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Intro to Law


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Restatement of the Law of Torts, Second
An authoritative secondary source, written by a group of legal scholars, summarizing the existing common law, as well as suggesting what the law should be.
An intentional act that creates a reasonable apprehension of an immediate harmful or offensive physical contact.
An intentional act that creates a harmful or offensive physical contact
Transferred intent
A legal fiction that if a person directs a tortious action toward A but instead harms B, the intent to act against A is transferred to B.
False imprisonment
occurs whenever one person, through force or the threat of force, unlawfully detains another person against his or her will
The publication of false statements that harm a person's reputation
Spoken defamation
Written defamation
Defamation per se
Remarks considered to be so harmful that they are automatically viewed as defamatory
Making a defamatory remark either knowing the material was false or acting with a "reckless disregard" for whether or not it was true.
Invasion of Privacy
An intentional tort that covers a variety of situations, including disclosure, intrusion, appropriation, and false light.
The intentional publication of embarrassing private affairs.
The intentional unjustified encroachment into another person's private activities
An intentional unauthorized exploitive use of another person's personality, name, or picture for the defendant's benefit.
False light
The intentional false portrayal of someone in a way that would be offensive to a reasonable person.
Loss of consortium
The loss of one spouse of the other spouse's companionship, services, or affection.
Trespass to personal property
When someone harms or interferes with the owner's exclusive possession of the property but has not intention of keeping the property
involves the more serious taking of someone else's property with the intent of permanently depriving the owner; the civil side of theft
the person who commits the tort
Intentional Tort
When people intentionally seek to violate a duty toward others
When the harm occurs as a result of a careless act done with no conscious intent to injure anyone
Strict Liability
When for policy reasons the defendant is held responsible even though the defendant did not act negligently nor intentionally to harm the plaintiff.
Artisan's Lien
Rightfully retaining someone's property
False arrest
When a person arrested without probable cause and when not covered by special privilege.
Malicious Prosecution/Abuse of Process
Involve malicious and improper use of the courts or other forms of legal proceedings
intentional misrepresentation
Interference with a contractual relationship
An intentional tort that occurs if someone induces a party to breach a contract or interferes with the performance of a contract.
Acting is an imporoper or a wrongful way
Failing to act
Res ipsa loquitur
"the thing speaks for itself"; the doctrine that suggests negligence can be presumed if an event happens that would not ordinarily happen unless someone was negligent
"but for" standard
Necessary to establish that if the defendant had not acted in that manner, the plaintiff would not have been injured
Actual cause/Cause in fact
Measured by the "but for" standard: But for the defendant's actions, the plaintiff would not have been injured
Market share theory
A legal theory that allows plaintiffs to recover proportionately from a group of manufacturers when the indentity of the specific manufacturer responsible for the harm is unknown
Proximate cause
Once actual cause is found, as a policy matter, the court must also find that the act and the resulting harm were so foreseeably related as to justify a finding of liability.
Superceding cause
In negligence, an intervening cause that relieves the defendant of liability
Dramshop laws
when a court holds a person responsible for the actions of someone else
Last clear chance
The doctrine that states that despite the plaintiff's contributory negligence, the defendant should still be liable if the defendant was the last one in a position to avoid the accident
Assumption of the risk
Voluntarily and knowingly subjecting oneself to danger
Exculpatory cause
A provision that purports to waive liability
Comparative negligence
A method for measuring the relative negligence of the plaintiff and the defendant, with a commensurate sharing of the compensation for the injuries
Sovereign immunity
Prohibits suits against the goverment without the government's consentRe
Disregarding a substantial and unjustifiable risk that harm will result
Ultrahazardous Activities
Those activities that have an inherent risk of injury and therefore may result in strict liability
Products liability
The theory holding manufacturers and sellers liable for defective products when the defects make the products unreasonably dangerous
Product misuse
When the product was not being used for its intended purpose or was being used in a dangerous manner; it is a defense to a products liability claim so long as the misuse was not foreseeable.
