Chris Singh

BUL3130 Lecture Notes Week 8Study Guide for Exam 2 – Chapters 6 through 12

October 14, 2008

Notes From the Beginning of Class:14th amendment – equal protection of law23 year old female with a 16 year old male versus a 23 year old male with a 16 year old female.- Will the punishments be the same?Drafting for the army, males are more targeted. - Why should females be exempt?

Exam Review Topics:

Fair Use Doctrine (Intellectual Property Law)o [Textbook] – the right of persons other than the owner of copyrighted material to use it in a

reasonable manner without the consent of the owner; factors include the purpose of the use, the extent of the use, and the economic effect of the use

o E.g. We all have made copies of copyrighted works without getting permission. Is that illegal infringement? Not if the copying is considered fair use. The Copyright Act allows use of original material “for purposes such as criticism, comment, news reporting, teaching … scholarship, or research.” If copying is not authorized or fair use, it is infringement.

Doctrine of Transferred Intento [Textbook] – A wrong committed upon the person or property of another, where the actor is

expressly or impliedly judged to have intended to commit the act that led to the injuryo [Dr. Lako’s Example] - Intentional Torts are those acts that someone “intended” to occur and

proof thereof is made by examining all factors that existed before, at the time of and after the incident took place – these factors help prove intent. The Doctrine of Transferred Intent applies here (as it does in criminal law) and means that the result of action or inaction is transferred to the actual victim. A swings his fist at B (intending to strike B) but B ducks and A hits C, C is the victim and the intent to strike B is transferred to C so C can recover damages.

Prima Facie Case of Negligence (4 elements)o Dutyo Breach of dutyo Proximate causeo Damage

[Dr. Lako] - There must be actual damage or there is no tort of negligence. Prima Facie means proving each “element” of the specific legal matter. Another Example is Slander: must be 1. a false statement; 2. that was published-made to another person. Those two elements equal a prima facie case, negligence has four elements necessary to prove a prima facie case.

o Definition of Prima Facie [Textbook] – Latin for “at first sight.” Something presumed to be true until disproved by contrary evidence

o Definition of Prima Facie Case [Textbook] – in federal employment discrimination law, the requirement that a plaintiff show they are a member of a protected class, met relevant job qualifications, suffered some adverse job action, and was treated differently with respect to the same issue by an employer

What is a tort?o [Textbook] – An injury or wrong committed with or without force against another person or his

property; a civil wrong that is a breach of legal duty owed by the person who commits the tort to the victim of the tort

o [Dr. Lako] - The largest body of Civil Law is TORT law. Three types of torts - Negligence, Intentional, Strict Liability

Nuisanceo [Textbook] – An unreasonable and substantial interference with the use and enjoyment of

another’s land (private nuisance); an unreasonable or substantial interference with a right held in common by members of the general public (public nuisance)

Trespass

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o [Textbook] – An unauthorized intrusion upon the property rights of anothero “Trespass to personal property” – An unlawful interference with the rights of another person to

possess their personal property, such as movable objectso [Dr. Lako] Nuisance and Trespass are legal ways in which to sue for damage to your realty if

there are no other legal remedies available to one who is damaged by conduct of another. They can be a remedy in addition to any other law applicable to the type of damage your property suffered.

Difference between a void contract and voidable contracto Void Contract

[Textbook] – A contract that does not exist at law, and so cannot be enforced A contract is void if it concerns an illegal subject matter, such as a contract to sell

cocaine. Disputes over such matters will not be accepted by the courtso Voidable Contract

[Textbook] – is when one party to the contract has the right to avoid a legal obligation. This is the case with some contracts entered into by minors or persons with limited

mental ability E.g. If a person is so stoned when he makes a contract, he may later have the right to

have the contract declared voidable NDA – Non Disclosure Agreement

o [Definiton / From Misty’s SG] – NDA; a legal contract between at least two parties that outlines confidential materials or knowledge the parties wish to share with one another for certain purposes, but wish to restrict access to. It is a contract through which the parties agree not to disclose information covered by the agreement. An NDA creates a confidential relationship between the parties to protect any type of confidential and proprietary information or a trade secret. As such, an NDA protects non-public business information.

