Contract Law, Criminal Justice, and Torts: Key Concepts
Contracts
What are the elements of a contract? Offer, acceptance, consideration, legality of subject matter, contractual capacity (void or voidable).
What laws generally govern contracts? Common law.
What law governs the sale of goods between merchants? UCC (Uniform Commercial Code).
What is an offer? A statement of the terms on which the offeror is willing to be bound.
What is needed for an offer to be effective? Intention to make an offer, definiteness of terms, communication of the offer.
Who is the offeror? The party who makes the offer. The offeree is the person who either accepts or does not accept the offer.
Who is the offeree? The person who either accepts or does not accept the offer.
What can an offeree do when presented with an offer? As a general rule, the offeror is free to revoke an offer at any time before the offeree has accepted it.
What is the mirror image rule? The acceptance must mirror the offer.
What is an acceptance? Occurs when an offeree agrees to be mutually bound to the terms of the contract by giving consideration, or something of value like money, to seal the deal.
What is a bilateral contract? A reciprocal arrangement between two parties where each promises to perform an act in exchange for the other party’s act. How does one accept a bilateral contract? Each party is an obligor (a person who is bound to another) to its own promise, and an obligee (a person to whom another is obligated or bound) on the other party’s promise.
What is a unilateral contract? A legally enforceable promise – between legally competent parties – to do or refrain from doing a specified, legal act or acts. How does one accept a unilateral contract? One party pays the other party to perform a certain duty.
What would terminate the offeree’s ability to accept an offer? Revocation, rejection, lapse of time, conditional offer, operation of law, death, acceptance, illegality.
What is a counteroffer? An offeree’s response to an offer in which the offeree rejects the original offer (either in part or in full) and, at the same time, makes a new offer. The offeree then becomes the offeror.
What is a rejection? Is effective upon receipt.
What is a revocation? The act of recall or annulment. It is the reversal of an act, the recalling of a grant or privilege, or the making void of some deed previously existing. When can an offeror revoke an offer? Before it has been accepted, but the revocation must be communicated to the offeree, although not necessarily by the offeror.
When is a revocation not effective? An offeror can revoke if (1) it occurs within a reasonable time after the buyer discovers or should have discovered; (2) before any substantial change in the goods not caused by their own defects; and (3) not effective until the buyer notifies the seller he is going to revoke.
What is the Mailbox Rule? Acceptance is effective upon proper dispatch.
What is consideration? The “glue” that holds the entire contract together. It is also called a “bargained-for exchange.” The court will not look for adequacy of consideration.
Guest Speaker (Michael Earle)
Did you take notes during our guest speaker’s presentation? YES.
Do you remember his name? MICHAEL EARLE.
What are the steps in the criminal process? 1. Arrest, 2. Arraignment, 3. TRC (Trial Readiness Conference), 4. Preliminary Hearing, 5. Trial.
Who is responsible for filing charges? The prosecutor.
What takes place during each step? They are trying to collect all your information.
When is the best time to accept a plea? At the settlement/TRC.
What did our guest speaker say about sentencing guidelines? Guilty or not guilty, bail, O.R. (Own Recognizance).
“Stop sign: attitude test.”
Types of crime: Felonies, wobblers, infractions, misdemeanors.
What is an 88? Abnormal activity, and the rule is they are the placebo.
What is a wobbler? A crime that can be charged as either a felony or a misdemeanor. Example? Infractions or release, depending on attitude.
How does bail work? It depends on whether you are guilty or not, and you need to put up 10%.
Are there any exceptions our guest speaker mentioned? You do not have an expectation of privacy at the border.
According to our guest speaker, what Constitutional Amendment applies to Searches and Seizures? The 4th Amendment. And what does that Amendment say about them? Very few people follow this amendment. Good faith, plain view.
What is a strike? Used with violence, gun, machete. How does it affect sentencing? Three strikes and you are done. If you have two strikes, California is not a good place to live, and three strikes increase the sentence in prison.
