Blaw exam 2 material PDF

Preview

Summary

Download Blaw exam 2 material PDF

Description

Test 2 Business Law Class action

All of the personal ethical problems · Personal relationship with Michael and Maggie (conflict of interest) · Father and daughter All corporate or business ethical problems · If they have two of their lawyers from the same firm representing both parties that might be an issue · Recall being too expensive · Giving out names of people that work there is wrong · Trying to get Maggie to destroy the evidence \ All legal ethical problems · Michael trying to destroy the evidence against the law · Giving information to her father was legally unethical · Father and daughter · All of the parties signed a waiver for having father and daughter representing both parties · Relationship between Maggie and Michael · Michael was using her, to cover up if anything went wrong · Company knew about the problem and was faced with a proposition of having a re call and then found out, sent that question to head of account, and found out it would cost more to do the re call than the law suit. · Not giving a report is big ethical issue’ and then they destroy it which is even worse · Michael lies about ever seeing the report

10/18/16 Tort · A  civil wrong – as distinguished from a crime – that is not a breach of contract, and for which the law provides a remedy · Consists of the violation of a standard of behavior established by society. The same true of a crime, except the State rather than an individual is offended. A Branch of contract, on the other hand, involves the violation of a standard of behavior established by the arties themselves. Purpose of tort law Generally, the purpose of tort law is to provide remedies for the violation of various protected interests, such as personal physical safety. Therefore, tort law provides remedies for acts that cause physical injury or that interfere with physical security and freedom of movement

Three kinds of torts · Strict liability o Simple… o Liability without regard to fault o Imposed on individuals engaged in dangerous activities. Ex: blasting rock – liable even if all reasonable precautions are taken o Also imposed in products-liability cases when inherently dangerous if defective · Intentional torts o In most cases they can also be crimes o ASSAULT AND BATTERY – actually two separate torts § Battery: an unpermitted touching § Assault: occurs when one’s action creates in another a reasonable apprehension of bodily harm. · N  egligence

· Conversion o The wrongful interference with one’s right to possession of PERSONAL PROPERTY. The intent required is for the defendant to exercise control over goods that is inconsistent with the plaintiffs right to possession · Defamation o A false communication that tends to injure one’s reputation by lessening his esteem, respect, or goodwill in the community o Must be published – requirement is that the statement be made to a third party o Actually consist of two torts § Libel – written word. Existence of damages is presumed (amount must be proven) § Slander – spoken word · Slander o Slander per se: unnecessary to prove damages (must prove amount). Consists of the imputation of a crime or of a loathsome disease, or statements affecting the plaintiff in his business, trade, profession, office, or calling. o Slander per quod: All other slanderous statements. Require proof of damages. · Protection from liability for defamation o Privilege: circumstances in which an individual is protected against liability for published false statements. Two kinds § Absolute privilege: statements made in judicial proceedings, legislative proceedings, and certain executive communications.

§ Qualified privilege: statement must be made in a reasonable manner and for a proper purpose. · Interference with contractual relations o Plaintiff has a contract and defendant interferes with it. · False imprisonment o The intentional, unprivileged detention of a person without his consent o Does not mean that the plaintiff must be locked up by physical force o Often occurred when one charged with crime of larceny o Now, most defendants in “shoplifting cases” are charged with the crime of unlawful concealment, which prevents, in most cases, a successful charge of false imprisonment · Deceit o Known as FRAUD o Consists of KNOW IT o A false representation o Made with knowledge of falsity o Made with intention of inducing the plaintiff to rely on the statement, and o Plaintiff justifiably relies on the statement and an injury results · Nuisance o Results from a substantial interference with a right or an interest of another person, most often the right to enjoy and use his property o Many causes o Excessive noise o Pollution o Smoke · Invasion of privacy o Recently the courts have held that certain amendments to the U.S Constitution imply a right to privacy, such as 1. A right to seclusion – eavesdropping (wiretap, compulsory blood testing, etc) 2. False light – publication of information that places a person in a false light 3. Public disclosure of private facts 4. Appropriation of identity Unintentional · Negligence o Behavior that is not intended to injure anyone but that involves a failure to exercise due care. o In order to recover for the tort of negligence, the plaintiff must prove that the defendant owed a duty of care to the plaintiff, and the duty was violated o Most often used tort o All automobile accident cases are based on the tort of negligence · D  uty owed – changes from case to case o Duty owed someone coming on your property

