LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.

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Law: Final Exam Study Guide Chapter 1

Administrative Law- the rules, orders, and decisions of federal, state, or local government administrative agencies. Case Law/Common Law Doctrines- Judge made law, including interpretations of constitutional provisions, of statutes enacted by legislatures, and of regulations created by administrative agencies. Civil Law- dealing with the definition and enforcement of all private or public rights, as opposed to criminal matters (both private and public). Historical school a school of legal thought that emphasizes the evolutionary process of law and that looks to the past to discover what the principles of contemporary law should be. Sociological school - a school of legal thought that views the law as a tool for promoting justice in society. Legal realism - generally advocated a less abstract and more pragmatic approach to law, an approach that would take into account customary practices and the circumstances in which transactions take place. Natural Law- The belief that government and the legal system should reflect universal moral and ethical principles that are inherent in human nature. The natural law school is the oldest and one of the most significant schools of legal thought. Positive law- the body of conventional, or written, law of particular society at a particular point in time. Positivist school- a school of legal thought whose adherents believe that there can be no higher law than a nations positive law. Statutory Law- laws (statutes and ordinances) created by federal, state, and local legislatures and government bodies. None of these laws may violate the U.S constitution or the relevant state constitution. Uniform statutes, when adopted by a state, become statutory law in that state. Substantive Law- consists of all laws that define, describe, regulate, and create legal rights and obligations. (if you do this, this will happen to you. Actions at law- remedies..money and land) Criminal Law- defines and governs actions that constitute crimes (always public). Procedural Law- consists of all laws that delineate the methods of enforcing the rights established by substantive law. (How to. Both civil and criminal. Actions of equity- usually just a judge. Rescission- flexible/fairness.)
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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08 Appellant- the party who takes an appeal from one court to another. Appellee- the party against whom an appeal is taken-that is, the party who opposes setting aside or reversing the judgment. Precedent- a court decision that furnishes an example or authority for deciding subsequent cases involving identical or similar facts. Plaintiff- one who initiates a lawsuit. Defendant- one against whom a lawsuit is brought; the accused person in a criminal proceeding. Remedy- the relief given to an innocent party to enforce a right or compensate for the violation of a right. Stare decisis- a common law doctrine under which judges are obligated to follow the precedents established in prior decisions. Statute of limitations- a federal or state statute setting the maximum time period during which a certain action can be brought or certain rights enforced. Jurisprudence- the science or philosophy of law.

Chapter 2
Federal court system including jurisdiction:

U.S district courts (at least one in every state, they are courts of general jurisdiction) U.S courts of appeals/intermediate courts of appeals (13 U.S Court of appeals. 12 of them hear appeals from the federal district courts located within their circuits. The Court of Appeals for the 13th Circuit (The Federal Circuit) has national appellate jurisdiction over cases involving patent law and those in which the U.S. government is a defendant).
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Decisions of a circuit court of appeals are binding on all courts within the circuit courts jurisdiction and are final in most cases.

The United States Supreme Court (final arbiter of the Constitution and federal law)
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Can review any case decided by any of the federal courts of appeals, and it also has appellate authority over cases involving federal questions that have been decided in the state courts.

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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08
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Most of its work is as an appeals court, though it does have original jurisdiction in rare instances Need to request a writ of certiorari to bring a case before the Supreme Court

Concept Summary 2.1: Types of Jurisdiction (power) authorities of a court to hear and decide a specific action In Personam (power of persons) / Personal Jurisdiction Exists when a defendant is located within the territorial boundaries within which a court has the right and power to decide cases. Jurisdiction may be exercised over out-of-state defendants under state long arm statutes.

Long Arm Statute:

Accident or incident happened within the geographical boundaries of court Defendant has minimum contacts in state and law suit arises from the contact (cause of action) Defendant has sufficient minimum contacts to conclude that the defendant wanted to do business in state and had a physical presence in state

In Rem (subject matter) Jurisdiction Jurisdiction over the thing. Limits the courts authority to particular types of cases. Limited jurisdiction when court is limited to a specific subject matter such as probate (relating to the transfer of a persons assets and obligations after that persons death) or divorce. General jurisdiction when a court can hear cases involving a broad range of issues. Original Jurisdiction When courts have the authority to hear a case for the first time (trial courts). Appellate Jurisdiction exists with courts of appeal and review. Generally, appellate courts do not have original jurisdiction. Federal Jurisdiction Federal questions when the plaintiffs cause of action is based at least in part on the U.S. Constitution, a treaty, or a federal law, a federal court can exercise jurisdiction. Diversity of Citizenship In cases between citizens of different states when the amount in controversy exceeds $75,000 (or in cases between a foreign country and citizens of a state or of different states and in cases between citizens of a state and citizens or subjects of a foreign country), a federal court can exercise jurisdiction.
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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08 Concurrent Jurisdiction when both federal and state courts have authority to hear the same case. Exclusive Jurisdiction when only state or only federal courts have authority to hear a case. Concept Summary 2.2: Trial Courts Courts of original jurisdiction in which actions are initiated.
1. State Courts Courts of general jurisdiction can hear any case that has not been

specifically designated for another court; courts of limited jurisdiction include, among others, domestic relations courts, probate courts, municipal courts, and small claims courts.
2. Federal Courts The federal district court is the equivalent of the state trial court.

