Final Exam Review

Chapter 11: Property Law

Real property vs personal property vs fixturesReal property: Personal property: Fixture:

Rule of CaptureWhat is the rule of capture?

What does it usually apply to?

Water Rights

Percolating WaterDefinition: Legal rules regarding use:

1.

2.

3.

4.

Surface WaterDefinition: Legal rules regarding use:

1.

2.

Stream Water and Lake WaterDefinition: Legal rules regarding use:

1.

Acquiring Ownership

By Creation:

Commingling Fungible Goods:

Property Ownership by Possession (distinguish between and know who has superior rights regarding title)Mislaid property: What is it and who has superior rights to title?

Lost property: What is it and who has title?

Abandoned property: What is it and who has title?

Adverse PossessionWhat are the four requirements?

1.

2.

3.

4.

What are the elements of a gift?1. 2. 3.

Testamentary gift?

Gift Inter vivos?

Gift Causa mortis?

Classifications of ownership interests in property:Fee simple:

Life estate:

Leasehold estate:

Absolute ownership:

Legal title vs equitable title: -

Easement vs license: -

Types of tenancy:Tenancy in common:

Joint tenancy with right of survivorship:

Tenancy by the entirety:

Tenant Landlord LawTenancy for years vs periodic tenancy: -

Implied warranty of habitability:

Duties of the landlord:

Duties of the tenant:

Methods for transferring ownershipBill of sale:

Deed:

Types of deeds 1. Quitclaim deed:

2. Warranty deed:

3. Special warranty deed:

BailmentDefinition: Three elements of a bailment:

1. 2. 3.

Difference between a constructive delivery vs physical delivery:

Definition and consequence of involuntary bailments:

Know the legal consequences of : A bailment for the benefit of the bailor: A bailment for the benefit of the bailee: A bailment for mutual benefit:

What are the duties of the bailor? Of the bailee?

Types of carriers and liability imposed on each: Contract Carrier –

Common Carrier –

Private Carrier –

Liability of an innkeeper:

Restrictions on ownership:Covenant –

Zoning –

Variance - Eminent domain –

Chapter 12: Consumer Law

Government Agencies Involved in Regulating Marketing1. Federal Trade Commission - 2. Federal Communications Commission –

3. US Food and Drug Agency -

Requirements to prove fraud: 1. 2. 3. 4.

Caveat emptor: Puffery:

Opinions of experts:

Prohibitions regarding: Deceptive advertising -

o Lanham Act – Unfair advertising –

Obscene advertising – (Miller Test)oo o

Indecent material - Profane language –

o Where does this not apply? Why?

Food Package Labeling:Required disclosures:

Minimum disclosure requirements:1. 2. 3. 4. 5.

Nutrition content claim – Good source? High Source? To claim “low fat”, etc.?

Examples of products and services which a person has to have a license to sell/provide:

Know the limitations placed onTelemarketers:

1. 2. 3. 4. 5.

Mobile marketersCommercial email must identify:

1.2. 3.

Warranties:Express warranties: Implied warranties:

Implied warranty of merchantability:

Implied warranty of fitness for a particular use:

Definition of a merchant:

Sales Tax:Sales tax - Optional sales tax - Use tax - Value added tax -

Collection of Payment:Rights of company trying to recover debt:

Prohibited practices of debt collectors:

Consumer Credit Protection Laws:Required disclosures regarding finance transactions:

Liability of consumer for unauthorized credit card and debit card transactions:

Prohibited practices of credit card companies under the CARD act:

Credit Score consist of:

Consumer rights under the Fair Credit Reporting Act of 1970:

Rights to -

Which must be disclosed on a food product label?Ender the Telemarketing Sales Rule of 1995, a telemarketer must disclose…

Chapter 13: Employment Law and Discrimination

Employment at-will > No liability for termination unless…

What categories does the Civil Rights Act of 1964 protect? Disallows discrimination in the context of employment in regards to:

Labor unions and employers with 15+ employees:

Disparate-treatment discrimination vs. Disparate-impact treatment:

Rates of hiring

What is reverse discrimination?

Gender Discrimination:What is the Equal Pay Act of 1963:

How does this apply to a bona fide occupational qualification?

Discrimination Based Upon Age:Which age group is protected?

Genetic Nondiscrimination Act of 2008:

Three factors needed to prove age discrimination:1. 2. 3.

Harassment - Hostile Work Environment:

Quid Pro Quo:

Legal implication of harassment by supervisors, employees or customers/suppliers:

Marital Status:Are you allowed to discriminate based on marital status?

Disability:What constitutes a disability?

(Correctable conditions can be a disability)

Defenses to employment discrimination:Business necessity (example high school diploma):

Bona fide occupational qualification:

Reasonable accommodations:

Technical Defenses:

Fair Labor Standards ActUnder 14: 14-15: 15-16:

Overtime rate of pay required after 40 hours of work per week:

Know about the purpose of the following payroll taxes and who pays which amount:Social Security:

Medicare:

FUTA :SUTA:

What is workers compensation?

