Term
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Definition
| That which a judge will decide concerning matters properly brought before him/her; in a broader sense, any rule that society will enforce |
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| In the common law, a collection of statutes enacted by legislative bodies, including Congress and state legislatures |
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| Codified law based on the Roman code of Justinian; the basis of the legal system of almost every European and Latin American countries as well as many African and Asian nations. |
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| The law as developed and pronounced by the courts in deciding cases (case law), based on the common law of England and judicial precedent |
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| Describing the legal system as using manipulable concepts to preserve the socioeconomic status quo while maintaining the fiction of a just decision-making process, adherents of this school often argue for more arbitrary, but less malleable rules tied to community values, egalitarianism, and actual fairness |
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Definition
| The law that is shaped by events, traditions, and customs; the past helps us to discern the principles of contemporary law |
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| Law is tied to morals and ethics, including some principles that are immutable |
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| The law is a set of rules developed and enforced by the governing authorities |
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| More a social or economic philosophy than simply jurisprudence, this approach to life and law is often reduced to the phrase, "the greatest good for the greatest number," with law therefore judged by how much pleasure or pain it creates - how much it produced a net "plus" in terms of societal progress |
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| The body of self-imposed rules of conduct generally perceived to be right |
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| Legislation passed by Congress or states that modify common law |
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| A parallel and independent legal system based on principles of "fair play" or equity; now merged into the general court system, with responsibility for family law, injunctions, and specific performance of contracts |
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| Refers to any body of law creating, defining and regulating rights and obligations within a framework of a single subject, such as contracts, torts, crimes, or property |
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| Pertains to operating rules for obtaining substantive rights or defining substantive obligations in a court of law. |
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Term
| Sarbanes and Oxley Act (2002) |
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Definition
| Section 406 mandates that all corporations whose stock is publicly traded have a code of ethics for all their upper-level financial officers |
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| Attorney/Client Privilege |
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Definition
| Permits clients to keep confidential matters discussed by or with their attorneys. |
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| This doctrine protects from nonconsensual disclosure of information that an attorney prepares in the course of his/her work |
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Definition
| A fee that a client pays to a lawyer, such as a lump sum to engage a lawyer at the start of a matter |
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Term
| Uniform Commercial Code (UCC) |
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Definition
| Comprehensive statutes cover numerous subjects within the framework of substantive law, including sales, commercial paper, and secured transactions. |
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Term
| National Conference of Commissioners on Uniform State Laws |
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Definition
| Proposes new uniform laws and changes to existing laws for states to adopt |
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Definition
| Found in a state code or in federal code. Published with annotations, footnotes, and cross-referencing other statutes and to key cases interpreting and applying the statute in question |
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| "Law of Retaliation," eye for an eye |
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| "Stand by Decision," a requirement that a court follows its own and higher court precedents |
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| A nation's or state's supreme set of laws, outlining the basic organization, powers, and responsibilities of the government and guaranteeing certain specific rights to the people |
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| A law passed by a governmental body below the state level and dealing with a local concern |
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| A regulation issued by a federal state, or local administrative agency (or court) and governing procedure or conduct in a specific field |
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Definition
| Article VI, Line 2, of the US Constitution states that the federal constitution, laws made in pursuit of the Constitution, and its treaties are "the supreme law of the land." |
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Term
| Marbury v Madison, 5 US 137 (1803) |
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Definition
| Chief Justice John Marshall announced the doctrine of Judicial Review: the courts can declare federal or state actions to be in violation of the Constitution, or to be unconstitutional |
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Term
| United States v Verdugo-Urquidez, 495 US 259 (1990) |
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Definition
| The Supreme Court held that the Constitution's Fourth Amendment does not apply to American agents' search and seizure of property owned by a non-US citizen. |
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Definition
| In parliamentary forms of government, the legislature tends to predominate. The executive and his cabinet are usually members of the legislature, and the courts' power to strike down parliamentary actions is generally nonexistent or highly limited. |
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Term
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Definition
| Refers to the power of Congress to regulate any activity which, in the aggregate, has a 'substantial economic effect' on interstate commerce. |
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| Steps that must be followed to ensure a "fundamentally fair" process |
