Define LAW

Rules of society that require or prohibit certain behaviors of the people.

Law is the binding legal force.

English judge-made law. 

Basic law passed down by English courts

and adopted by the 13 colonies in the 1800’s

Prior court has made a ruling which applies to later cases.

Decisions are based on precedence which

helps to limit personal bias and agenda

use of precedence to make a ruling

A private dispute between two people.

A wrong against another individual.

A public dispute between a person/people and the gov’t.

A wrong against the dignity of the state

Judges and Justices in the Federal Court System serve a term of how many years until they have to be re-elected?

States?

Federal:  Lifetime

States:  4 year terms

Federal

Supreme Court (9 justices) à

Court of Appeals à

District Courts  à

Bankruptcy & Magistrate Courts

State

Supreme Court à

Court of Appeals à

Superior Courts & District Courts

NC: District & Superior Courts
Federal: District Court

Selection of the jury - voir dire -- to see and hear

JURISDICTION

 vs.

Venue

The power to speak the law.  

What court wil have authority to hear the case.

vs.

Venue is the physical location where the case will be heard.

What is a tort?

What is a crime?

A tort is a civil wrong and is brought to court by the injured party (intentional).

assault, battery, negligence

A crime is a criminal wrongdoing prohibited by the government.  The government initiates the prosecution for a crime.

Assault = attempt to batter; threat of harm, person has to know about it.

Battery = completed assault, unlawful touching

Defamation = slander (spoken) vs. libel (written)

is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances.

the area of tort law known as negligence involves harm caused by carelessness, not intentional harm.

Pre-trial period of time when all evidence is presented and discussed between parties.

Interrogations with submittal of questions through courthouse.

Depositions with a private court hearing with recorder.

Proximate cause and reasonable forseeability

What is forseeable?  No it was not.

Injury has to be caused by whatever the act was, but it has to be something where there is a duty and it is forseeable.

What do these terms mean and where are they found?
a.       COMMERCE CLAUSE
b.      DUE PROCESS
c.       EQUAL PROTECTION
d.  Necessary and Proper Clause
e.  Religion

COMMERCE CLAUSE = gov’t can regulate commerce between states, Indian tribes, and foreign trade; Article 1 Section 8, Katzenbach Case

DUE PROCESS – 5th & 14th Amendment, government is subject to law and state must respect all of the legal rights that are owed to a person

EQUAL PROTECTION – 14^th Amendment, has to be fair, everyone treated equal

Necessary and Proper Clause - gives Congress the power to pass a law if necessary, Article 1, Section 8

Religion - 1st Amendment

Burden of Proof

“greater weight”

vs

“beyond a reasonable doubt.”

In Civil Court, the Plaintiff must PROVE his case by “greater weight”,

whereas

in Criminal Court, the State must PROVE the Defendant guilty by “beyond a reasonable doubt.”

“NO GENUINE ISSUE OF A MATERIAL FACT” will do what for the Plaintiff or Defendant in a civil case?

Motion for a summary judgment.

 Plaintiff and defendant in a lawsuit agree on what the facts of the case are and there is no genuine issue of a material fact.

Motion for a summary judgment.

 files an acknowledgement that no one argues the law

ask the judge to make a ruling without a trial, no trial

The state of NC may tax the production of tobacco by imposing a transportation tax of all tobacco shipped out of NC

True or False

False

Article 1, Section 9

No tax or duty on imports or exports from any state.

The 13 colonies has their own money and own banks.

 Purpose is to prevent fraud. 

It requires certain contracts to be in writing.

It applies to real property contracts, marriage contracts, contracts with responsibility for debt of another, it's unenforceable if it can't be enforced within one year.

What is the difference between a void contract and a voidable contract.

Give me an example of each.

Void contract = something that is illegal at origin

(or declared void by both parties)

Voidable contract = contract that can be voided by one party or another (contract with a minor, or someone that is impaired, drunk)

1.       KATZENBACH vs. MCCLUNG. The Ollie’s Barbeque Case was decided on what principal, and what was the barbeque: Lexington-style, Tomato-based, or Mustard-based? Was it chicken, beef, or pork?

Commerce Clause (Section 8):  movement of goods from one state to the another.  Grants Congress the power to regulate intrastate activity.

Bubba did not want to serve black folds in his restaurant.

Tomato-based, Pork.

What branch of government does each create?

Article 1?

Article 2?

Article 3?

Article 4?

Article 1 - Congress

 Article 2 - Creates the executive branch -President

Article 3 - Judicial - The Courts

Article 4 - Full faith credit.  Outlines the duties states have to each other and the federal government to the states.

