Expert answer:Prepare a written response to the following 2 disc
Answer & Explanation:Prepare a written response to the following 2 discussion questions:Question 1. Sam and ChuckAddress the following scenario and prepare a legal analysis using the IRAC methodology. Student should use Week 2 power point slides on torts and upcoming Week 3 power point slides on contracts to research and analyze the arguments of each party in these scenarios.Chuck is the landlord of a large rental condominium. Sam is his employee serving as condo manager. Sam is authorized to handle all complaints and perform all repair requests from the tenants. However, he has been told not to collect any of the rents. The rents are to sent directly to Chuck as set forth in the tenant’s lease agreements. Despite this specific direction, each month for the past 5 months, approximately five or six rent checks are left with Sam by the tenants. During this period, he has promptly passed them off to Chuck. At the holiday party with the renters, where both Chuck and Sam are in attendance, Chuck expressed his satisfaction with Sam ‘s performance and in fact, referred to him as “his right arm”.A month later, Sam takes the 5 rent checks left with him and does not turn them into Chuck. In fact, he disappears without notice and can not be found. Chuck has demanded that the rent due from these 5 tenants is still due and payable to him as the landlord.Prepare an IRAC format paper in which you analyze and discuss the respective positions of each of the parties to this scenario. In your IRAC analysis you should be address the following:(a) Has Sam committed a tort in failing to turn the checks over to Chuck? If so, which one(s) and why? (b) Can the tenants that were victimized sue Sam and Chuck? Under what legal theory? Discuss!(c) Chuck argues that the tenants should still pay him any monies owed even if they already gave the checks to Sam. What arguments will support Chuck’s position? (Hint: There is an argument in contract and an argument in tort law for Chuck to prevail)Question 2. International Law Organizational IssueIn an APA format paper, with a proper introduction, body and conclusion address the following international law question:One of the goals of a business is to limit its “risk, liability and dollar payouts.” An American company is seeking to operate abroad in a foreign country. You are asked as to what organizational form that foreign entity should take in order to not allow any liability incurred on foreign soil to extend back to the corporate headquarters in the US. Would you set up a branch office or a wholly owned subsidiary?Research and indicate which form is appropriate and why? Discuss!The paper addressing these 2 questions should be formatted consistent with APA guidelines, including an APA compliant cover sheet and a Certificate of Originality as required by the UniversityNo Plagerism and No minimum word count.bus415andlaw421weekthree.pptlaw421weektwo.pptessay_temp.doc
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Week 3 – The Contentious
World of Contract Law
UNIVERSITY OF PHOENIX
BUS 415
LAW 421
LAW 531
Dr. Mark L Pugatch
RECOMMENDED APPROACH
In this class, you need to think
GRAY
There are no absolutes in law
Use words like depends, maybe,
likely, could, or might
IRAC
• I
ISSUE
• R
RULE OF LAW
• A
ANALYSIS
• C CONCLUSION
THE CIVIL REMEDY
Recovery in $$$$$$
Deep Pockets
Joint and Several Liability
Indemnification
Scienter
Contract Methodology Analysis
Approach
Three types of Contracts:
Traditional Contracts-boilerplate
Equity Contracts-fairness
UCC Contracts –merchants/goods
MUTUAL ASSENT
In order to have a valid contract you must first
have : MUTUAL ASSENT
A MEETING OF THE MINDS
Parties need to enter into contracts
voluntarily, willingly, and knowingly
Parties that form a contractual relationship are
said to be in PRIVITY
BARS TO MUTUAL ASSENT
Things that vitiate or inhibit mutual assent
Interfere with the “meeting of the minds”
1. Duress-influence over another due to force or fear
2. Undue Influence- influence over another due to
relationship
Who gets a benefit?
3. Misrepresentation
Distinguished from intentional tort of fraud
Innocent misstatement of fact
Misrepresentation
•
•
•
•
Make a false statement
Knowing that it will be relied upon
Reasonably relied upon
To the detriment of the victim
Bars to Mutual Assent (cont’d)
4. Mistake
Bilateral- both parties-void contract
Unilateral- one party-voidable by
potentially wronged party
Depending on level of knowledge
and who gets ultimate benefit
5. Intoxication/Drugs
6. Incapacitation- Insanity
THE STATUTE OF FRAUDS
THESE CONTRACTS MUST BE IN WRITING
TO BE VALID:
1. M- Marriage
2. Y- Any contract to be completed greater
than 1 year
3. L- Land
4. A- Answer for the debts of another
5. S- Sale of goods greater than $500-(UCC
only)
PAROL EVIDENCE RULE
THE FOUR CORNERS DOCTRINE
“The Contract Speaks for Itself”
Courts will not allow parol or oral testimony to “alter or
change” a document but ….
Will allow testimony to:
1. Explain ambiguity
2. Explain use of term in industry
3. Overcome presumption against boilerplate
Preparer must overcome burden
5 REQUIRED ELEMENTS OF A
CONTRACT
Must have all 5
– OFFER- unilateral, unequivocal invitation to contract
– ACCEPTANCE-unequivocal agreement to contract
– CONSIDERATION-bargained for detriment
– LEGALITY-subject matter is legal
– PERFORMANCE-both sides to perform
Offer
• Must be definite in all terms
• Offer is non transferable
• Can be revoked at any time prior to
acceptance
• Cannot be ad or invitation to bid
• Must be communicated
• Time is of essence offer- must complete
performance by certain date
Acceptance
• Must be accepted by one to whom offer
made or their agent
• Mirror Rule- must be exact and
unequivocal
• Silence is never acceptance
• Must be accepted in mode desired
• What if mode not specified?
