Glossary of DMBA 62
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- set of enforceable rules and regulations governing relationships promulgated by authority.
- a study of what constitutes right and wrong behavior by society
- personal ethics
- impartial, unbiased consideration of facts comprising of opposing interests blind….
- set of guidelines for which to operate
- commercial consistency, fairness
- codified laws, basically written laws (not fuzzy common laws)
- city level
- Adminisrative Law
- no balance of power, no checks and balances
- an enforceable agreement between two or more parties, the breach of which the law provides a remedy.
- Requirements of Contract
- Characteristics of Contracts (what’s on a contract?)
- serious intent, specificity and when it ends.
- Words or conduct
- Mutual Assent
- meeting of the minds, or offer and acceptance, bargaining.
- Termination of the Offer:
- Ends when you say it is going to end.
- Can be accepted in 2 ways:
- Words or conduct,
Silence or mailbox
- Equity (equitable remedy)
- a faster remedy that will be in effect immediately as opposed to waiting for the law
- Components of a Contract:
- Mailbox Rule:
- once offer is dispatched, it is out of offeree’s possession.
- Past Consideration
- No Consideration.
No bargain for exchange.
Cannot bargain based on action already done.
- Option Contract:
- irrevocable offer, the seller can’t take back the offer for some period of time
- waives liability
- Capacity and Legality
- Minors can enforce contracts against other parties, however others cannot enforce
contract against minor.
- How can you protect yourself?
- Declare emancipation: minor is considered an adult, parents relinquish the legal rights over child.
- means for capacity when involuntary
- loan at the interest rate above the lawful maximum.
- intentional misrepresentation of material fact, justifiably
relied upon that causes damages.
- Negligent Misrepresentation:
- if you have a duty to find out all facts about something and then didn’t, negligent and fraudulent misrepresentation.
- Undue Influence:
- Age or vastly superior knowledge that influences.
- Forced in to deal is not meeting of minds.
- Difference between Criminal and Civil
- The criminal is between government going after the criminal, if life or liberty is involved
Civil is between two citizens
- process of how case gets to the court system
- Cause of Action:
- the legal right to pursue a remedy
- 3 levels
- Supreme court
District/ Original Jurisdiction, Trial court
- Parallel, state system vs. federal system
- They are equal, neither is higher than the others, they have jurisdiction
- Copyright dispute
- federal court
- based on the subject matter, amount of controversy
- the proper place to bring the disagreement
- court order to do or not do something, can’t wait for trial.
- 2 Reasons you can go to Federal district court: Diversity of Citizenship
- The person on the other side of lawsuit is in other state.
The amount of controversy must be larger than $75,000.
- procedural, make a terse decision based on law, not trial case though.
- How do you start state and end up in federal?
- If there has been a right that was violated during due process, can then be appealed to federal?
- Long-Arm Statute
- envision an arm that pulls you from the state you are in to the state the problem happened and subject to bring justice in the state. Must have had minimum contact.
- In rem
- Diversity of Citzenship
- a way in which people can avail themselves to the federal courts instead of states. This applies when ever a federal court has jurisdiction over a case that does not involve a question of federal law.
Parties must reside in different states
Dollar amount must exceed $75,000
- Equitable remedy
- seek an injunction or order from the court to do something, positive or negative, fairness argument.
When the law won’t remedy the wrong.
- a 3rd party neutral hears both sides of argument, while both sides discuss the disagreement. Mediator does not render a decision, he separates the sides and discusses how if they do not settle, will have to go to court. It is non-binding.
- an ADR method in which an arbitrator or panel of industry experts hear 2 sides of disagreement. Most often doesn’t go to court because it is binding. In neutral grounds, it calls in witnesses. The arbitrators are the judges, just not in a court. Large or small cases.
- Bench Trial
- no jury
- In a trial, what questions can be asked
- Questions of fact: the judge is often the arbitor usually the jury
Questions of law: the judge is the final arbitor that the lawyers will argue
- the right to represent yourself, or means to represent yourself
- anything filed with the court, usually delivered by an officer of the peace.
- trying to discover facts and witnesses before going to court
- Types of Discovery
- Interrogatories: written questions
Requests for Documents: production of documents
Depositions: Sworn testimonies out of court, before a court reporter
Requests for examinations: doctor’s examinations, physical or mental or property sometimes.
Requests for admissions: very terse statements, yes or no answers, sent to other party
- sworn document based upon personal knowledge, signed under a notary of public, a way of getting evidence, usually unreliable, to the court. (Can cause motion for summary judgement)
- Pre-trial procedure includes:
Pleadings, file an answer always before deadline
Service of Process: document to answer in court, if don’t answer – default
- when you ask the court to do something, person doing it is “moving’
- A motion for summary judgment
- a request made to the court for the judge to make a final judgment before trial, ends the case before trial begins, happens after discovery. Both parties do not have to agree. Can be devastating. Are supported by affidavits.
- Complaint or file with the court
- Standards of Proof:
- they are higher in criminal cases, beyond reasonable doubt in criminal cases.
- Tort Law
- Laws that cover civil wrongs instead of criminal.
