Term
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Definition
| A result of cases decided by judges in the English system. |
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Term
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Definition
| Common law principal that requires trial judge to follow decisions of higher court in that jurisdiction. Common law and precendents. Case law is most closely associated. |
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Term
| Burden of Proof: Criminal Cases |
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Definition
| Beyond a reasonable doubt. "Charged" (battery). Does not require an eye witness. |
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Term
| Burden of Proof: Civil Cases |
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Definition
| By the preponderance of the evidence. "Sued" (money). Greater weight of the evidence. |
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Term
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Definition
| Guaranteed to be treated the same in court. Allows government to treat different portions of people differently based on the health, safety and welfare of the people. |
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Term
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Definition
| Before government can take liberty/propert you must be granted your day in court. Cannot be denied rights without be given the opportunity to defend yourself in a governmental entity. |
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Term
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Definition
| Marbury v. Madison-role of courts to deicde what the legislation meant by laws. |
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Term
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Definition
| Cannot be tried twice by the same court for the same crime. Multiple criminal prosecutions by the same sovereign are not permitted. If they have crossed border lines, another state can try the person for the same crime. If they were found not guilty in a criminal case, they can be found guilty in a civil case. |
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Term
| Precedent of Courts Above in System |
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Definition
| State court trial judges in Arkansas look to Arkansas court of appeals and Arkansas supreme court. |
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Term
| Precedent of Courts Above Arkansas State Level |
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Definition
| Federal case in Little Rock, appeal to 8th circuit of appeals in St. Louis. |
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Term
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Definition
| Must have minimum contacts in another state to be sued there. |
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Term
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Definition
1. U.S. as a party MUST file federally (exclusive)
2. Diversity on citizenship must have over $75,000 involved
3. Question of federal law (constitution in question) |
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Term
| How to Begin the Trial Process |
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Definition
| The case begins by filing a document called a complaint. |
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Term
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Definition
| Immediately after the complaint is filed and the defendant is notified of the lawsuit. Must be responded to within 30 days. |
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Term
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Definition
| After complaint is filed and service of process, interrogatories and deposition take place. Ask questions of opponent ahead of time. |
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Term
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Definition
| Interrogation of someone you expect to testify at trial. Not in the court room. Not done in lieu of witness testifying in court. Allowed to ask questions and take down answers to be compared to the actual testimony. |
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Term
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Definition
| Occurs at the end of a civil case. Judge hears the cerdict of the jury, and believes the verdict is not in line with the law or facts of the case and not justifiable. Judge can then override verdict of jury and issue NOV. (only in a civil case) |
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Term
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Definition
| Occurs before the trial begins. No fact dispute, one side entitled to win as a matter of law. (only in a civil case) |
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Term
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Definition
| Occurs during the trial. One side of case does not provide enough evidence, thereby ending the case earlier than expected. (only in a civil case) |
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Term
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Definition
| "Voir Dire"-challenges for cause of preemptory challenges (exclusions of people for jury) so as anyone can be removed from the jury for reasons other than race or sex. (3 allowed in civil cases, 6-8 in other criminal cases) |
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Term
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Definition
| Fees that are fixed as a percentage of a client's recovery in certain types of lawsuits, such as personal-injury lawsuits. Lawyer is pain based on the outcome of the case. Plaintiff must be seeking monetary recovery. |
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Term
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Definition
| Rules on the basis of law |
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Term
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Definition
| Rules on the basis of fact |
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Term
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Definition
| Try to come up with middle ground that both parties agree with. NEVER binding. |
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Definition
| Determines who wins and who loses. Forced to pay if you are the losing party. IS binding. |
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Term
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Definition
| Apprehension of harmful pyhsical contact. Induced fear. |
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Term
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Definition
| Actual physical harm/contact. |
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Term
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Definition
| Causing intentional infliction of emotional distress. Action must either result in a physical injury, or the action must be considered intolerable in society. |
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Term
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Definition
| You have the right to be free from public view/scrutiny. No communication required. Truth is not a defense. |
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Term
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Definition
| Holding someone against their will. Must be viewed as reasonable detainment for a reasonable period of time. Cannot be sued for this action. |
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Term
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Definition
| Holing someone against their will because you have reasonable suspicion that they are stealing. You may hold them in a reasonable manner for a reasonable amount of time to see if they're stealing. |
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Term
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Definition
| False verbal (slander) or written (libel) statement about someone's reputation that damesages their character or reputation in the eyes of the society. MUST include communication to a third party. When it's about a public figure, the aspect of intentional malice must be proven. |
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Term
| Elements of an Unintentional Tort (negligence cases) |
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Definition
| Duty, breech of duty, causation and damages. Malice is not an element. |
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Term
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Definition
| If you are at fault 25% you can recover 75% of damages. (ex. case is worth $100,000-25% at fault-awarded $75,000) |
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Term
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Definition
List of contracts that must be in writing in order to be enforceable.
