. To prove it, one must prove all the elements of misrepresentation plus; the misrepresentation was (1) knowingly made with the (2) intent to deceive (technically called scienter). | Fraud |
The mental state of the defendant. | Scienter |
Involves misstatements about the content or legal effect of something usually contained in a form or preprinted contract. | Fraud in the Execution |
The basic idea is that one of the parties, by making some threat of harm, forced the other party to enter an agreement they would not otherwise have entered. | Duress |
Related to duress but exists only when the parties had some confidential relationship at the time. The basic idea is that the dominant person in a confidential relationship took advantage of the other party to enter into an unfavorable agreement. | Undue Influence |
In these cases, unlike fraud and misrepresentation cases in which the victim is also acting under a mistaken belief about the facts, the mistaken belief about the facts is not the product of a misstatement by the other party. | Mistake |
Are classified as mutual or unilateral, depending on whether both or only one of the parties was acting under a mistaken belief about a material fact. | Mistake Cases |
Even if the parties to an agreement have met every other requirement for a valid contract, their agreement is unenforceable if either its formation or its performance is illegal or contrary to the public interest. | Illegality |
Prohibit charging more than a stated amoutn of interest for the use of money. The penalty for violation ranges from forfeiture of excess interest, through forfeiture of all interest, to forfeiture of interest and principle, depending on the state. | Usury Laws |
Limits the performance of certain work and the transaction of certain business on Sunday. They vary state-to-state. Some states allow weekday "ratification" of Sunday contracts. There are some allowances to protect health/life/property. | Blue/Sunday Laws |
Revenue Raising Statutes | |
A person in a position of trust or confidence like a trustee, agent or partner. Any agreement that tends to induce a person in this position to breach their duties is illegal. | Fiduciary |
A provision in a contract that attempts to relieve one party to the contract from liability for the consequences of their own negligence. | Exculpatory Clause |
Contracts in which the only choice for one of the parties is between "adhering" to the terms dictated by the other party or not contracting at all. | Contracts of Adhesion/Unconscionable Contracts |
Essentially says that in some cases, the law will require more evidence (a writing) that the parties had an agreement than the oral testimony of the party claiming that a contract existed. | Statute of Frauds |
A situation where one person agrees to be responsible for the debts or default of another. | Collateral/Guaranty Contracts |
Says that the promises of those who are primarily motviated by a desire to secure some personal benefit fall outside the statute. | Leading Object Doctrine |
In some cases, this level of performance of a contract for the sale of land takes the contract out of the coverage of the statute of frauds. | Part Performance |
Says that a party cannot vary the terms of a written contract by introducing evidence of the terms allegedly agreed on prior to, or contemporaneous with the writing. | Parol Evidence Rule |
At the same time as. | Contemporaneous |
When rights under a contract are transferred. | Assignment |
The transfer of duties. | Delegation |
The person that makes an assignment. | Assignor |
The person who accepts an assignment. | Assignee |
The first assignee has priority. | The American Rule |
The first assignee that gives notice assignment gets priority. | The English Rule |
Assignors who are paid for making an assignment are potentially liable to assignees for certain: | Implied Guarantees |
A new, separate agreement by the promisee to release the original promisor from liability in exchange for a 3rd party's agreement to assume the promisor's duties. | Novation |
There are two cases of these kind of beneficiaries that have such enforcement rights: (1) Donee beneficiaries and (2) Creditor beneficiaries | Third-Party Beneficiaries |
If the 3rd party only incidentally benefits from the contract and was not an intended beneficiary, they are this kind of beneficiary and cannot enforce it. | Incidental Beneficiary |
Parties may provide that a party's duty to perform is qualified by the happening of some event. | Condition |
If the event must occur before a party's duty to perform arises, it is called: | Condition Precedent |
If the happening of a condition discharges an existing duty to perform, this is called: | Condition Subsequent |
If the contract calls for the parties to perform their duties at the same time, each party's duty to perform is conditioned on the other party's performance. | Concurrent Conditions |
Are created by oral or written statements in the contract. | Express Conditions |
The nature of the parties' contract may also lead the courts to imply a condition on the parties' duties of performance. | Constructive (Implied) Condition |
(1) Complete (2) Satisfactory performance (3) Substantial performance (4) Material breach of contract | Standards of Performance |
Performance that falls short of complete performance in minor respects but doesn't derive the promise of a material part of the consideration that was bargained for. | Substantial Performance |
