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*******Study Guide/Outline 2017 Part One

 
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PostPosted: Sat Aug 20, 2016 4:07 pm    Post subject: *******Study Guide/Outline 2017 Part One Reply with quote

COURSE OUTLINE LAW 1 PART ONE

THIS DOCUMENT IS COPYRIGHTED AND AS SUCH IS GIVEN ALL PROTECTION OF U.S. COPYRIGHT LAWS. ANY UNAUTHORIZED USE OF THIS DOCUMENT WITHOUT THE PERMISSION OF THE AUTHOR IS AGAINST THE LAW AND PUNISHABLE BY ALL APPLICABLE LAWS.


PLEASE NOTE; THERE ARE GRAMMATICAL ERRORS CONTAINED HEREIN; THESE ARE EXCERPTS FROM "MY" LECTURE NOTES AND I HAVEN'T MADE SURE THAT THEY ARE GRAMMATICALLY CORRECT. THERE ALSO MAY BE SOME TYPOGRAPHICAL SPELLING ERRORS, THERE ARE SOME SUCH ERRORS THAT I HAVEN'T CORRECTED.

U.S. Law primarily based on English common law.

SOURCES OF LAW IN THE U.S.

U.S. Constitution - (Federal)

State constitutions

Federal and state statutes

Ordinances

Administrative agency rules and regulations

Judicial decisions by federal and state courts.

U.S. CONSTITUTION


FUNCTIONS OF THE LAW

PROVIDING A BASIS FOR COMPROMISE: E.G. 90% OF ALL LAWSUITS SETTLED PRIOR TO TRIAL

FLEXIBILITY OF THE LAW

EXAMPLE: Brown v. Board of Education. Overturned old "separate but equal" doctrine that condoned separate schools for black children and white children. c.f.: Roe v. Wade

FAIRNESS OF AMERICAN LAW

O.J. AND RODNEY KING

HISTORY OF AMERICAN LAW

ENGLISH COMMON LAW

Cases decided by the law courts; EVENTUALLY equity courts/
ADOPTION OF ENGLISH COMMON LAW IN AMERICA

All states, except Louisiana, base legal systems primarily on English common law. Because of French heritage, Louisiana law based on Civil Law.

SOURCES OF LAW IN THIS COUNTRY

THE CONSTITUTION OF THE UNITED STATES OF AMERICA

Supreme law. Any law, federal, state, local, in conflict is unconstitutional, therefore, unenforceable.

Established structure of the federal government; created the three branches of government and gave them their powers:

Legislative (Congress)�power to make (enact) the law;

Executive (President)�power to enforce the law; and

Judicial (courts)-power to interpret and determine the validity of the law.

State constitutions:

Valid unless they conflict with U.S. Constitution or any valid federal law. If no conflict w/Federal Constitution they are the effective law for each state wherein they are enacted.

CODIFIED LAW

STATUTES

WRITTEN LAWS

FEDERAL STATUTES

Include: internal revenue laws, antitrust laws, securities laws, bankruptcy laws, labor laws, equal employment opportunity laws, environmental protection laws, consumer protection laws, and such.

State legislatures enact state statutes. State statutes include vehicle laws, corporation laws, partnership laws, workers' compensation laws, the Uniform Commercial Code, and the like.

The statutes enacted by legislative branches of the federal and state governments are organized by topic into code books. This is often called CODES. (Same meaning as Statutes)

ORDINANCES

Established by municipalities are also codified.

JUDICIAL DECISIONS

Deciding individual lawsuits, federal and state courts issue judicial decision: written opinions: judge or justice usually explain legal reasoning used to decide the case. These opinions often include interpretations of statutes, ordinances, administrative regulations, and the announcement of legal principles used to decide the case. Many court decisions are printed (reported) in books that are available in law libraries.

HOW IT WORKS:

THE DOCTRINE OF STARE DECISIS

(Latin for "to stand by the decision").

Based on common law tradition of past court decisions become precedent for deciding future cases. Lower courts follow precedent established by higher courts. That is why all federal and state courts in the United States must follow the precedents established by U.S. Supreme Court decisions.

Courts of one jurisdiction not bound by precedent established by courts of another jurisdiction, although they may look to each other for guidance.

Cases of first impression.


REGULATIONS AND ORDERS OF ADMINISTRATIVE AGENCIES

Federal and state legislative and executive branches are empowered to establish administrative agencies to enforce and interpret statutes enacted by Congress and state legislatures.

Many of these agencies regulate business. Congress or the state legislatures usually empower these agencies to adopt administrative rules and regulations to interpret the statutes that the agency is authorized to enforce. These rules and regulations have the force of law. Administrative agencies,,usually have the power to hear and decide disputes. Their decisions are called orders. Because of their power, administrative agencies are often informally referred to as the "fourth branch" of government.


U.S. CONSTITUTION. Reported to Congress September 1787. State ratification: completed 1787. Amendments: 27. First 10 are the Bill of Rights.

Doctrine of Separation of Powers

THE SUPREMACY CLAUSE

Establishes Federal Constitution, treaties, federal laws, and federal regulations as supreme law of the land. State and local laws in conflict with valid federal law are unconstitutional. The concept of federal law taking precedent over state or local law is commonly called preemption doctrine. Congress may expressly provide particular federal statute exclusively regulates that specific area or activity. No state or local law regulating the area of activity is valid if there is such a statute. More often federal statutes do not expressly provide for exclusive jurisdiction. Then state and local governments have concurrent ]urisdiction to regulate the area or activity. However, any state or local law that "directly and substantially conflicts" with valid federal law is preempted under the Supremacy Clause.

THE COMMERCE CLAUSE OF U.S. CONSTIUTION
Has greatest impact on business than any other provision in the Constitution

FEDERAL REGULATION OF INTERSTATE COMMERCE COMMERCE CLAUSE

Federal government given authority to regulate interstate commerce. Originally, courts interpreted: Federal government could regulate only commerce moved in interstate commerce. The modern rule, however, allows the federal government to regulate activities that AFFECT interstate commerce. e.g: Regulated activity does not itself have to be in interstate commerce. Thus, any local (intrastate) activity that has effect on interstate commerce subject to federal regulation. Theoretically this test subjects substantial amount of business activity in the United States to federal regulation.

EXAMPLE: Famous case: Wickard, Secretary of Agriculture v Filburn (WHEAT CASE)

FACTS: Federal statute limited amount of wheat farmer could plant and harvest for home consumption. Filburn, a farmer, violated law.

HOLDING: U.S. Supreme Court upheld the statute on grounds it prevented nationwide surpluses and shortages of wheat.

REASONING: Wheat grown for home consumption would affect the supply of wheat available in interstate commerce.

Following case, U.S. Supreme Court had to decide whether challenged activity had effect on interstate commerce.

United States v. Lopez 115 S.Ct. 1624 (1995) United States Supreme Court

FACTS: 1990; Congress enacted Gun-Free School Zone Act (Act), Federal Statute made it a crime "for any individual knowingly to possess firearm at place individual knows, or has reasonable cause to believe, is a school zone." 3/10/92, Alfonso Lopez, Jr., 12th-grade student at High School in San Antonio arrived at school w/ concealed .38 caliber handgun and five bullets. Caught/arrested, charged with violating the Act.

HISTORY: Court of appeals: Act did not recognize "interstate commerce"; therefore unconstitutional
exercise of federal government's power under Commerce Clause.

