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defines a relationship between parties; an agreement that the courts will enforce; source of contracts is common law; law does NOT enforce every promise; most contracts are an exchange of two or more promises
must have offer, acceptance, adequate consideration, and legal subject matter. |
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Payment
either giving up something, or agreeing not to do something you have a right to do. |
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| offeror bound, limited acceptors, but no else bound yet |
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| both parties are obligated at the start of the contract |
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| not effective consideration; contracts require new consideration |
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| stops a party from asserting a legal right that a party has a right to enforce; with this doctrine, courts have enforced promises that lacked the consideration and oral promises that would otherwise be unenforceable under the Statue of Frauds. Under the doctrine, a party is “estopped” to deny the existence of a promise |
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| fictional contract created by courts for equitable, not contractual purposes]. A quasi-contract is not an actual contract, but is a legal substitute for a contract formed to impose equity between two parties. The concept of a quasi-contract is that of a contract that should have been formed, even though in actuality it was not. It is used when a court finds it appropriate to create an obligation upon a non-contracting party to avoid injustice and to ensure fairness |
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| an innocent misstatement or nondisclosure of facts |
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| usually physical; one party forces other party into contract; victim of duress may rescind contract; one party’s wrongful act overcomes the free will of another party; can be from economic pressure. |
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| mental coercion; one party is in the dominant position, the other is subservient; in most cases it is a young person vs an older person |
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| People that cannot mentally understand the nature and consequences of their actions lack the capacity to contract |
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| when only 1 person makes mistake, there usually isn’t a rescission; but when both make a mistake, that is reason to void |
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| some event has to occur before we have a contract; |
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| there is a contract, but a certain future event may void it |
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| protects integrity of contract up until it is signed; does not apply to later modifications; only deals with written agreements; prevents a party to a written contract from presenting oral evidence that contradicts or adds to the written terms of the contract that appears to be whole. The supporting rationale is that since the contracting parties have reduced their agreement to a single and final writing, the extrinsic evidence of past agreements or terms should not be considered when interpreting that writing, as the parties had decided to ultimately leave them out of the contract. |
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| 3rd party beneficiary contract |
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| when someone sues ona contract, despite having not originally been an active party to the contract |
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| Act of transferring an interest in property or right (such as contract benefits) to another |
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| fullfilment of the obligations agreed to in a contract, with only slight variance from exact terms, or unimportant omissions. These msitakes can be made up with money. |
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| the right of a party to a contract to demand that the defendent be ordered in judgment to perform contract (usually when subject matter of contract is unique-- house, art,etc) |
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| agreed by nonverbal conduct; when a party accepts a benefits at a time when it is possible to reject it (going to the doctors-- even if you haven't signed anything yet, you have agreed to have the appointment, so you agree to pay for the services) |
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| All elements are specifically stated' |
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| existence of contract is assumed by circumstances |
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| process of issuing regulations that have a force and effect of law; enactment of regulations that will be generally applicable in the future results in regulations of greater certainty and consistency and allows for broader public input |
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| statements that express an agency’s understanding of the statutes it administers; intending to advise the public of the agency’s positions of particular issues; not legally binding on the agency, the courts, or the public |
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| must be enacted in accordance with the APA –when such rules are consistent with the APA, the enabling legislation, and the constitution, they have the force and effect of the law—they are binding on the agency, the courts, and the public |
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| “notice and comment”; begins when an agency publishes a notice or proposed rulemaking to the Federal Register. Notice contains time, place, and nature of proceedings, legal authority for proposed rules, and terms of proposed legislation principal justification of informal rulemaking is efficiency; lack of required hearings minimizes delay |
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| on-the-record”; begins when the agency publishes a notice of proposed rulemaking to the Federal Register; agency must hold formal trial hearings where it presents all its evidence justifying the proposed regulation; hearings can drag out for years with cross examinations and other witnesses. |
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| party must take initiative and meet the threshold requirements for reviewability, standing, and exhaustion of administrative remedies |
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| Relates to a nondiscretionary function |
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| Reasons to overturn agency decision |
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1.) Agency failed to comply with the procedures detailed in its enabling legislation or the APA
2.) Agency’s actions exceeds the scopes of its authority provided by its enabling legislation
3.) Agency’s decision is premised on an erroneous interpretation of the law
4.) The agency’s action conflicts with the constitution (example: regulation prohibiting a certain type of advertising may violate first amendment)
5.) Agency erred in the substance of its action |
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Court decides issue anew (entirely new hearings)
Rarely applied |
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Court reviews the agency record and sets the agency decision aside only if substantial evidence supporting the agency decision does not exist.