A promisor is guilty of this kind of breach of contract if their performance fails to reach the degree of perfection the other party is justified in expected under the circumstances. | Material Breach |
If the promisor, prior to the time for performance, indicates an intent not to perform their duties under the contract, the other party may treat the contract as breached and sue for that breach immediately if they choose. | Anticipatory Breach/Repudiation |
When the promisor agrees to perform to the promisee's personal satisfaction in contracts involving matters of personal taste/comfort, the promisee who's honestly dissatisfied may reject the performance without liability, even if doing so is unreasonable. | Personal Satisfaction Contract |
Commonly require the builder to give the owner a certificate issued by a specific engineer or architect before the owner has a duty to pay the builder. | Building and Construction Contracts |
Contracts in which failure to perform on time is a material breach. | Time is of the Essence |
In the legal sense , it means "I cannot be done," not "I cannot do it." | Impossibility |
When unforeseeable developments make performance highly or unreasonably expensive, or of little value to the promise. | Commercial Impracticability |
under this doctrine, performance is excused when events occur after the formation of the contract that would make the return performance of the other party worthless to the promisor. | Commercial Frustration (Frustration of Venture) |
Parties who have been released from their obligations under a contract. | Discharged |
Since contracts are created by mutual agreement, they may also be discharged by: | Mutual Agreement |
Occurs when a party accepts incomplete performance without objection, knowing that the defects in performance will not be remedied. | Waiver |
If the parties' agreement is represented by a written instrument, a material change of the instrument by one of the parties discharges the other party. | Intentional Alteration |
All states statutorily establish the reasonable time within which a lawsuit must be brought. | Discharge by Statute of Limitations |
A party suing for breach of contract who has suffered actual losses as a result of the breach is entitled to recover these kind of damages. | Compensatory Damages |
In some cases, the unique circumstances of plaintiff causes harm that wouldn't usually be foreseeable as a result of the breach. Usually, such damages aren't recoverable unless defendant had reason to foresee them at the time the contract was made. | Consequential Damages |
Very small damages that the court may award the plaintiff when a technical breach of contract has occurred without causing any actual loss. | Nominal Damages |
The parties to a contract may provide in advance that a specific sum shall be recoverable if the contract is breached. Such provisions are called: | Liquidated Damages Provisions |
Ordinarily, these damages aren't recoverable for breach of contract. They are recoverable only when extreme circumstances justify penalizing the defendant. They are sometimes specifically authorized by statute. | Punitive Damages |
Plaintiffs who have been injured by a breach of contract have a duty to minimize the damages they suffer if they can do so without undue risk, expense or humiliation. | Mitigate |
If the legal remedies for breach of contract (usually money damages) aren't adequate to fully remedy a party's injuries, a court has the discretionary right to grant this type of remedy. | Equitable Remedy |
If the subject matter of a contract is unique so that a money damage award will not adequately compensate a buyer whose seller has refused to perform, a court may order the seller to complete this kind of performance. | Specifically Perform |
Are available when a breach of contract threatens to produce an irreparable injury. | Injunctions |
A court can order a party to do certain acts. | Mandatory Injunction |
A court can order a party to refrain from doing certain acts. | Prohibitory Injunction |
The transfer of ownership to tangible personal property in exchange for money, other goods or the performance of services. | Sale of Goods |
A bundle of rights in a piece of property in which a party may own either a equitable/legal interest. The rights may be separated and held by different parties. It may also refer to a formal document that serves as evidence of ownership. | Ownership (Title) |
Occurs when the surrounding circumstances make it clear that the goods are those “to which the contract refers”. | Identification |
In some instances, the buyer will refuse the goods, perhaps because they don't believe that they conform to the contractual specifications. Whatever the reason, if the buyer rejects tender of the goods, title will automatically be revested in the seller. | Reject |
"Honest in fact in the transaction concerned," and buyer has given "value" if they have given any consideration sufficient to support a simple contract. | Good Faith |
One who, in good faith, buys goods from a person dealing in goods of that type without knowing that the sale violates the ownership rights of any third party. | A Buyer in the Ordinary Course of Business |
Calls for the seller to deliver the goods free of expense and at the seller's risk to the place designated. | FOB (Free on Board) |
Commonly used in maritime contracts and is normally accompanied by the name of a specific vessel and port. | FAS (Free Alongside) |
Means that the price of the goods includes the cost of shipping and insuring them. | CIF (Cost, Insurance and Freight) |