What is COBRA?

Affordable Care Act:

FMLA: (Family Medical Leave Act)

Labor UnionsWhat are employee’s rights?

Closed shop vs union shop?

Secondary Boycott –

Taft-Harley Act prohibits:1) 2) 3)

National Labor Relations Act:Illegal for employer to:1) 2)

Chapter 14: Secured Transactions and Bankruptcy Law

What type of law is applied in bankruptcy courts? Who has jurisdiction?

Know the differences between the types of bankruptcy proceedings:Chapter 7:

Chapter 11:

Chapter 13:

Know who is eligible to file each of the types of bankruptcyKnow the relief provided by each type of bankruptcy

Know the types of property commonly exempted from bankruptcy proceedings:

Know the types of debt which commonly cannot be discharged as part of bankruptcy proceedings:

Key terms/concepts- Debtor – - Creditor – - Petition (effect of filing)

o Automatic stay –

o Adequate protection –

o Proof of claim –

- Trustee –

- Voluntary vs. involuntary bankruptcy – o Voluntary: o Involuntary:

- When abuse is presumed in a chapter 7 bankruptcy:

- Preferential transfer –

- Fraudulent transfers –

- Unsecured debt – - Secured debt – - Collateral –

- Debtor in possession –

- Discharge of debt – - Reaffirmation –

Chapter 15 Agency Law & Business Entity Law Types of business entities.

o Sole proprietorships: a business entity with no separate legal existence from its owner (one owner)

Advantages: easy to form, no double taxation Disadvantages: unlimited liability, access to capital

o Partnerships: a business entity formed by two or more persons who engage in a profit-seeking activity and share and the profit and loss of such activity

Terms/Types General partners: have unlimited liability and participate in the

management of the partnership Limited partners: have limited liability and usually take a limited

role in the management of the partnership Limited partnerships: partnership which has both general and

limited partners Limited liability partnerships: partnership where all partners are

limited partners Advantages: more access to capital, flow through taxation, flexibility in

allocation profits, limited liability available, partners can share the work Disadvantages: unlimited liability for general partners, have to file

paperwork with the state to receive limited liability protection, general partners may face self-employment tax, partners may not equally share the work

o Corporations: a separate legal entity that provides limited liability to its owners who are called stockholders

Advantages: limited liability for shareholders, ability to raise capital quickly Disadvantages: double taxation Types

S Corporations: small business corporation which has an IRC Section 1362(a) election in place. (meaning it’s a corporation which has made a special election with the IRS)

o 3 Requirements: Fewer than 100 shareholders Only individuals, certain trusts, and certain estates as

shareholders Single class of stock (no preferred)

o Advantages: taxed as flow through entity, shareholders who participate in operations can be paid a salary

o Disadvantages: ownership restrictions, debt does not increase stock basis

Limited Liability Company (LLC): a legal entity with limited liability for owners (members) but treated as a pass through entity for tax purposes

o Advantages: limited liability for all members, debt of LLC may increase member’s basis, flow through taxation, no ownership restrictions

o Disadvantages: passive loss limitations, members who actively participate may be subject to self-employment tax

o The figure which shows a summary of each is important. Of great importance is 1) ease of formation, 2) taxation of profits, 3) liability. (see page 337 in text book)

Other business entitieso Non Profit: an entity which intends to spend its revenues on designated

programs in such a fashion that no net profit will result. Generally not subject to income tax.

o Professional Service Corporations: formed by certain professionals for the purpose of providing professional services

Ex: Lawyers, accountants, doctorso Franchise: created through an agreement that allows a franchisee to benefit

from affiliation with the franchisor independent contractors vs. employees

o Independent contractor: someone hired to provide a service but is not an employee

o Employee: hired by a business to perform services for the business under the control of the business

o 8 factors to determine if independent contractor: 1. The amount of control the contracting company exercises over the

individual worker 2. The classification given the individual worker by contracts or other

business agreements 3. The length of the relationship

4. Whether the individual worker supplies their own tools or uses the tools of the contracting company

5. Whether the individual worker is paid by the hour or by completed job

6. Whether the individual worker is engaged in a distinct trade separate from the contracting company

7. Whether the individual worker incurs unreimbursed expenses

8. Whether the individual worker serves other clients

Liability for Employee’s Actionso Vicarious liability: a court may impose liability on an individual who do not

commit the act that caused injury but who has a special relationship with the person who did commit the act.

o Respondeat superior: a common law doctrine which held masters strictly liable for the actions of their servants.