Did the Guest speaker discuss anything about DUIs? They will let the person out on bail or O.R. and send them to some A.A. meetings. If the judge gives you an order, you better follow the order; otherwise, your bail can increase. Don’t drink and drive. The legal limit is .08. Do not take the field sobriety test (FST) when you drink; your blood alcohol content rises. The answer for an officer will be “5 minutes ago” regarding the time of your last drink. There’s a difference between blood and stomach alcohol. Do not take the test because, to the officer, you are at 0, but if you do, it is completely up to him if you pass or not. These tests are designed so you don’t pass them. Doing it is not helping yourself. It is easier to defend a marijuana DUI than an alcohol DUI. You also have to move the car, even if it is only two spots.
Crimes
What are the elements of a crime? Actus reus (guilty act), mens rea (guilty mind), causation.
What are the different types of Mens Rea? Intentional, reckless, negligent. Causation = what you did and the result. Under common law, death must occur within a year and a day of the act.
What is the definition of homicide? Death of a person caused by another person. Not all homicides are criminal.
Murder? Unlawful killing of one person by another person, with malice aforethought. Intent to kill = actus reus.
What are the different “mens rea” that may be used to establish murder?
What is the felony-murder rule? A death that occurs during the commission of a felony is considered murder. It is more serious, punishable by more than a year in prison or death.
What are the elements of manslaughter? Voluntary and involuntary. What are the differences between involuntary and voluntary manslaughter? 1. Voluntary = Heat of passion, adequate provocation (you have to show a reasonable person would have acted similarly), no cooling-off period, imperfect self-defense rule. 2. Involuntary = Not a purposeful killing, Misdemeanor Manslaughter Rule.
What is the misdemeanor-manslaughter rule? A death that occurs during the commission of a misdemeanor is considered manslaughter. It is less serious, punishable by less than a year in jail and/or fines.
What are the elements of arson? Intentional (willful and malicious) burning of the property of another.
What are the elements of larceny? Taking and carrying away of another’s personal property, with the intention to permanently deprive the rightful owner of that property. The intent must exist at the time of the taking and carrying away. Negligence is a lesser crime.
What are the elements of burglary? Breaking and entering into the dwelling of another, during the nighttime, with the intent to commit a felony. The intent is triggered at the breaking and entering. The most common felony is larceny.
What are the elements of robbery? Larceny plus force/fear.
What are the elements for false pretenses? Fraudulently obtaining title to the property of another by way of knowingly false pretenses. This is usually money, such as writing bad checks.
What are “organized crimes”? Crimes that take place within a legitimate business and organized illegitimate operations providing illegal goods and services.
List some White Collar Crimes: Money laundering in a business that appears legal but is not, paying with cash.
What is the difference between embezzlement and larceny? Embezzlement: Misappropriation of funds/property by someone to whom the property was entrusted. You have permission to use the property. Larceny: Taking and carrying away of another’s personal property, with the intention to permanently deprive the rightful owner of that property. The intent must exist at the time of the taking and carrying away. Negligence is a lesser crime.
What is bribery? Attempt to influence a public official by way of offering goods or services to act in a way that serves a private interest. Both offering and accepting constitute bribery.
What is bankruptcy fraud? Making false claims, hiding assets, transferring property for purposes of manipulating the bankruptcy process.
What are the different types of Bankruptcy? Chapter 13 and Chapter 7. Do you know the difference between them? Chapter 7 is liquidation, and Chapter 13 is for wage earners.
What are trade secrets? A process, plan, or method unique to the manufacturer that gives a competitive advantage against competitors. It is a crime to buy or possess knowingly stolen trade secrets. Remember any examples? Coca-Cola recipe. It is illegal to receive them and to steal them.
How about insider trading? What is it? Obtaining inside information not yet made available to the public for the purpose of maximizing profit.
What is money laundering? Making money look legal. Example? Schools, laundromats.
What is the RICO Act, what does it say, and what does it allow the government to do? Federal law that provides for extended criminal penalties and civil recourse for racketeering activities. What constitutes racketeering activity? Two racketeering acts (out of 35) within a 10-year period. The penalty is a $25,000 fine and 20 years for each count. Racketeering activity includes: (as of) 2002, the Vatican.
