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115 Cards in this Set
- Front
- Back
Define Contract
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promise or set of promises for breech of which the law gives us a remedy
set of voluntary promises that law will enforce for private parties |
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Court and contracts
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court will not interfere with the terms of a contract
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All promises are contracts.
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False
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Common law
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man made law
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Sources of contract law
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common law
uniform commercial code |
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uniform commercial code
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developed because of need for uniformity
article 2 deals with the selling of goods |
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define good
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a movable thing; not a service of intangibles
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5 types of contracts
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bilateral vs unilateral
express vs implied void vs voidable unenforceable executory vs executed |
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define Bilateral Contract
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promise for a promise
promise to do one thing if promise to do something else |
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define Unilateral contract
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one party makes a promise and the other party acts in response to that promise
promise in exchange for a performance promise for an act |
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define express contract
give exampled |
one where parties overtly and expressly manifest their intent to enter into an agreement
written or oral ex: lease |
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define implied contract
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inferred or implied by behaviors or parties or circumstance
ex: doctor or dentist office |
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define quasi contract
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sometimes used by the court
when court treats it as a contract when none exists used when one pary has been given a benefit to the detriment of another |
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define void contract
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legal requirement is missing
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define voidable contract
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can be enforced but could be canceled by one or more of the parties
ex: contract with a minor |
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define unenforceable contract
give example |
all requirements are present, but contract faulty because of some other legal rule
ex: want remedy after statue of limitations are up |
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executory contract
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while parties are still performing under contract
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executed contract
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all performances have been completed per terms of agreement
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Contract formation
list all parts needed for contract to be present |
agreement
consideration capacity genuineness of assent legality of purpose |
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agreement
list and define 2 parts of agreement |
offer - promise to do something or refrain from doing something
acceptance - offeree's positive response to the offerors proposed contract |
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Agreement - offer
requirements of a valid offer |
present intent to enter into a contract - more than joking, or invitation to do business
reasonably define the terms of contract communication of the offer to the offered |
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examples of critical terms (part of agreement for contract)
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payment
method quantity identification of parties define subject matter |
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agreement - offer
duration of offer |
revocation - offer can be revoked anytime prior to acceptance
set duration within the offer itself if no duration established, use what is reasonable offer can expire by rejection; counteroffer is a form of rejection |
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agreement - offer
option contract |
seller leaves offer on the table for a particular duration of time
typically, party being offered contracts pays for this option while they decide whether to accept contract or not |
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agreement - acceptance
mirror image rule |
acceptance terms must reflect the offer terms
anything else is counter offer |
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anyone can accept the offer
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false. only the offeree can accept the contract
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agreement - acceptance
mailbox rule |
acceptance is affective when sent, even if it is never received
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define consideration
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bargain for a legal value that one party agrees to pay or provide to secure the promise of another
distinguishes a contract from a gift courts do not determine how much consideration is enough |
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contract - consideration
preexisting legal duty rule |
if already obligated to do something, not enough consideration for a contract
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define statute of fraud
give example |
certain contracts to be enforceable have to be in writing
Ex: contract for sale of land, contracts in consideration of marriage, contract for the sale of goods over $500 |
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define parole evidence rule
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when a contract has been reduced to a writing, with the intent that the written document represents the entire agreement, neither party can introduce oral or written evidence to prove or disprove contract
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exceptions to parole evidence rule
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presence of fraud
complete contract ambiguities |
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contract - types of capacity
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age capacity - must be 18 years of age
mental capacity - are they mature enough to appreciate what they are getting into? are they able to understand the terms of contract? |
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exceptions to mental capacity
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intoxication
mentally impaired - voidable legal incompetence - void not as much protection for intoxicated as for age capacity |
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define genuineness of assent
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parties must knowingly agree on the same thing
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types of genuineness of assent
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misrepresentation or fraud
duress |
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genuineness of assent - contract
define misrepresentation and fraud |
misrepresentation - usually because someone has relied upon an opinion
lacks the intent to deceive fraud - intent to deceive both can be voidable contract |
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genuineness of assent - contract
define duress |
when one part is physically forced into a contract or when you've been deprived of a meaningful choice to enter into an agreement
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genuineness of assent - contract
2 types of duress |
physical - gun to your head
emotional - have to enter into a contract because you have no other choice makes contract voidable at option of person with duress |
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genuineness of assent - contract
define undue influence |
when one part uses a close personal relationship with another party to gain contractual benefits
relationship of trust, reliance between parties |
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genuineness of assent - contract
example of undue influence |
elderly people being tricked into leaving all of their money to their caregiver upon death
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contract - legality of purpose
define |
a contract that is for legal purpose
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genuineness of assent - contract
define unconscionable contract give example |
so one sided, to enforce it would be unfair
price fixing; against public policy |
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contract - remedies
list 2 and define types of remedies |
law - legal remedies, usually monetary remedies
equity |
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contract - remedies
define compensatory damages |
to put the parties in the position they would have been if the breech had not occurred
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contract - remedies
define consequential damages |
any indirect losses experienced because of breech
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contract - remedies
example of incidental damages |
cost of phone calls, transportation, etc.