Article 1, Section 9

"present the body"

the government cannot imprison anybody without a trial

Amendment 1

Amendment 2

Amendment 3

Amendment 5

Amendment 13

Amendment 14

Amendment 19

Amendment 1 - Freedom of Speech

2 - right to bear arms

3 - quartering of soldiers

5 - eminent domain, false imprisonment, due process

13 - slavery abolished

14 - equal protection, due process

19 - Women became part of "we the people"

Products liability claims can be based on negligence, strict liability, or breach of warranty 

strict liability applies to situations inherently dangerous. It discourages reckless behavior and needless loss by forcing potential defendants to take every possible precaution. Ex.owner of a tiger center. No matter how strong the tiger cages are, if an animal escapes and causes damage and injury, the owner is held liable.

Fraud must be proved by showing that the defendant's actions involved five separate elements:

(1) a false statement of a material fact

(2) knowledge of  the defendant that the statement is untrue,

(3) intent on the part of the defendant to deceive the alleged victim

 (4) justifiable reliance by the alleged victim on the statement

(5) injury to the alleged victim as a result.

Requires certain types of contracts to be in writing. marriage, real estate, credit, contract that cannot be fullfilled within one year

In the law, a proximate cause is an event sufficiently related to a legally recognizable injury to be held the cause of that injury.

The most common test of proximate cause under the American legal system is foreseeability. It determines if the harm resulting from an action was reasonably able to be predicted.

 Appeal

Article 1

Section 8 – Commerce Clause

Article 1, Section 8

Katzenbach vs. Olli

Article 1

Writ of Habeas Corpis

Article 1

Bill of Attainder

congress cannot pass a law that a person should be detained in jail

 Article 1

Ex post facto

 Sequence of Events

• Plaintiff files complaint with clerk
• Summons – defendant served by sheriff; 30 days for reply
•  Discovery Period
• ·         Interrogatories = submission of questions in writing to other party who is sworn under oath upon reply
• ·         Depositions = attys ask questions in front of a recorder in a private court room to other party
• attys get to question jurors; narrowed down to 12 jurors; six challenges “just because”  Voir Dire – to see and to say; period of time where

If you die intestate, it means that you die without having executed a valid will.

Testate is:  having made and left a valid will.

• Tenancy by Entirety = property owned by marriage; if one party dies, other property owns the property by default 
• Joint tenancy with a right of survivorship – property owned by two co-owners; if one party dies, the other owner receives entirety of property by default
• Adverse possession = if you own lot somewhere neighbor builds a fence around it and says he’s claiming ownership over property in open and notorious speech for TWENTY YEARS – he will become owner by adverse possession – he still must prove it in court

Sole proprietor - one owner

Tenancy by entireties - married couple, if one dies the property goes to survivor by operation of the law, if they divorce it immediately goes to tenants in common

Joint tenancy by contract with right of survivorship -same as above, if a judgment is received it attaches to your share, you can vary percentages. If one dies the other inherits property by contract

Tenants in common - two or more people own the property by said percentage, each Tennant could sell their fifty percent and if one dies their part goes with will, it becomes part of estate), kind of like a partnership. Each Tennant has the right to use the property, can be 50-50, 75-25. Etc.

Deed of trust is the same thing as a mortgage (there is no difference)

Two parts: Promissory Note & Deed of Trust

Has words of conveyance, granting words. Words that bargain, sell and convey and have to be in the deed to transfer the title to the property. If the document does not contain words of conveyance then it will not convey the title.

Easement

and Right of Way

Easement or Right of Way, there is no difference.  They are the same thing.  These documents also require granting or reservation words.  Granting property subject to my right of ingress, egress and regress, by way of conveyance.

It is a race to the court house.   If I give one deed to person A and he doesn’t record it, and I give another person B a deed, and person B records it first.  Person B gets the deed to the property.

how big the house has to be

what it can be made of

no pigs or chickens in the backyard

can’t keep business vehicles in the yard

  Can even say you can’t have minors in the house. 

1.  Meets and Bounds

2.  Lot and Block (drawed up on a plat and recorded in a registered deed.

Meets mean how far you go

To describe you have to have a beginning point.  On a legal description you need to be able to take that description and go find property.

You have to either give a fixed GPS point or intersection of John St. and Main St.

Due diligence

Know what you are buying

You want to know what property is subject to.  Are you getting the fee simple to the title, or the fee simple subject to restrictions, right of ways, utility easements, zoning requirements.

Due diligence - period of time when you as the buyer can search the property, talk to the HOA, inspect, read the contract.  Before this period is over you can say I don't want to buy the property.  Contract is not a contract until after the due diligence period

Option

and

First right of refusal

Option is a document that gives the buyer an absolute right to buy your property at a certain price so long as the buyer exercises that option within a given period of time.