An order to the defendant ordering the defendant to do a specific act or to cease doing a specific act
compensatory damages/actual damages
Awarded to compensate the plaintiff for the harm done to him or her
General damages
Damages that you would naturally expect to occur given the type of harm suffered
Special damages/consequential damages
Damages that also flow naturally from the injury, but they may vary depending on the special circumstances of the case
Punitive damages/exemplary damages
serve the dual functions of punishing and deterring tortfeasors
Nominal damages
awarded when a right has been violated but the plaintiff cannot prove any monetary harm
Uniform Commercial Code (UCC)
Originally drafted by the National Conference of Commissioners on Uniform State Law, it governs commercial transactions and has been adopted by all states, entirely or in part.
Expressed Contracts
Formed through words, either oral or written
Implied-in-fact contracts
Formed through conduct
when a contract has all the essential elements needed for a binding agreement
A contract is declared this when the court finds it was for an illegal purpose
Bilateral contract
Where a promise is exchanged for a promise
Unilateral contract
a promise is exchanged for an act
Output contract
A contract in which one party agrees to deliver its entire output of a particular product to the other party
Option contract
A contract in which the buyer gives the seller consideration to keep the offer open for a stated period of time
Merchant's firm offer
An offer made by a merchant in a signed writing that assuure the buyer the offer will remain open for a specific period of time. It does not require consideration to be binding
Mirror image rule
The requirement that the acceptance exactly mirror the offer or the acceptance will be viewed as a counteroffer
Although no contract was formed, the courts will fashion an equitable remedy to avoid unjust enrichment
Anything of value; it must be present for a valid contract to exist, and each side must give consideration
Unconscionable contract
A contract formed between parties of very unequal bargaining power where the terms are so unfair as to "shock the conscience"
Promissory estoppel
Occurs when the courts allow detrimental reliance to substitute for consideration
A valid contract that can be set aside at the option of one of the parties
The ability to take back one's contractual obligations
Normally food, clothing, shelter, and medical treatment.
Covenant not to compete
A promise not to compete within a given geographical area for a specific time period
Adhesion contract
A contract formed where the weaker party has no realistic bargaining power. Typically a form contract is offered on a "take it or leave it" basis
Exculpatory clause
A provision that purports to waive liability
The act of canceling the contract and returning the parties to the positions they were in prior to the contract having been formed
a guarantee, made by the seller or implied by the law, regarding the character, quality, or titled of the goods being sold.
Implied warranty of merchantability
An implied promise that the goods being sold will be usable for the purpose for which they were sold
Implied warranty of fitness
An implied promise that the goods being sold will satisfy a special purpose
Statute of frauds
A statutory requirement that, in order to be enforceable, certain contracts must be in writing
Parole evidence rule
An evidentiary rule that a written contract cannot be modified or changed by prior verbal agreements
Substantial performance
although a breach of contract, performance of all the essential terms of the contract will entitle to breaching party to the contractual price minus any damages caused by the breach.
Material breach
Such a grave failure to fulfill the contractual terms that the other party is relieved of all contractual obligations
Perfect tender rule
The requirement that the goods delivered exactly meet the contractual specifications
When a third party is substituted for one of the original parties
Accord and satisfaction
The agreement and then the performance of something different than originally promised
the transfer by one of the original parties to the contract of party or all of his or her interest to a third party
The transfer by one of the original parties to the contract of his or her obligations to a third party
Specific performance
when money damages are inadequate, a court may use this equitable remedy and order the breaching party to perform his or her contractual obligations
Mitigation of damages
the requirement that the nonbreaching party take reasonable steps to limit his or her damages
Finding subsitute goods
Consequential damages
Indirect damaages that must be foreseeable to be recovered
Liquidated damages clause
A contract provision that specifies what will happen in case of breach
Contract reformation
An equitable remedy that allows the courts to "rewrite" contract provisions
A tangible object or a right or ownership interest
Real property/real estate
Land and items growing on or permanently attached to that land
Personal property
All property that is not real property
Intellectual property
Intangible assets, such as trademarks, copyrights, and patents
Tangible property
consists of goods that can be touched and moved
Intangible property
personal property that cannot be touched (stocks, patent, etc.)
Conditional fee estate
when the current owner retains ownership only as long as certain conditions are met
The previous owner of a property
Joint tenancy
ownership by two or more persons who have equal rights in the use of that property; when a tenant dies, that person's share passes to the other joint tenant(s)
Tenancy in common
Ownership by two or more people. Ownership shares do not have to be equal, but each has an undivided interest in the property. When a tenant in common dies, that person's share passes either by will or by intestate statute.
