Term
|
Definition
| innocent party should be placed if possible in exactly the same position as if guilty party had performed contract |
|
|
Term
| benefit of the bargain/general rule for remedies of contracts |
|
Definition
| innocent party should be placed if possible in exactly the same position as if guilty party had performed contract |
|
|
Term
damages
specific performance
unilateral rescission |
|
Definition
| 3 types of remedies under contract law |
|
|
Term
|
Definition
| money paid to innocent party by guilt party as a remedy under contract law |
|
|
Term
|
Definition
| type of remedy under contract law that requires guilty party to perform contract |
|
|
Term
|
Definition
| allows innoent prrat to cancel contract and try to return to pre contract position as a remedy under contract law |
|
|
Term
compensatory
expectancy
consequential
liquidated |
|
Definition
| 4 types of damages under contract law |
|
|
Term
|
Definition
| amount of money to compensate innocent party for money that the innocent party spent to perform contract |
|
|
Term
|
Definition
| compensatory damages are associated with compensating the innocent party for: |
|
|
Term
|
Definition
| money the innocent part expected to receive and keep if contract was performed |
|
|
Term
|
Definition
| expectancy damages are associated with compensating the innocent party for: |
|
|
Term
|
Definition
| money paid to ijnnocent part for reasonably foreseeable future damages to innocent party resulting from guilty party's breach |
|
|
Term
| baden vs. curtiss breeding service |
|
Definition
| case that illustrates consequential damages |
|
|
Term
|
Definition
| subject matter of baden vs. curtiss breeding service |
|
|
Term
1. reasonably foreseeable by guilty party at time of contract
2. future damages to innocent party directly related to guilty party's breach of this contract
3. involes 3rd part (usually person dealing with innocent party |
|
Definition
| 3 elements that would provide for consequential damages as a remedy under contract law |
|
|
Term
|
Definition
| previously agreed upon damage amount |
|
|
Term
|
Definition
| purpose behind establishing liquidated damages as a remedy under contract law |
|
|
Term
| consequential and potentially compensatory and expectancy |
|
Definition
| liquidated damages can be established in lieu of what other kind of damages under contract law? |
|
|
Term
|
Definition
| makes guilty party perform contract |
|
|
Term
| only when monetary damages are inadequate |
|
Definition
| when would specific performance be used as remedy under contract law? |
|
|
Term
| when subject matter is unique |
|
Definition
| why would monetary damages be inadequate as a remedy under contract law, thus instutiting specific performance? |
|
|
Term
|
Definition
| types of specific performance |
|
|
Term
| positive specific performance |
|
Definition
| requires guilty party to perform contract because no other remedy can put innocent party in same poistion |
|
|
Term
| governmental related work involving public safety (fireman, safety) |
|
Definition
| in what cases can personal services be enforced via specific performance? |
|
|
Term
negative specific performance
AKA injunction or restraining order |
|
Definition
| require guilty party not to do what guilty party agreed not to do in contract |
|
|
Term
| injunction, restraining order, covenant not to compete, employment contract |
|
Definition
| examples of negative specific performance |
|
|
Term
|
Definition
| if not possible to give innocent party benefit of bargain, permits innocent part to cancel contract |
|
|
Term
|
Definition
| under unilateral rescission, who is permitted to cancel the contract? |
|
|
Term
| returns innocent to pre-contract position or as closely as possible |
|
Definition
| purpose/goal of unilateral rescission |
|
|
Term
|
Definition
| what is the least preferable of remedies under contract law? |
|
|
Term
cancellation of unmade order
withholding of undelivered order
resell goods (either at public or private sale)
keep goods and sue for lost profits (NOT COSTS) |
|
Definition
| remedies under sales law for the seller's remedies if buyer doesn't accept or pay for sold goods |
|
|
Term
| breach of contract that will result in seller's remedies |
|
Definition
| if buyer doesn't accept or pay for sold goods |
|
|
Term
| resell goods either at public or private sale in a commercially reasonable manner and sue for damages |