The same as CIF except that the seller isn't obligated to insure the goods. | C&F (Cost & Freight) |
Doesn't specify a particular ship but places the expense and risk on the seller until the goods are unloaded from whatever ship is used. | Ex-Ship |
Places the expense and risk during shipment on the seller. If the goods fail to arrive through no fault of the seller, the seller has no further liability to the buyer. | No Arrival, No Sale |
The Code rules that govern risk of loss are supplemented by rules that give the parties this type of interest in the goods, which allows them to insure themselves against most of the risks they must bear. | Insurable Interest |
In this type of contract, the goods are delivered to the buyer primarily for resale with the understanding that the buyer has the right to return them. | Sale or Return Contract |
The goods are delivered to the buyer primarily for the buyer's use. | Sale on Approval |
Frequently a seller (a consignor) places goods in the hands of a merchant (a consignee) who has agreed to act as the seller's agent in selling the goods. | Sales on Consignment/Memorandum |
If there is a conflict between the express terms of the contract and previous dealings between the parties, the express terms of the contract prevail. | Past Course of Dealing |
These customs and practices are usually assumed by parties to a contract for goods of that type. | Customs and Practices of the Trade |
This means that the seller must make the goods available to the buyer. This must be done during reasonable hours and for a reasonable period of time so that the buyer can take possession of the goods. | Tender of Delivery |
Sellers are required to let the buyer know that the goods have been shipped. | Notify |
If these are the shipping terms, then the buyer must pay for the goods before inspecting them unless they are marked "Inspection Allowed." | Cash on Delivery (COD) |
Occurs when a buyer, after having reasonable opportunity to inspect the goods, either indicates that they will take them or fails to reject them. | Acceptance of Goods |
To refuse goods, the buyer must notify the seller of the rejection and specify the defect or non-conformity. | Rejection of Goods |
Any unit of goods that is treated by commercial usage as a single whole. | Commercial Unit |
If a buyer wishes to hold a seller responsible, they must give the seller this that the goods are non-conforming. | Timely Notice |
Under certain circumstances, a buyer is permitted to undo the acceptance. | Revoke |
The buyer/seller may become concerned that the other party may not be able to perform required contract obligations. If there is reasonable basis for that concern, the buyer/seller can demand this from the other party that the contract will be performed. | Assurance |
If the parties agree on the amount of damages that will be paid to the injured party, this amount known as: | Liquidated Damages |
Liability for these kinds of damages resulting from a breach of contract may also be limited or excluded by agreement. | Consequential Damages |
Include storage charges and sales commissions paid when the goods were resold. | Incidental Damages |
Include expenses the buyer incurs in receiving, inspecting, transporting and storing goods shipped by the seller that don't conform with those called for in the contract. | Incidental Damages |
in certain cases, an injured buyer is able to recover these kinds of damages, such as buyer's lost profits caused by the seller's breach of contract. | Consequential Damages |
Sometimes the goods covered by a contract are special and it isn't possible for a buyer to obtain substitute goods. | Unique |
The buyer can require the seller to give the buyer goods covered by the contract. | Specific Performance |
A person that acts for the benefit of and under the direction of another. | Agent |
People under the control of their employer/principal as to both the objective o their work and the means used to achieve it. | Employees/Dependent Agents |
are permitted to work according to their own methods. They are under the control of their principals as to the result that is to be achieved but not as to the means used to accomplish the result. | Independent Contractors/Agents |
Typically purchase products directly from the manufacturer and bear the risk of no sale or non-payment by the ultimate purchaser. | International Distributors |
One who is trusted to act in the best interests of another rather than pursuing their own interests. | Fiduciary |
Requires complete honesty from the agent in all dealings with the principal. Also requires either avoidance of conflicts between the interests of the agent and those of the principal or full disclosure of any such conflict to the principal. | Agent's Duty of Loyalty |
The duty of loyalty demands that the agent avoid this. | Appearance of Impropriety |
Courts make an exception when the dual agent is employed as a: | Middleman |
An agent acting without pay. | Gratuitous Agent |
If an agent mixes goods that are identical and cannot be separated—the agent bears the risk of any loss. | Commingling |
If an agent takes the property of the principal with the intent to deprive them of it, the agent is guilty of this crime. | Embezzlement |
Whether or not an agent wrongfully uses the property of the principal, the agent must return it or be liable for its value in an action for: | Conversion |
When an agent was the primary factor in a purchase or sale, this rule may entitle the procuring agent to their commission regardless of who eventually completes the sale. | Procuring Cause Rule |