ISSUE: Is possession of a gun in a local school zone a commercial activity that substantially affects interstate commerce?

DECISION: No. Act neither regulates commercial activity nor
requires possession of firearm be connected in any way to interstate commerce.

The Supreme Court found activity of carrying a gun in a local school zone does not involve a channel or instrumentality of interstate commerce or have a substantial effect on interstate commerce.

Justice Stevens, dissenting.

Guns are both articles of commerce and articles that can be used to restrain commerce.

Notes
* Indeed, there is evidence that firearm manufacturers--aided by a federal grant--are specifically targeting school children as consumers by distributing, at schools, hunting related videos styled "educational materials for grades four through 12," Herbert, Reading, Writing, Reloading, N. Y. Times, Dec. 14, 1994, p. A23, col. 1.

COLLENBINE HIGH SCHOOL KILLING RAMPAGE: April 20, 1999

STATE AND LOCAL GOVERNMENT REGULATION OF BUSINESS-STATE "POLICE POWER"

States did not delegate all power to regulate business to federal government. Retained power to regulate intrastate and much interstate business activity that occurs within their borders. Permits states (and, by delegation, local governments) to enact laws to protect or promote public health, safety, morals, and general welfare. This includes authority to enact laws that regulate the conduct of business. Zoning ordinances, state environmental laws, corporation and partnership laws, and property laws are enacted under this power. State and local laws cannot unduly burden interstate commerce. If they do, they are unconstitutional because they violate the Commerce Clause. EXAMPLE: If federal government has chosen not to regulate area that it has the POWER to regulate (Dormant Commerce Clause), but state does regulate it, the state law cannot unduly burden interstate commerce.

Case: Court had to determine whether action by local government constituted undue burden on interstate commerce in violation of Commerce Clause

Fort Gratiot Sanitary Landfill, Inc. v. Michigan Department of Natural Resources 112S.Ct.2019, 119L.Ed.2d 139 (1992) United States Supreme Court

FACTS: 1988, Michigan added Waste Import Restrictions to its Solid Waste Management Act. Restrictions prohibited privately owned landfills in state from accepting solid wastes (e.g., garbage, rubbish, sludges, and industrial waste) from any source outside county in which landfill was located unless county expressly permitted it. (Fort Gratiot) submitted application to county government to allow acceptance of up to 1,750 tons/day out-of-state solid waste. County rejected application. FG sued county and state, alleging Restrictions violated Commerce Clause.

ISSUE: Do Restrictions violate Commerce Clause?

DECISION: Yes.

REASONING: "Solid waste, even if it has no value, is article of interstate commerce." Case involved "dormant" Commerce Clause because no federal law regulated same subject matter as the state law in question.

THE BILL OF RIGHTS AND BUSINESS

First 10 amendments, Bill of Rights, approved by states and became part of U.S. Constitution in 1791.

FREEDOM OF SPEECH

One of most honored freedoms many other constitutional freedoms would be meaningless without it. Protects speech only e.g.: oral, written, and symbolic speech but not conduct. This Freedom is NOT ABSOLUTE.

U.S. Supreme Court places speech into three categories:

FULLY PROTECTED:

Speech that the government cannot prohibit or regulate.
EXAMPLE: Political speech: Government could not enact law that forbids citizens from criticizing the current administration.

LIMITED PROTECTED

U.S. Supreme Court: Government cannot forbid but can subject to time, place, and manner restrictions. EXAMPLES: Offensive speech (not obscene speech) that offends many members of society. May be restricted by government under time, place, and manner restrictions. Federal Communications Commission (FCC) can regulate use of offensive language on television by limiting such language to time periods when children would be unlikely to be watching (e.g., late at night).

UNPROTECTED SPEECH.

Supreme Court: Following types of speech not protected by the First Amendment may be totally forbidden by the government:

DANGEROUS SPEECH (including such things as yelling "fire" in a crowded theater when there is no fire)

FIGHTING WORDS Likely to provoke hostile or violent response from an average person.

SPEECH THAT INCITES THE VIOLENT OR REVOLUTIONARY OVERTHROW of the government;


UNPROTECTED SPEECH.(CONTINUED FROM PRIOR LECTURE)

Supreme Court: Following types of speech not protected by the First Amendment may be totally forbidden by the government:

DANGEROUS SPEECH (including such things as yelling "fire" in a crowded theater when there is no fire)

FIGHTING WORDS Likely to provoke hostile or violent response from an average person.

SPEECH THAT INCITES THE VIOLENT OR REVOLUTIONARY OVERTHROW of the government;

DEFAMATORY LANGUAGE Written: Libel Oral: Slander
Both need to be published.

CHILD PORNOGRAPHY ABSOLUTE NO PROTECTION!!!!!!

OBSCENE SPEECH: Definition quite subjective. Community standard.

COMMERCIAL SPEECH such as advertising, once considered unprotected by First Amendment. But: Supreme Court's landmark decision changed this rule. The Supreme Court held state statute prohibiting pharmacist from advertising price of prescription drugs unconstitutional because it violated the Free Speech Clause. However, held commercial speech subject to proper time, place, and manner restrictions.

FREEDOM OF RELIGION
FIRST AMENDMENT: Two separate religion clauses.

1. ESTABLISHMENT CLAUSE

Prohibits government from either establishing state religion or promoting one religion over another. Guarantees no state-sponsored religion.

2. FREE EXERCISE CLAUSE

Prohibits government from interfering w/free exercise of religion in the United States. Generally: prevents government from enacting laws either prohibit/inhibit individuals from participating in or practicing chosen religion. It�s not absolute. For example, human sacrifices are unlawful and are not protected by the First Amendment.

EQUAL PROTECTION

State cannot "deny to any person w/in jurisdiction equal protection of the laws."

1. STRICT SCRUTINY TEST

Any government activity/regulation classifies persons based on a SUSPECT CLASS (i.e., race. Standard: most government classifications of persons based on race are found to be unconstitutional.

2. INTERMEDIATE SCRUTINY TEST

Lawfulness of government classifications based on protected classes other than race (such as sex or age). Standard: Whether government classification is "reasonably related" to a legitimate government purpose.

3. RATIONAL BASIS TEST:

Uphold government regulation as long as there is a justifiable rea�son.

DUE PROCESS CLAUSE

Fifth and Fourteenth Amendments to U.S. Constitution contain Due Process Clauses.

No person shall be deprived of "life, liberty, or property" w/o due process of the law.

SUBSTANTIVE DUE PROCESS
Category reguires government statutes, ordinances, regulations, or other laws be clear on their face and not overly broad in scope. E.G.: VOID FOR VAGUENESS.

PROCEDURAL DUE PROCESS

Requires governments must give a person proper NOTICE and HEARING of legal action before person deprived of
his or her life, liberty, or property. E.G.: Government action must be fair. NOT BIASED.

THE PRIVILEGES AND IMMUNITIES CLAUSE

Purpose of Constitution is to promote nationalism. If the states were permitted to enact laws that favored their residents over out-of-state residents, the concept of nationalism would be defeated.

********************************************

STRUCTURE OF THE COURTS:

Every state has two court systems: Federal & State
Active stage of a lawsuit = Litigation.

At Federal Level: Justices appointed for life. Only leave by way of: retiring, death, or impeachment.

