Business Law Study Guide

Business Law Review *- Means it was written on the board, automatic question Jurisprudence and Natural Law Person: Independent substance of a rational nature. How are humans like god: 1. Intellect= reasoning to attain truth 2. Volition= power to choose good or evil Personal Ethics=How we treat each other. Social ethics= How we apply ethical standards to our associations. How we organize ourselves: 1. Civic organizations: Family, business, church, unions, bowling league 2. Economic Organization: Free market economy 3. Political Organization: Republic, representative democracy Types of Justice 1. Commutative: The duty of fairness in exchange. 2. Distributive: What the community owes its members. 3. Legal: What we owe the community. Juris (law) prudence (a cardinal virtue)- Practical Wisdom or Common Sense; a system or body of law 4 Jurisprudential schools: 1. Historical-law expresses experience of the people. 2. Realist- (sociological)- law should do greatest good for greatest #. 3. Positivist- social contract, Thomas Hobbes said “life is nasty brutish and short”. Gives up freedom for security. Concerned with self-preservation. 4. Natural Law- Cicero, Aristotle, Thomas Aquinas, John Locke Natural Law-“an ordering of reason, promulgated by the person in charge of a community for the common good.”-Aquinas     All law must(should) be reasonable All law must(should) be publicly disclosed All law must issue from someone with authority. All law must (should) be for common good, not for self interest Types of Law According to Aquinas Eternal Law: God’s providential ordering of natures to their ends Divine Law: For Christians this would be the 10 commandments, how God’s work is revealed Natural Law: Inner Voice/ Part of nature as a human Human Law: Laws enacted by human political entities. “Positive or Enacted Laws” should never violate natural law. Chapter 4- The Constitution Declaration of Independence- 1776; written mainly by Thomas Jefferson, it is in the form of a criminal indictment (charges brought against King George). The United States Constitution-1789; Adopted from James Madison’s Virginia Plan. Federalists (John Jay, James Madison, Alexander Hamilton) all wrote in favor of its adoption. It featured 4 powers     Delegated Powers- powers expressly granted to the national government. Shared Powers- Powers delegated to national government that may be excised by the state. Police Power-power to govern; power to adopt laws for the protection of the public health, welfare, and safety. Prohibited Powers- Prohibits state and Federal Gov. from doing certain things. Ex. Ex Post Facto Law. Preemption-Federal Government’s superior over state law on the same subject area. Articulated Powers- Article 1 section 8 lays out 18 articulated powers for which Congress has to follow   *Commerce Clause- Article 1 section 8 clause 3. The most important business clause. “Power to regulate commerce with foreign nations, among the several states, and with Indian tribes.” Allows for Interstate Commerce regulation *Affectation Doctrine-expanded authority of federal government in regulating interstate commerce. *Due Process- Power of the government is limited by the 5th and 14th amendments. Government can’t deprive you of “life, liberty, or property without due process of law.” 14th amendment also guarantees equal protection under the law. Types of Due Process:  Substantive-The what; in the case, decides the nature of penalty, signify attitude to particular judicial review  Procedural- the how; notice and hearing. How the charges will be brought about, generally laid out in constitution in form of trial by jury. Imminent Domain- Government has to pay you if they take your land Privileges and Immunities- that entitles a person going into another state to make contracts, own property, to the same extent as citizens of that state. 14th Amendment- Have to have a basis to treat people, but can still treat people differently. Judicial Tests    *Rational Relations- the law is constitutional so long as it is "reasonably related" to a "legitimate" government interest *Heightened Scrutiny-(basis of sex) the law is unconstitutional unless it is "substantially related" to an "important" government interest *Strict Scrutiny- (basis of race color religion, age) law is unconstitutional unless it is "narrowly tailored" to serve a "compelling" government interest Chapter 8 *Fourth Amendment- Protects against unreasonable search and seizures. The highest level of protection is person, then residence, then curtilage (area in fence). Lowered expectation of privacy in business then in home.    *Exigent Circumstances- means you can enter a structure without a warrant if; imminent danger, evidence faces imminent destruction, or a suspect will escape. *Plain View- you can see it *Hot Pursuit- if a delay would endanger lives, or lead to an escape. *Exclusionary Rule- Where evidence will be excluded if it is either:   *Fruit Of The Poisonous Tree Doctrine: Once a search is completed by the warrant or becomes illegal, everything collected afterwards is excluded. *Compelled to self-incriminate by the police, in violation of 5 th amendment. Fifth Amendment-Can’t be held for a capital crime without grand jury indictment. Also no person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Rights don’t apply in the military.    *Grand Jury- 23 People *Petit Jury- try you for murder, 12 people or 6 on a district court Double Jeopardy- Can’t be charged twice for the same crime Miranda Warnings- Came from Miranda v. Arizona. Required that certain warnings must be given to persons who face custodial interrogation for the purpose of possible criminal proceedings. Failure to give Miranda warnings means Sixth Amendment- “confrontation clause” : can confront a witness, right to a lawyer (Gideon v Wayneright), right to speedy trial by jury.  Pro Se- Acting as own lawyer Seventh Amendment- Jury Trial Eighth Amendment- Cruel and Unusual Punishment, Excessive Bail (has to be proportional to the crime)  Recognizance- Promise to return if released on bond Ninth Amendment- Not limited to enumerated rights Tenth Amendment- Power Reserved to states/people. *Enumerated Rights- Written specified rights such as speech, press, assembly, search and seizure *Penumbral Rights- Not specified, laws like privacy that came from Roe V. Wade  Common Law- Court created law found in USA, England, India, Canada Crimes- Breach of public duty imposed by law. Public peace/dignity are affected. 2 Elements of a crime that have to be causally linked.   Intent- mens rea- mental action. General which means basic intent or specific where there was higher thinking Action/Omission- “actus rea” General Intent: You intended the natural consequences of your actions. Logical/Probable Jurisdiction- Power to hear and decide a case Responsible Officer Doctrine- held responsible for supervisional authority. Types of Crimes: 1. Treason= Crime against the nation state 2. Felony= Serious crime punishable by imprisonment and sometimes death 3. Misdemeanor= Less serious crime punishable by jail time less than one year and/or fines. Crimes            *Conspiracy- An agreement and act or furtherance on that agreement to commit a crime Money Laundering- Taking money from one source then running them through accounts in order to conceal it. Bribery- Act of giving money, property, or any benefit to a particular person to influence that person’s judgment in favor of the giver. Extortion- illegal demand by a public officer acting with apparent authority. Blackmail- extortion demands made by a nonpublic official. Counterfeiting- making with fraudulent intent, a document or coin that appears to be genuine but is not because the person making it had no authority. Forgery- Fraudulently making or alerting an instrument that apparently creates or alters a legal liability of another. Perjury- consists of knowing false testimony in a judicial proceeding after having been sworn to tell the truth. Uttering/Bad checks-Crime by statute. Crime to pass a bad check with intent Embezzlement- crime against trust. Stealing Accountant stealing money. Obstruction- having to maintain papers Common Law Crimes       Larceny- wrongful or fraudulent taking of the personal property of another by any person with fraudulent intent. Shoplifting is common form. Robbery- taking of personal property from the presence of victim by use of force or fear. Burglary- Breaking and entering during the night into the dwelling with intent to commit a felony. Arson-willful and malicious burning of another’s’ dwelling. Riots and Civil Disorder- form of disturbance caused by a group of people. Product Liability- Suing producers of products, which ultimately ends up increasing price on product. Strict Liability-automatically liable if 1 thing happen    Maintenance of hazardous conditions Harboring wild animals Product liability- 99% burden of proof on the manufacturer- just have to prove the defect Chapter 9- Tort Law Tort Law- civil wrong that interferes with one’s property or person. Breach of private duty imposed by law. Only some torts are crimes.    *Intentional-These are also crimes. Civil wrongs that result from intentional conduct *Grounded-based on negligence. Failure to exercise due care under the circumstances in consequence of which harm is proximately caused to whom the defendant owed the duty of care. *Strict Liability-a civil wrong in which there is absolute liability because of the inherent danger in the underlying activity. Example- explosives. Intentional Torts: o Assault-intentional conduct that threatens a person with a well founded fear of imminent harm. No contact necessary o Battery- intentional or wrongful touching of another person without their consent. Everyone has right to their own person. o False Imprisonment- intentional detention of person without that persons consent o Shopkeeper’s Privilege- Right of store owner to detain a suspected shoplifter based on reasonable cause for a reasonable time without the possibility of false imprisonment. o Intentional Infliction of Emotional Distress – Tort that produces mental anguish caused by conduct that exceeds all bounds of decency and was intended to cause emotional injury. o Invasion of Privacy- Tort of intentional intrusion into another private affairs. This is ok for public person’s who have no expectation of privacy. o *Defamation- Is an untrue statement by one party about another to a third party. o *Slander- defamation of character by spoken words o *Libel- written or visual defamation without legal justification o *Product Disparagement- slander of someone’s product, knowingly false o *Qualified Privilege- Media privilege to print inaccurate information so long as a retraction is printed and there was no malice. o Contract Interference- in which a third party interferes with other’s freedom to contract. o Trespass- unauthorized action with respect to person or property. Wrongfully utilize o Conversion-civil side of theft. Take something