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113 Cards in this Set
- Front
- Back
Contract
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a legally enforceable promise
involve either an exchange of promises or "promise for performance" |
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Sources of Contract Law
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Common law that the court decides
Legislation such as the UCC (uniform commercial code) that applies to the SALE OF GOODS |
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Breach of Contract remedies
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Negotiated Settlement
Arbitration Compensatory Damages Specific Performance Consequential Damages Rescission Nominal Damages Liquidated Damages |
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compensatory damages
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remedies a court would award the plaintiff that would make them economically whole as if no violation in the contract
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specific performance
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court awarded remedies for extreme circumstances regarding "unique" goods
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rescission
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a remedy that involves the party who was violated to be made as if they were before the contract existed
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liquidated damages
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when losses from breach of contract are unknown, and the court awards a set amount of $ to the plaintiff that may or may not be the same amount they lost
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mitigation of damages
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the victim of a breach of contract must take reasonable steps to reduce damages
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bilateral contracts
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involve each party making a mutual promise
(Promise for a promise) courts will assume this when unclear |
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unilateral contracts
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involves a present act in return for a promise of future performance
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express contracts
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contracts that arise from parties actually discussing the terms of agreement (ex. meal plan)
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implied-in-fact contracts
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contracts that arise from the conduct of the parties rather then words (i.e. talk to accountant for advice, he sends you a bill without asking, its just implied)
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quasi-contract
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when a contract is implied in law
ex. if you pay a bill twice, its implied by law that you are either credited the second payment or sent it back in a check |
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valid contract
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enforceable agreement because all of the essential requirements of a contract are present
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void contracts
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agreements where the court says nothing is enforceable either because:
a) lack of one or more essential elements to form a contract OR b)are illegal and against public policy (i.e. a drug contract) |
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voidable contracts
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binds one party, but allows one party to get out (ex. fraud, misrepresentation, duress, etc.)
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executed contract
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the parties have performed
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executory contract
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the contracting parties have not yet performed
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5 elements of a contract
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offer
acceptance consideration capacity of persons to a contract legal purpose |
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offer
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a specific promise and a specific demand
must be DEFINITE and SPECIFIC |
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terminations of offer
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provision of offer (terminates at noon)
lapse of time-specific or reasonable rejection of offer revocation of offer (sometimes leads to counter offer) destruction of subject matter offeror's death/insanity performance becomes illegal |
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acceptance
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necessary to form a binding contract.
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mirror image rule
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acceptance must mirror or match offer
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is silence acceptance?
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no
UNLESS: automatic shipment conduct of buyer (UCC) prior course of dealing (buyer taking prev. shipments until tells seller to stop) |
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are gift promises binding?
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no
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deposited acceptance rule
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mailbox rule: acceptance is binding as soon as it is deposited with postal service and CANT be revoked
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consideration
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a legal obligation or surrendering of a legal right
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agreement not to sue
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legal consideration saying you won't sue offeree even if grounds exist
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preexisting obligation
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once parties have agreed at a set price or performance, this can't be changed from in the future, even if the offerer accepts a new deal with the same party
(ex. promise to do job for $800, then say you'll do it for $1200, even if other party agrees, they only have to pay you $800) does NOT apply to UCC sale of goods |
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promissory estoppel
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if the promisee justifiably relies on a promisor's promise to his/her economic injury, then consideration is not necessary
if you've started a contract, you can't revoke it |
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3 classes of people who lack capacity to sign contracts
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minors (unless parent cosigns or necessaries of life)
intoxicated persons (hard to prove) mentally incompetent persons |
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fraud
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intentional misrepresentation of material fact (i.e. you wouldn't have signed if you were aware). VOIDS contract
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misrepresentation
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misstatement without intent. innocent party can void contract
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duress
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forced to sign contract via physical and economic threats. can VOID a contract
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undue influence
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when one party is taken advantage of to sign a contract. can VOID a contract
(ex. using a dieng sibling to sway mother to change will and give more to you) |
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mutual mistake of fact
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both parties misunderstand a basic fact in the contract. rescission usually occurs here, and the contract can be VOIDED
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unilateral mistake
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one party is wrong about a material fact. tends to still bind contract
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lawful purpose
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for a contract to be enforceable, it must have a legal purpose
1) illegal contracts will not be honored 2)contracts that restrain trade will not be honored (ex. price fixing between airlines) |
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Covenant not to compete
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contract saying you won't compete with party. illegal unless time is reasonable,
space is reasonable, and there is a valid business purpose |
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Third party rights
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assignment of contract = transfer of rights under a contract ( not all can be assigned)
novation - a three or more party contract where one party relieves the obligations of one party and assigns them to the third party temporarily (ex. sublease) in general though, third parties have no rights to sue for damages in a contract if breached |
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statute of frauds
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law that says what types of contracts should be in writing
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what contracts must be in writing?