|
Definition
| rules for reselling goods under seller's remedies |
|
|
Term
depends on uniqueness of goods
- NOT unique: CAN get double profits
- Unique: cannot get double profits |
|
Definition
| can seller keep goods and sue for lost profits and then resell again at profit as a remedy for sellers under sales law? |
|
|
Term
specific performance
cover
sue for lost profits only
sue for breach of warranty |
|
Definition
| buyer's remedies under sales law for breach of contract |
|
|
Term
| if seller doesn't deliver conforming goods |
|
Definition
| when would a buyer deserve remedies under sales law? |
|
|
Term
|
Definition
| must the buyer allow time to cure before cancellation of contract or rejecetion of goods as a remedy for breach of contract under salse law? |
|
|
Term
|
Definition
| when would specific performance be allowed as a remedy for buyers? |
|
|
Term
|
Definition
| ALLOWS BUYER TO REPLACE GOODS and sue guilty part for damages as buyer remedy under sales law |
|
|
Term
| expected sales price - COGS |
|
Definition
| mathematical lost profits |
|
|
Term
| value of contracted goods - value of defective goods |
|
Definition
| mathematical breach of warranty |
|
|
Term
| innocent party must make a reasonable effort to lessen guilty party's damamges after guilty party's breach |
|
Definition
| general rule for mitigation of damages |
|
|
Term
|
Definition
| uniqueness in sales law is to what in contract law |
|
|
Term
|
Definition
| negotiable instruments/negotiable contracts |
|
|
Term
|
Definition
| written promises or orders to pay sums of money |
|
|
Term
|
Definition
| contract which is freely transferred from one person to another, taking with it certain legal rigths and duties |
|
|
Term
substitute for money
creates credit |
|
Definition
| purposes of negotiable instruments |
|
|
Term
| creates contract between buyer and seller, and contract between depositor and bank |
|
Definition
| how are negotiable instruments substitutes for money? |
|
|
Term
|
Definition
| future repayment of items you presently enjoy |
|
|
Term
| creates contract between creditor and you |
|
Definition
| how do negotiable instruments create credit? |
|
|
Term
|
Definition
| person who extends your credit |
|
|
Term
1. singed and in writing
2. contains unconditional promise or order to pay
3. sum certain in money only
4. payble on demand or at a fixed future date(s)
5. contains the magic words of negotiability |
|
Definition
| 5 requirements of negotiability |
|
|
Term
pay to the order of
pay to bearer |
|
Definition
| magic words of negotiability |
|
|
Term
|
Definition
| do oral negotiable contracts exist? |
|
|
Term
|
Definition
| does a check memo constitute a condition? |
|
|
Term
|
Definition
| does an omitted date destroy negotiability? |
|
|
Term
| date instrument is given to the other person |
|
Definition
| if date is omitted on a negotiable instrument, what is the date assumption? |
|
|
Term
1. promissory note
2. draft or check
3. certicifcate of deposit |
|
Definition
| 3 classifications of negotiable instruments |
|
|
Term
2 party instruments,
contains at least a promise to pay (maybe an order als0) |
|
Definition
| distinguishing characteristics of a promissory note |
|
|
Term
|
Definition
| 2 parties for a promissory note |
|
|
Term
|
Definition
| makes promise and signs it |
|
|
Term
|
Definition
|
|
Term
lump sum/"single pay" note
installment
"Balooon"/"bullet" |
|
Definition
| types of promissory notes in terms of payment |
|
|
Term
| lump sum or single pay note |
|
Definition
| entire amount of note due at one fixed future date |
|
|
Term
|
Definition
| ALL equal periodic payments so that after last payment, the balance is zero |
|
|
Term
|
Definition
| another name for an installment note |
|
|
Term
|
Definition
| equal periodic payments until last payment when entire remaining balance is due |
|
|
Term
| balloon notes/bullet notes shift interest rate risk from lender to borrower |
|
Definition
|
|
Term
unsecured/signature
secured/collateral |
|
Definition
| types of promissory notes in terms of security |
|
|
Term
| unsecured or signature promissory note |
|
Definition
| no collateral only promise to pay and if don't, payee sues in court |
|
|
Term
| secured or collateral promissory note |
|
Definition
| in addition to promise, you put up collateral which can be taken away for nonpayment |
|
|
Term
|
Definition
| payable in the future (time instrument) |