and claim it as your own. o Foreign Corrupt Practices Act Negligence- *Prima facie, every cause of action needs to have facts to support cause of action for it to be negligence. All negligence cases have to prove is preponderance of evidence- more true than not true. o *When you act negligently it’s everything that negligence affects afterwards 1. *Requires Voluntary Act2. *A Breach of Duty of Care- reasonable man of ordinary prudence (not being careful) 3. *Proximate Cause- “lack of carefulness” (legal cause) 4. *Damage/Injury-actual loss or breach of duty. *Types of Damages from Liability 1. *Personal Injury 2. *Property Loss 3. *Economic Loss Vicarious Liability-If someone is doing something under your ownership she is acting as an agent of the Defenses To Negligenceo Contributory Negligence- negligence of the plaintiff that contributes to injury bars from getting compensation although the defendant may have been more negligent. Most states have gotten rid of this. o Comparative Negligence-If you are part to blame you assume part of the claim. 20% to blame you lose that 20% of the claim. o Assumption of the risk-attendance of an athletic event. o Sovereign immunity- can only sue the government when they say you can. Chapter 37- Agency Agency- An agency relationship is created by an express or implied agreement whereby one person, the agent, is authorized to make contracts with third persons on behalf of and subject to the control of another person, the principal. Must have capacity including: o Means you are legal age (18) only for principal o Must be consensual o No writing required unless by statute (except real estate) Agency Vs Independent Contractor- An agent differs from an independent contractor in that the principal, who controls the acts of an agent, does not have control over the details of performance of work by the independent contractor. Likewise, an independent contractor does not have authority to act on behalf of the other contracting party. Classifications of An Agent: 4 ways : (1) Agency by Appointment (2) Agency by Conduct (3) Agency by Ratification (4) Agency by Operation of Law o Special Agent-authorized by the principal to transact or handle specific business transactions. o General Agent- authorized by principal to transact all affairs in connection with a particular type of business or trade. A manager of a store. o Universal Agent-Authorized by principal to do all acts that can be lawfully delegated to a representative. o Express authorization- Authorization of an agent to perform a certain act o Power of Attorney- Written authorization to an agent by the principal o *Attorney in Fact- Authorized to act for another under power of attorney. Types of Authorityo Express Authority- P tells A to perform a certain act. Example would be buy new office furniture o Incidental Authority-An act reasonably necessary to perform the act expressly authorized. Example buy furniture on credit when funds are not made immediately available o Customary Authority- An act that, according to the custom of similar businesses in the community, usually accompanies the act performed under express authority. Example issue receipts for furniture sold o Apparent Authority: Principal leads 3rd party to believe that A has authority. Principal was present when third party purchased furniture but did nothing to stop sale. Duty To Ascertain Extent of Agents Authority: 3rd party has a duty to ascertain agent’s authority. Required to take notice of any acts adverse to principal. Have to inquire about the validity to principal. Fiduciary Duties: Duties of agent to principal o Being loyal, o Obeying all lawful instructions, o Exercising reasonable care, o Accounting for all property or money belonging to the principal, and o Informing the P of all facts relating to the agency that are relevant to the P’s interests. Duties of Principal To Agent: o o o o Perform the contract; Compensate the agent for services; Make reimbursement for proper expenditures; and Indemnify the agent for loss (under certain circumstances) Terminating a Contract- n o o o o o The death of the P or the A; Insanity of the P or A; Bankruptcy of the P or A; Impossibility of performance; or War. Chapter 38- Third Party in Agency Contracts *Agent’s contractso Fully Disclosed-Principal whose identity is made known by the agent as well as the fact that the agent is acting on the principal’s behalf. James Bond, Agent for the Queen. Principal is liable o Partially Disclosed/Undisclosed- Principal whose existence is made known but whose identity is not. James Bond, Agent. Principal & Agent is Liable o Undisclosed- Principal on whose behalf an agents acts without disclosing to third party. James Bond. Principal & Agent is liable Liability- Principal is held Liable for agent only if there is history of misaction. *Vicarious Liability- Imposing liability for fault of another. Whether the principal answers o Respondent Superior- “let the master answer” Doctrine that the principal or employer is vicariously liable for the unauthorized torts committed by an agent while acting within scope of employment. *Scope of Employmento Time o Distance o Activity Dangerous Propensity- Do they have likelihood to act in a certain function? o Negligent Hiring- If employer knew job applicant would create undue risk of harm. Or has a criminal record. o Negligent retention- keeping the employee after discovering some dangerous propensity o Negligent supervision- Obligation to supervise and put systems in place.