[Lecture Notes] - It says, I am [name], I am consulting with [name], over the following the material and information, and they agree to never to divulge any of the communication over the subject

Can sue for breach of contract The idea is protected even though the other person did a scoundrel act against the

other person’s idea Life Estate

o [Textbook] – In property law, when a life tenant (the beneficiary of the arrangement) has the right to occupy a piece of property for life or earn income from a piece of property for life, after which control of the property passes to the designated owner

o [Dr. Lako] - Life Estates: a life estate is best explained by the following: A gives to B a life estate in greenacre for and during her natural life. B is the life tenant who is required to maintain greenacre and not commit waste on or of the property. When B dies the property reverts back to A or his estate.

Pur Autrie Vie Life Estateo [Dr. Lako] - A gives a life estate to B as measured by the life of C. When C dies the life estate

ends.o Basically, to pass on life estate to someone else after they die

Fee Simple Absoluteo [Textbook] – In property law, an absolute ownership interest in an estate (real property) without

restrictions; the strongest form of property ownershipo [Dr. Lako] - Fee Simple and Fee simple Absolute – mean the same thing in law. Total and

complete ownership of realty (regardless of a lien(s) against the property existing, such as a mortgage). It is the highest and best form of property ownership.

Warranty Deedo [Textbook] – A deed containing one or more covenants of title; a deed that expressly

guarantees good, clear title and that contains covenants concerning the quality of title, including defense of title against all claims

o [Lecture] - is a deed that explicitly promises that a good, clear title to the property is being conveyed by the grantor

o [Dr. Lako] - Warranty Deed (best form of Deed) transfers realty from seller (grantor) to buyer (grantee) and grantor warrants s/he has good, legal and marketable title and will defend that

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title for the buyer as against anyone, anywhere at anytime who asserts they have title to the property

Quitclaim Deedo [Textbook] – A deed that conveys the grantor’s complete interest or claim in real property but

that does not warrant that the title is valid.o [Lecture] - is a deed of conveyance that passes whatever the interests the grantor had in the

property (e.g. probate, bankruptcy case, divorce)o [Dr. Lako] - Quitclaim Deed means the grantor gives title to realty, but does not indicate s/he

has any interest in the realty, only that a transfer of whatever right, title and interest the grantor may have in and to said realty, not indicating s/he has title. Used on property line disputes; divorces; bankruptcy’s; and estates

Limited Warranty Deedo [Textbook] – Any product sold with less than a full warranty has what is defined as a limited

warranty, the terms of which must be explained in writing Bilateral and Unilateral

o Bilateral Contract [Textbook] – A contract formed by the mutual exchange of promises of the parties

[Lecture] - both parties have negotiated the deal – both had intent and capacity to enter contract

o Unilateral Contract [Textbook] – An offer or promise of an offeror that is binding only after completed performance by the offeree. The offeree’s completed performance serves as acceptance of the offer and performance of the contract

[Lecture] - looks like executed – one person or one sided offer, accept by saying verbal agreement or by showing up for performance

Expressed and Impliedo Express Contract [Textbook] - a contract that is oral or written, as opposed to being implied

from the conduct of the partieso Implied Contract [Textbook] – a contract formed on the basis of the conduct of the parties

Punitive Damageso See Misty’s SG for exampleo [Textbook] – Compensation awarded to a plaintiff beyond actual damages; awarded to punish

the defendant for doing a particularly offensive act One Year and One Day Rule of Intellectual Property

o You have to patent the invention within one year or you can never patent it. Your right to a patent is lost