What are the defenses to crimes? * Alibi * Duress * Entrapment * Impossibility * Intoxication * Insanity * Justification * Self-defense
When may one use “deadly force” to protect himself? My right to self-defense. At what point does the privilege end? If you withdraw, the self-defense ends.
When must one retreat from force? If you can escape, if it is usual to retreat, you must do so, except if you are in your own home. Under what circumstance is there no duty to retreat? In your own home.
When may one use deadly force to protect property? You may never use deadly force to protect your property. No exceptions.
When may one use force to defend others? The defender steps into the shoes of the victim. If they were justified in using deadly force, you can only use the amount of force that the victim is allowed to use.
What is the imperfect self-defense rule? A person who honestly and reasonably believes that he is being threatened with unlawful and imminent force may use the amount of force necessary to defend himself. You can only use deadly force when approached with deadly force.
When may a minor escape criminal guilt? Under 7, they are not capable of committing the crime, no criminal guilt. 7-14: rebuttable presumption that the child cannot have the mens rea for a crime. 14 and over: they know what they are doing, capable of entering the criminal capacity.
When may intoxication be used as a successful and valid defense? Involuntary intoxication.
What is needed to prove the insanity defense? (Do you remember the case?) Does not know the nature of the act or that it was wrong, and the act was a result of mental illness. The defendant must not know right from wrong or appreciate the nature and quality of the act. (Example: your ex’s husband, ex-girlfriend).
What is the difference between “mistake of fact” and “mistake of law?” Mistake of law: Generally not a defense. Mistake of fact: Generally a defense. Are both available as defenses? No.
Is consent a valid defense? Voluntary agreeing to the other’s act. For murder? No.
What is duress? Committing a crime to avoid imminent death or serious bodily injury. And when may it NOT be used as a defense? At the trial.
What is entrapment? A public officer entices a person to commit a crime they would not normally commit. What do we need to look at for this defense? (Buzz words!) Pre-disposition of the defendant. Step into the shoes of the victim.
When may the Statute of Limitations be a defense? A statute that limits the amount of time that someone may be charged with a crime. Any crimes that cannot use this defense? Murder.
Liable is written.
Slander is spoken.
Torts, continued
What are the elements of the tort “intentional infliction of emotional distress?” Intentional (or reckless) extreme and outrageous conduct that results in severe emotional distress.
What is the tort “defamation?” What’s the absolute defense? a. Intentional false or defamatory statement of fact about the plaintiff that is communicated to another (published), causing damage to the plaintiff’s reputation. * Slander = spoken; libel = written. * Public figures/officials must show actual malice also.
For defamation, what must a public official/figure prove? A statement of fact about the plaintiff to a third party resulting in damages to the plaintiff’s reputation.
What are the elements of the tort “misrepresentation?” Aside from making a false statement (a lie,) how else can one make a misrepresentation of the material fact? What’s the standard to determine justifiable reliance? a. Misrepresentation of a material fact. b. Made with intent to induce another. c. Upon which that person justifiably relies (justifiable reliance). d. And suffers damages as a result of that reliance.
What is the difference between “wrongful interference with a contractual relationship” and “intentional interference with a business relationship?” Intentional interference with an existing contractual relationship by inducing another to breach a contract with Plaintiff: a. There must be an enforceable valid contract between parties. b. The defendant knew of the contract. c. Defendant intentionally caused one of the parties to breach. Intentional interference with a business relationship: a. Unreasonable interference. b. With another’s business’s attempts to compete in the market.
What are the torts that are considered to be an “invasion to right to privacy?” Do you know the difference between them? One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.
What are the elements of “negligence?” 1. Duty a. RPP (Reasonable Person Standard) b. Look for a special relationship c. Rescuers 2. Breach a. Lack of Reasonable Care b. Res Ipsa Loquitur c. Negligence per se 3. Causation a. Actual b. Proximate 4. Damages a. Compensatory b. Punitive
What is the standard used to determine a “duty?” The first step in establishing liability is to show that there is something about what the defendant did that justifies imposing the cost of the plaintiff’s injury upon the defendant rather than the plaintiff.