1. Sale of land
2. Contracts that will take more than 1 year to complete
3. Sale of goods $500+
4. Answer for the debts or duties of another person |
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Term
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Definition
| Seeking relief other than money. If the contract is unique in that they wouldn't be able to buy what they had contracted to have done, calls for specific performance. Court may order offending party to fulfill contract. These remedies include specific performance-ordering a party to perform an agreement as promised; and an injunction-ordering a party to cease engaging in a specific activity. |
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Term
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Definition
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Term
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Definition
| Intended to compensate or reimburse a plaintiff for actual losses. Putting the plaintiff in the same position that they would have been in had the tort not occurred. Amount you specifically need. (paid person $10,0000, sue for $10,000) |
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Term
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Definition
| Foreseeable damages that result from a party's breach of contract. Known as special damages. Money lost because of the breach. Breaching party must have known about the consequences beforehand in order to be help liable. You must attempt to minimize your losses. |
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Term
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Definition
| To punish the wrongdoer and deter others from similar wrongdoing. Given in intentional tort cases. Not awarded in contract cases. |
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Term
| Discharge by Operation of Law |
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Definition
1. Alteration of the contract
2. Statutes of limitations
3. Bankruptcy
4. Impossibility or impractibility of performance |
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Term
| Liquidated Damages Clause |
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Definition
| Money for damages put in the contract. Must be reasobable to be enforced. Does not matter if both parties agreed to an unreasonable number, MUST be reasonable. |
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Term
| Breach of Contract: Major Deviation/Material Breach |
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Definition
| Some aspects of the contract are not even similar to what you were supposed to do. Would not be paid for this contract. |
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Term
| Breach of Contract: Minor Deviation/Minor Breach |
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Definition
| Substantial performance of contract, but there are still small aspects missing. Would still get paid, minus the cost it takes to fix the problem. |
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Term
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Definition
1. Mutual agreement
2. Capacity of parties
3. Consideration (something of value exchanged)
4. Legality
Fairness is not an element of contract. |
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Term
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Definition
| A contract is created when the acceptance is sent by the offeror, not received by the offeree. |
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Term
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Definition
| You can withdraw an offer at any time until the offer is accepted, even if there is a promise to keep it open. |
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Term
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Definition
| If the offeree pays money to the offeror for the right to keep the offer open, then the offer can NOT be withdrawn. |
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Term
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Definition
| Governs the sale of goods, same laws apply to the sale of products in all states. |
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Term
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Definition
| Cannot use oral testimony to contradict or in lieu of terms of a explicity, clear written contract. |
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Term
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Definition
| "A promise for a promise". Sales generally fall in this area. If the offeree can accept simply by promising to perform. |
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Term
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Definition
| A contract that has been fully performed on both sides. |
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Term
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Definition
| A contract that has not been fully performed by the parties. |
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Term
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Definition
| "A promise for an act". The act itself must be completed. If the offer is phrased so that the offeree can accept the offer onlt by completing the contract performance. |
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Term
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Definition
| Test of intent in that a reasonable person determines that the men intended to make an offer. |
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Term
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Definition
| Persons under the age of 18 may cancel a contract at any time because they are a minor. Voidable by the minor ONLY. Must act while still a minor or within a reasonable time period. |