Doctrine of Strict Liabilityo [Textbook] – a legal theory that imposes responsibility for damages regardless of the existence

of negligence; in tort law, any good sold that has a defect that causes injury leads to the imposition of liability

o [Dr. Lako] - strict liability – manufacturers are liable even though they used reasonable care 3 Types of Torts

o Strict Liabiltityo Intentionalo Negligenceo [From Class Notes:]o Strict liability

Product liability (sub category) The law holds the inventor, the list of people, liable to the plaintiff who has been

injured by a product that in some fashion defective Basically an injury from a product Manufacturer, retailer, wholesaler – who is liable for the injury, or who caused it

to become malfunctioned Comparative negligence (tire example)

Called liability without fault Liability without anybody being proven to be at fault

o Intentional Someone intends the consequence of their action

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Intentional conduct Doctrine of transferred intent – meant to do something but a different outcome takes

place (such as meaning to hit someone specific but missed and hit someone else) Have to have damage to be tort Without damage there is no tort

o Negligence Had a duty not to do something Fallible

Make an error Biggest of all torts Elements of torts

Prima facie – every law written has elements that has to be proven in it o [Textbook definition:] Latin for “at first sight.” Something presumed to

be true until disproved by contrary evidenceo Murder – took someone’s life; planned it

Tort of negligence there are 4 elements that have to proven: (1) You had a duty (engage in conduct) (2) Your breach of duty (3) Proximate cause (4) Damage

o Slander is the spoken word Tell a lie about somebody Let someone else know what she said Prove the elements and you prove prima facie Every law has elements that you have to prove, and you have to prove them to

be successful in a court room (to win, a civil or criminal case)o Reasonable person – how a person is judged at the time of an incident or in a court room

Statute of Frauds regarding Real Estateo (Pg. 259)o [Textbook] - a statutory requirement that certain types of contracts be in writing to be

enforceableo [Misty’s SG] - in real estate applies to transfer from interest from real estate A to B. MUST be in

writing of the contract is not enforceable. ***If a contract cannot be performed within 12 months of the day the contract is signed,

the parties that entered into it is not enforceable unless it is in writing. Real estate person and sales agreement.

Elements Required to Exist in a Contract (“picture is worth a 1000 words”) – ICLACOo [From Class Notes]o 6 elements that exist to form a contracto May need contracts throughout our lifeo The reason we need it is because, in the case of damage from another person, a breach of

contract needs to be provedo Valid legal binding enforceableo Prove all 6 elementso Intent – void (if there was no intent or if it was missing, you can void)o Voidable – enforce contract even though it’s voidableo Capacity – effected by drugs, alcohol, mental illness – sometimes it can affect intent o Legal subject matter – contract has to be legalo Acceptance – accepting an offer

Mirror image rule – this was the offer, this was the acceptanceo Consideration – bargain for value of the deal

the value of the exchangeo Offer – goes along with acceptanceo [In-class activity]o ICLACO

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o Intent – can be proved by actions and words, known as mutual assent, evidence of intent can be seen by totality of circumstance

o Consideration – fair value to part of bargain, monetary payment for a service, can be barter, a service or server

o Legal subject matter – reason for contract must be legal, gambling, prostitution, drinking are NOT legal, purpose must be lawful

o Acceptance – I follow the friend the offer 99% of the time, can be expressed or implied, silence cannot be acceptance, offer and acceptance follow mirror image rule, oral or written, mirrorly acting

o Capacity – affected by age, medication, being drunk, can still contract even if under the influence you can VOID, lucid time – can contract, under age – can vie for food shelter necessities

o Offer – oral or written, expressed or implied, without this there can be no contract – VIP, can be interpreted by actions or words

o CONTRACT – I’m the result of these six elements, I can only be voluntarily, if intent is missing I can void, if capacity is missing I can be voidable, executed or executor, bi-unilateral, expressed/implied

Must be in writing – has to be to be enforceable, if it cannot be performed within 12 months, (statute of frauds)

Easemento [Textbook] – The right to use the property of another in a particular manner. Most commonly,

this is a right of access to cross one piece of property to reach another piece of property or the right to have utilities go across, on, or under property. It is a right that is said to “run with the land”

o [Lecture] – (pg.179) Right to enter land owned by a another and make certain use of it or to take something from land

o [Dr. Lako] - a right to enter land owned by you for a specific purpose. Most commonly – utilities, etc. A Covenant is a promise that generally runs with and stays with the land – ex: singles family homes of no less than 1,500 square foot; no chain link fencing, etc. Neither are ownership of land.