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| No person may be denied "the equal protection of the laws;" "equal protection" does not prohibit all differences in the treatment of persons but rather requires that, at the very least, any distinctions be reasonable, not arbitrary or invidious. |
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Definition
| Member states hold the power, not a centralized system. |
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Definition
| Centralized form of government |
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Definition
| Spheres of power exist for both national government and the states/provinces. |
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Definition
| Laws making criminal past actions that were not defined as criminal when they occurred |
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Definition
| Laws intended to single out an individual and/or punish him/her without benefit of a trial |
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Definition
| Legislation by which an administrative agency is created, and powers are delegated to it |
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Term
| Freedom of Information Act (FOIA) |
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Definition
| Legislation that requires the full or partial disclosure of previously unreleased information and documents controlled by the United States government upon request. |
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Definition
| The power of a court to hear appeals from another court's decisions |
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Term
| Full Faith & Credit Clause |
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Definition
Article IV, Sect I of the US Constitution:
"Full faith and credit shall be given to each State to the public acts, records and judicial proceedings if every other State" |
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Term
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Definition
| Process by which an alleged criminal is returned to the state in which his/her crime supposedly occurred, and where trial should take place |
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Definition
| The person who initiates a lawsuit |
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Definition
| The person who against whom a criminal prosecution or civil action is filed |
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Definition
| The plaintiff, this term is used in equity cases. |
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Definition
| Term for the defendant, often used in equity cases |
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Definition
| A jury of 12 persons impaneled to try and to decide finally upon the facts at issue in causes for trial in a court. |
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Definition
| The grand jury plays an important role in white collar criminal matters. It has two main functions: to investigate and to protect citizens against unfounded criminal prosecutions. |
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Term
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Definition
| The process of jury selection where prospective jurors are questioned by the attorneys of both sides |
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Term
| McCulloch v Maryland, 17 US 316 (1819) |
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Definition
| The US Supreme Court held that Congress had the power to incorporate the Bank of the United States; although such an incorporation is not an enumerated power under the Constitution, it is, the Court found, appropriate to Congressional exercise of its enumerated fiscal powers |
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Term
| Katzenbach v McClung, 379 US 294 (1964) |
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Definition
| Federal ban on racial discrimination even in a small restaurant whose out-of-state purchases and customers were minimal |
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Term
| Wickard v Filburn, 317 US 111 (1995) |
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Definition
| Federal regulation of wheat production even when a particular crop was not placed in interstate commerce. In effect, this crop freed another crop to be used in interstate commerce. |
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Term
| US v Lopez, 514 US 549 (1995) |
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Definition
| A federal law was unconstitutional on the grounds that the law exceeded Congressional powers over commerce. This decision voided the 1990 Gun-Free School Zones Act. |
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Term
| US v Morrison, 529 US 598 (2000) |
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Definition
| Supreme Court ruled 5-4 that Congress lacked the authority under the Constitution's Commerce Clause to enact civil remedies in the 1994 Violence Against Women Act because "gender-motivated crimes of violence are not, in any sense of the phrase, economic activity." |
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Term
| National Federation of Independent Business v Sevelius (2012) |
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Definition
| Supreme Court rejected a constitutional challenge to the 2010 Patient Protection and Affordable Care Act on the grounds that the ACA's individual penalties could be deemed a tax, thus within Congressional authority. |
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Term
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Definition
| Congress has only such legislative powers as are granted to it by the US Constitution, or implicitly. |
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Term
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Definition
Power to:
Regulate Interstate Commerce
Tax
Spend for the General Welfare |
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Term
| State Farm Mutual Automobile Insurance Co. v Campbell, 538 US 408 (2003) |
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Definition
| The Supreme Court ruled that, inasmuch as due process prohibits grossly excessive or arbitrary punishment on a tortfeasor and that it is rarely constitutional for a punitive damages award to be ten times higher than the compensatory damages. |
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Term
| Brown v Board of Education, 347 US 483 (1954) |
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Definition
| Outlawed state-mandated racially segregated public schools |
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Term
| Baker v Carr, 369 US 186 (1962) |
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Definition
| Legislative districts should be of equal size so that each person's vote is of equal value |
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Term
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Definition
