Exam Review: Midterm. Exam Tips Read very carefully - a lot of questions have their meaning changed based upon one word. Watch for extreme words like:

Exam Review:Midterm

Exam Tips Read very carefully - a lot of questions have their meaning changed

based upon one word.• Watch for extreme words like:

• only• always• never• just

Before you come to the test, pick an answer

Questions Write down any questions you

have as we go, we'll talk about them at the end

Chapter 1Why do we have the law? What are it's functions?

• Make this world FAIR • Keep the Government Stable

Chapter 1 Groups of Thinking about how to create

laws:• Natural Law - Religion, Supernatural Morality

• Sharia Law - Muslim• Historical - Tradition, Culture

• America• Analytical - Logic, Reason• Sociological - Encourage changes in Behavior• Command - Rule by a few or one

• Old England, France, China, Russia• Critical Legal Studies - Situational Ethics

• America• Law and Economics

Civil Law Common LawChina (and most other countries) America

Includes a Written Code Does not include a written code

Judge looks at Code, then situationJudge looks at Statutes, Precedence,

then Situtation

•What are good laws•Laws should be adaptive•Laws should be fair•Laws should be good•Laws should be enforceable.

Chapter 2 History

• King George of England was a wicked king who had very bad laws that hurt the Americans.

• They fought a war and America won.• They decided that they would not have a

government like England ever again.

Formal Legal Documents Articles of Confederation

• First formal document - i.e. first constitution.• Created a government that was too weak.

• We saw this in the Shays Rebellion - farmers rose up and the governent couldn't stop them.

Constitution• Second formal document - i.e. second and present

Constitution• Told us:

• The structure of the Government.• The limits on the Government power.

• The states didn't like it - they thought it didn't protect all of our rights.

Bill of Rights Instead of throwing away the Constitution, we just added new

rules to it.• New Rules are called Amendments.

We have many Amendments to the Constitution • Right to Vote for Women• Freedom fro Slavery• Right to have guns

The first 10 were created in 1791 and were put together in a file called the "Bill of Rights."

• This was not a second Constitution. Simply a list of new rules added to it.

• They are found in the back of the Constitution.• Includes First Amendment - freedom of speech, freedom of the

press, freedom of religion, freedom to assemble.

Separation of Power Power in the Government is separated into:

• Federal Power• State Power

Remember that the federal Government is not all powerful; there are lots and lots of things they cannot control such as anything considered "local"

• Marriage• Divorce• Traffic Laws• etc.

The Federal and State Government share a lot of power actually:

• Health• Taxes• Public Welfare

Balance of Power The power that the federal government does have is

equally diffused between three groups of people:• Legislative - makes the laws• Judicial - translates, explains the laws• Executive - enforces the laws.

We want to balance this power, so we made a system of checks and balances.

• Each group monitors and controls the other two groups They have the power to stop each other from become more powerful than the others.

• This keeps them all equal.

Supremacy ClauseSays the federal Constitution and

laws are the supreme or highest law in the land.

• If it is something the federal government has power over, they will win in an argument with the state.

Commerce Clause The National Government has the authority to

regulate trade between the states.• Usually, business is something local right?

Except this clause says the federal government can make laws about or control any businesses that are involved in national or international business.

• This can include being a restaurant that buys spoons made in another state.

The federal government has used this law to take a ton of power away from the states in recent years.

Bill of Rights ~ First Amendment Freedom of Speech

Freedo of Religion

Freedom of the Press

Freedom to Assemble

Freedom to Petition the Government

Are these laws absolute - can you say whatever you want to say whenever you want to say it?

Freedom of Religion 2 Rules:

• Establishment Clause• The government cannot promote one religion as a

national religion or as being the best.• Free Exercise Clause

• The government cannot make it easier or harder for you to do your religious things.

• For example: they cannot forbid you from building churches, but they cannot make an exception to construction laws to let you build a church in a forbidden place.