Reasonable Person (Tort Chapter)o [Textbook] – The standard with one must observe to avoid liability for negligence; often includes

the duty to foresee harm that could result from certain actionso [Lecture] - how a person is judged at the time of an incident or in a court roomo [Dr. Lako] - Also, in tort law a “reasonable person” is whom we compare the conduct of the

defendant at the time of the negligent act. Ex: Is it reasonable that a person would speed on a wet road with semi bald tires and poor brakes?

Mirror Image Ruleo [Lecture] - Under “Acceptance” of ICLACO - this was the offer, this was the acceptanceo [From Misty’s SG] - An offeree must accept an offer as presented by an offeror. In effect, the

acceptance must be the mirror image of the offer. Mailbox Rule

o [Lecture] - Accepted by being mailed – upon receipt – (mailbox rule/offer)o [From Misty’s SG] - Courtney hears that there is an offer out in the community by Dr. Lako. She

has decided to write the acceptance down on a piece of paper and mail it to his last known address. As long as she does not change any of the terms of the offer, Dr. Lako is bound by the contract that Courtney made. The contract is bound by the mail date not the received date. No counter-offers on this rule.

Convention on Contracts for the International Sale of Goods (CISG)o [Textbook Definition and Notes] – (pg. 271) Adopted by the United Nations to have a

commercial code that parties would think unbiased. It has been ratified by most major nations, including the United States.

o (pg. 272) – The CISG applies to contracts for commercial sale of goods made by parties who have places of business in different countries that have ratified the CISG. It does not matter what the citizenship of the parties is; it is the location of the businesses that matters. Unlike the UCC, which applies to goods sold to the consuming public, contracts under the CISG only apply to commercial sales or sales between merchants.

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o [From Misty’s SG] - CISG applies to; formality, offers, acceptance, battle of the forms, duties of the parties, and remedies

Minor who lacks the capacity to enter into a valid legal binding contract can contract for and be liable for the necessities of clothing, shelter, food and insurance

Copyright Law o [Textbook] – a grant to an author or a publisher of an exclusive right to print, reprint, publish,

copy, and sell literary work, musical compositions, works of art, and motion pictures for the life of the author plus an additional 50 years.

o [Lecture] - Are rights of literary property as recognized by lawo They are intangible assets that are held by the author or owner for a certain time periodo Does the common law give you copyright protection on an original creative thought?

YES!o Do you rely on that to prove your case in a court room?

NOo Pg. 209 – 213

Copyright Acto Copyright protection – lasts for the life of you, the author, plus 70 yearso Go online and fill out form to get something copyrightedo Don’t let anyone else take your ideaso [Dr. Lako] - Common Law permits the creator of an original idea to be known as the owner.

Best advice is to take your original creation and obtain a copyright. That certificate of copyright will be the best evidence proving you are the creator, thus it is not always advisable to only rely on the common law protection. Always get a copyright from the government.

o [Additional information from textbook] – The copyright act gives a copyright owner five exclusive rights over copyrighted works: 1) the right to reproduce the work 2) the right to publish or distribute the work 3) the right to display the work in public 4) the right to display the work in public 4) the right to perform the work in public 5) the right to prepare derivative works based on the original work

o Copyright Act of 1976 – made copyright protection a part of our legal system Transferred Intent

o See above (already covered) Common Law Legal Doctrine of Quantum Meriut

o [Textbook Definition of Quantum Meriut] – a concept in equity that a party should not be unjustly enriched by not paying for goods or services received that do not clearly fall under a contract; it is the recovery a plaintiff is allowed to be granted under an implied contract to pay for the reasonable value of services provided

o [Lecture] Implied – how a contract can be formed based on conduct The law implies a contract to accept an offer Quantum meriut – entitled to be paid for the services rendered under her offer Prevents person from being unjust enrichment