|
|
Term
|
Definition
| payable on demand ( sight instrument) |
|
|
Term
|
Definition
| a postdated check is what kind of negotiable instrument |
|
|
Term
3 party instrument
contains only order to pay, no promise |
|
Definition
| characteristics of check or draft |
|
|
Term
|
Definition
| parties for a check or draft |
|
|
Term
|
Definition
| orders withdrawal , signs check |
|
|
Term
|
Definition
|
|
Term
|
Definition
| receives and follows order for withdrawal |
|
|
Term
|
Definition
| acknowledgement by bank of receipt of your money with return promise to repay monety plus interest at future date (you loaned bank your money) |
|
|
Term
|
Definition
|
|
Term
|
Definition
| commercial CD's, larger amounts |
|
|
Term
|
Definition
| most common certificate of deposits for consumers |
|
|
Term
|
Definition
| what kind of contracts can be assigned? |
|
|
Term
|
Definition
| can negotiable contracts be assigned? |
|
|
Term
|
Definition
| what kind of contracts are negotiated? |
|
|
Term
| it is possible for transferee to have same contracts rights as the transferor but other originial party owed fewer contractr duties by the transferee |
|
Definition
| process of negotiating negotiable contracts (describe) |
|
|
Term
|
Definition
| legally possess a negotiable instrument (payee, transferee) |
|
|
Term
|
Definition
| holder who pays value, acquires the negotiable contract in good faith, without knowlege of any collection problem |
|
|
Term
|
Definition
| person who signs the back of a negotiable instrument and transfers it |
|
|
Term
|
Definition
| person to whom an endorsed instrument is given |
|
|
Term
|
Definition
| person who has physical possession of a negotiable instrument |
|
|
Term
|
Definition
| 2 types of paper for negotiation |
|
|
Term
| non specific person to be piad |
|
Definition
| bearer paper characteristics |
|
|
Term
|
Definition
| negotiation method of bearer paper |
|
|
Term
| specified person to be paid |
|
Definition
| characteristic of order paper |
|
|
Term
|
Definition
| negotiation method of order paper |
|
|
Term
blank endorsement
special endorsements
restrictive endorsement
qualified endorsement |
|
Definition
| four kinds of endorsements |
|
|
Term
|
Definition
| type of endorsement that contains only endorser's signature |
|
|
Term
|
Definition
| if an endorsement is a blank endorsement, what is the instrument for purposes of negotiation? |
|
|
Term
|
Definition
| specifies person to be paid - contains endorsee's name and endorser's signature |
|
|
Term
|
Definition
| where must the magic words (pay to the order of, pay to bearer) be located on a negotiable isnturmetn? |
|
|
Term
|
Definition
| special endoresent = order paper |
|
|
Term
|
Definition
| 2nd most common endorsement type that restricts future negotiation by holder, but does not destroy negotiaiblity |
|
|
Term
|
Definition
| most common type of restrictive endorsement |
|
|
Term
| banks - between banks/banking system |
|
Definition
| a restrictive endorsement restricts future negotiation to whom? |
|
|
Term
| bank assumes deposit and adds restrictive endorsement |
|
Definition
| what is assumed if one surrenders a check along with a deposit slip? |
|
|
Term
government check (IRS refund)
insurance settlement draft |
|
Definition
| in what cases can misspelled names on negotiable instruments not be corrected? |
|
|
Term
|
Definition
| unilateral rescission is ok related to restrictive endorsements |
|
|
Term
| makers and drawers (the people who wrote it!) |
|
Definition
| primary liability for negotiable instruments |
|
|
Term
| all persons who sign, endorse or transfer negotiable instruments have some liablity |
|
Definition
| general rule of liability for negotiable instruments |
|
|
Term
|
Definition
| who has secondary liability for negotiable instruments? |
|
|
Term
|
Definition
| duty to see that contract obligation is satisfied |
|
|
Term
|
Definition
| guarantees about negotiable instruments - no forgery, alteration, theft |
|
|
Term
makers of promissory notes
drawers of checks and drafts
agents |
|
Definition
| parties with primary contract liability |
|
|
Term
|
Definition
| up to how many years can drawers of checks and drafts be held liable to pay? |
|
|
Term
| never sign negotiable instrument unless you have to to avoid contract liability |
|
Definition
| 1st rule regarding secondary liability |
|
|
Term
1. due presentment
2. dishonor