Federal courts of limited jurisdiction include the bankruptcy courts, court of federal claims, court of international trade, and the tax court. Intermediate Appellate Courts Courts of appeals are reviewing courts; generally, appellate courts do not have original jurisdiction. About of the states have intermediate appellate courts; in the federal court system, the U.S. circuit courts of appeals are the intermediate appellate courts. Supreme Court The highest state court is that states supreme court, although it may be called by some other name. Appeal from state supreme courts to the United States Supreme Court is possible only if a federal question is involved. The United States Supreme Court is the highest court in the federal court system and the final arbiter of the Constitution and federal law. Excerpts from 1st Hourly Study Guide: State court system: Local trial courts of limited jurisdiction, state trial courts of general jurisdiction, state courts of appeals (intermediate appellate courts), the states highest court (often called the state supreme court). Stare Decisis a common law doctrine under which judges are obligated to follow the precedents established in prior decisions. Stare Decisis in the dual court system:

decisions by U.S Supreme court on a federal question is binding Only the Supreme Court can overturn its decision on a federal statute or the interpretation of the federal constitution

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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08

A decision of the highest court of a state on a state law issue or an interpretation on the state constitution is binding on all other courts Only the highest court of a state can overturn the state statute, state common law, or state constitution

Types of Alternative Dispute Resolution (ADR): Negotiation Parties meet informally with or without their attorneys and attempt to agree on a resolution. Mediation A neutral third party meets with the parties and emphasizes points of agreement to bring them toward resolution of their dispute. Arbitration a more formal form of ADR in which an arbitrator hears a dispute and imposes a resolution on the parties. Early neutral case evaluation the parties select a neutral third party to evaluate their respective positions. Strengths and weaknesses are assessed. Mini-trial each partys attorney briefly argues the partys case before the other and a panel of representatives from each side who have the authority to settle the dispute. Summary jury trials parties present their arguments and evidence and the jury renders a verdict, which is not binding. Federalism (grant of power to the federal government) in the dual court system:

Chapter 3
Summons- a notice requiring the defendant to appear in court and answer the complaint. Complaint- a statement alleging: A states jurisdiction, The facts establishing the plaintiffs basis for relief, The remedy the plaintiff is seeking. Answer- defendants response to the complaint (admits or denies allegations or defenses to those allegations). Counterclaim- a claim made by the defendant in a civil lawsuit that in effect sues the plaintiff. Pleading- Statements made by the plaintiff and the defendant in a lawsuit that detail the facts, charges, and defenses involved in the litigation; the complaint and the answer are a part of the pleadings.

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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08 Discovery- a phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial. Motion-a procedural request or application presented by an attorney to the court on behalf of a client. Motion on the pleadings- motion made by either party to a lawsuit at the close of the pleadings requesting the courts to decide the issue solely on the pleadings without proceeding to trial. The motion will only be granted if no facts are in dispute. Motion to dismiss- A pleading in which the defendant asserts that the plaintiffs claim fails to state a cause of action (that is, has no basis in law) or that there are other grounds on which a suit should be dismissed. Motion for a directed verdict- In a state court, a partys request that the judge enter a judgment in her or his favor before the case is submitted to the jury because the other party has not presented sufficient evidence to support the claim. (a motion for judgment as a matter of law) Motion for summary judgment- A motion requesting the court to enter a judgment without proceeding to trial. The motion can be based on evidence outside the pleadings and will be granted only if no facts are in dispute. Motion for judgment n.o.v- a motion requesting the court to grant judgment in favor of the party making the motion on the ground that the jury verdict against him or her was unreasonable and erroneous.

Chapter 43
Administrative Law the rules, orders, and decisions of federal, state, or local government administrative agencies. (i.e. Food and Drug Administration) Classify Administrative Law

Pubic law controls relationship between people, businesses, and government Substantive law spells out rights and responsibilities/obligations Procedural law each agency has its own how to different steps Civil law (though there can be criminal consequences)

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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08 Enabling Legislation: To create an agency, Congress passes enabling legislation which specifies the powers of the agency. A group opposed to a rule may argue that it is not within the agencys enabling power.

Agencies get their power from the enabling statute for that agency (federal trade commission gets power from the federal trade commission act of 1914).

Delegation Doctrine Administrative law, constitution sets up form of government we have. We have the judicial, legislative, and executive branches as spelled out in the constitution. Congress has the power to give some of its power away, delegate it to administrative agencies. The delegated power is contained and outlined in the enabling legislation.

Exhaustion of administrative remedies The Exhaustion Doctrine requires that a regulated party use all of its potential administrative remedies before going to court, even though the party might prefer to go straight to the independent federal courts, rather than going through the administrative adjudication process. By doing so, it first allows the agency to evaluate the argument and enables the court to take advantage of the agencies own fact finding capabilities before ruling. If the party can prove that those remedies are inadequate to address the problem, then exhaustion of administrative remedies isnt required. Three branches of administrative agencies: Federal executive agencies (OSHA) includes the cabinet departments of the executive branch, which were formed to assist the president in carrying out executive functions, and subagencies within the cabinet departments. Independent regulatory agency (federal trade commission and securities exchange commission) not considered part of the governments executive branch and is not subject to the authority of the president. Independent agency officials cannot be removed without cause. State agency is created as a parallel to a federal agency(state pollution control agency v. environmental protection agency) Just as federal statutes take precedence over conflicting state statutes, so federal agency regulations take precedence over conflicting state regulations. Administrative Law is created by administrative agencies. When congress, or a state legislator, enacts legislation it typically adopts a rather general statute and leaves its implementation to an administrative agency, which then creates detailed rules and regulations necessary to carry out the statute. (ex. The Clean air actit is regulated by the EPA).