Uniform Commercial Code (UCC) at Article II for the Sale of Goods [Lecture] - UCC – Uniform Commercial Code

o Pg. 253o [Textbook] – a statute passed in a similar form by the states that sets many rules of commercial

sales agreements and negotiable debt instrumentso Is the law that governs many contracts for the sale of goods o Deals with common lawo Rules governing trade – “codes” – existed more than 2,000 years ago in Greeceo Pg. 254 o Adopted in all the states except Louisiana

They couldn’t adopt it because they are based on French law, every other state is based on common law

o Does the UCC affect the contract law? Yes, “merchants”

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UCC relaxes the strict constraints of common law, so merchants can conduct business in a swifter manner but still have the protection of the contract law

Mirror image rule does not have to apply Acceptance of offer in mail, the UCC eliminates that

o What are goods under the UCC? (pg. 254) Look at goods

“All things which are movable at the time of identification to the contract for sale”

o What is a merchant and how do you qualify to be one? Pg. 254 Acquired an expertise Deal with another merchant, even if you aren’t one, you can still act like one because of

your hobby or expertiseo Article 2 and the sale of goods (p. 255, under “Sales”)o Chart of p. 255

You can change the terms of the offer, without answering the offer This chart basically summarizes everything so far (from above)

o The UCC is what prevailso Pg. 256 Article 2 Section 2-204

Contract cannot be formed (under common law) until an offer is clearly accepted Contract can be made in manner to show an agreement between parties

Bankruptcy Law Chapters (7, 11, 13)o 7 (p. 301)

Fresh Start Bankruptcyo 11 (p. 303)

Businesses Onlyo 13 (p. 300)

Individual or married couples Patent

o [Textbook] – a grant from the government conveying and securing for an inventor the exclusive right to make, use, and sell an invention for 20 years from the time of application

o [Dr. Lako] - Patent law is purely statutory, not known to any common law doctrine. It involves a (i) process, (ii)a manufacture, or a (iii) composition of matter.

Trade Dresso [Textbook] – intellectual property protected by trademark law and the Lanham Act that concerns

the total appearance and image of products and of service establishments, including shape, size, graphics and color

o Lanham Act [Lecture] - Lanham Act – made the common law protecting trademarks It’s made from federal law – have protection [Textbook] – Federal trademark law allows trademarks to be registered if they are

distinctive and nonfunctional. As long as the owner continues to use and protect the trademark, the trademark’s exclusive use can be perpetual

ADR (Alternate Dispute Resolution) – a process by which the parties to a dispute resolve it through a mechanism other than litigation in court. Alternative dispute resolution includes the following **REMEMBER: NOT NEGOTIATION!:

o Arbitration – a means of settling disputes between parties when they submit the matter to a neutral third party of their choosing, who resolves the dispute by issuing a hind award. A popular alternative to the court system for resolving disputes due at lower cost and greater speed.

84% effective Gives verdict 3 arbitrators, they conduct a mini trial, both sides present evidence, they give a verdict,

who wins, who loseso Mediation – a form of ADR in which a third party is hired by parties to a dispute with the intent to

persuade them to settle their dispute 62% effective Tries to give solutions

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A neutral, detached 3rd party hears the issues in the case between 2 parties, tries to guide the people to settle before going to trial

Parole Evidence Ruleo [Textbook] – Parole evidence may not be used “if the court finds the writing to have been

intended also as a complete and exclusive statement of the terms of the agreement” Written documents may not be contradicted by oral testimony, but that such testimony

may be used to explain customary trade dealings or the meaning of certain terms Failed to put in writing, “bars” any evidence (same as definition above) Must be in writing or it’ll never follow through in the courtroom [Misty’s SG] - prohibits the introduction into a lawsuit of oral evidence that contradicts

the terms of a written contract to be the final and complete expression of the agreement between the parties.