| A body of unwritten laws based on legal precedents established by the courts. This law draws from institutionalized opinions and interpretations from judicial authorities and public juries. |
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Term
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Definition
| A legally enforceable agreement, expressed or implied. There are four essential elements of a valid contract: Capacity of the parties, mutual agreement (assent) or meeting of the minds (a valid offer and acceptance), consideration (something of value given in exchange for a promise), legality of subject matter. |
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Term
| Basic Principle of Contract Interpretation |
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Definition
| To determine the intent of the parties from words or actions taken as a whole, not from isolated words, actions, or events. |
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Term
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Definition
| A contract stated in words, written or oral, or partially written and partially oral. This contract is overtly, consciously, and specifically carried out. |
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Term
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Definition
| Implied-in-fact, or implied-in-law (also known as quasi contract) |
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Term
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Definition
| A contract manifested by conduct, rather than words. The proof of the contract lies in the conduct of the parties; a reasonable person aware of this conduct, including words, if any, would infer a contract exists. |
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Term
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Definition
| A contract that is created by operation of law (i.e., a court implies a contract), to avoid unjust enrichment of one party at the expense of another. There is no agreement, no meeting of the minds; one party has rendered a benefit to another under such circumstances that fairness and equity require compensation. |
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Term
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Definition
| “As much as he/she earned” |
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Term
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Definition
| A contract that is based on an exchange of promises – a promise for a promise. |
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Term
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Definition
| Involves a promise by one party and an act by the other. If, however, the person receiving the offer promises to act before doing so, the contract may become bilateral. |
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Definition
| A contract that has been fully performed by both parties; all promises have been fulfilled. |
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Term
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Definition
| A contract where something remains to be done by one or both parties. |
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Definition
| A contract that meets all legal requirements and can be enforced by either party. |
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Definition
| A contract that does not meet one or more legal requirements and cannot be enforced by either party. |
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Term
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Definition
| A contract that has no validity and cannot be enforced by either party. |
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Term
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Definition
| A contract that is binding on only one of the parties. The other party has the option to withdraw from the contract or enforce it. |
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Term
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Definition
| Latin negotium, meaning “business,” or, literally, “the absence of leisure.” Since a contract arises out of an agreement (except a quasi-contract), and an agreement is a meeting of the minds, this is the transaction of business that most minds meet through |
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Term
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Definition
| The simplest way to form an expressed contract. This is transmitted directly to the offeree by act or by words, whether spoken or written, through any medium whatsoever. |
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Term
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Definition
| Must indicate a clear intent to make a contract, must be sufficiently definite so that a court can determine the actual intent of the parties, must be communicated to the other party. |
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Term
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Definition
| Commits the offeror to keep his/her offer open in return for a specified price. The offeror makes a contract to hold the offer open for some specific period and is paid a consideration for this agreement. |
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Term
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Definition
| If the offeree reasonable relies on the offer’s being open, and will supper injustice if it is revoked, then the offer is deemed irrevocable. |
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Term
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Definition
| Accepting an offer clinches the contract. The acceptance must meet certain standards. |
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Term
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Definition
| Must be clear and unqualified; an acceptance that modifies the offer or attempts to get a better deal is treated in the law as a counteroffer. |
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Term
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Definition
| Modifies or attempts to get a better deal out of a proposed offer. A rejection of the original offer and the making of a new offer. |
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Term
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Definition
| Any lawful alteration of responsibilities that is given in exchange for the other person’s consideration (“his/her lawful alteration of responsibilities). Consideration is based on the idea of quid pro quo (“something for something”): some action, forbearance, or promise. |
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Term
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Definition
| Tradition does not require an exchange of consideration. A contract only requires an offer, acceptance, and mutual consent about the contract’s essential content. |
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Term
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Definition