Can a rescuer be a plaintiff? When might a rescuer be liable for negligence? It holds that if a tortfeasor creates a circumstance that places the tort victim in danger, the tortfeasor is liable not only for the harm caused to the victim, but also the harm caused to any person injured in an effort to rescue that victim. This doctrine was originally created in case law by Wagner v. International Railway.
What is the duty of a landowner? To keep premises in a safe condition for the benefit of trespassers. An owner does not possess any duty to a trespasser under the traditional common law view except to abstain from willful or wanton misconduct or entrapment.
In negligence, what is meant by the element “breach?” a. Lack of Reasonable Care b. Res Ipsa Loquitur c. Negligence per se
What other doctrines can be used to help determine a “breach”? The two are entirely different doctrines, but sometimes, the doctrines are merged and the terms used interchangeably.
What is needed to show Res Ipsa Loquitur? (Latin for “the thing speaks for itself”) is a doctrine that infers negligence from the very nature of an accident or injury in the absence of direct evidence on how any defendant behaved.
What is needed to show Negligence Per Se? Always look for a statute.
In negligence, what is needed for “causation?” What is the difference between Actual Causation and Proximate Causation? (Do you know the case?)
What is the difference between “compensatory” and “punitive” damages?
What are the defenses to negligence? 1. Contributory Negligence 2. Comparative Negligence 3. Assumption of the Risk
What kind of relief does a plaintiff receive if there is a successful contributory negligence defense? The concepts of contributory and comparative negligence address this question and provide a way to allocate fault between parties when the answer to this question is not entirely clear.
Is there a defense to contributory negligence? The plaintiff can come back and say “last clear chance.”
What is comparative negligence? Pure vs. Modified? Comparative negligence, or non-absolute contributory negligence outside the United States, is a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim, based upon the degree to which the plaintiff’s own negligence contributed to cause the injury.
What is meant by “assumption of the risk?” It is a defense in the law of torts, which bars or reduces a plaintiff’s right to recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and knowingly assumed the risks at issue inherent to the dangerous activity in which he was participating at the time of his or her injury.
What is vicarious liability? Do you recall what doctrine vicarious liability is based upon? Respondeat superior: employers are liable for torts of employees as long as the employee is acting “within the scope of employment.” Master-servant relationship.
When is one strictly liable for the damages caused by his domestic animal? Wild animal? a. Domestic = Devoted to the service of mankind. An owner of a domestic animal is liable for all the damages caused by that animal if their owner knew or should have known of dangerous propensities. b. Wild = Strictly liable for the result of that animal, if the damages are the type you would expect for that animal.
When is one strictly liable for an abnormally dangerous activity? What is an abnormally dangerous activity? Examples? Blasting, demolition, taking down a hotel, high degree, crop dusting. Look at the case of injury.
What are the four theories that give rise to products liability? 1. Warranties a. Express Warranty b. Implied Warranty i. Implied Warranty of Merchantability ii. Implied Warranty of Fitness for a Particular Purpose 2. Misrepresentation 3. Negligence 4. Strict Liability a. One who sells b. a product c. in a defective condition, unreasonably dangerous i. Manufacturing Defect ii. Design Defect iii. Failure to Warn d. is liable for the damages (physical harm and property) IF the product is expected to and does reach the user without substantial change.
What is an express warranty? Made a promise that the product possesses certain qualities.
What is the difference between the “implied warranty of merchantability” and the “implied warranty of fitness for a particular purpose?” Manufacturing defect = If the product leaves the manufacturer in a way it is not supposed to. Design defect = The actual design is defective.
Under products liability, what are some examples under the negligence theory of law? Misrepresentation? Apply to a product, usually cars.
How can a product be “unreasonably dangerous?” (Three ways) Manufacturing defect, design defect, and failure to warn.