Basically, the government ignores religious issues and the religious people are instructed to stay out of politics.

Equal Protection Clause If the government is going to make a

law, it has to be equal about it.

Due Process ClauseBefore the government can take

away your Life, Liberty, or Property, they have to follow the proper legal processes.

Basically, the government offficials have to obey the laws too. They can't use their power to illegally get rid of enemies or steal someone's land.

Chapter 3 There are two non-legal ways to solve a

conflict:• Conflict Avoidance• Apologizing

There are 2 legal wasy to solve a conflict:• Litigation - File a lawsuit• Alternative Dispute Resolution

• Mediation• Negotiation• Arbitration• **Know what each of these are.

Court System There are two sets of courts:

• Civil• Plaintiff = Victim• Defendant = Victim or Bad Person• Usually arguments between two normal citizens

ends up here• Marriage• Divorce• Car Accidents.

• Criminal• Plaintiff = Prosecutor = Government• Defendant = Accused of being a criminal• Usually the police are arguing someone broke

the law.

Court Differences Civil

• Punishment = Fined Money• Parties = Person v. Person• Jury = to end the trial, 51% or more of the jury has to

agree with a decision.

Criminal• Punishment = Jail (or Innocent, so you go free)• Parties = Government v. Accused Criminal• Jury = to end the trial, 80% or more of the jury has to

agree with a decision• The book is calling 80% unanimous. This is wrong, but just

listen to Brian.• For the Test - For a Criminal Trial, the jury has to be

unanimous.

Process Words to Remember

• Statute of Limitations• Discovery• Jury• Criminal• Prosecutor• Plaintiff• Defendant• Pleadings (know all four and who does what)• Burden of Proof• Standard of Proof

Chapter 7, 8, 9 What happens if there aren't any

contract laws? Contract Law:

• Goal = Fairness• The court always wants to encourage

people to keep their promises.

Basic Good Contract = You do this, I'll do that. We both keep our promises or do what we are told.

Contracts (Basic Info) How to create a Contract?

• Writing (Express)• Spoken Words (Express)• Behavior of the Parties says there is a Contract (Implied)

Who are the people involved called?

What are the elements of a contract?• Agreement

• Offer• Acceptance• Mutual Assent

• Consideration• Capacity• Legality

Agreement What are the 4 Terms of an Offer? How can you Accept? - Three Ways What is Mutual Assent?

• What is the Mirror Image Rule • Offer = Acceptance.• If you offer me one thing, but I change it when I

agree, then no contract.• Example: Tommy says "I'll give you my jeep for

100 RMB." Sarah says, "OKay, but I want it for 50 RMB"

• NO CONTRACT.

6 Ways to Terminate an Offer Rejection Counteroffer Revocation Accidentally destroying the product Offeror or Offeree dies The Law changes and makes the contract

illegal.

Types of Contracts Express v. Implied

• express = written or spoken• Implied = the behavior of the people suggests there is a contract.

Unilateral v. Bilateral• How many promises are there?• Unilateral Contracts require acceptance by performance.

Quasi Contract• Occurs in situations where there is:

• Undue Enrichment• Undue Detriment

• There is no writing or material terms or express agreement.• The judge just says that it would be unfair not to say there was a

contract because the people acted like it.

Option Contract• The buyer pays the seller a little money for extra time to decide

if they want to accept the offer or not.

Problem - Is there Consideration Rule of Consideration = There must be an

exchange for a contract, we both sacrifice something.

• A gift is not a Contract.

Know the situations where there is no Consideration

• Moral Consideration• Gift• Pre-Existing Duty Rule• Past Consideration

Problem - Do the Parties have Capacity You cannot enforce a contract with:

• Minors (under 18) • Intoxicated People• Mentally Incompetent People

Exception: You can sell them necessities - food, clothing, etc.