Chapter 4
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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08 Police powers- powers possessed by states as part of their inherent sovereignty. These powers may be exercised to protect or promote the public order, health, safety, morals, and general welfare. Commerce clause- the provision in Article 1, section 8, of the U.S Constitution that gives Congress the power to regulate interstate commerce. Supremacy Clause- provides that the constitution, laws, and treaties of the United States are the supreme law of the land. When there is a direct conflict between a federal law and a state law, state law is rendered invalid. Due process clause- the provisions of the fifth and fourteenth amendments to the constitution that guarantees that no person shall be deprived of life, liberty, or property without due process of law. Similar clauses are found in most state constitutions. Federalism- grant of power to the federal government, limitation on the power of the federal government, defines the shared power. Reserved powers- powers automatically possessed. Delegated powers- powers given. (police powers) Preemption- occurs when Congress chooses to act exclusively in an area in which the federal government and the states have concurrent powers. Equal Protection Clause- the government cannot treat similarly situated individuals differently. Strict scrutiny: Race, religion, being able to vote, 1st amendment rights. Intermediate scrutiny: gender, insurance, sex offense, marriage license. Rational basis: age, socio economic status, business, and commerce. Neither the national government nor a state government is superior to the other except within areas of exclusive authority granted under the constitution. The courts determine the nature and scope of state and federal powers.

Chapter 34
Federal Anti-Discrimination Laws Title VII of the Civil Rights Act prohibits employment discrimination against employees, applicants, and union members on the basis of race, color, national origin, religion, and gender Americans with Disabilities Act an employer cannot refuse to hire a person who is qualified but disabled Age Discrimination in Employment Act prohibits employment discrimination on the basis of age against individuals forty years of age or older Discrimination that violates Title VII:
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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08 Intentional Discrimination Disparate Treatment: intentional discrimination by an employer against an employee. Unintentional Discrimination Disparate Impact: results because of a requirement or hiring practice. Defenses to Employment Discrimination: Business Necessity An employer may show that there is a legitimate connection between a job requirement that discriminates and job performance. Bona Fide Occupational Qualification Applies when discrimination against a protected class is essential to a job. Generally restricted to cases in which gender is essential. Race can never be a BFOQ. Interrelationship of Federal anti-discrimination laws with State law Most states have statues that prohibit the kinds of discrimination prohibited under federal law. Also, state laws often protect individuals, such as those under 40 years of age or those who work at very small firms, who are not protected under federal law, and may provide for damages in addition to those allowed under federal law. Source of Congressional power to enact the laws

Concepts of pre-emption and supremacy in relation to these laws

Chapters 6
Tort Law- to provide remedies for the invasion of various protected interests. Tort: civil wrong (civil and private law). Intentional tort- an act that is intended, with an intended consequence (against persons, businesses, and property). Assault- any intentional, unexcused act that creates in another person a reasonable apprehension of immediate harmful or offensive contact. Battery- an unexcused and harmful or offensive physical contact intentionally performed. Intentional infliction of emotional distress- an intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another. Defamation- involves wrongfully hurting a persons good reputation. Defenses to liability for an intentional tort: defamation- if one has expressed an opinion, not fact. Assault and battery- consent, self defense, defense of others, defense of property
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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08 Unintentional Tort- negligence: positive or negative act that cause injury.

Chapter 7
Elements necessary to prove negligence: (1) A duty of care, (2) breach of the duty of care, (3) damage or injury as a result of the breach, and (4) the breach causes the damage or injury. Defenses to negligence liability: Assumption of risk a party voluntarily enters into a risky situation, knowing the risk Superseding cause breaks the connection between the breach of the duty of care and the injury or damage Contributory negligence plaintiff cannot recover for an injury if he/she was failed to exercise a reasonable degree of care. Comparative negligence enables both the plaintiffs and the defendants negligence to be computed and the liability for damages distributed accordingly Special Negligence Doctrines: Res ipsa loquitor the facts speak for themselves Defendant must prove he/she was not negligent. Applied only when the event creating the damage or injury is one that ordinarily does not occur in the absence of negligence. Last clear chance plaintiff has the last chance to prevent injury. Like moving out of the way of a car speeding towards you, rather than just letting it hit you so you can be like okay I'm going to sue. Negligence per se When an individual violates a statute or an ordinance providing for a criminal penalty and that violation causes another to be injured. Injured person must prove (1) the statute sets out a standard of conduct, and when, where, and of whom it is expected; (2) the injured person is in the class protected by the statute; and (3) the statute was designed to prevent the type of injury suffered. Superseding intervening cause see superseding cause above Assumption of the risk see assumption of risk above Strict Liability: liability without fault. A person who engages in certain activities can be held responsible for any harm that results to others even if the person used the utmost care. Applications include: Abnormally dangerous activities, (1) involve potentially serious harm to persons or property. (2) Involve a high degree of risk that cannot be completely guarded against by
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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08 the exercise of reasonable care. (3) Are activities not commonly performed in the area in which damage or an injury occurs A person who keeps a dangerous animal is strictly liable for any harm inflicted by the animal Strict Product Liability: (Chapter 23) Requirements for Strict Product Liability include:
1. Product is in a defective condition when the defendant sells it 2. Defendant is normally in the business of selling the product 3. Defect makes the product unreasonably dangerous 4. The plaintiff incurs physical harm to self or property by use of product 5. Defect is the proximate cause of the harm 6. Product must not have been substantially changed after it was sold