§ Duty owed to an invitee: to make the premises safe not only against those dangers of which he (owner, lessee) is aware but also against those dangers that he might discover with reasonable care · Homeowner, store owner, mall owner, · Slip fall cases · Innkeepers · Duty owed a licensee o One who comes on your property with your permission but for his own benefit. o Duty: refrain from any active negligence · Duty owed a trespasser o Owner must refrain from willfully and intentionally injuring him. Burglar. o Exception: ‘attractive nuisance” such as a swimming pool (as to children) must exercise reasonable care to protect them, even though technically they may be trespassers. · Breach of duty Standard o The objective standard: How would a reasonable man have behaved under the circumstances. o For jury to determine – may be different in different venues · Causation and Injury o It must be shown that the negligent behavior caused the injury in question. o Palsgraf v. Railroad § Foreseeability o · Defenses to negligence  o Contributory negligence and  comparative negligence. In most states (NC) contributory negligence is a complete defense. Where plaintiff contributed to his injuries. o Last clear change – used only in states that also uses contributory negligence. Plaintiff negligent, but Defendant had last opportunity to avoid injury and did not. o Assumption of risk plaintiff knowingly enters an area of danger. · Negligence per Se o Negligence in and of itself o Usually used in automobile accident cases where defendant violates a statue, such as speeding

Res Ipsa loquitur · Facts speak for themselves · But for negligence the accident would not have occurred · Ex; wheels coming off a new car · Defendant must prove he was not negligent

Special Negligence Statues

GOOD SAMARITAN STATUES – persons who are aided voluntarily by others cannot sue them. Primarily for use of physicians and medical personnel DRAM SHOP ACT – tavern owner, bartender or social host may be held liable for injuries caused by a person who became intoxicated while drinking at the bar or at social situations (homes).

Tort Reform · SOME types of reform efforts: 1. Limiting the amount of damages that can be awarded 2. Capping the amount that attorneys may collect in contingency fees 3. Requiring the losing party to pay both plaintiff’s and defendant’s expenses

10/25/16 CONTRACTS · Definition: The Restatement of the Law of Contracts states that a contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. · Courts will enforce only certain types of promises. If John promises to give sam $50and does not so, Sam cannot enforce the promise in Court because it lacks elements required for a valid contract.

Elements of a Contract · A valid contract requires the following elements: 1. Offer and acceptance 2. Contractual capacity of the parties 3. A legal purpose and object 4. Consideration If any one of these elements are missing, the promise or agreement is not a contract Classification of Contracts 1. Can be oral or written (with some exceptions we will discuss later) 2. Formal or simple

a. Formal contracts are contracts “under seal” b. _________________(seal) or ($) etc. c. Simple contracts are all contracts not under seal d. “What difference does it make” when contract is under seal (a) there is a rebutable (rebuttable?) presumption the contract is supported by consideration, and (b) statute of limitation is extended.