What if they want to enter into a contract with you:• Okay, as long as they don't try to breach the contract later, you

shouldn't have any problems.• However, if they decide to go to a judge, remember he won't

enforce it.

Who can go to court about wanting to break this kind of contract? ~ the weak party

What happens if there is a contract:• If everything is good - we just return both parties to the status

quo.• If something is bad - the weak party has a duty to restore the price

of the damaged product to the seller.

Problem of Legality You cannot make illegal contracts

• Gambling• Lottery• Unlicensed Workers• Forced Contracts• Unreasonable Non-Compete Covenants

• Know what this is!• Unconscionable Contracts

• This is where the situation surrounding the contract is bad (force, undue influence, illegal, etc) or the terms themselves are very unfair.

If you do, the judge will not enforce the contract at all.

Problem of Assent - know the differences and results of each of these. Mutual Mistake of Fact

• Result - Return to Status Quo

Agreement Mistake (Mistake of Fact by only one party)• Result - Contract is Enforced

Mutual Mistake of Value• Result - Contract is Enforced

Innocent Misrepresentation• Result - Return to Status Quo

Undue Influence• Result - NO CONTRACT

Fraud• Result - Return to the Status Quo

Silence• You do not have a duty to tell them everything, but you must be

honest if they ask

Statute of Frauds What is the Statute of Frauds?

When does it apply?• Sale of Land• Service Contract for rmore than 1 Year• Sale of Goods over $500

What is the Parol Evidence Rule?• What are the Exceptions?

• Integration• Ambiguous Language• Voidable Contractions• Prior Dealings

What is a Merger Clause?

Chapter 9 Once a contract is created it has to be completed.

This happens in three ways:• Complete Performance• Mutual Discharge• Operation of Law

How discharge a contract?• Mutual Rescission • New Contract• Alternative Duties• Impossibility

Complete Performance Remember,

• What are these and what are their results?

Complete Performance• Result: Contract ends

Substantial Performance• Result : The breaching party has to pay to finish the job.

Inferior Performance• Result: The breaching party has to pay to finish the job.

Material Breach • You can:

• Cancel the contract• Change the contract• DEMAND DAMAGES

Some Contracts have ConditionsWhat is a Condition

• There are 3 kinds of conditions• Condition Precedent• Condition Subsequent• Concurrent Conditions

Once a Contract is Broken. . . Rescission and RestitutionMonetary Damages

What are the Damages You may have to Pay? Cost of Cover / Cost of Replacement

• If you have to replace the product they failed to send, they have to pay the cost.

Compensatory Damages• Money Spent to go back to the position they should have been in

had you done your part.

Detrimental Reliance• Money they spent on buying products or investing in stuff because

they believed you would fulfill your part of the contract• i.e. money spent building a shop because they thought you would

deliver the product.

Consequential Damages• Money they had to spend as a consequence of your breach.

Because you didn't do your job, these damages resulted.• i.e. Lost Profits.

Liquidated Damages (Instead of the other damages)• Contractually agreed upon amount of money that you pay if you

do something wrong. Punitive Damages

• Punishment Fines

Mitigation of the Damages If you are hurt, you have a duty to limit the amount of damages

you suffer if you can.

You can't just sit back and force them to pay everything. If you can, you should try to find a replacement product or find a new buyer or something.

In this situation, the breaching party will only have to pay the money you still lost after you limited the damages.

Equitable Remedies Specific Performance

• Unique Products• Land• etc.

Injuctions

New Party - the Third Party There are 3 types of 3rd Party Contracts:

• Assignment of Rights• A right is something you deserve or own• So assignment of Rights is giving away your ability to take or

derserve something.• I.E. Assigning away your rights to a payment to another

person, they get your money instead of you.• Delegation of Duties

• Give someone else your responsibility or job.• Cannot happen in many service contract because they are

based on you having unique skills.• Intended 3rd Party Beneficiary

• I make a contract that benefits someone else.• I have to intend for you to benefit.