Term
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Definition
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Term
| Agency - Capacity - Who qualifies and how? |
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Definition
Principal must have contractual capacity.
Agent must have minimal capacity. |
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Term
| Agency - Capacity - Disqualifiers |
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Definition
Representing both sides
No license. |
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Term
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Definition
Loyalty
Obedience - Reasonabe
Care |
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Term
| Agency - Remedies of Principal |
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Definition
Breach of contract - Compensated Agents
Tort - All Agents |
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Term
| Agency - Types of authority |
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Definition
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Term
| Agency - Actual Authority |
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Definition
When an agent is "held out" BY PRINCIPAL (throught action or inaction)as having authority
AND
ZThird party reasonably relies on it
When third party reasonably believes |
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Term
Agency - Contract Liability
Third Party vs. Principal |
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Definition
| Always liable if the agent had authority |
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Term
Agency - Contract Liability
Third Party vs.Agent |
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Definition
If principal fully disclosed (existence and identity), principal liable
If not, (could be partially), both liable, TP has to pick unless both sides are ok with it.. unlikely. |
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Term
| Agency - Tort Liability (Vicarious) |
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Definition
Respondeat Superior (this first, then if not...)
Apparent Authority |
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Term
| Agency - Respondeat Superior |
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Definition
Control
Within Scope of employment
-same type of conduct
-within space and time of employment
-at least partially to serve employer. |
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Term
| Partnership - Contract Liability |
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Definition
| Jointly and severably liable for all contracts made in the scope of the partnership, or expressly authorized by the partners. |
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Term
| Partnership - Tort Liability |
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Definition
| Partners are jointly and severably liable for all torts in the ordinary course of business. |
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Term
| Partnership - Liability of incoming partner |
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Definition
| Not PERSONALLY liable for obligations incurred before. |
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Term
| partnership - Liability of outgoing |
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Definition
| Liable for obligations incurred during and 90 days after notice of disassociation. |
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Term
| Partnership - Limited partnership formation |
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Definition
| Must be formally created. |
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Term
| Partnership - Limited Partner Liability |
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Definition
| Limited to the amount of their capital contribution... UNLESS they participat in control of the business. If they do they are liable as a partner to the people he did business with if they reasonable believed |
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Term
| Partnership - Split of profits, losses, etc |
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Definition
| They are divided according to the amount of contribution. |
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Term
| Fed Civ Pro - Subject Matter Jurisdiction types |
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Definition
Federal Question
Diversity
Supplemental |
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Term
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Definition
Complete diversity
Amount in controversy >$75k
-can be aggregated by a SINGLE plaintiff |
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Term
| Fed Civ Pro - Citizenship |
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Definition
Where person lives.
Where Corporation has principal place of business or is incorporated
Where and of the members of an unincorporated entity live. |
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Term
| Fed Civ Pro - Supplemental |
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Definition
| Arising out of the same common nucleus of operative fact, but there must still be diversity. This just gets around amount in controversy. |
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Term
| Fed Civ Pro - Personal Jurisdiction |
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Definition
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Term
| Fed Civ Pro - Minimum contacts |
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Definition
Purposfully availed itself of the laws of the forum state
Should have reasonable anticipated that her activities made it foreseeable for her to be haled into court there. |
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Term
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Definition
Where any defendant resides
Where a substantial part of the events took place.
If neither of those, where any defendant is subject to personal jurisdiction. |
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Term
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Definition
Plaintiffs/defendants may join if they share a claim against all defendants/plaintiffs arising out of the same series of events, and
There is a question of fact or law shared between them |
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Term
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Definition
If a third party may be held liable for part of a judgement, and
The court has subject matter jurisdiction |
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Term
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Definition
Must remand if there is no jurisdiction
Court can only remand a claim that was originally filed in state court then improperly removed to fed court |
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Term
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Definition
If the case could have been originally brought in fed court, and
If being removed on basis of diversity, no defendant is a citizen of the original venue.
Only by defendant (all must agree)
Defendant has 30 days once informed that case is removable to decide |
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Term
| Sales - Is an advertisement an offer? |
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Definition
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Term
| Sales - Acceptance. What form must it be in? |
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Definition
| It can be in any reasonable form. |
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Term
| Sales - Statute of Frauds. When? |
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Definition
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Term
| Sales - Statute of Frauds. Requirements |
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Definition
There must be a writing stating that the parties entered a contract.
It must be signed by the party against whom the contract is enforced. |
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Term
| Sales - Can a letterhead count as a signature? |
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Definition
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Term
| Sales - Additional terms in acceptance apply? |
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Definition
If between Merchants, yes, but there are exceptions.
If not between merchants, no. |
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Term
| Sales - Additional terms between merchants. Exceptions to the rule? |
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Definition
Unless they materially alter the contract,
The offer expressly limits acceptance to it's terms.
If the offeror had previously rejected the additional term. |
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Term
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Definition
| Damages in the form of difference between contract price and resale price or market price, plus incidentals. |
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Term
| Sales - Warranties (automatic) |
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Definition
Title
Warranty against Infringement |
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Term
| Sales - Warranties (Implied) |
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Definition
Implied Warranty of merchantability
Implied Warranty of Fitness for a Particular Purpose. |
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Term
| Sales - Implied warranty of merchantability |
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Definition
Be of decent quality (paraphrase)
Pass for what it says it is
Be fit for its purpose |
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Term
| Sales - Implied warranty of fitness can be excluded how? |
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Definition
| By saying so conspicuously, including "as is" or anything like that. |
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Term
| Sales- Implied warranty of fitness applies when? |
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Definition
| When a merchant knows that an item is to be used for a particular purpose, and the buyer is relying on the seller's skill in picking the item. |
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Term
| Sales - Implied warranty of merchantability can be excluded how? |
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Definition
| If the buyer refused to inspect the item. |
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Term
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Definition
| Where one party agrees to take an item for safekeeping. |
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Term
| Sales - How can a merchant transfer title that he does not have? |
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Definition
| If the purchaser is of good faith and the seller is a seller of goods of the kind. |
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