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Business Law
Essentials of the Legal Enviornment
91
Business
Undergraduate 2
05/05/2013

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Cards

Term
Assumption of Risk
Definition
a doctrine under which a plaintiff may not recover if she knew damages and voluntarily assumed
Term
Res Ipsa Loquitor
Definition
a doctrine under which negligence may be inferred simply because an event occurred "The facts speak for themselves"
Term
Danger Invited Rescue Doctrine
Definition
a person trying to avoid a drunk driver hits someone (the drunk driver is liable)
Term
Wrongful Interference
Definition
1. Valid enforceable contract between 2 parties
2. 3rd party knows the contract exists
3. 3rd party intentionally induces a party to breach the contract
Term
Conversion
Definition
wrongfully taking or retaining possession of an individuals person property and placing it in the service of another
Term
Disparagement
Definition
economically injurious falsehoods are made about another product or property
Ex) Slander of Quality, Trade Libel
Term
Causation in Fact
Definition
An act or omission without which an event would not have occurred
Term
Proximate Cause
Definition
legal cause; exists when connection between act and injury is strong enough to justify imposing liability
Term
Judicial Deference
Definition
courts granting significant weight to agency judgement, citing agency expertise
Term
Subpoena ad testificandum (to testify)
Definition
a write or order compelling a witness to appear at an agency hearing
Term
Subpoena duces tecum (bring it with you)
Definition
compels an individual to hand over books or documents to an agency
Term
Factors Considered if agency is crossing boundries
Definition
1. The purpose of the investigation
2. Relevancy of information being sought
3. Burden of the demand
Term
Adjuication
Definition
Resolution of the dispute through a hearing conducted by the agency
1. Compliant
2. Answer
3. Hearing before ALJ
4. Order of ALJ
5. Appeal to governing board of agency
6. Final Agency Order
7. Appellate Court Review
8. Court Order
Term
Freedom of Information Act (1966)
Definition
requires federal government to disclose certain records upon request
Term
Government in the Sunshine Act (1976)
Definition
every position of every meeting to be open to public observation
(Also have to provide meeting schedule)
Term
Executive Agencies
Definition
formed to assist the president in carrying out executive function and sub agencies within the cabinet departments
Term
Independent Regulatory Agency
Definition
outside the major executive departments (less related to President
Ex) FTC, SEC
Term
Symbolic Speech Test
Definition
Whether or not a reasonable person would interpret the conduct as conveying a message
Term
Obscene Speech (Miller v. California)
Definition
1. Average person finds it obscene
2. work appeals to prurient sexual desires
3. Work shows offensive sexual conduct
4. Lacks serious literary or artistic merit
Term
Due Process Clause (Procedural)
Definition
decision must be made fairly that is that government must give a person proper notice and opportunity to be heard
Term
Due Process Clause (Substantive)
Definition
limits the governments power in legislative and executive power
Term
Minimal Scrutiny "Rational Basis"
Definition
generally laws regulating economic and Social matters are only regulated by this. Classification is valid if it related to government issues
Term
Intermediate Scrutiny
Definition
Applied in cases involving discrimination based on gender or legitimacy
(Must be substantially related to government issue
Term
Strict Scrutiny
Definition
must be necessary to promote compelling state interest
Term
3rd Amendment
Definition
Lodging of Soldiers
Term
6th Amendment
Definition
Right to Speedy and Public trial
Term
7th Amendment
Definition
Rights to trail by jury (Criminal cases)
Term
8th Amendment
Definition
Prohibits excessive bails and fines as well as cruel and unusual punishment
Term
Exclusionary Rule "Fruits of the Poisonous Tree"
Definition
all evidence obtained in violation of constitutional rights is excluded from trial
Term
Embezellment
Definition
fraudulent appropriation of funds or other property by a person to whom funds has been entrusted
Term
Money Laundering
Definition
falsely reporting income that has been obtained through criminal activity
Term
Felony
Definition
serious crimes punishable by death
Ex) Rape, Arson, Murder
Term
Misdemeanor