Applied with formal rulemaking and abjudication |
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Court sets aside agency decision only if the agency failed to consider all the relevant facts or did not provide a rational explanation for its decision.
Applied with informal rulemaking |
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| . Any action that increases overall good is considered right. Moral correctness weighted by consequences. Maximizes benefits, minimizes harms |
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An action that maximizes respect for human rights and minimizes their violation is considered correct.
FREEDOM AND WELLBEING |
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| Study of standards and conduct of moral judgement |
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| Views of what is right and wrong, good and bad. |
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| Law is a body of higher principles existing independently of human experience, and is exists as an ideal condition that is either inherent in human nature or derived from a divine source |
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| regards law as any body of rules imposed by a sovereign body, a positive law is a law laid down by an authority. |
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| law as the embodiment of a society’s customs; custom is the chief manifestation of the law; as customs and cultural values change, so does the direction of positive law |
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| define law as present human conduct; the sum of what the lawbooks permit and what human behavior provides; human conduct in the immediate experience as source of law |
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view life experience as affecting law; product of various social influences on official discretion (if speed limit is 55, but cop won’t pull someone over unless they are doing 65, a legal realist would say the speed limit was 65mph)
o what actually occurs in the legal process is the law, and not what is written |
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| latin for “Let the decision stand”): the method of decision making wherein one uses prior cases to decide a present controversy; a rule of law decided by the highest court of the jurisdiction subsequently binds all lower courts within that jurisdiction. |
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| Pleading, Discovery, Trial, Appellate |
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| Burden of proof (criminal) |
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| Beyond a reasonable doubt (court would rather release a guilty person than wrongfully convict an innocent one) |
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| Preponderance of the evidence (“more likely than not.”) |
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| the process where each party attempts to learn what the other party knows; each party may direct written questions, known as interrogatories, to the other party, whom must provide written answers under oath; contributes a lot to the cost of the investigation. (Like a table top board game, everyone can see what everyone else has) |
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| power of court to hear and decide a case |
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| opinion wherein a judge disagrees with the result reached by majority of court; does not have any legal effect, but is often cited in future cases when court want to change the law |
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| has a self-incrimination clause which prohibits compelling any person “in any criminal case to be a witness against himself.”- it is a personal right to have the privilege against self-incrimination; corporations and other collective entities do not have this right. |
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the constitutional basis for regulation in business by Congress
o contains an express grant of federal power over interstate commerce, which limits the authority of states to regulate in a manner that unduly restricts the free flow of interstate commerce; tells to what extent a state can regulate an area of interstate commerce when Congress is silent |
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| When a state passes a law, the state's interest has to be weighed against interstate commerce |
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| everyone must follow federal law in the face of conflicting with states as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress; all laws made by the federal government are the supreme law of the land and superior to any conflicting state law. |
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| Eminent domain (Condemnation) |
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| the power of the gvmt to take, or to authorize the taking of, private property for public use; The Takings Clause of the 5th amendment recognizes the basic gvmtal power but requires that just compensation be given to the owner. |
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| When you tell the government to take your property |
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| 5th Amendment (Takings Clause) |
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| Private property shall not be taken for a public use, without just compensation |
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| commands that no state shall “deny to any person within its jurisdictions the equal protection of the laws”; all persons similarly situated should be treated alike |
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| Strict Scrutiny Test of Equal Protection |
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| when statute classifies by race, alienage, or national origin; because such discrimination is unlikely to soon be corrected by legislative mean, these laws are subject to this scrutiny |
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| Rational basis test of equal protection |
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| the general rule is that social and economic legislation is presumed to be valid and will be sustained if the classification drawn by the statue is rationally related to a legitimate state interest |
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| Rational basis test of equal protection |
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| Used when strict scrutiny test doesn't apply. |
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| • First Amendment/Commercial Speech |
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| commercial speech is not entitled to First Amendment protection |
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| Commercial Speech Doctrine |
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| advertisements, billboards, and other forms of commercial speech were not considered speech as that term is used in the 1st Amendment—rather such forms of expressions were treated as commercial activity that could be regulated (1st amendment is meant to protect political expression) |
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| does not require the contract to be in writing, it requires only that there be a written evidence of the contract signed by the party to be charged with the enforcement of the contract (a laundry ticket would suffice to have a lawsuit against the laundry) |
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Formal requirements
-$500+, must be written proof of sale in order for it to be enforceable.
-Between merchants, written confirmation within reasonable amount of time when the receiving party is aware of it's contents is sufficient for contract enforcement
-Goods are made specific for a buyer and not suitable to be sold to another, if party who is being sought enforcement against admits to having made the contract (in pleading or testimoney), when payment has already been received and accepted. |
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