- Fraudulent Misrepresentation
- the most severe civil action/law
- injury to reputation, unless based on fact? Only 1 year to bring a suit
- Types of Defamation
- Slander: spoken
- Defenses to defamation:
- Media cannot be held liable for printed defamation unless it shows malice, disregard for the truth.
- feeling threatened
- unwanted physical contact
- the basis of all tort law.
- depriving the owner from his/the use of his personal
- Defamation of Property
- economically injurious falsehoods
- The bigger tort branch. The tail that wags the dog.
- Unintentional tort
- A. Owed a Duty
B. Breach of a duty
C. Causation of duty
D. Damages from breach of duty
- do you owe a duty or not? Assessed from the reasonable persons standard. Do you have a duty to prevent someone from drunk driving?
- Duty of Professionals
- raises the standards of what they are held accountable for.
Professional: licensed by the state.
- No Duty to Rescue
- witness to accident, do not have to help. But once you start helping, you must follow through.
- “But for” – the wrongful act, the injury would not have occurred.
- Cannot have damages if there is no foreseeablity. From a reasonable person’s standpoint.
- Defenses to Negligence:
- Assumption of Risk:
Contributory vs. Comparative:
Comparative: compares the fault
Contributory: based amount of negligence on plaintiff and defendant
- Distinguish Torts and Crimes.
- Crime needs to have some intention.
Crime is an offense towards a society.
Tort is an offense towards an individual.
Tort: monetary damages
Crime: fines, imprisonment, and/or death
State of mind and act are needed in a criminal case
Actus reus – the guilty act
Mens rea – wrongful mental state
“The intent and the act.”
- Why is fraud needing clear and convincing evidence rather than other civil actions?
- It is the because it results in the biggest damages of any civil action (torts). It is an outright intentional act.
- serious crimes, anything with a punishment for over a year
- Degrees of felonies:
- 1.Capital offenses – max. penalty is death
2.1st degree – max. is life imprisonment
3.2nd degree – max. ten years in jail
4.3rd degree – max. five years imprisonment
- any crime not a felony, punishment up to one year
- Petty offenses
- minor violations, punishment for a few days, fined, or both.
- Vicarious Liability
- substituted liability, corporations are responsible for the actions of their employees within the scope of their employment.
- Responsible Corporate Officers and Directors
- anything that happens under your supervision, whether known or unknown to you in a reasonable sense, you are personally responsible.
- Five types of crime: you can find them all in the Penal Code. Codified law.
a.burglary and aggravated burglary
b.larceny – theft
c.robbery – theft with force or fear
d.obtaining goods by false pretenses – hot checks
c.assault and battery
d.illegal drug use
a.embezzlement – entrusted with funds and misdirected them.
b.Insider trading – insider is one who knows info that the public doesn’t b/c he is within the company. Any info that gives an advantage (that the public does not know) is insider info. cannot act on this info.
a.RICO (173-174) – racketeer influenced and corrupt organization Act.
i.Federal crime to use any income obtained from racketeering activity to purchase any interest in an enterprise
ii.Acquire or maintain an interest in an enterprise through racketeering activity
iii.Conduct or participate in the affairs of an enterprise through racketeering activity
iv.Conspire to do any of the preceding activities
b.Money laundering – the use of putting illegal money into a legit business so as not to have to report it by putting it in the bank.
- Defenses to criminal liability:
- 1.infancy – if you have not reached age of majority (18)
2.intoxication – involuntary vs. voluntary intoxication
3.insanity – m’naughton rule, right wrong rule, hard to win 1% of all cases use insanity and only successful 25% of those times
4.mistake – fraudno intentmistake of fact
6.duress – wrongful threat of one person induces another person to perform an act
7.justifiable use of force – self defense when in imminent danger in fear of serious bodily injury
10.statute of limitations – no statute of limitations for murder.
- why aren’t all crimes torts and all torts crimes?
- some wrongs are simply not egregious enough to
- What is the policy purpose of contract law?
- To create commercial consistency.
- “promise for a promise”
- acceptance is not completed until the first action is performed
- Quasi Contract
- implied by law - not contracts at all. Exist only to allow fairness, unjustly enrichment.
- affirmation of fact
- Expressions of Opinion
- not enforceable, not actionable
- Preliminary Negotiations
- agreement to agree.
- the glue, without it there is no contract
- Sham Consideration
- parties that have very uneven bargaining skills, needs evidence of manipulation or fraud.
- Parent’s Liabilities for Minors:
- When parents are negligent to the actions of their minors’ negligence action.
- Bilateral mistake of material fact
- there is no contract.
- required to be in writing or evidence in writing.
- 1.interests in land
2.agreements whose terms cannot be completed within one year
3.pay a debt of the estate
4.made in consideration of marriage.
5.contracts for sale of goods priced at $500 or more.
a.Signed by party to be charged.
b.State the quantity term
- Types of Damages:
**Sale of land**
- Never have damages in a purely contract setting, usually from a tort.
- Liquidated Damages:
- Based upon reality, certain damages.
- Specific Performance:
- Equitable remedy: monetary damages will not cover
- Can you have specific performance of service agreements?
- No. Involuntary servitude – unconstitutional. Can receive money damages.
- One who appeals a court decision
- One against whom an appeal is taken
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