In Ca. there isn't separate courts for Civil and Criminal they are both County Superior Court.

Drawbacks: Expensive, time consuming, lots of complex procedural rules.

Ca. State Court system ALL ARE SUPERIOR COURTS: For Each County:

Limited Jurisdiction trial courts used for claims valued at $0-10K

Unlimited Jurisdiction: Used for cases above $10K.

General Jurisdiction:

The Courts (Both Federal & State) that hear appeals are called: Courts of Appeal.

IN ALL APPEALS; AT ALL LEVELS: Attorneys: File Legal Briefs (this includes: parts of the record of the lower court as Evidence to be considered)/ABSOLUTELY NO new Evidence allowed. (If new evidence comes to light must petition for new trial.) Attorneys are allowed to make brief oral. Appellate Court Justices at all levels (Courts of Appeal and both U.S. and Ca. Supreme Court) may ask questions of attorneys.

Very Expensive and very rare. No appeals court will allow in evidence of new facts/The appeals are based on contentions that errors of law took place in the Court below/State Supreme Court is the Court of last resort unless a question of law involved is allowed to go to appeal before the United States Supreme Court.

Federal Court System

Article III Of US Constitution provides: The Federal Govt. judicial power be vested in ONE SUPREME COURT. Congress can establish inferior courts.

The Federal U.S. District Courts:

These are the Federal trial courts. General Jurisdiction. At least one in every state. Geographically called the DISTRICT COURT. 96 Federal Courts in U.S.
In Ca.: There are 4 districts; with 17 separate locations.

California is in the 9th. Circuit. There are 11 all together. THAT�S THE RIGHT NUMBER: 11

There are 9 justices in the U.S. Supreme Court: One Chief Justice and 8 Associates. Chief Justice's role is primarily to assign each of the cases to write. He also has ceremonial tasks: Keeping court running efficiently, sit in as Judge for impeachment of President, swear in the President, etc..

THE SUPREME COURT: Mandatory review almost non-existent-- It has absolute discretion: PETITION FOR CERTIORARI AND IF GRANTED: WRIT OF CERTIORARI. This Court hears only about 200 cases/year


Many special federal Courts: Tax Claims international trade banktrupcty.


The reason for odd number of justices is to HOPE A TIE IS AVOIDED!!!! However due to abstentions from voting, death, or retirement, illness, etc. there may actually be a tie vote If there is a tie vote the lower court�s ruling is the decision in the case.

Cost Benefit analysis: Every time you hire an attorney you must see if it is worth the cost.
Litigants pay their own attorney fees, Court Costs, expert witness, costs, etc. VERY EXPENSIVE.

In certain cases, where if the case is won, there is a prospect of a sum certain, e.g.: Personal Injury cases attorneys take the case on a Contingency percentage fee.



A. JURISDICTION

1. COURTS Jurisdiction:

The Plaintiff must have standing to sue. The Court must have jurisdiction. Case must be brought in correct Venue.

STANDING TO SUE

The plaintiff must have some stake in the outcome

A few states now permit investors to invest money in a lawsuit for a percentage return of any award or judgment. NOT CA.

Hypothetical cases are never heard. Advisory opinion: NOT HEARD

2. SUBJECT MATTER JURIS.

COURT must have subject matter jurisdiction over the case.

JURISDICTION OF FEDERAL COURTS

Case involves a federal question e.g., A case arising under the U.S. Constitution, treaties, and federal statutes and regulations.

WHEREIN FEDERAL COURTS HAVE EXCLUSIVE JURISDICTION
Cases involving: federal crimes, anti-trust; patent and copyright cases; suits against the United States; FAA matters (admiralty, bankruptcy. State courts cannot hear these cases.


DIVERSITY OF CITIZENSHIP: Case between (1) citizens of different states, (2) a citizen of a state and a citizen or subject of a foreign country, and (3) a citizen of a state and a foreign country where a foreign country is the plaintiff.

PURPOSE: promote fairness and do away w/bias.

Federal court must apply the appropriate procedural state law. The Dollar amount of controversy must exceed $75,000.


IN PERSONAM JURISDICTION:

Jurisdiction over the parties. Service of process, Summons and Complaint is served on the defendant to obtain personal jurisdiction over him or her. Must be handed DIRECTLY to the Defendant to be effective.

It may not be possible, therefore there is an alternative method: Court Order for: publication of a notice in a newspaper of general circulation may be permitted.

Corporation is subject to personal jurisdiction in the state in which it is incorporated and is doing business. Service of Process much easier: Go to place and serve. Must follow it up w/Mailing of same paperwork.

If party dispute Court's make special appearance in that court to argue against the jurisdiction. Service of process is not permitted, immunity, during such appearance.

IN REM

State courts have jurisdiction to hear disputes over the ownership of real estate located w/in the state even if one or more of the disputing parties live in another state or states.

QUASI IN REM:

Obtained judgment against defendant in one state and attach property of the defendant that is located, in another state.

LONG-ARM STATUTES

State court can obtain jurisdiction over persons/business located in other states. Need: Defendant has MINIUM CONTACTS w/state.

FORUM-SELECTION CLAUSE PARTIES designate a certain court to hear any dispute concerning nonperformance of the contract.

VENUE:

Requires suit heard by Court w/jurisdiction nearest the location wherein event occurred.

I. ALTERNATIVE DISPUTE RESOLUTION (ADR)

Quicker, cheaper:

Using court system to resolve business and other disputes can take years, cost thousands, if not millions, of dollars in legal fees and expenses.

1. ARBITRATION

Handled by an arbitrator

(a) NON-BINDING. In LA Superior Court, it�s mandatory, (No Choice) Non-Binding. Loser can ask for a Trial De Novo

Evidence and testimony are presented at a hearing = Less formal evidentiary rules are usually applied in arbitration hearings After the hearing: the arbitrator reaches a decision and enters an AWARD.

(b) Binding: Can be by MINI TRIAL

Agree in advance to be bound by the arbitrator's decision and award.

A minitrial is a session, usually lasting a day or less, in which the lawyers for each represent their cases to (usually) a Retired Judge, who has the authority to settle.

ALTERNENATIVE DISPUTE RESOLUTION (CONTINUED)

MEDIATION: No swearing in. Mediator attempts to have PARTIES (Both sides {Plaintiff & Defendant} reach a compromise.

PRETRIAL LITIGATION PROCESS

THE PLEADINGS: Consist of the COMPLAINT AND ANSWER

SUING party MUST FILE A COMPLAINT IN PROPER CT. MUST NAME THE PARTIES AND STATE A VIABLE CAUSE OF ACTION AND ASK FOR A REMEDY.

The Court clerk issues a summons which must be served along w/the Complaint upon the Defendant, and then filed w/the Court.

The Defendant Answers the Complaint:

WITHIN THE ANSWERS/ARE ANY AFFIRMATIVE DEFENSES

E.G. SELF DEFENSE. STATUTE HAS RUN. PRIVILEGE. ETC.

ALSO INCLUDED, IF THE DEFENDANT HAS ANY ARE:

CROSS COMPLAINTS

DEFAND WANTS TO REDRESS INJURIES PLAINTIFF HAS CAUSED HIM. CROSS-COMPLAINANT VS. CROSS DEFENDANT Service by mailing to Plaintiff�s attorney/plaintiff w/o an attorney, and filed with the Court.