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contracts for sale of interests in land
collateral contracts to pay debt of another contracts that cannot be performed within 1 year of making contracts for sale of goods that are tangible, personal property and > $500 (ex. custom t shirts) excludes real estate and services |
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Parol Evidence rule
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parties to a complete and final contract may not use oral evidence in court that changes meaning of written terms
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interpretation of contracts
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court looks at trade usage to determine intention of contract
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3 levels of performance on contracts
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complete performance - finished
substantial performance - most of work complete material breach - little of work was done |
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excuses for nonperformance
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impossibility of performance - subject matter of contract was destroyed, person becomes ill or dies, promise becomes illegal
commercial impractability- difficult to get out this way because court expects you to know if its practical or not, even in ridiculous circumstances waiver/release from contract |
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waiver
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when a party intentionally lets go of their right to enforce a contract
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release
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when a party announces the other party no longer has to perform on contract as promised
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tort
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a civil wrong other then breach of contract
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intentional tort
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deliberate action that causes injury
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negligence tort
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injury following a failure to use reasonable care
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strict liability tort
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impose legal liability for injury even though a liable party neither intentionally nor negligently caused the injury
ex. defective products |
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duty and causation
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one is not liable for another's injury unless they have a duty to protect the person and they caused the injury
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typical tort remedies
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dollar damages
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assault
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intentional tort involving placing another person in immediate apprehension of their physical safety (including the expectation of)
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battery
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intentional tort involving illegal touching of another
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Intentional Infliction of Mental/Emotional Distress (IIED)
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intentional infliction of mental distress by battery to the emotions
to prove most states require that physical symptoms also be displayed (sleeplessness, headaches, etc.) |
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3 basic elements of IIED
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1. the defendant's conduct was extreme and outrageous
2. defendant intended to inflict severe emotional distress or knew that there was a high probability that his conduct would inflict severe emotional distress 3. the defendant's conduct did cause severe emotional distress |
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invasion of privacy
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evolving tort involving one of these actions:
1) use of a person's name or likeness for personal use 2)intrusion of a person's physical solitude 3) disclosure of highly objectionable private information about a person (media is protected from this under 1st amend) |
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false imprisonment
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tort involving the intentional and unjustified confinement of the non-consenting person
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malicious prosecution
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tort involving causing someone to be arrested without criminally proper grounds (false arrest)
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trespass
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tort involving a person entering someone else's land without consent and remains there after being asked to leave
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conversion
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the wrongful and unlawful exercise of power and control over the personal property of another (stealing office supplies)
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defamation
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the publication (heard by a 3rd party) of untrue statements about another that hold up that individual's character or reputation to contempt or ridicule
consempatory AND punitive damages available |
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libel
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written defamation
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slander
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oral defamation
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can corporations sue for defamation?
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yes, if it affects the way their ability to conduct business
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fraud
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the intentional misrepresentation of a material fact that is justifiablely relied upon by by someone to his or her injury (ex. padding expense report)
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injurious falsehood or trade dispargement
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similar to defamation for businesses, but applies to product not reputation/character
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intentional interference with contractual relations
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when one person intentionally interfere's with another's contractual relations
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negligence
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a tort where one who has a duty to act reasonably acts carelessly and causes injury to another
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5 elements of a negligence
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duty of care - unless through nonconduct
unreasonable behavior by the defendant that breaches that duty causation of fact - actually caused injury proximate causation - those engaged in the activity are actually legally liable for the foreseeable risk of their actions actual injury - the plaintiff must have actually been hurt |
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aggravated negligence
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negligence is willful and wanton or shows an extreme lack of care
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contributory negligence
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a plaintiff would be absolutely barred from any damages if the plaintiff's actions were shown to contribute to the injury
no longer applies today |
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comparative responsibility
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replaced contributory negligence.
means if plaintiff contributed 20% to the injury, then the money damages received will be deducted by 20% |
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strict liability in tort
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the legal responsibility for injury-causing behavior that is neither intentional nor negligent.