Defenses for Strict Product Liability: Assumption of risk, product misuse, comparative negligence (fault), commonly known dangers, knowledge of user, statute of limitation (action must be brought within a specific period of time after the cause of the action accrues), statute of repose (limits the time in which a suit can be filed)

Chapter 9
Major difference between civil and criminal law Civil law pertains to the duties that exist between persons or between persons and their government. Criminal law, in contrast, has to do with crimes. Crime = a wrong against society proclaimed in a statute and punishable by a fine and/or imprisonment. Civil law is private law so one can gain monetary damages/remedies or equitable relieve -accountability to society -Burden of proof is by a preponderance of the evidence Criminal law is public law so defendant is accountable to the state, not the victim. -accountability to the government -Burden of proof is beyond a reasonable doubt

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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08

Chapter 10
Contract: a promise for the breach of which the law gives a remedy or the performance of which the law recognizes as a duty (a duty that can be enforced in court). Executed contract is a contract that has been fully performed on both sides. Executory contracts are those that have not been fully performed by one or more parties. Express contract- fully and explicitly states the terms of the agreement in words (oral or written). Formal contract- contracts that require a special form or method of creation (formation) to be enforceable. An implied-in-fact contract is implied from the conduct of the parties. Informal contract- (simple contracts) no special form (except for certain types of contracts that must be in writing) is required as the contracts are usually based on their substance rather than their form. Objective theory of contracts- a theory under which the intent to form a contract will be judged by outward, objective facts (what the party said when entering into the contract, how the party acted or appeared, and the circumstances surrounding the transaction) as interpreted by a reasonable person, rather than by the partys own secret, subjective intentions. Offer- a promise or commitment to perform or refrain from performing some specified act in the future. Offeror- a person who makes an offer. Offeree- a person to whom an offer is made. Promise- a persons assurance that he or she will or will not do something. Promisee- a person to whom a promise is made. Promisor- a person who makes a promise. Quasi contract- a fictional contract imposed on parties by a court in the interests of fairness and justice; usually, quasi contracts are imposed to avoid the unjust enrichment of one party at the expense of another. Bilateral contract- a type of contract that arises when a promise is given in exchange for a return promise. Unilateral promise- a contract that results when an offer can only be accepted by the offerees performance. Valid: a contract that has all the elements necessary for contract formation.
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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08 Void: this contract has no legal force or binding effect (a contract is void if its purpose was illegal). Voidable: this is a valid contract that can be avoided by one or more parties (contracts by minors are voidable at the minors option). Unenforceable: a contract that cannot be enforced because of certain legal defenses (for example, if a contract has to be in writing and isnt).

Chapter 11
Requirements of an OFFER:
1. Intent a. Objectively determined b. Present c. Clear 2. Definiteness a. All elements of agreement b. Sufficiently clear so that what was promised can be determined 3. Communication a. To the offeree b. Effective when received

Requirements of ACCEPTANCE:
1. Intent a. Objective b. Indication of willingness to enter into an agreement 2. Exact a. Mirror image rule b. No material changes from the offer 3. Communicated Page 13 of 29

LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08
a. Acceptance is effective on dispatch by the same or faster means as the offer

was communicated
i. Mailbox rule - effective when dispatched

Offer + Acceptance = Agreement Revocability of an offer:

1. General Rule: an offer can be terminated by the offeror anytime before acceptance a. Must show serious intent b. Actual communication 2. Exceptions: a. Option contract a promise to hold an offer open for a period of time. Grants

an irrevocable offer in exchange for consideration.

b. Firm offer UCC (Uniform Commercial Code) i. Merchant ii. Offer in writing signed iii. Buy or sell goods iv. Promises to keep offer open c. Promissory Estoppel i. Promise ii. Communicated iii. Detrimental reliance iv. Offeror knows or should have known v. Stop the offeror from revoking the offer

Mailbox Rule: An offer is good (effective) on dispatch as long as it is dispatched by the same means or faster means as offer was communicated.

Exceptions to the Mailbox Rule:

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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08
3. Change of mind rule actual communication required!

Advertisements: Ads, catalogs, and so on are invitations to negotiate. A price list is not an offer; it invites a buyer to offer to buy at that price. If an ad makes a promise so definite in character that it is apparent the offeror is binding himself or herself to the conditions stated, however, the ad is treated as on offer. Auctions: An auction is not an offer (the owner is only expressing a willingness to sell). In an auction with reserve, the owner may withdraw an item before the auctioneer closes the sale. A bidder is an offeror and may revoke a bid, or an auctioneer may reject it before he or she strikes the hammer, which constitutes acceptance. An auction is assumed to be with reserve, unless it is stated to be without reserve, in which case goods cannot be withdrawn and must be sold to the highest bidder. Termination of offers by action of the parties: Revocation The offeror usually can revoke the offer (even if he or she has promised to keep it open), by express repudiation or by acts that are inconsistent with the offer and that are made known to the offeree. Rejection An offeree may reject an offer by words or conduct evidencing an intent not to accept it.
a. Subsequent attempt by the offeree to accept will be construed as a new offer. b. Communicated to the Offeror - Rejection of the offer is effective only on receipt

by the offeror.
c. Inquiring about an offer is not rejecting it.

