BA 358 Midterm 1 (Professor Link) Exam Study Guide
Bystander Liability - ANSWER You are not required, as a bystander, to help someone in
peril unless you created the danger
Plaintiff - ANSWER a person who brings a case against another in a court of law.
Defendant - ANSWER an individual, company, or institution sued or accused in a court of
law.
Common Law - ANSWER Common law countries have judge-made law. Judicial
decisions, over time, form a part of the law (precedent). Predictability has enumeral
benefits, making people understand the consequences, allowing them to act
accordingly
Civil Law - ANSWER Civil law countries are all for the written laws
Federalism - ANSWER Mixed form of government with dual sovereignty; Federal and
State Government exists simultaneously
Three Branches of Federal Government - ANSWER Legislative, Executive, Judicial
State Government - ANSWER Governor has the highest power
Doctrine of Jurisdiction - ANSWER Court's ability to hear a case
Federal Jurisdiction - ANSWER Limited Jurisdiction; Limited to Federal Question Cases
and Diversity Case (Plaintiff and Defendant in different states AND the matter exceeds
$75,000)
State Jurisdiction - ANSWER General Jurisdiction; Long Arm Statute create the
"Minimum Contacts" Rule
Pro Se/ Pro Per - ANSWER Appearing in court alone, without an attorney
Complaint - ANSWER Statement of jurisdiction, Statement of parties (who is suing and
being sued, key witnesses and more), Statement of the case (Factual background and
Claims of the plaintiff/Causes of action), then the Conclusion/Prayer for relief (State
what you want) Money that you receive could be for damages, interest (time value of
money) and attorney fees (although hard to get).
Service of Process - ANSWER The delivery of the complaint and summons to a
defendant.
Answer - ANSWER Procedurally, a defendant's response to the plaintiff's complaint. If
the defendant disagrees completely, they can also send in their Counterclaim
Second Stage of Litigation- DISCOVERY - ANSWER Declarations
,Interrogatories
Deponent: The person being deposed (potential witness)
Third Stage of Litigation - TRIAL - ANSWER Could settle before trial, usually does. Could
be "motioned for summary judgement" (Discovery has occurred and they agree on what
happens.)
Voir Dire- The process of selecting the jury.
3 Types of Alternate Dispute Resolution (ADR) - ANSWER Negotiation, Mitigation,
Arbitration
Negotiation - ANSWER A form of communication between opposing sides in a conflict in
which offers and counteroffers are made and a solution occurs only when both parties
agree
Mediation - ANSWER A method of settling disputes outside of court by using the
services of a neutral third party, called a mediator. The mediator acts as a
communicating agent between the parties and suggests ways in which the parties can
resolve their dispute. (Non-Binding)
Arbitration - ANSWER Neutral third party, called an arbitrator, who decides the result.
Mini private trial. (Binding)
Fiduciary Duty - ANSWER That duty owed by an agent to act in the highest good faith
toward the principal and not to obtain any advantage over the latter by the slightest
misrepresentation, concealment, duress or pressure. Two duties are Loyalty and Due
Care. Principals liable for contracts entered into by agents (authority)
Statute of Frauds - ANSWER Requires certain contracts to be in writing to be
enforceable.
Types of contracts that must be in writing under the Statute of Frauds - ANSWER Land
Contracts, Contracts that cannot be performed within one year, the UCC (Deal Maker/
Deal must be >$500), Guaranteed Debt of others, Executor of State, and Marriage
Contracts
Land Contracts exception to Statute of Frauds - ANSWER Full Performance by Seller
(Sellers giving away deeds), Partial Performance by the Buyer (Partial Payment AND
Either they move in or make improvements), and Promissory Estoppel
Promissory Estoppel - ANSWER A doctrine that applies when a promisor makes a clear
and definite promise on which the promisee justifiably relies; such a promise is binding
if justice will be better served by the enforcement of the promise.