THE COMPLAINT MUST BE ANSWERED OR THE PLAINTIFF WILL FILE A DEFAULT AND THEN HAVE A DEFAULT TRIAL. IN THIS TYPE OF TRIAL THE PLAINTIFF NEEDS ONLY PROVE DAMAGES.

If the Defendant is �hiding� and cannot be served, the Plaintiff goes to Court and asks for Order of Publication. (CROSS REFERENCE IN PERSONAM JURISDICTION ABOVE)

C. DISCOVERY

Ability to find out about other person�s case/shortens litigation/leaves no surprises/preserve evidence/promote settlements/impeach witnesses etc.

INTERROGATORIES:

Written questions.
Used to be boiler plate.
Form Interrogatories issued by Judicial Council
Now limited in number. Documents attached. They must be answered w/in certain time frame; signed under oath.
If need more than 30 can Petition Court for additional interrogatories.

DEPOSITIONS

Oral testimony given. Deponent. One party must come if other party notices his deposition. Witness either voluntarily or by subpoena.

Held in office of attorney. Court reporter is there to transcribe everything said either written or on video.
Prepares transcript to be signed.
When they get it, Deponent can change but changes can be noted at arbitration or trial.

REQUEST FOR ADMISSIONS

Be careful to deny everything or it�s deemed admitted.

PRODUCTION OF DOCUMENTS

Business records. I too many all attorney needs do is make them available for photocopying.

PHYSICAL OR MENTAL EXAMINATION

When physical/mental condition of plaintiff is at issue.

Called Independent Medical Examination; Plaintiffs prefer term: Defense Medical.

MANDATORY PRE-TRIAL SETTTLEMENT CONFERENCES

Informal in judges chambers.

MORE THAN 90% OF CASES FILED ARE SETTLED PRE-TRIAL.

BB. DISMISSALS AND PRETRIAL JUDGMENTS

A. MOTION FOR JUDGMENT ON PLEADINGS: COMPLAINT AND ANSWER

Judge reads, both documents as a whole, and sees that everything in the pleadings is true, and one party would win when you apply proper law. Judge decides case before trial.

B. MOTION FOR SUMMARY JUDGMENT

Evidence considered: Discovery, affadavits, witness affidavits; contracts; etc.

If the Judge finds that no facts are in dispute then the Judge decides case. If facts are in dispute case goes on. If NO factual dispute then this Motion is made. And case is over. Plaintiff does NOT get a trial.

TRIAL

7th. Amendment to U.S. Constitution guarantees right to trial by jury. Either party can request. If waived: Judge sits as trier of fact.

Trial briefs are presented before trial.

JURY INSTRUCTIONS

Prepared by counsel and approved by judge prior to trial. It�s the CHARGE to the jury. They tell the jury what law to apply.

JURY SELECTION:

Challenges for cause/Preemptory challenges

ORDER OF ALL PROCEEDINGS

BURDEN OF PROOF:

Plaintiff's in civil matters
Prosecution in Criminal

Civil: Plaintiff first/Then Defendant;
Criminal: Prosecution/Then Defense

OPENING STATEMENT: Not evidence

Then witnesses called. Questioned and the questions on direct; cross exams on issues raised, re-direct, re-cross

THINK OF IT AS A TENNIS MATCH

CLOSING ARGUMENTS: Not evidence

JURY DELIBERATION

No set time. In Ca. jury assesses damages.

JUDGMENT ENTRY

Official judgment by ct.

If unfair amount or decision needs reversal the Judge is Petitioned for a: JUDGMENT NOTWITHSTANDING THE VERDICT JNOV

Can also be based on jury misconduct or bias. Where the Judge feels the Jury disregarded the evidence.

JNOV result Could be: Reduction in award; Reversal; reduction in amount awarded by jury. Written memo as to why along w/record of trial.

THE APPEAL

Civil: Either party can appeal the trial court's decision after a final judgment is entered.

Criminal case: Only Defendant can appeal; Prosecutor cannot; OR DOUBLE JEOPARDY

The appeal is made to the appropriate Court within a prescribed time after judgment is entered (usually within 60 or 90 days)

The appellant is often required to post a bond (e.g. one and one-half times the judgment on appeal. VERY VERY VERY COSTLY!!!!

Parties designate all or relevant portions of the trial record to be sumitted to the appellate court for review.

The appellant's (person making appeal) attorney may file an appellate brief with the Court that sets forth legal research and other information to support his/her contentions on appeal. The appellee (party answering the appeal) can file responsive contentions.

Both sides allowed:

a. Submission of a an appellate brief;
b. a brief oral statement; and c
c. be prepared to answer questions if Justices ask any.

NO NEW EVIDENCE ALLOWED IN AN APPEAL.

An appellate court will reverse if it finds an error in the law:

Examples of when reversals can occur: Jury improperly instructed, prejudicial evidence admitted, prejudicial evidence admitted because of unconstitutional search and seizure, et. Will not reverse a finding of fact unless NO SUPPORT AT ALL OR CONTRADICTED FOR THE FINDING.


Some statements from student's regarding the service of process in Hypothetical 3.3 that are erroneous:

The failure to open the door and accept the service was irrelevant.

Mailing of the summons and complaint.

The service was complete as the summons and complaint was hand delivered in the Mozucks mailbox.

All the server needs to do is read the summons and complaint to the defendant.

Personal delivery is a ceremony that one time may have been thought to be the traditional method of service, but it�s not any longer.

The Defendant does not have to be personally touched with the suit papers.

The defendant was advised that the officer was there delivering the papers, therefore it was enough.

It was mailed.

Putting it in the mailbox is a good faith effort at service.

The duty is upon the defendant to make a special appearance to argue against the service.

She answered it was her, so she was served the summons.

By law: If there is someone there to witness the service, it is enough.



Process server gets a form called: Acknowledgment & receipt of service and has it signed.

Defendant must sign a paper saying he got the paperwork.

If Defendant does not come out of the house the Plaintiff will take a default and win.

The Defendant must then serve the summons on the court.


START OF LECTURE:

Tort is the French word for a civil "wrong."

Tort law protects a variety of injuries and provides remedies for them. Under tort law, an injured party can bring a civil lawsuit to seek compensation for a wrong done to the party or to the party's property.

Tort damages generally consist of monetary damages sought from the offending party which are intended to compensate the injured party for the injury suffered. Generally in my practice I find that it obviously DOES NOT adequately compensate an injured person. Most of my clients tell me that they�d gladly give back their monetary recovery if they could be restored to the health that they had before their injury.

Tort damages consist of: medical expenses, loss of wages, pain and suffering, mental distress, etc. which have been caused by the defendant's tortious conduct.

In a Wrongful Death Lawsuit:

A loved one dies as the result of defendant�s tort.
His or her beneficiaries can bring a wrongful death action to recover damage from the defendant. IMPORTANT: They are suing for the wrong done to THEM, not the wrong done to the deceased loved one, other than his/her out of pocket expenses.

Punitive damages are awarded to punish the defendant and to set an example; they may be recovered in intentional torts and strict liability tort cases as well as reckless, and fraud cases.

I. INTENTIONAL TORTS AGAINST PERSONS

The law protects a person from unauthorized touching, restraint, or other contact Also, protects a person's reputation and privacy. Violations of these rights are actionable as torts.