Counteroffer The offerees attempt to include different terms is a rejection of the original offer and a simultaneous making of a new offer. The mirror image rule require the acceptance to match the offer exactly. Option contract a promise to hold an offer open for a period of time - grants an irrevocable offer in exchange for consideration. Generally the death or incompetence of a party does not terminate an option contract, unless the offerors personal performance is essential to the fulfillment of the contract. Firm offer An offer (by a merchant) that is irrevocable without consideration for a period of time (no longer than 3 months). A firm offer by a merchant must be in writing and must be signed by the offeror. UCC (Uniform Commercial Code) Detrimental Reliance:
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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08
1. Promissory Estoppel When the offeree justifiably relies on an offer to his or her

detriment, this reliance may make the offer irrevocable.

2. Partial Performance An offeror may not be able to revoke an offer after the

offeree has performed a substantial part of his or her duties under a unilateral contract. In effect, partial performance renders the offer irrevocable, giving the original offeree reasonable time to complete performance. Constructive Communication: see Mailbox Rule Termination of offers by law:
1. Lapse of Time an offer terminates on midnight of the day at the end of the

period stated in the offer.

2. Destruction of Subject Matter the offer is automatically terminated 3. Death or Incompetence of the Offeror or Offeree 4. Supervening Illegality of Proposed Contract When a statute or court decision

makes an offer illegal, the offer is automatically terminated.

Chapter 12
Consideration: the value given in return for a promise. The value can consist of money given in return for a promise to deliver certain goods (when Roy pays for a computer to be delivered by Sam, there is consideration). Legal insufficiency- something of legal value must be given in exchange for a promise. The something may be (1) a promise to do something (2) performing an act, or (3) refraining from doing something that one could otherwise do. Preexisting Duty: a promise to do what one already has the duty to do is not consideration (exceptions- unforeseen difficulties and rescission + contract). Past Consideration: promises made with respect to events that have already taken place are unenforceable. Accord- the agreement under which one of the parties undertakes to give or perform, and the other to accept, in satisfaction of a claim, something other than that which was originally agreed on. Satisfaction- This occurs when the accord is executed. There can be no satisfaction unless there is an accord

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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08 Accord and satisfaction: deals with a debtors office of payment and a creditors acceptance of a lesser amount than the creditor originally purported to be owed. Elements: unliquidated debt (a debt that doesnt have an actual dollar amount. It is in dispute), offer of settlement, notice (payment in full), acceptance (once accepted the dispute is resolved). Promissory estoppel (detrimental reliance): a person who relies on the promise of another may be able to recover in the absence of consideration. Covenant not to sue- an agreement to substitute a contractual obligation for some other type of legal action based on a valid claim. Unlike a release, a covenant not to sue does not always bar further recovery. Forbearance- the act of refraining from an action that one has a legal right to undertake. Release- a contract in which one party forfeits the right to pursue a legal claim against the other party. It bars any further recovery beyond the terms of the release. Rescission- the unmaking of a contract so as to return the parties to the positions they occupied before the contract was made.

Chapter 13
Two components of capacity (HAVE TO HAVE BOTH):
1. Capacity at law: Okay stamp from courts. 2. Capacity in fact:

Infancy Doctrine a contract is voidable when entered into by a minor

Minor lacks capacity at law. Minor is only party having power to disaffirm a contract. Minor may disaffirm a contract anytime before reaching the age of majority or for a reasonable time thereafter. Exceptions to Doctrine:
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Necessaries Minors remains liable for the reasonable value of the necessaries (goods and services) Ratification (the act of accepting and thereby giving legal force to an obligation that was previously unenforceable) express or implied.

After reaching the age of majority, a person can ratify a contract that he or she formed as a minor, becoming fully liable thereon.

Fraud or misrepresentation
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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08
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Misrepresentation of age prohibits right to disaffirm

Property in possession of third party Property is damaged

Fault of minor Fault of another

Statutory exceptions modifications to the common law

Legal Insanity: Mental Incompetence:

If a person is adjudged mentally incompetent by a court, a contract by them is void. Incompetent persons not so adjudged by a court
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Voidable if a person does not know he or she is entering into the contract or lacks the capacity to comprehend its nature, purpose, and consequences. Valid if a mentally incompetent person understands the nature and effect of entering into a certain contract.

Intoxication:

If a person is sufficiently intoxicated to lack mental capacity then the contract is voidable, at the option of the intoxicated person. If a person understands the legal consequences of a contract, despite intoxication, the contract is usually enforceable. May disaffirm at any time while intoxicated and for a reasonable time after being sober but must make full restitution (restore to original position).
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Contracts for necessaries are voidable, but the intoxicated person is liable for the reasonable value of the goods or services

After becoming sober, a person can ratify a contract that was formed while intoxicated, becoming fully liable thereon.

Illegal contracts that are contrary to statutes:

1. Contracts to commit a crime

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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08
2. Usury charging a higher interest rate than allowed by law 3. Gambling 4. Sabbath (Sunday) Laws in some states contracts entered into on Sundays are illegal. 5. Licensing Statutes members of certain professions must be licensed. A contract with an

unlicensed individual is illegal. Illegal contracts that are contrary to public policy:
1. Against the best interests of society 2. Unconscionable Contracts immoral and unethical agreements 3. Discriminatory contracts 4. Contracts in restraint of trade covenant not to compete 5. Exculpatory Clauses

Covenants not to compete a contractual promise to refrain from competing with another party for a certain period of time (not excessive in duration) and within a reasonable geographical area

When are they lawful? If they are ancillary (part of a bigger deal) to agreements such as employment contracts, partnership agreements, and business sale agreements
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Deemed unlawful if time period of geographical area is deemed unreasonable

Exculpatory clauses Clauses that release a contractional party from liability in the event of monetary or physical injury, no matter who is at fault. It absolves a party of negligence or other wrong. (sometimes found in rental agreements and real property leases)

When are they lawful? Often held to be unconscionable. In most real property leases, held to be contrary to public policy. May be enforced if the party seeking its enforcement is not involved in a business important to the public interest (health clubs, amusement parks).