Definition
punishable by a fine or incarceration in jail for up to one year
Term
Petty Offense
Definition
traffic or building code violation
Term
Defenses to Criminal Liabilit
Definition
Self Defense
Necessity
Insanity
Mistake of Fact
Duress
Term
Criminal vs. Civil
Definition
Civil- Plaintiff must convince court that is more likely than not plaintiff's allegation is true "Preponderance of Evidence"
Criminal- must prove "Beyond a reasonable doubt"
Term
Criminal Act Requirements
Definition
1. Intent
2. Action
Term
White Collar Crime
Definition
nonviolent crime committed by individuals or corporations to obtain person or a business advantage
Term
Trademark
Definition
distinctive mark, motto, or device or emblem that a manufacturer stamps prints or otherwise affixes to goods so they may be identified
Term
Patent
Definition
grant from the federal government that gives the inventor the exclusive right to a product for 20 years from filing the patent
Term
Copyrights
Definition
intangible property granted by federal statute to an author or originator
Term
Sole Proprietorship
Definition
owner reports income as personal income
Term
Dissociation
Definition
one partner ceases association
Term
Limited Partnership
Definition
one general partner and one or more limited partners
Term
Corporation
Definition
legal entity formed in compliance with statutory requirements
Owned by Shareholders
Run by Board of Directors
Term
Limited Liability Corporation
Definition
Power to dissociate
Not Right to dissociate
Term
Business Judgement Rule
Definition
rule that immunizes corporate management form loses if done in good faith
Term
Partnership and Sole Proprietorship Taxation
Definition
Passed through and taxed as personal income
Term
Contract
Definition
Agreement that can be enforce in court
1. Agreement
2. Consideration
3. Contractual Capacity
4. Legality
Term
Bilateral vs. Unilateral
Definition
Bilateral (Buying a car for $1000)- promise for a promise
Unilateral (Paint House for $1000)-
promise for action
Term
Express Contract
Definition
fully and explicitly stated in words
Term
Implied Contract
Definition
Plaintiff provided service
Plaintiff expected to be paid
Defendant had chance to reject and didn't
Term
Voidable Contract
Definition
can be avoided at option of either party
Term
Unenforceable COntract
Definition
cannot be enforced for legal reasons
Term
Void Contract
Definition
none of the parties have legal obligation
Term
Revocation
Definition
withdrawal of an offer by an offerror
Term
Commercial Impracticability
Definition
court may excuse party from contract if it becomes to difficult or costly
Term
Mitigation of Damages
Definition
requires plaintiff to do whatever possible to minimize damages
Term
Contract Discharge
Definition
1. By Breach
2. By failure of a condition
3. By agreement
4. By performance
5. by operation of law
Term
Remedies available for non-breaching party
Definition
1. Damages (compensatory, consequential)
2. Rescission and Restitution
3. Specific Performance
4. Reformation
Term
Agency
Definition
Relationship between 2 parties in which one party agrees to represent or act for another
Term
Fiduciary
Definition
duty created to act on someones behalf
Term
Agency by Formation
Definition
1. Agency by Agreement
2. Agency by Ratification
3. Agency by Estoppel (if person doesn't deny relationship)
4. Agency by Operation of law
Term
Disclosed Principal
Definition
principal identity is known to 3rd party at times of deal
Term
Partially Disclosed Principal
Definition
identity is unknown but relationship is known
Term
Undisclosed Principal
Definition
3rd party doesn't know principal exists
Term
Contract Requirements
Definition
Offer
Consideration
Acceptance
Term
Quorum
Definition
minimum number of members of a body of officials or other group that must be present in order for business to be validly transacted
Term
Piercing the Corporate Viel
Definition
legal decision to treat the rights or duties of a corporation as the rights of its shareholders
Term
Independent Contractor
Definition
one who works for and recieves payment from an employer but whose working conditions and methods are not controlled by the employer. Is not an employee but may be an agent
Term
Respondeat Superior "Let the master respond"
Definition
a doctrine under which a principal or an employer is held liable for the wrongful acts committed by agents or employees while acting within the course and scope of their agency or employment
Term
Vicarious Liability
