Law Final Exam Study Guide, By Michelle Murphy &Amp; Gerald Williams

8/2/2019 Law Final Exam Study Guide, By Michelle Murphy &Amp; Gerald Williams

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LW270: Law & Society IFinal Exam Study GuideByMichelle Murphy and Gerald Williams12.06.08

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 casesinvolving 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 violationof 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 acertain 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 generaljurisdiction)

U.S courts of appeals/intermediate courts of appeals (13 U.S Court of appeals. 12of them hear appeals from the federal district courts located within their circuits.The Court of Appeals for the 13th Circuit (The Federal Circuit) has nationalappellate jurisdiction over cases involving patent law and those in which the U.S.government is a defendant).

o 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 federallaw)

o 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 havebeen decided in the state courts.

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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 theinjury or damage

Contributory negligence plaintiff cannot recover for an injury if he/she was failed toexercise a reasonable degree of care.

Comparative negligence enables both the plaintiffs and the defendants negligence tobe 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 notnegligent. Applied only when the event creating the damage or injury is one thatordinarily does not occur in the absence of negligence.

Last clear chance plaintiff has the last chance to prevent injury. Like moving out of theway of a car speeding towards you, rather than just letting it hit you so you can be likeokay I'm going to sue.

Negligence per se When an individual violates a statute or an ordinance providing for acriminal penalty and that violation causes another to be injured. Injured person mustprove (1) the statute sets out a standard of conduct, and when, where, and of whom it isexpected; (2) the injured person is in the class protected by the statute; and (3) the statutewas 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 heldresponsible 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 orproperty. (2) Involve a high degree of risk that cannot be completely guarded against by

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the exercise of reasonable care. (3) Are activities not commonly performed in the area inwhich damage or an injury occurs

A person who keeps a dangerous animal is strictly liable for any harm inflicted by theanimal

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 incursphysical harm to self or property by use of product

5. Defect is theproximate 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 knowndangers, knowledge of user, statute of limitation (action must be brought within a specificperiod of time after the cause of the action accrues), statute of repose (limits the time inwhich a suit can be filed)

Chapter 9

Major difference between civil and criminal law Civil law pertains to the duties that existbetween persons or between persons and their government. Criminal law, in contrast, has to dowith crimes. Crime = a wrong against society proclaimed in a statute and punishable by a fineand/or imprisonment.

Civil law isprivate 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 ispublic 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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Void: this contract has no legal force or binding effect (a contract is void if its purpose wasillegal).

Voidable: this is a valid contract that can be avoided by one or more parties (contracts by minorsare 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. Intenta. 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

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a. Acceptance is effective on dispatch by the same or faster means as the offerwas 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. Grantsan 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 openc. 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:

1. Improper dispatch (acceptance will be good on actual communication)

2. Offer dictates the method of acceptance

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Accord and satisfaction: deals with a debtors office of payment and a creditors acceptance of alesser amount than the creditor originally purported to be owed. Elements: unliquidated debt(adebt 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 beable to recover in the absence of consideration.

Covenant not to sue- an agreement to substitute a contractual obligation for some other type oflegal action based on a valid claim. Unlike a release, a covenant not to sue does not always barfurther 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 occupiedbefore 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:

o Necessaries Minors remains liable for the reasonable value of the necessaries

(goods and services)

o 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.

o Fraud or misrepresentation

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reasonable defect is known by the seller but not by the buyer),Fiduciary Relationships (if oneparty knows facts that materially affect the others interests, they must be disclosed), StatutoryProvisions ( some statutes provide exceptions to the rule of non-disclosure), Duty to

Prospective Employees (employees may not legitimately conceal certain information fromprospective employees).

Duress: forcing a party to enter into a contract by threatening the party with a wrongful or illegalact (threatening, blackmail or extortion).

Undue influence arises from special kinds of relationships in which one party can greatlyinfluence 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 termsubject 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 contractknows or should have known that a mistake was made. Mathematical mistakes- may not beenforceable (or may be reformed) if a significant mistake in addition, subtraction, division, ormultiplication 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 ofthe 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 performedwithin 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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Incidental Beneficiary is a third party who incidentally benefits from a contract but whosebenefit was not the reason the contract was formed; an incidental beneficiary has no rights in acontract 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 arightto require the other to perform, and the other has a duty to perform. The transfer of therightto a third person is an assignment. Requirements for an assignment to be effective: rightsof 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), whena contract is personal in nature (the rights under the contract cannot be assigned unless all thatremains is a money payment; rights to receive personal services cannot be assigned), when anassignment will significantly change the risk or duties of obligor, when a contract prohibitsassignment (exceptions: a right to receive money, rights in real estate (restraint againstalienation), rights is negotiable instruments, a right to receive damages for breach of a salescontract 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 yetdischarged.

Satisfaction the performance of the accord agreement

Novation occurs when both of the parties to a contract agree to substitute a third party for oneof the original parties. Requirements include:

1. A pervious valid obligation2. 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 forthe loss of a bargain the difference between the value of the promised performance and thevalue of the actual performance.

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Fixture Personal property so closely associated with certain real property that it is viewed aspart of it (such as plumbing in a building). Fixtures are included in the sale of land if the contractdoes 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 ownershiptitle. (Examples include capturing wild animals or finding lost or abandoned property).

Production Any product or item produced by an individual becomes the property ofthat individual. (Exception: employees do not own what they produce for theiremployers.)

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 thecontents of the safe

o Acceptance

Accession Occurs when someone adds value to an item of personal property by labor ormaterials. Can be at issue if: accessions occur without permission of the owner, oraccession greatly increases the value or changes the identity.

Confusion Commingling property so that one persons cannot be distinguished fromanothers. 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 tothe amount each contributed.

Gift inter vivos made during ones lifetime.

Gift causa mortis made in contemplation of imminent death, do not become effective until thedonor dies, and are automatically revoked if the donor does not die.

Mislaid Property personal property that has been voluntarily placed somewhere by the ownerand then inadvertently forgotten. Owner of premise of where it was mislaid has the right topossess.

Lost Property personal property that is involuntarily left and owner does not know thelocation. A finder can claim title against the whole world, except the true owner (finder has theright of possession, but true owner still has right of ownership).

Estray statutes allow finders, after a passage of specified time, to acquire title to theproperty if it remains unclaimed.Treasure trove Buried personal property, money or money substitute. Finder gets it.

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- 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 canattach, upon death property passes to the estate.

2. Joint tenancy:two or more people, any type of property, own % of whole, shares mustbe equal, shares must be created contemporaneously (at the same time), freelytransferablebut 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 consentor divorce, creditors of one spouse cannot attach, upon death there is right ofsurvivorship.

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 thegrantor had title to, and the power to convey, the property; that the buyer will not be disturbed inhis or her possession of the land; and that transfer is made without unknown adverse claims ofthird parties.

Quitclaim Deed This warrants less than any other deed. It conveys to the grantee only theinterest the grantor had.

Adverse possession A person who wrongfully possesses (by occupying or using) the realproperty of another may eventually acquire title to it through adverse possession. Four elementsmust 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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Law Final Exam Study Guide, By Michelle Murphy &Amp; Gerald Williams