Notwithstanding the agency agreement, either party generally may terminate the agency at any time, since the relationship is based on mutual consent. This gives each party this power, even if there is no contractual right to do so. | Power to Terminate |
Stems from the judicial reluctance to force people to continue personal relationships against their will. | Agency at Will |
It is one exception to the general rule that either party has the power to terminate an agency. Such an agency is irrevocable without the consent of the agent. | Agency Coupled with an Interest |
To avoid being bound by acts of the agent after termination, the principal must give this type of notice to those who have dealt with the former agent. | Actual Notice |
A type of notice sufficient for persons who may have been aware of the agency but have never formally dealt with it. | Constructive Notice |
When the principal specifically describes the extent of the agent's powers. | Express Authority |
The technical label given to an agent whose authority is in writing. | Attorney-in-Fact |
The authority to act for another person in specified or all legal or financial matters. | Power of Attorney |
The authority of an agent acting on behalf of another person or entity. The person acting with this kind of authority does what is reasonably necessary in order to effectively perform his duties. | Implied Authority |
Agents have implied power to act in emergencies. | Inherent Agency Power |
A person who acts for the principal in a number of transactions over a period of time. | General Agent |
Authorized by the principal to do a specific act or to handle one or a few of certain types of business transactions. | Special Agent |
Created by the conduct of the principal that causes a third person reasonably to believe that another has the authority to act for the principal. | Apparent Authority |
An agent of an agent. | Subagent |
Agents may delegate to employees acts for the principal that involve no judgment or discretion. | Ministerial Acts |
When the 3rd person knows he is dealing with an agent but doesn't know the identity of the principal. | Partially Disclosed |
"Let the master answer." Principals are often liable for the torts of their agents under the doctrine of: | Respondeat Superior |
The principal basically is liable because of its own tort. | Direct Liability |
May refer to an object such as a building or legal rights connected with an object. Can also refer to legal rights that have economic value but aren't connected with an object. | Property |
The bundle of legal rights recognized and enforced by society. | Ownership of Property |
The earth's crust and all things firmly attached to it. | Real Property |
All other objects and rights that can be owned. | Perosnal Property |
Personal property attached to, or used in connection with, real property in such a way as to be treated as part of the real property, it is known as a: | Fixture |
Has a physical existence; land, buildings and furniture are examples. | Tangible Property |
Property that has no physical existence; patent rights, easements and bonds are examples. | Intangible Property |
If property is owned by the government or a government unit, it is classified as this type of property. | Public Property |
If the property is owned by an individual, group of individuals, a corporation or some other business organization, it is known as: | Private Property |
Property whose owner intentionally places the property out of their possession with the intent to relinquish ownership of it. | Abandoned property |
Property where the owner didn't intend to part with possession of the property. | Lost Property |
Property where the owner placed the property somewhere and accidentally left it there, not intending to relinquish ownership of the property. | Mislaid Property |
Some states have this statute, it allows finders of property to clear their title to the property after taking steps to see whether the true owner can be located. | Estray Statute |
All states have these statutes that require the true ownership of property to claim it or bring a legal action to recover possession of it within a certain number of years. | Statutes of limitations |
A way title to personal property can be obtained. | Gift |
A person who receives a gift. | Donee |
A person who gives a gift. | Donor |
Title to personal property can be obtained this way. It is the intermixing of goods belonging to different owners in such a way that the goods cannot later be separated. | Confusion |
Title to personal property can be obtained this way. It means increasing the value of property by adding materials and/or labor. | Accession |
the delivery of personal property by one person (the bailor) to another person (the bailee) who accepts it and is under an express or implied agreements to return it to the bailor or to someone designated by the bailor. | Bailment |
The bailee is responsible for using this kind of care to protect the property during the time they have possession of it. | Reasonable Care |
When personal property is rented or loaned, the bailor makes this kind of warranty that there are no hidden defects in the property that make it unsafe for use. | Implied Warranty |
Persons who are licensed by government agencies to carry the property of anyone who requests the service. | Common Carriers |
Persons who carry goods only for persons selected by the carrier. | Private Contract Carriers |