Chapter 14
Elements of intentional misrepresentation: Fraud (misrepresentation of material fact, intent to deceive, an innocent partys justifiable reliance on the misrepresentation), Statements of Opinion (when a nave purchaser relies on an experts opinion), Concealment (prevents the other party from learning of material fact, Misrepresentation of Law (when a professional is involved who knows more than the average person), Misrepresentation by Silence: Latent Defects (a
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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08 reasonable defect is known by the seller but not by the buyer), Fiduciary Relationships (if one party knows facts that materially affect the others interests, they must be disclosed), Statutory Provisions ( some statutes provide exceptions to the rule of non-disclosure), Duty to Prospective Employees (employees may not legitimately conceal certain information from prospective employees). Duress: forcing a party to enter into a contract by threatening the party with a wrongful or illegal act (threatening, blackmail or extortion). Undue influence arises from special kinds of relationships in which one party can greatly influence another party, thus overcoming that partys free will. Mistakes of Fact: Bilateral (mutual mistake)- if both parties are mistaken as to a material fact, either party can rescind the contract. This is also true if they attach different meanings to a term subject to more than one reasonable interpretation. Unilateral- when one contracting party makes a mistake as to some material fact, he or she is not entitled to relief from the contract (exceptions: one partys knowledge- may not be enforceable if the other party to the contract knows or should have known that a mistake was made. Mathematical mistakes- may not be enforceable (or may be reformed) if a significant mistake in addition, subtraction, division, or multiplication was inadvertent and made without gross negligence). Mistakes of Value: when one or both parties make a mistake as to the market value or quality of the object of a contract, either party can enforce the contract.

Chapter 15
Statute of Frauds a state statute under which certain types of contracts must be in writing to be enforceable. Contracts that must be in writing: MY LEGS
1. Contracts in consideration or contemplation of Marriage 2. Executory bilateral contracts which by their terms cannot be fully performed

within one Year from the date of execution.

3. Contracts for the conveyance of an interest in Land 4. Executors agreement to personally pay decedents debts 5. Contract for the sale of Goods for $500 or more 6. Collateral promises of a Surety to pay the debts of another

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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08 Effect of noncompliance with the Statute of Frauds: Noncompliance (aka not following the requirement to have a written agreement) does not make the contract void, but the Statue of Frauds is a defense to its enforcement. Contracts that cannot be performed within one year from the day they are made:

Exceptions
o o

partial performance promissory estoppel

Contracts for the transfer of any interest in land:

Exception of partial performance If a buyer pays part of the price, takes possession, and makes permanent improvements and the parties cannot be returned to their pre-contract status quo, a court may grant specific performance.

Promises to be responsible for the debt of another, whether made by an executor or a surety:

Exceptions
o o o

partial performance promissory estoppel Main Purpose rule an oral promise to answer for the debt of another is enforceable if the guarantors main purpose is to secure a personal benefit.

Kind of writing required to satisfy the Statute of Frauds: There must be at least a memo, confirmation, invoice, sales slip, check, fax, or several documents stapled together or in the same envelope that include:

The signature of the party against whom enforcement is sought Essential terms
o o

For contracts covered by the UCC, the quantity must be clearly identified Other contracts must identify the parties, subject matter, consideration

Chapter 16
Intended Beneficiary is a third party for whose benefit a contract is formed; an intended beneficiary CAN sue the promisor if such a contract is breached.
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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08 Incidental Beneficiary is a third party who incidentally benefits from a contract but whose benefit was not the reason the contract was formed; an incidental beneficiary has no rights in a contract and cannot sue to have the contract enforced. An assignment of contract is when parties to a contract have rights and duties. One party had a right to require the other to perform, and the other has a duty to perform. The transfer of the right to a third person is an assignment. Requirements for an assignment to be effective: rights of the assignor are extinguished, assignee has a right to demand performance from the obligor, and the assignees rights are subject to defenses the obligor has against the assignor. -As a general rule, all rights can be assigned. Exceptions: When a statute prohibits assignment (for example, statutes often prohibit assignment of future workers compensation benefits), when a contract is personal in nature (the rights under the contract cannot be assigned unless all that remains is a money payment; rights to receive personal services cannot be assigned), when an assignment will significantly change the risk or duties of obligor, when a contract prohibits assignment (exceptions: a right to receive money, rights in real estate (restraint against alienation), rights is negotiable instruments, a right to receive damages for breach of a sales contract or for payment of amount owed under it (even if contract prohibits it)). Novation- the substitution, by agreement, of a new contract for an old one, with the rights under the old one being terminated. Typically there is a substitution of a new person who is responsible for the contract and the removal of an original partys rights and duties under the contract.