Statue of limitation: Have a contract, they violate the contract. There is a time of period you have to file the lawsuit or you can not file one after. Contract under seal you have 10 years, which you can bring the lawsuit 3. Bilateral or unilateral. Concerned with promises of the parties a. Bilateral contract has two promises – both parties promise to do something EX. A promises to buy B’s car for $5,000 one month from date of contract, and B promises to buy A’s car for $5,000 on that date b. Unilateral contract has only one promise EX: A promises to pay any citizen $5000 for the return of his lost car. No return promise is necessary. Is for any Citizen to return the car, and once it is returned a contract comes into being 4. Void, Voidable and unenforceable a. Void – A void “agreement” is one that lacks one of the elements of a contract b. Voidable – Contains all the elements of a contract, but for one reason or another one of the parties may be entitled to rescind the contract. EX: entered into under duress c. Unenforceable – Satisfies all the requirements of a contract but Court will not enforce EX; a statute of Fraud (not in writing) B. statute of limitations (action instituted too late) 5. Express, or implied a. Express – when parties have manifested their intent to enter into a contract (either orally or in writing) b. Implied – when the parties manifest their intent to enter into a contract in a manner other than in words (the intent is implied by the situation or actions of the parties)

Quasi Contract · The Court will create (imply) a contract in order to avoid unjust  enrichment (where no legal contract exist – EX: an element is missing ) · It is not an actual contract, and therefore called a quasi contract. · Recovery is in quantum merit (reasonable value of good, services, etc) · Quasi Contract is an equitable action by the Court · Court will not create a quasi contract if there is a real contract · One may not volunteer his services and then expect the Court to create a quasi contract · Necessary that one party do something that results in the benefit to the other party

Conflict of Laws · Parties to a contract reside in two different states – a conflict arises – each state has a different law regarding the conflict – question is “which state law applies and will be used” · Uniform commercial code has eliminated most, but not all problems. We will see that not all contracts are covered by the UCC. Interpretation of contracts · General Rules of contractual interpretation – not “hard and fast” – difficult to determine which rule the Court will use in a given situation Example: 1. If possible, the court will give effect to the common intent of the parties 2. The contract is construed as a whole 3. Words and phrases will be given their ordinary meaning unless the parties show that they are used in a different sense 4. When contract printed, any conflicting words or phrases deliberately added by the parties will prevail. Also, handwriting will prevail over typewritten words and phrases 5. Words prevail over figures where there is a conflict 6. Ambiguous contract language is construed against the party who prepares the contract. The Offer st · 1   element – the offer · An offer is the initial step in the formation of contract · Not all promises are offers · Restatement of the law of contracts defined an offer as “ a promise, which is in its terms conditional upon an act, forbearance, or return promises being given in exchange for the promise or its performance”

Offer – Contractual intent · The statement, to be an offer, must be made by the offeror with the intent to enter into a contractual relationship with the offeree · Question: How do we determine whether a statement has been made with the intent to enter into a contractual relationship? o Subjective theory? ( go inside someone’s brain to see what they are thinking) no because we cannot actually know what is going on in an individual’s mind · Objective theory ? yes. Reasonable man test. Look at all the surrounding circumstances – where, when, how. If a statement is made under circumstances that would indicate to a reasonable man that the offeror intended to be contractually bound, there is a valid offer even if he/she had some secret mental reservation. Question for Jury.  Lucy v. Zehmer, Va. Case decided in 1954.

Negotiations Preceding Offers · Some statements may not constitute an offer, but are merely negotiations or invitations to deal. o Advertisements – offers or invitations to negotiate further ? o Auctions - auctioneer solicits offers – the bid is the offer – he generally may reject all offers – exception is an auction “without reservation” or “absolute auction”

Communication of Offer · A  n offer must be communicated by the offeror to the offeree · The offeree cannot accept an offer until it is communicated Definiteness · An offer must be definite and certain · Does not mean that every conceivable bit of information must be contained in the offer · Exception – even though neither definite or certain Output and requirement offers and their acceptance can ripen into a contract · Example: Automobile Company and Steel producer Termination · Obviously when an offer is accepted, the offer is terminated and, if everything is “in place” a contract is formed · In addition to acceptance there are a number of ways that an offer may terminate 1. Expiration of time § Time expiration date stated in offer § No time expiration date stated in offer – will terminate at the expiration of a “reasonable period of time” what is a reasonable period of time? Jury question… ( only people that can determine what reasonable time is the jury) 2. Revocation – as a general rule, the offer can revoke his offer at any time prior to its acceptance. Can be done in any reasonable manner that indicates that the offer is revoked. Two situations that seem to be exceptions § Option § Firm offer under the UCC – when a merchant promises in a signed written to keep an offer open for a stated period of time, it may not be revoked. Does not need consideration, as does an option. If no stated time is mentioned, it is a reasonable time  not to exceed three months (law says three months not 90 days, that is not three months) 3. Rejection or rejection and counteroffer