3. notice of dishonor to secondary party |
|
Definition
| conditions before secondary liability (condition that must occur before endorsers are liable) |
|
|
Term
|
Definition
|
|
Term
order: present first to person with primary liability and then to persons with secondary liability
time: demand from endosers within 30 days of endorsemtn |
|
Definition
| elements of due presentment |
|
|
Term
|
Definition
| refusal by person with primary liability to pay |
|
|
Term
|
Definition
| before person with secondary liability must pay, the must be given notice of primary's dishonor |
|
|
Term
| date endorsements but don't put down address if you are endorser. if endorsee,e get address and telephone # to contact |
|
Definition
| second practical rule for endorsement of negotiable instruments |
|
|
Term
|
Definition
| must you endorse order paper? |
|
|
Term
| if you have to endorse, use qualified endorsement |
|
Definition
| practical rule #3 for endorsement of negotiable instruments |
|
|
Term
|
Definition
| contains the words "WITHOUT RECOURSE" above endorser's signature |
|
|
Term
| eliminates endorser's secondary contract liability |
|
Definition
| negotiation significance of a qualified endorsement |
|
|
Term
| no, just eliminates the endorser's secondary liability |
|
Definition
| does a qualified endorsement have any effect on future negotiation? |
|
|
Term
|
Definition
| certain guarantees about negotiable instruments |
|
|
Term
good title to instrument - not stolen
all signatures are genuine- no foregeries
instrument hasn't been materially altered - not changed |
|
Definition
| warranties for a negotiable instrument |
|
|
Term
| start at top - order of endorsement with payee first |
|
Definition
| if problem with endorsement, which endorser do you sue first? |
|
|
Term
| has the same liability as real endorser who he/she helped or "accommodated" by co-endorsing |
|
Definition
| liability of an accommodation endorser |
|
|
Term
payment
alternation
cancellation |
|
Definition
| discharge of parties for negotiable contracts |
|
|
Term
| relieves drawer's primary contractual liability to pay THAT negotiable instrument if not OTHERWISE obligated to pay payee |
|
Definition
| what does drawing without recourse do? |
|
|
Term
| whoever is most negligent, suffers loss |
|
Definition
| rule for suffering loss for theft, forgery, alteration examples |
|
|
Term
holder: legally possess, not thief
value: paid something or gave something of value fo risntrument
in good faith
innocent purchaser |
|
Definition
| 3 criteria to qualify as an HDC |
|
|
Term
| the purchaser is without notice instrument is overdue or there are defeses to payment |
|
Definition
| what is inncoent purchaser (describe) |
|
|
Term
| holder through holder in due course |
|
Definition
| person who legally possesses a negotiable instrument and was transferred it by a HDC, gets benefits of HDC even if mere holder |
|
|
Term
| personal (limited) defenses |
|
Definition
| relieves drawers and makers from payments only if due to holders, but not if HDC owed money |
|
|
Term
| real (universal) defenses |
|
Definition
| relieves drawers and makers from payment due to everybody (holders and HDCs) |
|
|
Term
breach of contract
breach of warranty
lack of consideration
fraud in the inducement
unathuorized conpletion |
|
Definition
| personal/limited defenses of drawer or maker |
|
|
Term
| when seller doesn't deliver goods or provide services |
|
Definition
| when would breach of contract qualify as personal defense for drawers and makers? |
|
|
Term
| when seller delivers goods that are nonconforming |
|
Definition
| when would breach of warranty qualify as a personal defense of drawers and makers? |
|
|
Term
forgery
fraud in the execution
material alteration
illegailty
minority |
|
Definition
| real defenses of drawers or makers |
|
|
Term
|
Definition
|
|
Term
|
Definition
| document which passes legal title to property at death |
|
|
Term
|
Definition
|
|
Term
|
Definition
|
|
Term
formal
holographic
nuncupative |
|
Definition
|
|
Term
|
Definition
| professionally prepared, typewritten, signed with all legal formalitities |
|
|
Term
|
Definition
| also called a witnessed will |
|
|
Term
testamentary capcity
attestation clause
self proving affidavit
distribution of property
independent executor
guardian |
|
Definition
| geneeral requirements to make a will |
|
|
Term
|
Definition