Chapter 17
Accord a contract to perform some act to satisfy an existing contractual duty that is not yet discharged. Satisfaction the performance of the accord agreement Novation occurs when both of the parties to a contract agree to substitute a third party for one of the original parties. Requirements include: 1. A pervious valid obligation 2. An agreement by all the parties to a new contract. 3. The extinguishing of the old obligation (discharge of the prior party) 4. A new contract that is valid

Chapter 18
Compensatory damages: cover direct losses and costs. These damages compensate a party for the loss of a bargain the difference between the value of the promised performance and the value of the actual performance.
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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08 Consequential damages: cover indirect and foreseeable losses. These are damages giving an injured party the entire benefit of the bargain foreseeable losses cause by special circumstances beyond the contract. The breaching party must know (or have reason to know) that special circumstances will cause the additional loss. Nominal damages: recognize wrongdoing when no monetary loss is shown. These damages (such as $1) establish that a defendant acted wrongfully even if no loss resulted. Punitive damages: punish and deter wrongdoing. These damages punish a guilty party and make an example to deter similar, future conduct.

Available in a breach of contract action?

o

Awarded for a tort, but not for a contract breach (which is not a crime and may not harm society).

Liquidated damages: specify that a certain dollar amount is to be paid in the event of a future default or breach of contract. (i.e. a construction contractor must pay $300 for every day he/she is late in completing the project) -Rescission is essentially an action to undo, or terminate, a contract; the return contracting parties to the positions they occupied prior to the transaction. Rescission may also be available by statute. The failure of one party to perform entitles the other party to rescind the contract. -Reformation is an equitable remedy used when the parties have imperfectly expressed their agreement in writing. Reformation allows a court to rewrite the contract to reflect the parties true intentions. -The equitable remedy of specific performance calls for the performance of the act promised in the contract. This remedy is often attractive to a nonbreaching party because it provides the exact bargain promised in the contract. A recovery based on quasi contract is an equitable theory which a party who confers a benefit on another with the reasonable expectation of being paid can seek a court order for the fair market value of the benefit conferred. An injunction is an equitable remedy that orders a party to cease engagement in a specific activity or to undo some wrong or injury.

Chapter 47
Real property Immoveable The land and anything permanently attached to it. Also includes fixtures. Personal property Moveable Can be tangible (car, TV set) or intangible (stocks, bonds, patents, or copyrights)

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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08 Fixture Personal property so closely associated with certain real property that it is viewed as part of it (such as plumbing in a building). Fixtures are included in the sale of land if the contract does not provide otherwise. When determining whether an item is a fixture, look at: method of attachment, damage (physical or aesthetic), and intent. Methods for acquiring ownership of personal property:

Purchase or by Will Possession Ownership may be acquired by possession if no other person has ownership title. (Examples include capturing wild animals or finding lost or abandoned property). Production Any product or item produced by an individual becomes the property of that individual. (Exception: employees do not own what they produce for their employers.) Gift A voluntary transfer of property ownership not supported by consideration. 3 requirements for an effective gift: o Intent o Delivery the gift is delivered (physically or constructively) Constructive delivery i.e. transfer of a key to a safe constructively delivers the contents of the safe o Acceptance Accession Occurs when someone adds value to an item of personal property by labor or materials. Can be at issue if: accessions occur without permission of the owner, or accession greatly increases the value or changes the identity. Confusion Commingling property so that one persons cannot be distinguished from anothers. If a person wrongfully does this, than the innocent party acquires title to the whole. Otherwise, the owners share ownership of the commingled goods in proportion to the amount each contributed.

Gift inter vivos made during ones lifetime. Gift causa mortis made in contemplation of imminent death, do not become effective until the donor dies, and are automatically revoked if the donor does not die. Mislaid Property personal property that has been voluntarily placed somewhere by the owner and then inadvertently forgotten. Owner of premise of where it was mislaid has the right to possess. Lost Property personal property that is involuntarily left and owner does not know the location. A finder can claim title against the whole world, except the true owner (finder has the right of possession, but true owner still has right of ownership). Estray statutes allow finders, after a passage of specified time, to acquire title to the property if it remains unclaimed. Treasure trove Buried personal property, money or money substitute. Finder gets it.

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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08 Abandoned Property personal property that has been discarded by the true owner, who has no intention of claiming title to it. Could also be property that was once mislaid or lost, and now the owner has given up looking for it. The finder acquires title good against the whole world, including the original owner. Elements of a bailment: Personal property Delivery of possession and control (without title) Agreement that the property be returned or disposed of Bailor One who entrusts goods to a bailee Bailee One to whom goods are entrusted by a bailor. Three types of ordinary bailments are: (1) Bailment for the sole benefit of the bailor, (2) Bailment for the sole benefit of the bailee i.e. borrowing roommates car, (3) Bailment for their mutual benefit often contractual such as bailments for hire. What is the difference between an ordinary bailment based on an agreement and an ordinary bailment that is implied by the law? Rights of the Bailee - right of possession - right to use bailed property - right of compensation - right to limit liability Duties of the Bailee - reasonable care - duty to return bailed property Rights of the Bailor - compensation if property is damaged Duties of the Bailor - For mutual-benefit bailment, a bailor must notify a bailee of all known defects and any hidden defects that the bailor knows or could discover with reasonable diligence and proper inspection. - For bailment for the sole benefit of the bailee, the bailor must notify the bailee of known defects. Liability of bailees for lost, damaged, or destroyed goods in ordinary bailment situations: - liable for damages Liability of bailees in the special bailment situations of innkeepers and common carriers:
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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08 - strict liability