How is it applied today? Applied today to hold employers liable for employee actions when acting in within the scope of their employment

o Liability for Negligence of an employee, Intentional torts, Criminal acts of employees

Liability for Independent Contractoro Hiring company not liable for independent contractor’s actions unless

1. The duty delegated was inherently dangerous

2. The duty delegated by the hiring company is not delegable under state law

3. The hiring company was negligent in hiring, instructing, or supervising the independent contractor

Agencyo Formation: principal must have the intent to allow the agent to represent the

principal and the agent must consent to act on behalf of the principal and within the control of the principal

o basic terminology Agent: the one who agrees to act on behalf of a principal and is subject to the

control of a principal Principal: the one on whose behalf the agent acts General agent: an agent who has the authority to provide all the business

services a principal would need for a given purpose or at a given location Subagent: an agent of an agent authorized by the principal Gratuitous agency: one in which the agent is not compensated by the

principalo Creation of Agencies

Express agency: formed through a written or oral agreement Implied agency: arises from facts and circumstances which lead the parties

to believe an agency relationship exists Agency by ratification: agent acts and principal ratifies his action Agency by estoppel: when a principal acts in a manner that leads a third

party to reasonably believe an agency relationship exists.o Types of Authority

Express authority: authority that was given in written or verbal form Implied authority: authority to do what is necessary to carry out the agency

agreement Ex: Sue asks Stan to wash her car at the local car wash. Stan has

express authority to wash the car and implied authority to drive the car to and from the car wash

Authority by ratification: occurs when a principal grants authority after the agent has acted on their behalf without authority

Emergency agency powers: arise when an emergency situation arises and an agent must act without actual authority

Actual Authority: either express or implied Apparent authority: arises from manifestations made by principal and

requires that a third party reasonably believes that agent has authority to act

equal dignity rule: holds than if an agent will be entering into contracts on behalf of the principal, which must be in writing under the Statute of Frauds, the agent’s authority as granted by the principal must be in writing

Contractual liability for contracts entered into by agentso Regardless of whether the principal was disclosed, partially disclosed, or

undisclosed, the principal and third party are bound in contract if? agent was action within scope of authority

Disclosed principal: no liability for agent Partially disclosed principal: most states hold agent liable for

performance Undisclosed principal: agent is liable (as well as principal)

o Both parties must have contractual capacity Liability created by agency

o Negligence: principal is liable for their own negligence; agent is liable for their own actions if they act negligently

o Intentional torts: principal is liable for intentional torts they commit, order the agent to commit, or are committed by the agent if they knew or should have known the agent could act in such manner; agent is liable for personal actions

o Crimes: principal is liable for any crimes they commit, they order the agent to commit, or are committed by the agent if they knew or should have known the agent could act in such a manner; agent is liable for their own crimes

4 Duties of agents: agent has a fiduciary duty to act in the best interest of the principalo Loyaltyo Notificationo Duty of careo Duty to abide by orders

Duties of principalso Cooperation: the principal cannot interfere with the agent’s completion of required

dutieso Reimbursement: the principal must provide reimbursement for expenses incurred

by the agency on behalf of the principal. In addition, the agent may seek reimbursement for liabilities incurred because of tortious or unlawful acts by the principal

Indemnification: the act of seeking reimbursement arising from a legal liability

Termination of an agency – How to terminate?o By agreement

o Resignation of agento By Principal’s actionso Purpose achievedo Occurrence of a specific evento Death or incapacityo Impossibility or frustration of purposeo Bankruptcy

Chapter 11:

1. Stewart v. Judya. Facts of the Case

b. Relevance to Class

c. Court Findings

2. Marriage of Heinzmana. Facts of the Case

b. Relevance to Class

c. Court Findings

3. Ellish v. Airport Parking Co.a. Facts of the Case

b. Relevance to Class

c. Court Findings

Chapter 12:

4. Vulcan Metals Co., Inc. v. Simmons Mfg. Co.a. Facts of the Case

b. Relevance to Class

c. Court Findings

5. Discount Tobacco City & Lottery v. USAa. Facts of the Case

b. Relevance to Class

c. Court Findings

6. Clemens v. Lesneka. Facts of the Case

b. Relevance to Class

c. Court Findings

Chapter 13:

7. Torosyan v. Boehringer Ingelheim Pharmaceuticalsa. Facts of the Case

b. Relevance to Class

c. Court Findings

8. Griggs v. Duke Power Co.a. Facts of the Case

b. Relevance to Class

c. Court Findings

9. Vande Zande v. Wisconsina. Facts of the Case

b. Relevance to Class

c. Court Findings

Chapter 14:

10. In re Jhaa. Facts of the Case

b. Relevance to Class

c. Court Findings

11. Commodity Future Trading Commission v. Weintraub et al.a. Facts of the Case

b. Relevance to Class

c. Court Findings

12. In re Johnsona. Facts of the Case

b. Relevance to Class

c. Court Findings

13. In re Miller

a. Facts of the Case

b. Relevance to Class

c. Court Findings

14. Rembert v. Citibank South Dakotad. Facts of the Case

e. Relevance to Class

f. Court Findings

15. Ohio v. Kovacs, Doing Business As & W Enterprises et al.g. Facts of the Case

h. Relevance to Class

i. Court Findings

Chapter 15:

16. Perpetual Real Estate Services, Inc v. Michaelson Properties, Inc.j. Facts of the Case

k. Relevance to Class

l. Court Findings

17. Diamond v. Oreamunom. Facts of the Case

n. Relevance to Class

o. Court Findings