| the requirment that the will maker knows what property s/he owned and who are the natural heirs (ie, not senile, under durress, nor under undue influence) |
|
|
Term
|
Definition
| requirement that the will is declared by maker as LAST WILL and signed by at least 2 witnesses and the maekr |
|
|
Term
|
Definition
| maker and witnesses sign will and swear under oath before notary public certain stateents to prove will upon later death |
|
|
Term
| benefit of a self proving affidavit |
|
Definition
| avoids witnesses' later testimony (saves money and time) |
|
|
Term
distribution of property
indepednet executor
guardian |
|
Definition
| 3 main functions of a will |
|
|
Term
|
Definition
| one who handles the financial affairs of a deceased person |
|
|
Term
|
Definition
| one who cares for minor children's person and property after death |
|
|
Term
|
Definition
|
|
Term
|
Definition
| 2 ways of modification to a will |
|
|
Term
| by diorice or birth of another child, But NOT mariage or step children |
|
Definition
| how can a will be modified by law? |
|
|
Term
|
Definition
| revocation methods of a will |
|
|
Term
|
Definition
| wills entirely in maker's handwriting |
|
|
Term
|
Definition
| what kind of willl do not require witnesses? |
|
|
Term
|
Definition
|
|
Term
|
Definition
| are nuncuptive wills permitted in texasw? |
|
|
Term
|
Definition
| means the descent and distribution when one dies without a will |
|
|
Term
| parents, then brothers and sisters |
|
Definition
| descent and distribution: single, no kids |
|
|
Term
| community property to spouse |
|
Definition
| descent and distribution: married, no kids |
|
|
Term
| community property to spouse if spouse is parent of all your kids |
|
Definition
| descent and distribution: married, with kids |
|
|
Term
| proepty goes to kids (not 2nd spouse if kids by 1st spouse) |
|
Definition
| descent and distribution: second marriage, with kids |
|
|
Term
|
Definition
| prove person is dead and this is his/her will |
|
|
Term
collect deceased assets
file ivnetnory of all probate property
pay all debts including taxes
distribute remainder as per will
close estate |
|
Definition
|
|
Term
retirement benefits
life insurance policies
payable on death bank accounts |
|
Definition
| avoiding probate - things will doesn't control |
|
|
Term
|
Definition
| entities which legally own and administer property for another's benefit (beneficiary) |
|
|
Term
|
Definition
|
|
Term
|
Definition
| type of trust created in will |
|
|
Term
|
Definition
| type of trust created during lifetime of creator, effective immediately |
|
|
Term
| irrevocable inter vivos trsut |
|
Definition
| type of trust that can't be changed |
|
|
Term
|
Definition
| 2 types of intervivos trusts |
|
|
Term
| revoacalbe inter vivos trust |
|
Definition
| can be changed during lifetime of creator, no income or estate tax savings |
|
|
Term
| revocable inter vivos trusts |
|
Definition
| also called living will, lifetime managment turst, or golden corral trusts |
|
|
Term
|
Definition
|
|
Term
|
Definition
| befentifts from the trust principal |
|
|
Term
|
Definition
| person to whom trust's benefits go (usally child or diabled person, or spouse) |
|
|
Term
|
Definition
| when benefiticiary can't spendo rhave trust assets taken away from him by spouse or creditors (until it's his) |
|
|
Term
|
Definition
| acts upon behalf of beneficiary |
|
|
Term
|
Definition
| utmost loyalty, good faith, required accountings for the best itnerst of beneificary |
|
|
Term
| reasonably prudent investor |
|
Definition
for a trust, the
investment standard |
|
|
Term
| personal liabilty of trustee |
|
Definition
| the big problem with improperty investments of a trust |
|
|
Term
|
Definition
| applying laws of property, wills, trusts, insurance, and taxation to person's financial affairs, usually focus on retirment and death planning |
|
|
Term
|
Definition
| the exepmtoion amount for the unified lifteime estate and gift tax for 2012 |
|
|
Term
|
Definition
| federal government death taxes on all probate and non probate assets, controllec by and NOT by will |
|
|
Term
|
Definition
| texas tax on beneficiaris of the estate that is a percent of fedearl estate tax but is deduction aganst amount of fedearl estate |
|
|
Term
|
Definition
| counted as asset for estate tax calculations but not controleld by will |
|
|
Term
|
Definition
| contract in which seler agres to sell and buyer agrees to buy real property at a specific price and buyer deposits refundable money to show he's seriosu |