A. ASSAULT:

TWO ELEMENTS: (1) The threat of immediate harm or offensive contact or (2) Any action that arouses reasonable apprehension of imminent harm. Actual physical contact is not necessary. Threats of future harm are not actionable.

B. BATTERY

Unauthorized and harmful or offensive physical contact with another person. Basically, the interest protected here is each person's reasonable sense of dignity and safety. For example, intentionally hitting someone is considered battery because it is harmful.

Note: There does not have to be direct physical contact between the victim and the perpetrator. If an injury results, throwing a rock, shooting an arrow or a bullet, knocking off a hat, pulling a chair out from under someone, and poisoning a drink are all instances of actionable battery. The victim need not be aware of the harmful or offensive contact (e.g., it may take place while the victim is asleep)

ASSAULT AND BATTERY often occurs together, ALTHOUGH they do not have to (e.g., the perpetrator hits the victim on the back of the head without any warning) = Battery w/o assault

C. TRANSFERRED INTENT DOCTRINE BATTERY w/TRANSFERRED INTENT

Sometimes a person acts with the intent to injure one person actually injures another. Law transfers the perpetrator's intent from the target to the actual victim of the act. The victim can then sue the defendant.

D. FALSE IMPRISONMENT

Intentional confinement/restraint: without authority or justification and without consent. Victim may be restrained/confined by physical force, barriers, threats of physical harm or false assertion of legal authority (i.e., false arrest). Threat of future harm or moral pressure is not false imprisonment. Must be complete. E.G. Merely locking one door to a building when other exits are not locked is not false imprisonment.

Not obliged to risk danger or an affront to his or her dignity by attempting to escape.

D. (1) MERCHANT PROTECTION STATUTES

Allow merchants to stop, detain, and investigate suspected shoplifters without being liable for false imprisonment NEEDS: THREE ELEMENTS: reasonable grounds for the suspicion, ALSO detained for only a reasonable time, and Investigations conducted in reasonable manner.


E. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Mental or emotional distress without first being physically harmed. Defendant = EXTREME AND OUTRAGEOUS conduct intentionally or recklessly causes severe emotional distress to another. IT MUST BE EXTREME.

Plaintiff's Elements of proof: Defendant's conduct was "so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society. The mental distress must be severe. California requires proof from a physician/psychologist/psychiatrist that Plaintiff underwent a physical/mental manifestation from the actions of the defendant. This requirement is intended to prevent false claims. IT GOES TO PROVE THE EXTENT OF THE DAMAGES!! The courts have held that shame, humiliation, embarrassment, anger, fear, and worry constitute severe mental distress.

II. INTENTIONAL TORTS AGAINST PROPERTY

REAL PROPERTY = Land and anything permanently attached
.
PERSONAL PROPERTY = Things that are movable, such as automobiles, books, clothes, pets, and such.

A. TRESPASS TO LAND

Interference with owner's right to exclusive possession of land. There does not have to be any interference with the owner's use/enjoyment of land; ownership itself is what counts. Just stepping on another�s land fulfills the requirement and is considered trespass. It equates to unauthorized use of the land, it�s trespass even if the owner is not using the land. Actual harm to the property is not necessary.

III. UNINTENTIONAL TORTS

A. NEGLIGENCE

Liable for harm for foreseeable consequence of actions. Definition: The omission to do something which a reasonable person would do, or doing something which a prudent and reasonable person would not do." E.G.: Driver causes auto accident because fell asleep liable any resulting injuries. In essence it is whatever a reasonable person would consider foreseeable looking at all of the surrounding circumstances. THIS IS CALLED THE REASONABLE PERSON STANDARD.

(1.) ELEMENTS OF NEGLIGENCE NEED ALL FOUR OR THERE IS NOT NEGLIGENCE.

(1) the defendant owed a duty of care to the plaintiff;
(2) the defendant breached this duty of care;
(3) the plaintiff suffered injury; and
(4) the defendant's negligent act caused the injury.

(a.) DUTY OF CARE

Obligation we all owe each other: duty not to cause any unreasonable harm or risk of harm. E.G.: Duty to drive carefully, not to push/shove on escalators, not leave skate boards on sidewalk, etc. Businesses duty: make safe products, not to cause accidents, etc.

Courts decide: If duty of care is owed by applying the reasonable person standard: Attempt to determine: how an objective, careful, and conscientious person would have acted in same circumstances then measure the defendant's conduct against this standard.
Subjective intent ("I did not mean to do it) is immaterial.

Defendants with particular expertise or competence measured against a reasonable professional standard. This standard is applied in much the same way as the reasonable person standard. E.G.: A brain surgeon is measured against a reasonable brain surgeon standard, rather than a lower reasonable doctor standard. THE TEST HERE IS WHAT IS REAONABLE WITHIN THE COMMUNITY WHERE THE EXPERT LIVES/ PRACTICES THEIR EXPERTISE.

(b.) BREACH OF DUTY

If defendant owed duty of care, determine whether breached duty i.e. the failure to exercise care. In other words, it is the failure to act as a reasonable person would act. Either action (e g throwing a lit match on the ground in a forest and causing a fire) or failure to act when there is a duty to act (e.g., a firefighter refuses to put out fire).

(c.) INJURY TO PLAINTIFF

Even if Defendant's act breached a duty it�s not actionable unless the plaintiff suffers injury. NO HARM; NO FOUL.

Damages: depend on: effect of the injury on the plaintiff's life or profession. Suppose two men injure their hands when a train door malfunctions. The first man is a professional basketball player. The second is a college professor. The first man can recover greater damages as it interferes with his ability to perform his job.

(d.) CAUSATION

No liability rests, unless this act is the cause of the plaintiffs injuries.

THERE ARE TWO PARTS TO CAUSATION AND BOTH MUST BE PRESENT FOR THEIR TO BE A CLAIM OF NEGLIGENCE.

ONE IS CAUSATION IN FACT; and the other is

PROXIMATE CAUSE

(d. i.) CAUSATION IN FACT OR ACTUAL CAUSE)

E.G.: Corporation negligently pollutes plaintiff's drinking water, a person suffers a heart attack unrelated to the polluted water. Corporation has acted negligently, but not liable for the plaintiff's death. The Corporation was negligent but there was no cause-and-effect between the negligence and plaintiff�s injuries. If instead the plaintiff had died from the pollution, there would have been causation in fact = the polluting corporation would have been liable. The test here is: BUT FOR. But for the defendant�s actions the plaintiff would not have been injured then there is not actual cause.

(d. ii.) PROXIMATE CAUSE

Negligent party not necessarily liable for all damages set in motion by his or her negligent act. Based on public policy the law establishes a point along the damage chain after which the negligent party is no longer responsible for the consequences. Limitation referred to as proximate cause or legal cause. General test: of proximate cause is forseeability. Situations are examined on a case-by-case basis.

The Landmark case establishing the doctrine: Palsgraf v. Long Island R.R. Co. Palsgraf was standing on a platform waiting for passenger tram. The R.R. Co. owned and operated and employed the guards- A man was carrying a package wrapped in a newspaper tried to board the moving train, railroad guards tried to help him and did not exercise due care. In doing so, the package dislodged, fell to tracks, and exploded. Contained hidden fireworks. The explosion shook the platform causing scales located on the platform to fall on Palsgraf, injuring her. She sued the railroad for negligence. Justice Cardoza denied her recovery, finding that the railroad was not the proximate cause of her injuries. I.e: It was not foreseeable, to a reasonable person viewing all the surrounding circumstances, that the negligence of the guards would harm her standing at the other end of the platform.