First right of refusal - document that says George if you are going to sell your property, you have to offer it to me first, has an expiration time.

Nuisance

Offenses Against Public Morals

one person operates the business and solely responsible for business, liable for actions of business, employees, any damages by employees, etc.  akin to the Master Servant Rule.  The master runs the business and the servant is the employee.

Two or more people go into business, they are both general partners.  Both are fully liable for actions of the partnership.  Can be 75% and 25%, both are fully liable equally.  Doesn’t matter what their ownership percentage is.

You have a general partner and he is liable for all acts of the partnership. 

Example: you have 4 investors and each puts up funds to fund the partnership, they are called limited partners, they can take no part in the running of the business, they are called investors.  Investors will received a limited return, but they have no liability to anyone.  Typically the number of people are limited, but there is no limit.

Popular with operating a family business, farm, or ranch.  Family limited partnerships.

Corporation

created because of

liability and taxes

Shareholders, people that buy shares in the company (own the company)

Shareholders have an annual meeting and elect board of directors who in turn hire the officers (who run the company), who in turn hire the employees

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C-corporation

Classic Corporation

Shareholders have NO liability

• Profits go into corporation à taxes are paid by corporation
• Shareholders get DIVIDENDS and are taxed again on dividends = double taxation
• Shareholders are not liable to public

  S-corporation

Difference between C Corp and a S Corp is how the shareholders and the company get taxed.

Method in which they are taxed

S Corp is taxed like a partner

and the C Corp is taxed on its dividends

• Taxed as in a partnership
• Corporation does NOT pay taxes
• Shareholders are taxed on monies paid
• Shareholders are not liable to public
•   S-corp may only have 100 shareholders
•  “Phantom Income” = shareholders must still pay their taxes on profits of company even if they do not collect their dividends
•  Losses pass through to shareholders too and may be deducted

Limited Partnership

Difference from general partnership is that you have one or more general partners PLUS one or more limited partners

ZERO obligations, liabilities, votes, influence in company decisions, etc.

get paid 1^st – the remaining $ goes to general partner

Limited partners are essentially just investors

 can be converted to general partner (sometimes accidentally) by starting to run some aspect of the business

There is a partnership agreement that says how money is to be dispersed

Limited partnership agreement is contract in limited partnership

 Limited Liability Company (LLC)

(most small businesses are today)

•  No officers or shareholders – only one MANAGER (can be a member or not, runs the company, can buy or sell property, acquire debt, sets rules how business is operated)
• Owned by the MEMBERS (investors, not liable)
  
• Taxed like a partnership, but operates like a corporation
•   Any president of any company is liable for his own personal actions.

Two Entities getting together and forming a partnership

Nothing more than a general partnership.

In a jv, the general partners can and often are other legal entities.

General partnership can partner with a LLC and a corporation.  You have removed your investors one more step away.

Personal Liability on Debts

Example if you file bankruptcy, these things are protected.

There are certain things they cannot take

Social Security

Military Retirement

IRA

401K

Bank Account that you put Social Security Check in and military retirement in and your regular paycheck, then they can get it all.

Written by white business men, lawyers & doctors

it says "we the people"

back then it meant something different

today it means all of us

• choosing right venue; Tompkins sues in federal court since Erie Railroad is a company in New York for injuries due to something hitting him from a railroad of Erie’s as it passed through his town; even though tried in NY, Pennsylvania law still had to be applied; PA law said that Tompkins could be considered a trespasser so should not be intentionally harmed; if he was tried under NY law, he would have won the case

Guy in bar fight, guy ran across the street to use telephone and they wouldn't let him use the phone.  The guy died.  The bar owner is not responsible.

Does a business establishment incur liability for wrongful death if it denies use of its telephone to a good samaritan who explains an emergency situation occurring without and wishes to call the police?

Manufacturer of a product is liable for the production or sale of a product, liable for negligence, if the product is negligent in its product.

Pinto case - they knew about the defect

Buick - you don't have to be privy, you don't have to buy the car from buick, you can buy it from a used car lot.

 if you own lot and the neighbor builds a fence around it and says he’s claiming ownership over property in open and notorious speech for TWENTY YEARS – he will become owner by adverse possession – he still must

• Right of way used OPENLY AND NOTORIOUSLY for 20 years becomes a prescriptive easement
• it's not adverse if the owner knows about it
  

Assignment of Contract

and

Sublease

• Assignment of Contract = transfer of property rights to grantee; releases grantor of any and all obligations to contract (triangular: grantor à grantee with approval of owner)
•  Sublease = granting rights for property use to another party – grantee is still ultimately responsible to the owner (linear: owner à lessor à lessee)