|
|
Term
| refundable is SELLER backs out |
|
Definition
| when is a deposit on real propty in an ernest omoney contract refundable? |
|
|
Term
|
Definition
| seller signs legal document selling land and housegoes with it |
|
|
Term
earnest money contract
general warranty deed
prommisoory note
deed of trust |
|
Definition
| documents involved in sale of real estate |
|
|
Term
general warranty
special warranty
quitclaim |
|
Definition
|
|
Term
|
Definition
| absolute, unconditional money back guarantee if problem int he sale of real estate |
|
|
Term
|
Definition
| seller guarantees the deed from the time he bought it, hasn't sold it |
|
|
Term
|
Definition
| often used when fractured ownerships, provides no warranty for the deed |
|
|
Term
|
Definition
| promise by buyer to repay lender the amount borrow, plus interest |
|
|
Term
|
Definition
| buyer conditionally gives lender's official (trustee) right to sell the property only if the buyer doesn't pay note |
|
|
Term
failure to pay money borrowed to buy it (deed of trust foreclosure)
failure to pay for home improvements
failure to pay some federal and local taxes
failure to pay home equity loans |
|
Definition
| 4 ways to lose your homestead |
|
|
Term
| deed of trust foreclosure |
|
Definition
| failure to pay money borrowed to buy homestead |
|
|
Term
consumer goods
farm products
inventory
equipment |
|
Definition
| types of tangible goods that can be used for collateral |
|
|
Term
|
Definition
| used both for personal or household purposes |
|
|
Term
|
Definition
| held by debtor for lease or sale to the public |
|
|
Term
|
Definition
| used by a business to make goods and/or services to sell to the public |
|
|
Term
|
Definition
| contract between debtor and secured party in which debtor gives secured party lien (attachment) on his collateral |
|
|
Term
|
Definition
| must give value to debtor (loan $) |
|
|
Term
|
Definition
| aka the bank, a lender, seller, or other person in whose favor a security einterst exists |
|
|
Term
|
Definition
| a person who owes payment or other performance of the obligation that is secured |
|
|
Term
|
Definition
| an interest in personal property or fixtures that secures payment or performance of an obligation |
|
|
Term
|
Definition
| a security arragnemnet between the debtor and the secured party; creates the security interest |
|
|
Term
|
Definition
| property subject to a security interest |
|
|
Term
|
Definition
| the taking, by a secured creditor, those steps in order for his security interest to be valid as against other creditors |
|
|
Term
|
Definition
| the instrument filed to give public notice of the security interest in teh collateral |
|
|
Term
|
Definition
| public notice of secured party's rights to collateral |
|
|
Term
filing financing statement
possess goods (like pawn shop)
keep car title until loan repaid |
|
Definition
|
|
Term
| after acquired property as collateral |
|
Definition
| all equipment now owned or hereafter located at debtor's factory |
|
|
Term
| mother hubbard clause property as collateral |
|
Definition
| all goods of whatever kind and wherever located |
|
|
Term
| future advances property as collateral |
|
Definition
| these goods shall serve as collateral for this debt as well as any future debts |
|
|
Term
|
Definition
| not only do these goods serve as collateral but also any money received from their sale |
|
|
Term
sue debtor and hope to collect from non exempt property
go to court and get judge to foreclose security interest
use self help to repossess the collateral
debtor peacefully surrenders property |
|
Definition
| ways to deal with default by debtor |
|
|
Term
chapter 7
chapter 11
chapter 13
chapter 12 |
|
Definition
|
|
Term
|
Definition
| straight bankruptcy or liquidating |
|
|
Term
|
Definition
| business reorganization in which a plan is prepared to pay off debts while still operating business |
|
|
Term
|
Definition
| wage earner repayment plan (consumer bankruptcy) |
|
|
Term
|
Definition
|
|
Term
list all creditors
list all assets and debts
make available all non exempt assets to trustee
cooperate with trustee |
|
Definition
|
|
Term
taxes
crimes
alimony/child support
intentional torts
motor vehicle damages if DWI
student loans
failure to list creditors
consumer credit card abuse |
|
Definition
|
|
Term
|
Definition
| payment of past debts from future wages |
|
|