NOTE: The guards action was the actual cause of Mrs. Palsgraff�s injuries, as but for their action she wouldn�t have been injured. But the R.R. was held not liable under the proximate cause requirement.

C. SPECIAL NEGLIGENCE DOCTRINES

1. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

Most common E.G.: Bystanders witness injury/death of loved one.
Even though not personally physically injured, can sue the negligent party for his or her own mental suffering.

THREE REQUIREMENTS FOR TORT: Plaintiff must prove that (1) a close relative or significant other was killed/injured (2) that the plaintiff suffered severe emotional distress, and (3) mental distress resulted from a sensory and contemporaneous observance of the accident. NEED ALL THREE

California requires that the mental distress be manifested by some physical/mental injury which must be substantiated by a physician/psychologist/psychiatrist.

There is a California case which showed a broader view of the sensory and contemporaneous observance of the accident requirement. [Case covered in class]

The Court decided that: Plaintiff need not visibly perceive the injury while it is inflicted.

2. NEGLIGENCE PER SE

The Tort is a Violation of a statute or ordinance constitutes the breach of the duty of care.

The violation of A STATUTE that proximately causes an injury is negligence per se. Plaintiff must prove: (1) a statute existed, (2) the statute was enacted to prevent the type of injury suffered, and (3) the plaintiff was within a class of persons meant to be protected by the statute. E.G: most cities ordinance place owner�s responsibility for fixing residential public sidewalks whose homes front the sidewalk. Liable if fails to repair. The injured party does not have to prove that the homeowner owed the duty, because the statute establishes that.

3. RES IPSA LOQUITUR

This occurs wherein the defendant has superior knowledge of the circumstances surrounding an injury and it is in the defendant's best interests not to disclose these circumstances, therefore the Plaintiff might have difficulty proving negligence. One traditional example of such cases involves surgical instruments left in a patient's body during surgery. A patient-plaintiff under anesthesia would be hard pressed to identify who left the instrument. Res ipsa loquitur (Latin for "the thing speaks for itself"). Raises an inference or presumption of negligence and places the BURDEN ON THE DEFENDANT to prove that he or she was not negligent.
Applies in cases where (1) the defendant had exclusive control of the instrumentality or situation that caused the injury and (2) the injury would not have ordinarily occurred "but for" someone's negligence (e.g., surgical instruments are not ordinarily left in patients' bodies).

4. SOCIAL HOST LIABILITY

If an intoxicated person causes injury to a third person. The third person can often sue the person who served the intoxicated person too much alcoholic beverages. California is among the few states that have adopted statutes that relieve social hosts from such liability. California Civil Code Section 1714 (c)states: No social host who furnishes alcoholic beverages to any person may be held legally accountable for damages suffered by that person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of those beverages. A social host is therefore not liable for injuries caused by guests who are served alcohol at a social function (e.g., a birthday party, a wedding reception) and later causes injury because they are intoxicated. The injury may be to a third person or to the guest him/herself. The alcohol served at the social function must be the cause of the injury.

B. PROFESSIONAL MALPRACTICE

Professionals: doctors, lawyers, architects, accountants, and others, owe a duty, of ordinary care in providing services. The reasonable professional standard. It�s measured by the community they practice within. If a professional breaches their duty they are liable for injury the negligence causes. It�s called: Professional malpractice. Professions include any person who is licensed by a state to practice their occupation. One example is hairdressers.

E. NEGLIGENCE DEFENSES:

1. ASSUMPTION OF THE RISK
|
If plaintiff knows of and voluntarily enters into or participates in a risky activity any resulting injury is assumed to have arisen because the plaintiff took on the risk. It is Assumed that Plaintiff: (1) had knowledge of the specific risk and (2) voluntarily assumed that risk.

2. CONTRIBUTORY NEGLIGENCE

NOTE THIS DOCTRINE NO LONGER APPLIES IN CALIFORNIA

Whenever a plaintiff is partially at fault for his or her own injury he/she cannot recover against a negligent defendant. Even if Plaintiff�s negligence is only one percent of the total negligence and defendant�s negligence is apportioned at 99!!

3. COMPARATIVE NEGLIGENCE

NOTE THIS DOCTRINE HAS REPLACED CONTRIBUTORY NEGLIGENCE IN CALIFORNIA. THIS WAS DUE TO THE FACT THAT CONTRIBUTORY NEGLIGENCE PROVED MANY TIMES TO BE UNFAIR


Damages are apportioned according to fault. A Plaintiff must be less than 50% responsible for causing his or her own injuries to recover; otherwise there is no recovery.

4. ADDITIONAL TORTS THAT COMMONLY INVOLVE BUSINESSES.

1. ENTERING CERTAIN BUSINESSES AND PROFESSIONS WITHOUT A LICENSE

It�s a tort and against the law.

2. STRICT LIABILITY

Liability without fault: Participant in a covered activity will be held liable for injuries caused by activity even if not negligent.

Certain activities place public at risk of injury even if reasonable care taken and public should have some means of compensation if such injury occurs.

Strict liability was first imposed for abnormally dangerous activities, such as crop dusting, blasting, fumigation, burning fields, storage of explosives, and keeping wild animals as pets. It now additionally covers blasting, fireworks, and demolition of large buildings by explosives.

As a follow-up to 4.4 hypothetical regarding the Auto Club's liability; I presented the case where my client was traumatized by a gunman at a fast food facility. I lectured on the fact that they were liable in negligence law, because despite their knowledge of the restaurant being in a dangerous area they DID NOTHING TO WARN/PROTECT THEIR CUSTOMERS.

Contract law: Most common area you deal w/ on a daily basis:

Many of our daily activities:

SALES CONTRACTS
SERVICE CONTRACTS
RENTAL CONTRACT
List is almost endless.

Contracts: Voluntarily entered into between 2/more parties.

PARTIES TO A CONTRACT

At least two parties. OFFEROR: Party who makes offer to enter into a contract. OFFEREE party to whom offer made.
Offeree is the one w/the POWER

Contract created if offer accepted.

No contract if offer not accepted.

FOUR CONTRACT ELEMENTS: Need all 4 to have enforceable contract

1 AGREEMENT: mutual agreement.

2 CONSIDERATION: The promise supported by something of legal value.

3. CONTRACTUAL CAPACITY: Certain parties, E.G.: adjudged insane, MINORS, lack this.

4 LAWFUL OBJECT: Illegal objects/against public policy are void from the onset.



Early on: Parties generally dealt with one another face-to-face. Later on the �birth� of FORM CONTRACTS: offered goods to buyers on a take-it-or-leave-it basis. The majority of contracts in this country today are form contracts: e.g.: AUTOMOBILE CONTRACTS, MORTGAGE CONTRACTS, AND SALES CONTRACTS FOR CONSUMER GOODS.

In form contracts any ambiguity strictly construed against maker of the Form contract.
***************************

CONTRACT CLASSIFICATIONS

BILATERAL AND UNILATERAL CONTRACTS

Depends on what offeree must do to accept offeror's offer.

BILATERAL: if promise is answered with offeree's promise of acceptance, i.e. a promise for a promise." This exchange of promises creates an enforceable contract. No act of performance is necessary to create a bilateral contract

UNILATERAL: Offeror's offer can be accepted only by the performance of an act by the offeree; a "promise for an act."