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Term
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Definition
| After the bonus is given, the boss has the right to rescind the bonus. This is allowed because there is no consideration for a promise to pay the bonus. If they are not getting anything from the bonus (performance of an act) then they can take it back as the please. |
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Term
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Definition
| An act that must precede the contract. It is a possible future occurrence that will trigger the performance of a legal obligation of terminate an existing obligation under the contract. It is a way to get out of a contract if something doesn't happen that you're counting on in order to perform the contract (like getting a loan from the bank). If you don't get the loan then you are not bound to the contract. |
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Term
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Definition
| Are not enforceable contracts under common law. |
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Term
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Definition
| Only organizations that have to register are those seeking limited liability. LLP, LLC, Corporation, Subchapter S and Limited Partnership. |
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Term
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Definition
| Does not have to register. Does not have limited liability. No filing is required. Does not have to pay corporate income tax. A creditor can go after one partner and they will be help liable for all of the debt. Absence of an agreement on how profits/losses are going to be distributed, then they are allocated equally. Equally responsible for paying debts if the company goes south. |
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Term
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Definition
| Shareholders own the company, elect directors and amend articles of incorporation. Directors run the corporation, hire officers and amend by laws. Officers implement rules. The only business organization that pays federal income taxes. |
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Term
| Piercing the Corporate Veil |
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Definition
| Action by creditors against the corporation when the corporation has done something wrong (comingling of finds, operation without issuing stock or not holding required meetings). Exposing the shareholders to personal liability. |
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Term
| Articles of Incorporation |
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Definition
| Included: Name of corporation, name of shareholders and authorized share of stocks. NOT included are the names of the directors and officers. |
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Term
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Definition
| Shareholders v. Directors. Shareholders sue directors for using poor sound business judgment. If bad judgment is used and losses are acquired then the shareholders may sue. |
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Term
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Definition
| No size limit. Limited liability of a corporation but not a corporation. Taxed like a partnership. No limit to number of members. Interests are transferrable as personal property. |
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Term
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Definition
| Limited liability for everything except for you own acts of malpractice. Taxed like a partnership. |
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Term
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Definition
| Special status for small companies only operating in one state. Not limited to size restrictions. Will only tax shareholders. Taxed like a partnership. Have limited liability. |
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Term
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Definition
| Stock that stockholder of the corporation own. |
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Term
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Definition
| Debt of the corporation. Dividends are paid to preferred stock owners before they are paid to common stock owners. |
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Term
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Definition
| An agent has the authority to do what is reasonable necessary to carry out express authority and accomplish the objectives of the agency. Authority that customarily and automatically comes with the job. Company is responsible for costs acquired, even if agent had special orders not to acquire costs. |
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Term
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Definition
| Authority declared in clear, direct and definite terms. Can be given orally or in writing. Specific orders as to what an agent's authority is. Power of attorney is an example of written authority but is not a requirement. |
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Term
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Definition
| Actually no authority at all (imposter). The company is responsible for whatever damages this imposter acquires, if they knew of should have known about the imposter. If it could not have been known then then company can be held liable. |
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Term
| Full Disclosure (Contract Liability) |