| Not an actual promise; the promiser offers to do something only if he/she “wishes” or “needs” to |
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Term
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Definition
| Ordinarily has no legal substance; it is not measurable and not commercial. However, some courts have recognized one or more special situations in which a moral obligation may be consideration: it arises from a preexisting legal liability acknowledged by a new promise, a party obtained a benefit or suffered legal detriment, the agreement supported by moral consideration has been wholly or partially executed. |
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Term
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Definition
| Something that was performed without expectation of obtaining something in return from the other party. If the latter party should afterwards promise some compensation for the benefit received, the traditional rule is that this promise would not be enforceable because it was not bargained for in the current transaction. |
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Term
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Definition
| Periods of limitations vary from state to state but generally run 3 to 6 years except for sales contracts under the UCC (4 years). |
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Term
| Requirements and Output Contracts |
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Definition
| These contracts should be accompanied by an estimate of the quantities to be bought or sold. |
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Term
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Definition
| Under English common law, to be binding a contract had to be written and under seal (wax stamp). Later as wax seals fell into disuse, the word “Seal,” Locus Sigilli (Place of the Seal), or the abbreviation LS was substituted. “Sealed” contracts did not require consideration and the laws of the states extended the period of limitation for these agreements. |
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Term
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Definition
| A mistake that goes to the very heart of the agreement |
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Term
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Definition
| Intentional misrepresentation of a material fact, made knowingly, with intent to defraud, that is justifiably relied upon by the other party and causes injury to him/her. |
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Term
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Definition
| Taking advantage of another by reason of a position of trust in a close or confidential relationship. |
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Term
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Definition
| Coercion, either physical or mental, that deprives a person of free will |
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Term
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Definition
| Gross unfairness brought about by the superior position of one of the parties to the contract. |
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Term
| Mutual or Unilateral Material Mistake |
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Definition
| Whether there is a binding contract or not if the material mistake is fault of both parties or only one party |
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Term
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Definition
| An agreement made as a result of a mutual mistake regarding a material fact can be made void by either party in this equitable action of cancellation. Cancellation is unavailable, though, to a person who expressly takes the risk of a mistake – e.g., someone who buys an item “as is.” |
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Term
| Intentional Misrepresentation |
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Definition
| Deceit of the other party in a contract, there is no meeting of the minds, no agreement, and hence no legal obligation. |
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Term
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Definition
| Legal word for "guilty knowledge" |
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Term
| Innocent/Nonfraudulent Misrepresentation |
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Definition
| Misrepresentation that lacks two elements 2 (knowingly) and element 3 (intent to defraud) will result in a contract voidable by the innocent party. |
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Term
| Innocent Misrepresentation |
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Definition
| Is not a tort and does not give rise to claim for damages. |
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Term
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Definition
| A contract that often is unconscionable because it is a standardized agreement tendered to a consumer on a “take it or leave it” basis, leaving him/her with no opportunity to bargain or to obtain the desired goods or services without signing the printed form. |
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Term
| Procedural Unconscionability |
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Definition
| Concerns contracts formation. It may be present when there is inequality in bargaining power or unfair surprise caused by “hidden” terms in a contract that is lengthy, confusing, or both. |
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Term
| Substantive Unconscionability |
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Definition
| Concerns the fairness of a contract; it may exist when there is an unjustified and overly harsh allocation of risks or costs or a great price disparity. |
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Definition
| A legally defined level of mental ability sufficient to reach an agreement. |
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Definition
| Mental impairment sufficient to prevent one from appreciated the nature of an agreement or the consequences of his/her actions |
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Term
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Definition
| Concepts of prevailing morality used by courts to determine the legality or illegality of contracts |
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Term
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Definition
| A person or party under the age of 18 |
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Term
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Definition
| The cancellation or rejection of a contract made during one’s minority. This action must occur during minority or within some reasonable period after the minor reaches 18. |
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Definition
| Items required to sustain existence, such as food, water, shelter, clothing, medical services, and some types of schooling. |