Plea Bargainingo To criminal law, what ADR is to civil lawo 94% of criminal cases are resolved with plea bargaino [Textbook definition:] a negotiated agreement between a prosecutor and a criminal defendant

for the defendant to plead guilty to a lesser offense or only to one of multiple charges in exchange for concessions such as a lighter sentence or a dismissal of the other charges

Double Jeopardyo 5th Amendment–“ nor shall any person be subject for the same offense to be twice put in

jeopardy of life or limb”o Right to due process of law, freedom from self-incrimination, double jeopardy.o No person shall be held to answer for a capital, or otherwise infamous crime, unless on a

presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

Res Judicatao [Textbook] – a rule that prohibits the same dispute between two parties from being retiligated by

a court after final judgment has been entered and all appeals exhaustedo [Lecture] - in both civil law and common law legal systems, a case in which there has been a

final judgment and is no longer subject to appeal. Treaties

o Source of international lawo Contract between President of the U.S., when approved by Congress, with a leader from

another countryo Has equal dignity to the U.S. constitution

Eminent Domaino [Dr. Lako] - Eminent Domain law permits the taking of your land (without your consent), all or

some part of it – provided – (5th Amendment) the taking is for use of the land for a (I) public purpose and you are (II) paid “just” compensation for that which is taken.

o “Amendment 5” - Governments at all levels may use tax dollars to buy private property, or they may use their power of eminent domain to condemn property to force the sale of property or to force the granting of an easement

o [Textbook] – The power of the government to take private property for public use for fair compensation

Statute of Limitationso [Textbook] – a statute setting maximum time periods from the occurrence of an event, during

which certain actions can be brought or rights enforced. If an action is not filed before the expiration of that time period, the statute bars the use of the courts for recovery

o [Misty’s SG] - Different for each state and each situation. Varies. For a lawsuit, FL 4 years, in GA 2 years, every state is different.

14th and 5th amendment to the U.S. Constitutiono 14th

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

o 5th

Right to due process of law, freedom from self-incrimination, double jeopardy. No person shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Privilege to refuse to answer questions due to self incrimination If you use the 5th amendment, before a grand jury, and the government says you leave

or get immunity – you can’t get prosecuted by taking the 5th amendment Doctrine of Fusion

o The state has to prove both Mens Rea and Actus Reus otherwise the defendant cannot be found guilty. They have to prove mental and physical act to be guilty. Without it there can be no conviction.

Title VII of the Civil Rights Act of 1964o First Amendment – Free Speech

Pg. 420 (bottom of page) [From Misty’s SG] - employment discrimination on the basis of race, color,

religion, sex, or national origin. (EEOC) Rules of an Administrative Agency VS Statutory Law

o [Statutory law Textbook Definition] – laws enacted by a legislative bodyo Administrative law – created under the constitution, by Congresso Are experts in their field, created under Congresso They make rules in which you cannot be incarcerated for breakingo [Textbook definition:] a governmental bureau established by Congress (or the President) to

execute certain functions of Congress. Agencies transact government business and may write and enforce regulations under the authority of Congress or the president

o 3 rules

Substantive or legislative – administrative rulings based on statutory authority granted by an agency by Congress; the rules have the same legal force as statutes passed by Congress

Interpretative – statements issued by administrative agencies that explain how the agency understands its statutory authority to operate; these may be advisory or binding

Procedural – the rules of the court system that deal with the manner in which lawsuits are initiated and go forward. Court systems generally have rules regarding pleadings, process, evidence, and practice

Res Ipsa Loquitor - (the thing speaks for itself) – When you are in the “exclusive control” of an instrumentality that causes injury and such, injury does not happen without negligence, it is (reputably) presumed you were liable

o [Textbook definition:] Latin for “the thing speaks for itself;” given the facts presented, it is clear that the defendant’s actions were negligent and were proximate cause of the injury incurred