Language of offeror's promise must be carefully scrutinized to determine: whether it the offer is to create a bilateral or a unilateral contract.

Any ambiguity as to which it is, it is presumed to be a bilateral contract.

****************************************

EXPRESS CONTRACTS:

Stated oral or written words. It�s a �real contract.�

IMPLIED-IN-FACT CONTRACTS

EQUITABLE PRINCIPLE

Implied from the conduct of parties. Leaves more room for questions. The following elements:

1. The plaintiff provided property/services to the defendant.

2. The plaintiff expected to be paid and did not provide gratuitously.

3. The defendant was given an opportunity to reject but failed to do so.

PREVENTS UNFAIRNESS. I.E.: PREVENT UNJUST ENRICHMENT AND UNJUST DETRIMENT
*******************************************

FORMAL AND INFORMAL CONTRACTS

FORMAL CONTRACTS require a special form or method of creation. MOST CONTRACTS DO NOT FIT UNDER THIS CLASSIFICATION


INFORMAL CONTRACTS

ALMOST ALL contracts do not qualify as formal contracts: Called informal contracts (or simple contracts). The term is a misnomer. Valid informal contracts (e.g., leases, sales contracts, service contracts) are fully enforceable and may be sued upon if breached. Called informal only because no special form or method is required for their creation.

EXECUTED AND EXECUTORY CONTRACTS

EXECUTED CONTRACT

Fully performed on both sides

EXECUTORY CONTRACT

Not been performed by one side or both sides.

VALID, VOID, VOIDABLE, AND UNENFORCEABLE CONTRACTS

VALID

Meets all essential elements to establish a contract.

VOID

No legal effect. As if no contract had ever been created. Contract to commit a crime is void. Neither party is obligated to perform and neither party can enforce.

VOIDABLE

At least one party option to avoid contractual obligations. If avoided, both parties are released.


**************************************

Equity to the Rescue

Equitable principles often will allow a �defect� in a contract to be �overlooked� in order to prevent unjust enrichment or prevent unjust detriment.



Offer and Acceptance continued:


Contracts are voluntary agreements between the parties.

Without mutual assent: There is NO contract.

Assent: Expressly evidenced by words of parties or implied from conduct.

To enforce: must be supported by "consideration."

Consideration: Broadly defined: something of legal value. e.g.: money, property, provision of services

Also Forbearance of a right, or anything else of value.

Offer sets forth: Terms wherein OFFEROR willing to enter into Contract. The OFFEREE has the power to create an agreement by accepting.

OBJECTIVE (INTENT) Objective theory of contracts

Objective theory of contracts: WHETHER REASONABLE PERSON VIEWING ALL THE SURROUNDING CIRCUMSTANCES would conclude parties intended to be legally bound.

SUBJECTIVE INTENT = irrelevant.

Therefore, no valid contract results from preliminary negotiations; offers made in jest, anger, or undue excitement; or offers that are an expression of opinion,

PRELIMINARY NEGOTIATIONS: Question such as "Are you interested in selling your building for $2 million?" not an offer. An invitation to make an offer or an invitation to negotiate. However, Statement "I will buy your building for $2 million" is a valid offer because it indicates the OFFEROR's present intent to contract.

JEST. ANGER, OR UNDUE EXCITEMENT


DEFINITENESS OF TERMS

Must be clear enough so offeree able to decide whether to accept/reject terms.

If indefinite: Courts cannot enforce or determine appropriate remedy for breach.

REQUIREMENTS FOR DEFINITENESS

Offer (and contract)

NEED: Identification of: parties, the subject matter and quantity; consideration to be paid; and time of performance.

IMPLIED TERMS

Common law of contracts required EXACT terms. If one essential term omitted: courts held: NO contract made. INFLEXIBLE.

MODERN LAW MORE LENIENT.

Requires "reasonably certainty.'"Court can supply a missing term if reasonable term can be implied, by looking at outside sources

Terms supplied this way: called IMPLIED TERMS.

TIME OF PERFORMANCE: TIME IS OF THE ESSENCE

Price if there is a market/source which to determine the price of the item/service (e g "blue book" for an automobile price, New York Stock Exchange for a stock price)

Cf: Parties or subject matter usually cannot be implied

COMMUNICATION

Offer cannot be accepted if not communicated to offeree by OFFEROR or representative/agent of OFFEROR.

SPECIAL OFFER SITUATIONS

ADVERTISEMENTS, AUCTIONS, AND REWARDS

Advertisements for the sale of goods, even at specific prices generally treated as invitations to make an offer. Cf. Reputable stores offering rain checks.

RULE EXCEPTION:

Advertisement considered an offer if so definite/specific that: apparent that advertiser has present intent to bind him/herself to terms. E.G.: CARS ARE IN SPECIAL CATEGORY�TO PREVENT BAIT AND SWITCH

AUCTIONS

Seller, AUCTION HOUSE, offers goods through AUCTIONEER.

AUCTION WITH RESERVE: Retains right to refuse the highest bid and withdraw the goods.

AUCTION W/O RESERVE: Cannot withdraw the goods.

Contract formed when auctioneer STATES, GOING ONCE, GOING TWICE, AND SAYS SOLD WHILE SIMULTANEOUSLY STRIKING his gavel.

REWARDS

Offer to pay reward (e.g., for the return of lost property or capture of a criminal) offer to form a unilateral contract. To collect reward, the offeree must have knowledge of reward offer prior to doing what asked.

Revocation of reward offers: MUST UNDO EVERYTHING DONE TO POST THE REWARD.

Revocation effective against all offerees, even those who saw the reward offer but not the notice of revocation.

THE OFFER

Valid gives the offeree power to accept thereby creates contract.

Power not indefinitely. Terminated by the action of the parties or operation of law.

TERMINATION

ACTION OF THE PARTIES

REVOCATION BY THE OFFEROR

COMMON LAW: Anytime prior to acceptance. Generally even if offeror promised to keep the offer open for a longer period of time. May be communicated either by the offeror or third party and made by:

Offeror's express statement (e.g., "I hereby withdraw my offer") or act of the offeror inconsistent with the offer (e.g., selling the goods to another party.)

Offers made to public may be revoked by communicating by the same means used to make offer. E.G.: Reward offer for lost watch published in two local newspapers each week for four weeks, notice of revocation in the same newspapers same length of time

REJECTION OF OFFER BY THE OFFEREE

Terminated if offeree rejects. Any subsequent attempt by offeree to accept ineffective; construed as a new offer that original offeror (now the offeree) free to accept or reject. Rejection may by the offeree's express words (oral or written) or conduct.

COUNTEROFFER BY THE OFFEREE

Terminates offeror's offer at same time creates new offer.

Reason: Common law "mirror image" rule, acceptance must be unconditional. Acceptance that differs from the original offer in any way makes it a counteroffer and not an acceptance. A counteroffer acts as rejection of the original offer.

OFFERS TERMINATED BY OPERATION OF LAW

Destruction of the Subject Matter through no fault of either party prior to acceptance.

DEATH OR INCOMPETENCY OF THE OFFEROR OR THE OFFEREE

SUPERVENING ILLEGALITY

Object of offer made illegal prior to acceptance, offer terminates.

LAPSE OF TIME: Offer states effective only until a date certain.