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Definition
| Agent conracts on behald of his boss (the principal), holds back that he is an agent, so both the principal and the agent are responsible for the breach. If the agent discloses taht he is only an agent then the principal is responsible for the breach. |
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Term
| Doctrine of Respondent Superior |
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Definition
| The principal is liable for any harm caused to a third party by an agent with the course and scope of employment. Supervision and control is the most important factor when determining whether an agent is a servant. If the principal is supervising/controlling, the the agent is a servant and the principal can be held partially liable for their actions. |
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Term
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Definition
| "The retroactive approval of an unauthorized transaction". Principal sees an unauthorized act by the agaent and does no stop the agent, then the principal can be held resposible for the agent's actions. |
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Term
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Definition
| Most complete form of lan ownership legally allowed. Owning all aspects of the land that the law allows. |
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Term
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Definition
| Most common type of ownership. Family inherits interest in the land. If A dies then A's family gets his share of the land. Equal ownership of the land exists. No one persons ownership grows. |
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Term
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Definition
| After a death the interest is split between the surviving owners. All have to have the same interest. All must have the same percentage of ownership (50/50, 33/33/33). All must acquire land at the same time. An owner can sell their interest to another, but they become a tenant in common, while the remaining owners are still joint tenants. |
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Term
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Definition
| Exists only between married couples. Cannot be split. Has to be bought and sold together-in its entirety. |
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Term
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Definition
| Restricts the future use of land after you sell it. A private restriction on the use of land. |
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Term
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Definition
| Money due if the house is sold in the time of the listing, no matter who sold the land, realtor or owner of property. |
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Term
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Definition
| Acquisition of land. Land owner must allow the governemnt to use and acquire possession of real property. The land MUST be utilized for public use. |
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Term
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Definition
| Items of personal property that are permanently attached to the property. They are sold when the building is sold, unless otherwise stated in the contract. (ex. ceiling fan, chandelier) |
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Term
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Definition
The means of obtaining title to land without delivery of a deed and without the consent of-or payment to-the true owner.
1. Possession must be actual and exclusive.
2. The possession must be open, visible and notorious
3. Possession must be continuous and peaceful for statutory period
4. Possession must be hotile and adverse
DOES NOT have to be in good faith. |
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Term
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Definition
| Land sold twive. Purchasers who record the deed first gains ownership of the property (MUST be in good faith) |
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Term
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Definition
| The right of a person to make limited use of another person's property without taking anything from the property. |
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Term
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Definition
| Right to occupy during life of original guarantee (deeding house to son, retain for self). Right to live and do what you will want with land except sell it, but actually you son owns the land. The remainder interest of a lige estate can be bought and sold. |
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Term
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Definition
| Good for 20 years. Must file with the federal patent office. Used for inventions. |
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Term
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Definition
| Good for the author's life + 70 years. Do not have to register due to common law, but can file at federal level. Used for artistic works. |
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Term
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Definition
| Good indefinitely. Do not have to register due to common law, but can file at state level or at federal patent office. Used for the symbol, name or mark of a product. |
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Term
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Definition
Four factors you look at to see if you are using copyrighted material inappropriately/illegally.