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Definition
| “From the beginning,” a contract that is ratified by the minor turning 18. |
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Definition
| By drugs or alcohol, for this defense to operate against a claim based on contract, the intoxication must deprive the subject of the ability to understand the nature of his/her agreement and be apparent to the other party. |
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Definition
| A law prohibiting certain activities on Sunday. |
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Definition
| An unlawful rate of interest |
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Definition
| Provisions that disclaim liability for negligence of other actions |
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Term
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Definition
| The old common law requirement that for a person to have a legal interest or right in a contract he/she must be a party to the contract |
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Term
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Definition
| Whenever rights are assigned, the party to whom they are assigned |
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Term
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Definition
| The person making the assignment |
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Term
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Definition
| An agreement among the two contracting parties and a third party whereby all parties agree that this third party shall perform the duties of one of the original parties to the contract. |
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Term
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Definition
| A person for whose benefit a contract is made but who is not an actual party to the contract. Two categories of such benefactors can bring a suit on a contract even though they are not parties to the contract: Creditor and Donee Benefactors. Beneficiaries of contracts other than creditor or done beneficiaries cannot sue on the contract of other parties. |
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Term
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Definition
| A person who is owed the performance of the contract. A common creditor benefactor is a bank. Example, mortgage |
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Term
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Definition
| The recipient, by gift, of a contractual performance agreed to by two other parties. |
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Term
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Definition
| Any person or parties that do not have a substantial interest in the contract. Although such a person may show a benefit under the contract, the contract was not made expressly for him/her or for his/her benefit. |
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Term
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Definition
| Termination or completion of the contract |
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Term
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Definition
| A fundamental requirement that must be met by one party before the other party has an obligation under the contract |
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Term
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Definition
| The compensation owed to the nonbreaching party to recover any financial loss or injury caused by a breach of contract. |
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Term
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Definition
| Occurs when a party tenders (presents) an unconditional offer to perform, and the party is truly ready, willing, and able to perform. If the other party rejects the tender, it is as if the first party performed. |
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Term
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Definition
| Conditions are events whose occurrence or nonoccurrence changes, limits, precludes, gives rise to, or terminates a contractual obligation. There is breach of contract liability for broken promises, but non-completed conditions, there simply is no contract (rather than a breach of contract) |
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Term
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Definition
| Conditions that the contracting parties deliberately create as such in making the contract |
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Term
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Definition
| Whether written or oral, some implied in fact or by nature of the agreement, others implied by law (constructive). |
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Term
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Definition
| Is not usually an implied condition; if one of the parties strictly requires performance at a certain time, expressed words of condition should be used. |
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Term
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Definition
| Whether satisfaction is guaranteed as a condition depends on whether the “satisfaction” called for is subjective or whether the “satisfaction” can be objectively proved. |
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Term
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Definition
| Condition that must be complied with, or must occur, before the other party becomes obligated for his/her performance. |
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Term
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Definition
| May abolish liability for obligation: a clause that a seller will be liable for defective goods provided that the buyer gives notice within 30 days of delivery that the goods are defective. |
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Term
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Definition
| If one party to a contract fails in a material way to perform, the other party has no obligation on the contract |
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Term
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Definition
| When one of the parties to a contract clearly states or implied that he/she cannot or will not perform as agreed, the other party does not have to sit idly by and await the due date of performance before declaring the contract breached and therefore discharged. |
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Term
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Definition
| When a contract is performed by both parties, the contract is said to be discharged by performance. |
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Term
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Definition
| Requires that performance by both parties take place at the same time. |
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