NO TIME STATED: Offer terminates after a "reasonable time" dictated by circumstances. Reasonable person standard.

OPTION CONTRACTS

An offeree can prevent the offerer from revoking his or her offer by paying the offerer compensation to keep the offer open for an agreed-upon period of time. This is called an option contract.

ACCEPTANCE

Manifestation of assent by offeree to the terms of offer in manner invited or required by the offer as measured by the objective theory of contracts.

WHO CAN ACCEPT THE OFFER?

Only offeree has legal power to accept an offer and create a contract Third persons not usually have the power to accept.

UNEQUIVOCAL ACCEPTANCE

Mirror image rule requires offeree accept the offeror's terms.

Generally: "Grumbling acceptance" = legal acceptance.
E.G.: "Okay, I'll take the car, but I sure wish would make me a better deal" creates enforceable contract.

E.G. of what is NOT an EQUIVOCAL ACCEPTANCE

If certain conditions are added to the acceptance.
E.G.: "I accept, but only if you repaint the car red."
Not acceptance. IT�S A COUNTER-OFFER


PROPER DISPATCH RULE: By any recognized acceptable manner of communication.

SILENCE AS ACCEPTANCE

Generally, silence not considered acceptance even if offeror states it is. This protect offerees from being legally bound to offers because they failed to respond.

Discuss exceptions: Pre-agreement contracts. E.G.: Offeree signed an agreement indicating continuing acceptance of delivery until further notification.
CD-of-the-month club memberships are examples of such acceptances.

Also, compare: The implied contract principle.

MODE OF ACCEPTANCE

EXPRESS AUTHORIZATION

Offeree must accept by authorized means of communication. Offer can stipulate acceptance MUST be by a specified means of communication (e.g., registered mail/telegram). Uses an unauthorized means not effective even if received within the allowed time period, it is a counter-offer because the method of communication was a condition of acceptance.

TIME OF ACCEPTANCE

ACCEPTANCE-UPON-DISPATCH RULE/THE MAILBOX RULE.

CONSIDERATION: Something of legal value. Required or no contract.

Examples of consideration:

Most common: either a tangible payment (e.g., money or property) or the performance of an act/service.

Less common: FORBEARANCE of a legal.

NONECONOMIC forms of consideration: (e.g., refraining from "drinking, using tobacco, swearing, or playing cards or billiards for money" for a specified time period)

Written contracts presumed to be supported by consideration. This is a rebuttable presumption that may be overcome by sufficient evidence.

REQUIREMENT OF CONSIDERATION

(1) Something of legal value must be given (e.g., either a legal benefit must be received or legal detriment suffered).

LEGAL VALUE

If promisee suffers a legal detriment or (2) the promisor receives a legal benefit.

NOT CONSIDERED HAVING CONSIDERATION:

GIFT PROMISES:

ILLUSORY PROMISES

MORAL OBLIGATIONS PROMISES

E.G.: Contracts based on love and affection.

PREEXISTING DUTY

Something already under obligation to do.

PAST CONSIDERATION

Business/party promises to pay additional compensation for work done in past.

ILLEGAL CONSIDERATION

A promise to refrain from doing an illegal act.
******************************


ETHICAL PERSPECTIVE:

Courts don�t usually inquire into the sufficiency of Consideration unless it shocks the conscience of the Court.

SETTLEMENT OF CLAIMS

The law promotes voluntary settlement of disputed claims. Saves judicial resources and serves interests of the parties. An example is an: ACCORD AND SATISFACTION

Brief important rules re Contract Hypotheticals:


#5:

Edmond's will be successful. The Court applied the rule that in construing a lease any uncertainties/ambiguities will be resolved strictly against the party who drafted the document.

#8:

The Court Held: Acceptance is a manifestation of intent by the offeree to the terms of the offer. The court held that Corbin-Dykes' bid to Burr was nothing more than an offer to perform the subcontract under specified terms, and that it did not form a binding contract until it was voluntarily accepted by Burr.


#16:

Under the doctrine of promissory estoppel/detrimental reliance/justifiable reliance, the Court�s will enforce charitable contributions if the charity �earmarks� it for a specific purpose.

**************************************************

CONTRACTUAL CAPACITY

Certain persons do not have contractual capacity: minors, insane persons, and intoxicated persons. If they lack contractual capacity the law protects them from having contracts enforced against them.

MINORS

Because of the belief that sometimes minors lack maturity, experience, or sophistication to contract with adults the infancy doctrine prevails. The most prevalent age of majority is 18.

INFANCY DOCTRINE

Protect minors and allows minors to disaffirm (or cancel) most contracts entered into with adults. Based on public policy, minors protected from the unscrupulous behavior of adults.

Contracts for necessaries of life are exempted.

It is the Minor who has the option to enforce the contract (i.e., the contract is voidable by a minor). The Adult party is bound by the minor's decision.

Can Expressly disaffirm a contract orally, in writing, or by his or her conduct. No special formalities are required. A contract may be disaffirmed any time prior to reaching majority plus a "reasonable time thereafter." What is a reasonable time? It is determined on a case-by-case basis using the reasonable person standard.

DUTY OF RESTITUTION

If the minor transferred consideration to the competent party (adult) before the minor disaffirms, the adult must place the minor in the status quo. Minor must be restored to same position as before the minor entered into the contract. E.G.: Usually returning consideration.

MINOR'S DUTY OF RESTORATION

Obligated only to return whatever he still has in his possession. Even if the item has been consumed, lost, destroyed, or depreciated. Rationale: if minor had to place adult in status quo upon disaffirming, there would be no incentive for an adult not to deal with a minor.

HOWEVER: MINOR'S DUTY OF RESTITUTION

Minor must put the adult in status quo upon disaffirming if the minor's intentional or gross negligent conduct caused the loss of value to the adult's property.

MISREPRESENTATION OF AGE

This is unfair to the adult and puts the minor on equal footing with the adult, and the minor cannot disaffirm.

RATIFICATION:

If the Minor either ratifies or does not disaffirm within a reasonable time after reaching majority, the contract is considered ratified (accepted). Minor (who is now an adult) is bound by the contract. Any attempt by a minor to ratify a contract while still a minor can be disaffirmed just as the original contract can be disaffirmed.

Ratification relates back to the inception, can be by
express oral or written words or implied from the minors conduct (e.g., after reaching the age of majority the minor remains silent regarding the contract).

(As an aside: We do know that 18 years and 10 months is considered ratified by operation of law. Between 18 and 18.10 months is judged by the reasonable person standard.)



NECESSARIES OF LIFE (NECESSITIES OF LIFE)

Minors must pay reasonable value of food, clothing, shelter, medical care, and other items considered necessary to the maintenance of life. Otherwise, many adults would refuse to sell items to them. No standard definition of what is necessary of life, but items such as food, clothing, shelter, medical services, etc. generally understood to fit this category.

Goods and services such as automobiles, tools of trade, education, and vocational training have also been found to be necessaries of life in some situations.

Minor's age, lifestyle, and status in life influence what is considered necessary. E.G.: Necessaries for married minor greater than for an unmarried minor. Seller's recovery based on the equitable doctrine of quasi contract rather than on the contract itself. Minor obligated only to pay the reasonable value determined on a case-by-case basis.

*****please note quasi contract is a legal principle wherein the law implies a contract in order to do equitable justice****

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Continued in Part Two
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