1. The purpose of the copying
2. The nature of the copyrighted work
3. The amount of the copied material in relation to the work as a whole
4. The impact of the use on the market |
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Term
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Definition
| Limit liability for lost/stolen credit card to $50. |
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Term
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Definition
| Subcontractor (creditor) not paid by the contractor for his work on the house, may obtain a lien by operation of law on the house. |
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Term
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Definition
| Sets the maximum rate of intereset that can be charged for different types of transactions. Imposes a limit on the amount of interest that may be charged. |
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Term
| 2005 Bankruptcy Reform Act (BRA) |
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Definition
| Makes it more difficult for people to file for ch. 7 bankruptcy and causes them to file for ch. 13 instead. |
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Term
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Definition
| A debtor is not permitted to transfer property or to make a payment that favors one creditor over others. 90 days before filing for bankruptcy, you pay one creditor in full. They creditor must return the money and you must pay equal amounts to all creditors with that money. |
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Term
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Definition
| Collateral is promised to a creditor. |
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Term
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Definition
| Reposes collateral, sell and if there is still not enough money, then get a deficiency judgment. Deficiency judgments are collected through garnishment of wages. |
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Term
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Definition
| No collateral is promised. If the debt is not paid, the creditor obtains a judgment and garnishes wages. |
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Term
| Non Dischargeable Debts in Bankruptcy |
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Definition
1. Federal income taxes
2. Liability for intentional torts (fraud, criminal fines)
3. Alimony and child support
4. Student loans |
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Term
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Definition
| Homestead and wearing apparel. |
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Term
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Definition
| Can be fired at any time for any reason. No severance pay is required. No job security and protection. |
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Term
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Definition
1. Implied contract-you may not be fined for doing things stated in the personnel employee handbook
2. Whistleblower/Public Policy-reporting company violations to law/security
3. Title 7 protected classes |
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Term
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Definition
| Established by the FLSA, 40 hours is a normal work week. It is paid time and a half for any hours that exceed the 40 hour (multiply overtime hours by 1.5 of your hourly rate). |
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Term
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Definition
| When someone gets hurt on the job you get a benefit package, paid for by the employer. |
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Term
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Definition
| Grants you the right to sue a third party that hurt you on the job. If you can prove that the third party caused you injury on the job, you can sue that party subject to the employees rights given. |
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Term
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Definition
| Social Security. Paid by both the employer and employee. |
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Term
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Definition
| Employer has unlimited right to test employees or prospective employees for any reason at any time. |
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Term
| Sexual Harassment: Hostile Work Environment |
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Definition
| Action on the job that has sexual overtones and makes someone feel uncomfortable. Language, literature or inappropriate touching. |
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Term
| Sexual harassment: Quid Pro Quo |
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Definition
| Directly asking for the performance of a sexual act on the job. |
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Term
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Definition
| Federal Government policy that require people that are contracting with the governement to prefer qualified minorites over more qualified non minorities in their employment decisions. Employers are not allowed to have a preset quota. |
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Term
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Definition
| Companies must have 15 or more employees and be involved in interstate commerce. |
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Term
| Before Reporting a Title 7 Case |
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Definition
| With a title 7 violation you must file with the EEOC within 180 days. |
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Term
| Title 7 Protected Classes |
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Definition
| Race, gender, national origin, color and religion. |
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Term
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Definition
| Provides protection for age, must be 40 or older to utilize age discrimination protection. |
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Term
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Definition
| Marital status and sexual orientation. |
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Term
| Disparate-Impact Discrimination |
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Definition
| Occurs when a protected group of people is adversely affected by an employer's practices, procedures or tests, even though they do not appear to be discriminatory. A hiring criteria that eliminates a disproportionate number of people from a protected class without it being job related. |
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Term
| ADA-Americans with Disabilities Act |
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Definition
| Disability must be a physical or mental impairment that substantially limits a major life function or activity. HIV, AIDS, Deafness, Inability to walk, talk, breath, speak or eat. |
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Term
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Definition
1. Obey the law
2. Tell the truth
3. Keep your work
4. Follow the instructions given by your employer
5. Set a good ethical tone |
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Term
| Characteristics of Sarbanes Oxley |
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Definition
| Applies to companies whose shares are publically traded. Gives confidential reporting systems to employees (whistleblower protection). Establishes public accounting oversight board. Establishes limitations on non-audit services. Rotates audit partners. Delists companies who do not comply (stock will not be publically traded). CEO and CFO now have to sign off on accounting report. Forfeits profits if restatement is required. Company must mention whether/not they have a code of ethics. Does NOT limit stock options and bonuses. |
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Term
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Definition
| Is the course of action you're proposing one that will maximize shareholder profits? Managers answer only to the shareholders. "Follow the rules but nothing more. Maximize shareholder wealth". |
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Term
| Enlightened Self Interest |
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Definition
| What is the effect on the economy, environment, community and potential customers? Manager serves the shareholders best by being responsive to the larger society. |
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