Chapter 48
Examples of real property: - land and structures - airspace and subsurface rights - plant life and vegetation Types of ownership interests in real property: - fee simple absolute one person owns all the rights - life estate an estate that lasts for the life of a specified individual - concurrent interests when two or more persons hold title to property together 1. Tenancy in common: two or more people, any type of property, own % of whole, shares can be any %, interests can be created at any time, freely transferable, creditors can attach, upon death property passes to the estate. 2. Joint tenancy: two or more people, any type of property, own % of whole, shares must be equal, shares must be created contemporaneously (at the same time), freely transferablebut transfer severs joint tenancy and makes it a tenancy in common, creditors can attach, upon death surviving joint tenant takes ownership. 3. Tenancy by entirety: co-ownership between a husband and a wife, only for real property, each own 100%, shares must be created contemporaneously, transferable once on consent or divorce, creditors of one spouse cannot attach, upon death there is right of survivorship. Deed a writing signed by the owner of real property by which title to it is transferred. Possession and title to land are passed from person to person by means of a deed. Warranty Deed this provides the most protection against defects of title covenants that the grantor had title to, and the power to convey, the property; that the buyer will not be disturbed in his or her possession of the land; and that transfer is made without unknown adverse claims of third parties. Quitclaim Deed This warrants less than any other deed. It conveys to the grantee only the interest the grantor had. Adverse possession A person who wrongfully possesses (by occupying or using) the real property of another may eventually acquire title to it through adverse possession. Four elements must be satisfied: possession must be (1) actual and exclusive, (2) open, visible, and notorious, (3) continuous and peaceful for the required period of time, (4) hostile and adverse Purpose if recording statutes: to give notice to the public that a certain person is the owner.

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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08 Race-notice statue If two parties have what they think is the deed to the same property, the first to prove that they in fact were 1.) unaware of a prior transaction, 2.) are acting in good faith, and 3.) paid consideration to the seller, then they will be able to record the deed in the public record. Limitations on the rights of property owners: - Eminent Domain The government can take private property for public use. To obtain title, a condemnation proceeding is brought. The U.S. Constitutions Fifth Amendment requires that just compensation be paid for a taking; thus, in a separate proceeding a court determines the lands fair value to pay the owner. - Restrictive Covenants A private restriction on the use of land. It runs with the land if the original parties and their successors are entitled to its benefit or burdened with its obligation. It must be in writing and subsequent owners of the property must know of it.

Chapter 8 See print out of Exhibit 8-1 Chapter 50

Define the terms testate and intestate. o Testate A person who dies after making a valid will o Intestate A person who dies without a will Describe how property is distributed if a person dies without a will. o Property is divided amongst heirs and kin o In no heirs exist, then land is given to transfer to the state (escheat) Describe the types of property that pass on death regardless of the status of the decedent. o Devise Transfer of real estate o Bequest or Legacy Gift of personal property o The gift must be legal in order to be enacted o Abatement a split of goods which are left if there is insufficient funding to provide for the entire will Ex 15000 to each of my 2 sons, only 10,000 total left, each gets 5000 List and describe the requirements for making a valid will. o The testator must have testamentary capacity -> be of legal age and sound mind when the will is created Must want the will to be their last testament Comprehend where property is being distributed Comprehend who is still a family member Cannot be made under undue influence
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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08
o A will must be in writing under most circumstances Can be written on anything and in any sort of ink, crayon, or pencil Holographic will When the will is solely in the testators handwriting o Must be signed by the testator o Two or three witnesses must be present to ensure that the testators intent is valid o The testator must orally state that they intend this to be their last will This constitutes publication of the will

Describe the benefits of making a will. o Entitles a spouse to a certain amount of property upon ones death o Allows a guardian to be appointed for a minor if their parents die List and describe the parts of a will. 1. Revocation of any other wills 2. Appointment of the executors and trustee(s) of the will 3. How the remains are to be handled (buried, cremated, etc.) 4. Distribution of the estate (in many specific parts). State to whom personal property should be dispersed 5. Guardians of any under-age children 6. Signed by testator and witnesses

List the different types of testamentary gifts. o Specific States exactly an object to be given I hereby give all my books to David o General States a general amount such as all of my land BUT also includes general amounts of funding I give ten thousand dollars to Josh not specific from where o Residual A gift of anything remaining after debts are paid and other grants made Leftover property I give the rest of my property to Kevin Describe the concepts of abatement and ademption. o Abatement When there are not enough funds to cover the terms of the will, the funding is distributed equally amongst the parties based on the percent they were to be given

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LW270: Law & Society I Final Exam Study Guide By Michelle Murphy and Gerald Williams 12.06.08
o Ademption When the property specified by the dead is no longer under their

possession. The beneficiary usually receives no gift as a result.

Describe how a will can be revoked. o Via a physical act on the part of the testator Burning, tearing, or obliteration the original writing o Via a subsequent writing A codicil revokes the provisions of the will and can add to a will new provisions If a new will is made, it must state that all other wills are revoked o Via operation of law Occurs with marriage, divorce, an annulment, or with the birth of a child The new spouse or kin can receive funding even if a new will is not made Describe the process of administration and probate of an estate. o For an Informal Proceeding Affidavit Signed by a person of authority to distribute land to parties under a will after the testator dies Family settlement agreements The family divides up the deceaseds assets A court must still transfer title to this land o Formal Proceedings Holds a formal trial to state where assets will go under the will Can use up to 10% of deceased funds just on attorney fees

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