have a duty to mitigate loss |
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contract - remedies - equity
define specific performance |
a court will require the breeching party to perform as directed under the contract
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contract - remedies - equity
define injunctive relief |
a court orders a party to do something or prevent a part to do something
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contract remedies
list 2 types of equity |
specific performance
injunctive relief |
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Requirements of Credit Contract
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How much is being financed
Rate of interest payment information penalties for late/non payment any statutory disclosures you're required to make |
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List statutory requirements - credit contract
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state usury laws
sub-prime lending market equal credit opportunity act truth in lending act advertising credit cards fair credit billing act fair credit reporting act |
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define state usury laws
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charging an interest rate higher than maximum permitted by law
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penalties for state usury laws
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depends on jurisdiction
making contract void require creditor to forfeit interest and principal some say forfeit anything above and beyond legal rate pay monetary find |
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define sub-prime lending market
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loans where a high rate of interest is charged and the debtor is usually required to pledge collateral
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define equal credit opportunity act
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piece of federal legislation that was passed to ensure that credit would be awarded or denied based upon the merits of an applicant (ability/inability to pay)
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Equal credit opportunity act - designed for...
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to combat gender discrimination
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Equal credit opportunity act - restrictions
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not based on race, religion, gender, or age
not supposed to ask: planning on having a family/child, marital status, receive child support payments, etc. |
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Equal credit opportunity act - enforced by
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FTC
can bring forth private lawsuits receive punitive damages |
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define truth in lending act
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make sure debtors are treated fairly through adequate disclosure of information/credit terms
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requirements of TILA
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debtor must be a natural person
loan has to be for a household or personal use creditor must be in the business of extending credit credit is subject to some sort of finance charge |
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requirement of advertising financing
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must disclose all of the terms
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responsibilities of credit cards
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not supposed to send credit cards to your home
most you can be responsible for as a credit card holder is $50 |
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define fair credit billing act
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allows the debtor the opportunity to challenge figures that show up on monthly statements
debtors responsibility |
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fair credit reporting act is designed to..