UCC Exceptions to Statute of Frauds - ANSWER If both parties are merchants, a
confirmatory memo is exchanged which could bind both parties, and 10 days has
passed, the contract does not have to be in writing. Specialty Goods, custom made for
, others.
Judicial Admission: Perjury
Contract is already executed.
Scrivener's Error - ANSWER Fancy way of saying Typo
Vagueness vs. Ambiguity - ANSWER Vagueness is intentionally providing vague
information while Ambiguity is UNINTENTIONALLY providing wrong information
Choice of Law Clauses - ANSWER Determines which state's laws will be used to
interpret the contract
Choice of Forum Clause - ANSWER Determines the state in which any litigation would
take place
Conditions required to discharge a contract - ANSWER Precedent: One's duty shall be
performed before the other's.
Concurrent: Two duties are occuring at the same time.
Subsequent: If one client meets the requirements, then the obligations arrive after the
fact (Insurance and claims)
Anticipatory Breach - ANSWER IF THE PARTY CONTACTS YOU AND "REPUDIATES",
OR REFUSES TO PERFORM, IT'S CONSIDERED A BREACH AT THAT MOMENT OF
CONTACT.
(1) INJURED PARTY CAN MITIGATE DAMAGES
(2) STATUTE OF LIMITATIONS
EXCUSED BREACH
RESERVED FOR EXTREME OR UNFORESEEABLE EVENT, LITERALLY IMPOSSIBLE
Remedies - ANSWER Compensation: Reasonably Calculable, Usually have a choice
between Remedies, Injured party has a duty to mitigate
Contract Remedies - ANSWER Legal: Money
Equitable: Injunctions
Election - ANSWER Injured party gets to elect particular remedy
Three types of Legal Damages - ANSWER Expectation, Reliance, Restitution
Expectation Damages - ANSWER The money required to put one party in the position
she would have been in had the other side performed the contract (Giving a car worth
$20,000 when the agreed price was $25,000, $5,000 is Expectation Damages)
Bystander Liability - ANSWER You are not required, as a bystander, to help someone in
peril unless you created the danger
Plaintiff - ANSWER a person who brings a case against another in a court of law.
Defendant - ANSWER an individual, company, or institution sued or accused in a court of
law.
Common Law - ANSWER Common law countries have judge-made law. Judicial
decisions, over time, form a part of the law (precedent). Predictability has enumeral
benefits, making people understand the consequences, allowing them to act
accordingly
Civil Law - ANSWER Civil law countries are all for the written laws
Federalism - ANSWER Mixed form of government with dual sovereignty; Federal and
State Government exists simultaneously
Three Branches of Federal Government - ANSWER Legislative, Executive, Judicial
State Government - ANSWER Governor has the highest power
Doctrine of Jurisdiction - ANSWER Court's ability to hear a case
Federal Jurisdiction - ANSWER Limited Jurisdiction; Limited to Federal Question Cases
and Diversity Case (Plaintiff and Defendant in different states AND the matter exceeds
$75,000)
State Jurisdiction - ANSWER General Jurisdiction; Long Arm Statute create the
"Minimum Contacts" Rule
Pro Se/ Pro Per - ANSWER Appearing in court alone, without an attorney
Complaint - ANSWER Statement of jurisdiction, Statement of parties (who is suing and
being sued, key witnesses and more), Statement of the case (Factual background and
Claims of the plaintiff/Causes of action), then the Conclusion/Prayer for relief (State
what you want) Money that you receive could be for damages, interest (time value of
money) and attorney fees (although hard to get).
Service of Process - ANSWER The delivery of the complaint and summons to a
defendant.
Answer - ANSWER Procedurally, a defendant's response to the plaintiff's complaint. If
the defendant disagrees completely, they can also send in their Counterclaim
Second Stage of Litigation- DISCOVERY - ANSWER Declarations
,Interrogatories
Deponent: The person being deposed (potential witness)
Third Stage of Litigation - TRIAL - ANSWER Could settle before trial, usually does. Could
be "motioned for summary judgement" (Discovery has occurred and they agree on what
happens.)