Life tenant
gives a person ownership that lasts only as long as that person lives
Tenancy by the entirety
A special type of joint tenancy applicable only to married couples
Restrictive covenant
A provision in a deed that probhibits specified uses of the property
A right to use property owned by another for a limited purpose
An agreement in which the property owner gives someone else the right to use that property for a designated period of time
Lessor or landlord
The owner of the property being leased
Lessee or tenant
the person with right of possession during the term of the lease
Tenancy for a term/Estate for years
the lease establishes a set period of time during which the lessee will have control and after which all rights revert to the lessor
Periodic tenancy
The rental periods are established at a set interval
Tenancy at will
When no time period is specified and either the lessee can leave or the lessor can reclaim the land at any time
Tenancy at sufferance
Denotes a situation in which the person in possession of the land has no legal right to be there
Quiet enjoyment
The tenant's right to be free from interference from the landlord with respect to how the property is used
Implied warranty of habitability
A requirement that property be fit for the purpose for which it is being rented. Owners are required to repair and maintain the premises at certain minimum levels
Constructive eviction
An act by a landlord that makes the premises unfit or unsuitable for occupancy
Security deposit
An amount of money, usually equal to one month's rent, that is collected at the time the lease is signed and then held by the landlord to cover the cost of repairs that may be needed when the tenant moves out.
Listing agreement
A document that spells out the nature of the services a real estate agent will perform with respect to selling real property and how the agent will be compensated for those services
Earnest money
The money the buyer turns over to the real estate agent to be applies to the purchase price of property
Title search
An examination of documents recording title to the property to ensure the owner has a clear title
Clear title/marketable title
An ownership right that is free from encumbrances or other defects
A condensed history of the title, which includes the chain of ownership and a record of all liens, taxes, or other encumbrances that may impair the title
Title insurance
Insurance agasint any loss due to a defective title
The legal document that formally conveys title to the property to the new owner
Warranty deed
A deed in which the seller promises clear title to the property
Quitclaim deed
A deed in which the grantor gives up any claims to the property without making any assertions about there being a clear title
Closing statement
An itemized allocaation of all the costs and moneys exchanged among the various parties, including financial institutions and real estate brokers, when a property is sold.
Land contract
An installment contract for the sale of land.
A person who died.
A gift of real estate that is given to someone through a will
The process by which a creditor who holds a mortgage or some other form of a lien on real property can force the sale of that property in order to satisfy the debt to the mortgagee or lien holder
Power of sale clause
A clause authorizing a private foreclosure sale that does not require court action
Eminent domain
The power of government to take private property for public purposes
Just compensation
The amount of money the government must pay the owner of property it seizes through eminent domain.
Adverse possession
A transfer of real property rights that occurs after someone other thhan the owner has had actual, open, adverse, and exclusive use of the property for a statutorily determined number of years
A temporary transfer of personal property to someone other than the owner for a specified purpose
The owner of the personal property that is being temporarily transferred as part of a bailment
The party taking temporary control of the personal property during a bailment
The total property of whatever kind, both real and personal, that a person owns at the time of his or her death.
The document used to express a person's wishes as to how his or her property should be distributed upon death
When a person dies without a valid contract
Formal will
one that has been prepared on a word processor or typewriter and has been property signed by the testator
The person making a will to direct how his or her assets will be distributed at death.
Holographic will/Informal will
One that was handwritten by the testator, wihtout the witness signatures necessary for a formal will.
Nuncupative will
An oral will
A gift of personal property in a will
the person named in a will, insurance police, or trust who receives a benefit
A person appointed by the testator to carry out the directions and request in his or her will
Self-proving clause
A notarized affidavit, signed by the attesting witnesses, that may eliminate the need to call witnesses during the probate process to attest to the validity of the will
A supplement or addition to a will that modifies, explains, or adds to its provisions
Living will/Medical directive
A document expressing a person's wishes regarding the withholding or withdrawal of life-support equipment and other heroic measures to sustain life if the individual has an incurable or irreversible condition thhat will cause death.
One who is given the responsibility of managing the affiars or property of a person who is incapable of administering his or her own affairs.
Simultaneous death clause
If a person is named as a beneficiary in the will dies within a short period of time after the decedent dies, it will be assumed for purposes of the will that the person in question failed to survive the decedent.