Respondeat Superior - Principal (the boss) is liable for the acts of the agent committed in the scope and course of employment, that:

o The principal “knew”o The principal “should have known”o The principal “could have known”

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o [Textbook definition:] Doctrine of vicarious liability under which an employer is held liable for the wrongful acts of his employees committed within the scope of their employment

Due Process of Lawo Constitutional limitation requiring that a person not be deprived of life, liberty, or property without

a fair and just hearingo 14th amendment deals with state government (e.g. driver license)o 5th amendment deals with federal governmento The government has to give you notice of why they are coming to see you, along with a date,

time and location of where you need to be to answer questions regarding the matter Stare Decisis

o Are cases that have been decided in the past, avoid judges biases and form consistencieso [Textbook definition:] the use of precedent in deciding present cases forms a doctrine, meaning

to “stand on decided cases.” Precedent

o “stand on precedent” – which is previous caseso [Textbook definition:] A decision in a case that is used to guide decisions in later cases with

similar fact situations Doctrine of Separation of Powers

o It is to prevent a government branch from having too much power. Governments at the state and federal level in the United States are divided into the legislative, executive, and judicial branches, which each have certain duties and powers. This division of authority was designed to restrain the power of any one branch.

o 3 branches of government – legislative, executive, judicialo 1 branch of the government cannot invade another branch of government

In Personamo If you win the case, you have jurisdiction of collectiono [Textbook definition:] the power the court has over the person(s) involved in the action

Four Types of Commercial Paper – UCCo Draft

[Textbook] – legally binding written order to pay a fixed sum of money that involves three parties. It is created by the drawer, who orders the drawee – usually a bank – to pay a certain sum to the payee

Lecture - worthless piece of paper; has no monetary value until something else happens; has 0 value until we get a call from who it is drawn on; conditional promise to pay on an event until it becomes an unconditional deposit to account

o Check – cannot bounce [Textbook] – a draft or order drawn upon a bank, payable on demand, signed by the

maker of drawer, that is an unconditional promise to pay a certain sum of money to the order of the payee named on the instrument. It normally must say “pay to the order of” on the face of the check.

o Note Promise to pay back after some period of time [Textbook] - Commercial paper; a note is a promise – not an order – by one party,

called the maker, to pay a certain sum of money to another party, the payee.o Certificate of Deposit

Keep money for a year, contains interest’ [Textbook] - A written bank document that provides evidence of a deposit made at a

bank, for a certain time, that pays a certain rate of interest that is promised to be paid to the depositor or to another party as ordered

Court of Equity Is found in the same court room, same judge of court of law Exist through 2 things

Give an order that stops someone from doing something that they are legally not allowed to do

Order somebody to do something they are legally required to do, that they are not doing

Equal Protection of Law

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o 14th amendmento [Textbook] – Section 1 of the 14th amendment to the Constitution, providing that states treat all

persons subject to state laws in a similar manner. “No State shall … deny to any person within its jurisdiction the equal protection of the laws.”

Delegation Doctrineo The constitutional right of Congress to authorize governmental agencies to perform certain legal

duties. Executed and Executory

o Executed Contract [Textbook] – a contract that has been fully performed by the parties [Lecture]- a contract that is formed to complete or execute a task (performance)

o Executory Contract [Textbook] - a contract that has not been performed by the parties [Lecture] - something that is remained to be done

Force Majeure Clause (Pg. 570)o [Textbook] – is a French term meaning a “superior or irresistible force.” Thus, it protects

contracting parties from problems beyond their control.o Traditionally, this clause was used to protect the parties from the consequences of a natural

disaster that interfered with performance.o Protects parties from political upheavals

Side Notes:

Real Estate Chapters – at least 9 questions

Review lecture on Contract Law to clarify some of the issues

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