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protect debtors
can challenge things on credit report |
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requirements for enforcement of credit contracts
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collateral
creditor collateral rights fair debt collection practices act judgment |
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2 types of collateral
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security interest
security agreement |
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list creditor collateral right
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can't harass debtors
protects creditor |
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describe fair debt collection practice act
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third party creditors
initial creditor has assigned account to third party cannot show up at inconvenient places cannot call during inconvenient hours |
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describe judgment or credit contract
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can start collecting
try to avoid judgment because it costs money |
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describe bankruptcy
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designed to give debtor a fresh start
happens because of medical bills, loss of job, divorce, mismanagement of money federal law |
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forms of bankruptcy
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chapter 7 - liquidation petition/straight bankruptcy
chapter 11 - reorganization chapter 13 - wage earner petition |
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Bankruptcy - general
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liquidation petition/straight bankruptcy
available to businesses and individuals voluntary or involuntary given protection or relief - creditors cannot get assets trustee liquidates assets and pays off creditors |
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reform in chapter 7
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house used to be off limits for liquidation
certain dollar amount by way of equity on home clothes, jewelry are usually safe |
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chapter 11
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reorganization
popular among businesses but individuals are eligible voluntary or involuntary debtors work out a payment plan on debt keep all of their assets allows businesses to remain open |
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chapter 13
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wage earner petition
only available to individuals debtor must have a steady stream of income limited amount of debt only voluntary creditors restricted from getting debtors assets allowed 3-5 years to pay off all debt |
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creditor priority in bankruptcy
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secure creditors
priority creditors - child support, wages of employees general creditors |
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non-dis-chargeable debt
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money to government
student loans child support |
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Define principal agent relationship
characteristics |
one party acts on behalf of another
consensual bother owe fiduciary duties to each party both expections from each party |
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agency power of attorney
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limited
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principal
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granting authority to agent
the one who has something done on their behalf employer |
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agent
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person who has been hired by the principal
the one acting on the behalf of the principal principal is bound by act agent does employees |
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master server relationship
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relationship where the principal/master excercises a great deal of control over the agent/servant
master is responsible for the negligent acts commited by servant |
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level or supervision
master servant relationship |
the greater the level of supervision the more it looks like the masater servant relationship
look at to determine if the you have this relationship |
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things to look at when determinign if master servant relationship
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level of control
length of relationship regularity of hours or pay nature of work in question |
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independent contractor
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hired by principal to perform a specific tast, but not under direct control or supervision of the hiring party
prinicapl usually not responsible for negligence |
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agency law
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stems from common law
not statutory in nature |
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express authority
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employment contract; express agreement
agent given express authority to act on behalf of principal |
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requirements of express authority
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record (not necessarily mandatory)
capacity - capacity of prinicapl; are they of a certain age, mature enough to understand agreement |
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implied authority
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extension of express authority
not specifically covered in agreement |
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apparent authority
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prinicpal hold themselves out to a third party as if they have an agent
look at what third party thinks |
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agents duties
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duty of loyalty
duty of obedience duty of care |
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principals duties
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duty of compensation
duty of reimbursement duty to treat agent fairly |
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disclosed principal situation
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3rd party knows agent is working on behalf of prinicpal and principal is known
principal is liable |
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partially disclosed principal
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3rd party knows agent is working on behalf of principal but principal is not known
can hold agent or principal liable |
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undisclosed principal situation
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3rd party does not know that a princiapl exists
agent liable |
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when is principal agent contract terminated?
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when task is complete
agent quits principal fires agent look for lingering apparent authoiry |
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termination of contract - notice
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give notice to people you do business with so that there is no lingering apparent authority
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at will agreement
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serve at the pleasure of your employer
agent can quit at anytime principal caan fire agent |
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fair labor standards act
flsa |
apply to all businesses that affect interstate comerce
federal law enabling statute that sets of administrative agencies to take care of employee law issues |
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issues - flsa
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minimum wage
regulation of overtime pay child labor provisions |
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flsa - enforcement
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department of labor
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penalties - flsa
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fines
injunctions - civil criminal punishment remedies for private action |
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equal pay act - flsa
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illegal to pay males and females different if they have the same type of responsibilities
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osha
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occupational safety and health act
federal agency designed to deal with workplace safety issues establish workplace safety standards and enforces them |
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what osha does
not the definition |
handle complaints
surprise inspections record keeping |
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penalties - osha
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injunctions
civil prosecution criminal charges |
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employee impairment
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increased liability for employers
decreased productivity drug testing - legal; reasonable suspicion |
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cobra
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ability to purchase continued health insurance at the group rate for a certain period of time
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family and medical leave act
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allows employee with a family need up to 12 weeks of unpaid leave in any 12 month period
must be given a similar job when return |
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social security
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those who could work shoulder the responsibility to those that could not work
death benefits, disability, retirement employee pays half; employer pays half protects socity |
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unemployment compensation
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allows someone who looses their job through no fault of their own, give % of compensation for approximately 26 weeks, but be able and available to work
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workers comp
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to provide benefits to those who are injured while on the job
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how employer gets workers comp coverage
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purchase private insurance
contribution to a state managed fund individual employer can pay our claims themselves |
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workers comp benefits
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half to two-thirds of regular wages
length of time varies depending on type of injury |