A legal relationship in which one party holds property for the benefit of another
A person who creates a trust
The person appointed to administer a trust
The process of court supervision over the distribution of a deceased person's property
A person appointed by the court to carry out the directions and requests of someone's will
Persons related to the decedent by blood
Inter vivos trust
Created before a person's death
Living trust
Type of inter vivos trust specifically designed to avoid probate
Revocable trust
The donor can change the beneficiaries and the terms, and even terminate the trust completely at any time and take back full ownership and control of the property
Irrevocable trust
The terms cannot be changed, and the donor cannot regain ownership or control of the property
Testamentary trust
Created by a will and does not become effective until after the testator's death
Persons related to the decedent by marriage
Per stirpes/Right of represenation
A method of dividing an intestate estate whereby a person takes in place of the dead ancestor
A reversion of property to the state when there are no heirs
Testamentary capacity/Sound mind
The mental capacity whereby the testator understands the nature of his or her property and the identity of those most closely related to him or her
Collateral heir
One who has the same ancestors but does not decsend from the decedent
Sole proprietorship
A business owner by a single owner
A business run by two or more persons as co-owners
A business entity formed by an association of shareholders
Limited liability company (LLC)
A new form of business ownership that gives small businesses that advantage of liability limited to the amount of the owner's investment along with single taxation
Limited liability partnership (LLP)
A form of business ownership similar to a general partnership except the partners do not have unlimited person liability for the wrongful acts of other partners
Joint liability
When business partners share in the liability for the actions of the partnership and for every other partner
Joint and several liability
When a plaintiff suing a partnership has the option of suing just the partnership, or the partnership and one or more selected partners, or just one of the partners.
Limited partnership
A partnership of at least one general partner and one or more limited partners. The limited partners' liability is limited to their investments so long as they do not participate in management decisions
Uniform Partnership Act (UPA)
Known as a gap filler, the UPA comes into play only if terms are left out of a partnership agreement
Partnership by estoppel
A partnership created by the words or actions of persons acting as though they were a partnership
Registered agent
the person designated to receive service of legal documents
Board of directors
responsible for the management of the corporation
Fiduciary relationship
When a person in a position of trust is responsible for acting in the best interests of another party
Piercing the corporate veil
When a court sets aside the unlimited liability protection normally given to corporate shareholders
As close or closely held corporations
Are relavtively small operations in which one person or the members of one family own all the stock
Foreign corporation
When a corporation in one state does business with a corporation in another state
Domestic corporation
When a corporation does business in its own state
Alien corporation
A corporation formed in another country
promise to pay money
signs the instrument promising to pay money to the payee
A three-party instrument in which the drawer order the drawee (a bank) to pay money to the payee.
A specialized form of a draft in which a bank depositor names a specific payee to whom funds are to be paid from the drawer's account.
Bearer paper/Order paper
Will have written on its front a statement that it is payable to cash or payable to the bearer, or it will have a signature on the back, causing it to be indorsed in blank.
Indorsement in blank
Occurs when an indorser simply signs his or her name and does not specify to whom the instrument is payable
Negotiable instrument
Commercial paper that can be transferred by indorsement or delivery. It must meet the requirements to be negotiable. If it does not, a transferee cannot become a holder in due course but only gets the rights along with the liabilities of a contract assignee
Gives the creditor rights against the debtor. The creditor must possess the collateral or have a signed security agreement, have given something of value, and the debtor must have rights in the collateral.
someone who has the power to act in the place of another
A person who permits or directs another person to act on the principal's behalf
Fiduciary duty
A legally imposed obligation to act in the best interests of the party to whom the duty is owed
Respondeat superior
The tort theory that an employer can be sued for the negligent acts of its employees
Bona fide occupational qualification (BFOQ)
A defense to an overt discrimination claim, alleging that the qualification is necessary to the essence of the business operation
Disparate treatment
The legal theory applied when a rejected applicant claims the reason for rejection was based on a discriminatory intent but the employer alleges a nondiscriminatory reason
Disparate impact
The legal theory applied when the use of a neutral standard has a disproportionate impact on one protected group
Burden of production
The necessity to produce some evidence, but it need not be so strong as to convince the trier of fact of its truth
Burden of proof
The necessity of proving the truth of the matter asserted
a private wrong in which a person or property is harmed because of another's failure to carry out a legal duty

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