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strict products liability
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rules in most states about defective products that make them liable under this law
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two types of product defects
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production defects - when products are not manufactured to a manufacturer's own standard
design defects - when a product is manufactured according to the manufacturer's standards, but the product injures a user due to its unsafe design |
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is contributory negligence a defense for strict liability?
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no, but assumption of risk is
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respondent superior
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an employer may be held liable for their employee's tortuous acts unless they can prove the employee was frolic and detour meaning what he was doing was outside of his duty as a worker
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ultrahazardous activity
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one is engaged in ultrahazardous activity and they may be held strictly liable for any injuries.
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dram shops act
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liability on tavern owners for injuries to third parties caused by their intoxicated patrons
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3 kinds of compensatory damages
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past and future medical expenses
past and future economic loss past and future suffering |
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punitive damages
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used to punish defendant for committing intentional torts and for negligent behavior considered gross or willful or wanton
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contingency fees
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allows plaintiff to sue without paying attorneys fees
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workers compensation act
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statutes designed to protect employees and their families from the risks of accidental injury, death, and disease resulting from their employment
Employers must pay worker's compensation when: - The injury is accidental (i.e. can sue for intentional injury) - The injury arose out of and in the course of employment |
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felony
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punishable by fine or imprisonment for more then 1 year
cases are heard by grand jury to decide if enough evidence to bring to trial |
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misdemeanors
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punishable by fine or imprisonment less then 1 year
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intent
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knowingly or willfully (varies by state) purposefully wanting to commit a crime
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3 types of pleas
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guilty
not guilty nolo contendre (no contest) |
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no contest
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sentenced as if guilty, but not admitting guilt
this means if you plead no contest in a criminal court and still have to be tried in a civil court --> the civil court must prove you're guilty |
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grand jury
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5th amendment states that before a serious crime can be tried, a grand jury must decide that there is enough evidence to try.
all proceedings are secret, except witnesses may submit their testimonies to the public. a majority of the at 16-23 participants must say there is probable cause a crime has been committed and the evidence is sufficient to warrant the accused standing trial |
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legal counsel in grand jury
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legal counsel is allowed, but they may not participate in the grand jury hearings (i.e. can't go inside)
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fourth amendment
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protects against illegal search and seizure. probable cause is needed to obtain a warrant. exigent circumstances may allow a police officer to skip this however
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fruits of the poisonous tree
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evidence obtained illegally (ex. searching a place w/o a warrant) may not be used in a court of law
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fifth amendment
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protects against self incrimination, but you still have to produce evidence that the court asks for
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double jeopardy
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prevents government from retrying an individual for the same offense
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mail and wire fraud
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each time a criminal uses the post office, telephone, or computer to do business --> 1 count of mail fraud
penalty: fines and up to 20 years in prison |
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health care fraud
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fraud related to inflating a medical bill
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bankruptcy crimes
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when a company hides some of its assets to keep for itself when they should be given to the trustees to distribute to their creditors
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conspiracy
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agreement or partnership for criminal purposes
anyone who has even listened in on a conspiracy is considered part of it |
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overt act
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any knowingly effort by a conspirator to carry out the conspiracy plan
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what is needed to prove conspiracy?
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gov must prove:
1. 2 or more persons came to a mutual understanding to try and accomplish a common and unlawful plan 2. defendant willingly became a part of this group 3. during the conspiracy, at least one of the overt acts described by US was committed 4. such overt act was carried out in a way to accomplish a goal int he conspiracy |
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obstruction of justice
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attempts to interrupt due process
ex. destroying evidence, or telling someone to destroy evidence for you 5 years in prison and/or 5k fine |
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false statement to a bank
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making a false statement that changes the way a bank would lend money to you (even if it doesn't mislead bank)
2 years in prison or up to 5k fine |
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false statement to a federal agency
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making a false statement to any federal agency (sec, epa, etc)
5 years and 10K fine |
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larceny
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unlawful taking of personal property with intent to deprive owner of it permanently
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robbery
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larceny by violence (weapon was used)
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burglary
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breaking into a building with the intent of larceny or another felony
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RICO
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racketeer influenced corrupt organizations
imposes civil and criminal damages against organization if persons participate in interstate commerce and illegal activity (mafia) severe criminal penalties and civil fines |
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cyber crime
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crimes committed using the internet
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endangering workers
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placing employees at risk to their health and safety of work enviornment - unusual to be prosecuted because workers comp makes up for it, but OSHA can also bring these violations up as well
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aiding and abetting
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ex. the getaway driver versus the guy who was in the room planning the conspiracy
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