§ A rejection by the offeree terminates the offer and cannot be accepted thereafter, even though the offeree changes his mind § A counteroffer operates as a rejection and an offer · Generally a purported acceptance that varies the term of the offer will operate as a rejection 4. Death or Insanity. The death of either the offeror or offeree, prior  to acceptance terminates the offer (only has to do with offers) § Do not confuse with death of one of the parties after a contract comes into existence. Death, in this case does not necessarily terminate the contract (will discuss later) 5. Illegality. Legislation or court decision making the subject matter of a contract illegal terminates an offer

Acceptance of an offer · Once an offer is made, the next step in the formation of a contract is the acceptance of the offer · Once the acceptance is made, generally a contract arises · Definition: Acceptance is the assent of the offeree, either expressed or implied, to be bound to the terms spelled out by the offeror in his offer Restrictions on acceptance · Generally, only the persons or their agents to whom the offer is addressed may accept the offer · An offer made to a group, or to an offeree “or his assigns” would open the door for any number of people to accept the offer · The offeror has an advantage: he may set forth the requrements for acceptance. EX: he may specify the date, time, place, and method of acceptance, and if so done, the offeree can only accept the offer by complying with such requirements.

Method of Acceptance · An acceptance may be either expressed or implied. If it is expressed, it may be oral or written. An implied acceptance may result from an act of the offeree or by silence, if there is a “duty to speak” 1. Express acceptance – if offer places requirements on method of acceptance, they must be followed. If no particular mode of acceptance is required by the offeror, any reasonable method is acceptable 2. Written Memorialization of Oral Agreements – suppose the parties arrive at the terms of an oral agreement and then decide to reduce that agreement to writing. Question: if the writing never comes about, is the oral agreement enforceable? Answer: depends upon the intent of the parties (did they intent to be bound by the oral agreement if no writing comes about or only once

the oral agreement is put in writing), which is determined by the objective test, and is a question for the jury. 3. Implied acceptance a. Silence  . As a general rule, silence alone, will never constitute acceptance. There are circumstances however which places a duty  to reply on  the offeree, and his failure to do so will constitute an acceptance. This duty to reply most often comes about because of (1) past history of dealing, or (2) the Relationship of the parties b. Hobbs V Massasoit Whip Co. (1893 Mass case) c. Roberts V Buske (1973 ILL case) d. Austin V burge (1911  Mo. Case) e. Acts. f. An acceptance may be by an act of the offeree that indicates that he intends to accept the offer g. Unsolicited goods.

Communication of Acceptance · Bilateral contract – in order for there to be a binding contract in a bilateral contractual situation, the acceptance must be communicated to the offeror or his agent · When the parties deal “face to face” or even over the phone, the time when communication occurs presents little problem · When the oarties communicate by mail, telegraph etc. situation may present problems. · As a general rule, if the offered accepts in a method authorized by the offeror, the contract is formed when the acceptance is placed in control of the transmitting agency · “Mailbox Rule” – if mail is an acceptable means of communicating an acceptance, the acceptance is communicated when it is placed in control of the postal authorities i.e a contract is formed the moment the acceptance is “dropped in the mailbox” even if the offeror never received the acceptance (mail lost, etc) – Result: offeror may be bound by contract and not know it · The offeror can prevent such a result by simply stating in his offer that the contract will not arise until the acceptance is received Communication in a Unilateral Contractual Situation · In a unilateral contractual situation there is an offer that calls for some sort of performance · Acceptance is made by the performance of the act, and in general. No contract arises unti...