Definition
legal responsibility placed on one person for the acts of another; indirect liability imposed on a super visionary party for the actions of a subordinate because of the relationship between the two parties
Term
Disparate Treatment
Definition
a form of employment discrimination that results when an employer intentionally discriminates against employees who are members of a protected class
Term
Disparate Impact
Definition
a form of employment discrimination resulting from certain employer practices or procedures that although not discriminatory on their face have a discriminatory effect
Term
Constructive Discharge
Definition
a termination of employmnet brough about by making the employees working conditions so intolerable that the employee reasonably feels compelled to leave
Term
Sexual Harrassment
Definition
in the employment context demands for sexual favors in return for job promotions or other benefits or language or conduct that is so sexually offensive that it creates a hostile working environment
Term
Trade Secret
Definition
information or a process that gives a business an advantage over competitors that do not know the information or process
Term
Act of State Doctrine
Definition
a doctrine providing that the judicial branch of one country will note examine the validity of public acts committed by a recognized foreign government within its own territory
Term
Expropriation
Definition
the seizure by a government of a privately owned business or personal property for a proper public purpose with just compensation
Term
Confiscation
Definition
a government taking of privately owned business or personal property without a proper public purpose or an award of just compensation
Term
Sovereign Immunity
Definition
a doctrine that immunizes foreign nations from the jurisdiction of U.S. courts when certain conditions are satisfied
Term
Choice of Language Clause
Definition
a clause in a contract designating the official language by which the contract will be interpreted in the event of a future disagreement over the contracts terms
Term
Choice of Law Clause
Definition
clause in a contract designating the law (such as the law of a particular state or nation) that will govern the contract
Term
Bill of Laiding
Definition
Proof that a shipment has been made
Term
Letters of Credit
Definition
a written instrument usually issued by a bank on behalf of a customer or other person in which the issuer promises to honor drafts or other demands for payment by third persons in accordance with the terms of the instrument
Term
Letter of Credit (Chronology)
Definition
1. Buyer contracts with the issuer bank to issue a letter of credit, this sets forth the banks obligation to pay on the letter of credit and buyers obligation to pay the bank
2.Letter of credit is sent to seller informing seller that on compliance with the terms of the letter of credit the bank will issue payment for the goods
3. Seller delivers goods to carrier and receives a bill of lading
4. seller delivers the bill of lading to issuer bank and if the document is proper receives payment
5. Issuer bank delivers the bill of lading to the buyer
6. buyer delivers the bill of lading to carrier
7. carrier delivers the goods to the buyer
8. buyer settles with the issuer bank
Term
Securities Act of 1933
Definition
Specifies what a security is and governs the initial sales of stock by business.
Term
Prospectus
Definition
a written document required by securities laws (1933) that describes the security being sold the financial operations of the issuing corporation and the investment or risk attaching to the security. It is designed to provide sufficient information to enable investors to evaluate the risk involved in purchasing the security
Term
Securities Exempt of Securities Act of 1933
Definition
Government issued securities
Bank and financial institutions
Short term notes
Term
Securities Act of 1934
Definition
provides for continuous periodic disclosures of all subsequent trades
(applies to companies that have assets in excess of $10 million and 500 or more shareholders)
Act authorizes the SEC to engage in market surveillance to deter undesirable market practices
Term
SEC Rule 10b-5
Definition
a rule of the SEC that makes it unlawful in connection with the purchase or sale of any security to make an untrue statement of a material fact or to omit a material fact if such omission causes the statement to be misleading
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