Voir Dire- The process of selecting the jury.
3 Types of Alternate Dispute Resolution (ADR) - ANSWER Negotiation, Mitigation,
Arbitration
Negotiation - ANSWER A form of communication between opposing sides in a conflict in
which offers and counteroffers are made and a solution occurs only when both parties
agree
Mediation - ANSWER A method of settling disputes outside of court by using the
services of a neutral third party, called a mediator. The mediator acts as a
communicating agent between the parties and suggests ways in which the parties can
resolve their dispute. (Non-Binding)
Arbitration - ANSWER Neutral third party, called an arbitrator, who decides the result.
Mini private trial. (Binding)
Fiduciary Duty - ANSWER That duty owed by an agent to act in the highest good faith
toward the principal and not to obtain any advantage over the latter by the slightest
misrepresentation, concealment, duress or pressure. Two duties are Loyalty and Due
Care. Principals liable for contracts entered into by agents (authority)
Statute of Frauds - ANSWER Requires certain contracts to be in writing to be
enforceable.
Types of contracts that must be in writing under the Statute of Frauds - ANSWER Land
Contracts, Contracts that cannot be performed within one year, the UCC (Deal Maker/
Deal must be >$500), Guaranteed Debt of others, Executor of State, and Marriage
Contracts
Land Contracts exception to Statute of Frauds - ANSWER Full Performance by Seller
(Sellers giving away deeds), Partial Performance by the Buyer (Partial Payment AND
Either they move in or make improvements), and Promissory Estoppel
Promissory Estoppel - ANSWER A doctrine that applies when a promisor makes a clear
and definite promise on which the promisee justifiably relies; such a promise is binding
if justice will be better served by the enforcement of the promise.
UCC Exceptions to Statute of Frauds - ANSWER If both parties are merchants, a
confirmatory memo is exchanged which could bind both parties, and 10 days has
passed, the contract does not have to be in writing. Specialty Goods, custom made for
, others.
Judicial Admission: Perjury
Contract is already executed.
Scrivener's Error - ANSWER Fancy way of saying Typo
Vagueness vs. Ambiguity - ANSWER Vagueness is intentionally providing vague
information while Ambiguity is UNINTENTIONALLY providing wrong information
Choice of Law Clauses - ANSWER Determines which state's laws will be used to
interpret the contract
Choice of Forum Clause - ANSWER Determines the state in which any litigation would
take place
Conditions required to discharge a contract - ANSWER Precedent: One's duty shall be
performed before the other's.
Concurrent: Two duties are occuring at the same time.
Subsequent: If one client meets the requirements, then the obligations arrive after the
fact (Insurance and claims)
Anticipatory Breach - ANSWER IF THE PARTY CONTACTS YOU AND "REPUDIATES",
OR REFUSES TO PERFORM, IT'S CONSIDERED A BREACH AT THAT MOMENT OF
CONTACT.
(1) INJURED PARTY CAN MITIGATE DAMAGES
(2) STATUTE OF LIMITATIONS
EXCUSED BREACH
RESERVED FOR EXTREME OR UNFORESEEABLE EVENT, LITERALLY IMPOSSIBLE
Remedies - ANSWER Compensation: Reasonably Calculable, Usually have a choice
between Remedies, Injured party has a duty to mitigate
Contract Remedies - ANSWER Legal: Money
Equitable: Injunctions
Election - ANSWER Injured party gets to elect particular remedy
Three types of Legal Damages - ANSWER Expectation, Reliance, Restitution
Expectation Damages - ANSWER The money required to put one party in the position
she would have been in had the other side performed the contract (Giving a car worth
$20,000 when the agreed price was $25,000, $5,000 is Expectation Damages)