• Mailbox Rule
Consideration
• Bargained for detriment
• Must be reasonable
• Not retroactive or something legally
required to refrain from
• Not a gift
Legality/Performance
Legality
• Subject matter must be legal
• Purpose must be lawful
Performance
• Will usually be in contention
• Full performance sought unless excused
legally or by conduct of parties
DEFENSES TO BREACH OF
CONTRACT
One party or other fails to perform.. can be excused if:
1. Assignment of rights/Sublease
with notice and writing- Novation
No delegation of duties without notice/writing
2. Capacity- Minors, Insane
Minors-voidable at their option if they
have not done anything affirmative to
aggravate or make worse or commit gross
negligence
Minors not permitted to
abandon:
• Necessaries of job/school
•
•
•
•
•
Obligations to IRS, FTB
Civil citations for traffic to municipalities
Military or sports contracts
Student Loans
Child Support
Discharge of Contract
•
•
•
•
•
Full Performance
By agreement- accord and satisfaction
Operation of Law
Destruction of subject matter
Act of God- unforeseeable events
NOT: Commercial Impracticabilityeconomic hardship frowned upon, parties
attempting will be characterized as having
“unclean hands”
Unclean Hands Doctrine
• Parties that approach the court with
improper motivation to request remedy
usually for economic harm are
characterized by the court as having
“unclean hands
• Parties are remanded to work it out in the
spirit of the Commerce Clause
• Contractual obligations upheld
Damages
• Can only get one set of damages
Example: Election of contract damages or
unjust termination or worker’s comp
Compensatory (receipts)
Consequential (time off/profit)
• Liquidated damages-predetermined amount
agreed to by parties-always less than contract
• Equitable-Court determined if no contract
remedy
THE COURT OF EQUITY
If you fail to sustain a contract in the traditional
approach, then you want to appeal for “social
fairness” in the Court of Equity
You will ask the court to give you
“QUASI CONTRACT” relief
citing that not to do so is:
1. Unjust
2. Unfair
3. Unjust Enrichment to other party
Example: Unconscious patient billed by hospital
GROUNDS FOR EQUITY RELIEF
Ask for Equitable Relief using the following grounds:
(Will not get contract relief)
1. Substantial Performance
Usually get time and materials
2. Specific Performance
Specific good or perform unique service
3. Promissory Estoppel
Promissory Estoppel
•
•
•
•
Make a promise to another
Knowing that it will be relied upon
Reasonably relied upon
To the detriment of the victim
Essential Clauses for Contracts
• ADR Clause-how dispute would be
settled
• Choice of Law clause-under whose
law the matter would be settled
• Choice of Forum clause- where the
dispute would be litigated if ADR
failed
E-Contracts
• Online contracts- generally enforceable
even if writing required by statute of frauds
(CA Civil Code 1624,b,3,a)
• Click on or click wrap agreementsenforceable since opportunity to read and
acknowledge given – SCIENTER
• Electronic signatures-permitted under
certain circumstances, not court filings
• (CA Civil Code 1633.1)
UCC CONTRACTS
GOODS AND MERCHANTS
Courts give contracts under the UCC (Uniform Commercial Code)- a
legislative enactment by the states, a more lenient interpretation:
Why?
– Commerce Clause
– Desire to enforce trade
– Courts are reluctant to get involved
– Courts frown upon economic hardship- “Unclean Hands”
UCC Article 2: Differences from
Traditional Contract Analysis
1. Offer-(2-304)
A contract under UCC must be held open for a
reasonable period before revoked-90 days
Firm offer- requires a writing
2.
Acceptance- If not specified in contract,
acceptance can be in any mode that has been
used by the parties in previous dealings or by
trade and custom in the industry
Differences (cont’d)
3. Gap Filler (2-305)
No Mirror Rule, Unlike traditional contract law,
the parties to the contract do not have to
include all terms at the outset of the process.
They may fill them in as they go along.
Example: Requirements Contracts
4. Modification (Additional Terms) (2-207)- Parties
can modify terms and conditions without being
deemed a counter offer with NOTICE and
acceptance in WRITING by all parties
Differences (cont’d)
5. Movement of Goods
The UCC presumes a shipment contract if not
specified in the contract
Shipment Contract- Title, risk and liability
shift to buyer at origination point
Destination Contract- Title, risk and liability retained
by seller until reaches destination point
6. Installment Contract- Separate acceptances/payments
7. Output Contract – Agree to purchase all of production
Differences (cont’d)
8. Warranties- (2-205)
Implied Warranty of good faith
Warranty of Title
Warranty of Quality (Grade)
Warranty of Fitness
Warranty of Merchantability (2-314)
Fit for ordinary purpose
Adequate packaging, labeling
Even kind, quality and quantity
Statute of limitations-4 years -Initiates upon
inspection
Express Warranty -Conforms to all promises
Differences (cont’d)
9. Breach of Contract- nonconforming goods
at delivery date
If prior to delivery date-cure
At delivery date- Keep all
Return all
Retain some
Custom goods- requires 30 day right to
cure at delivery date
Differences (cont’d)
10. Breach remedies
Buy from someone else, sue for
difference in price from original provider
who breached contract
plus
consequential damages
Note: Anticipatory breach- You take action
prior to delivery date. If so, you breach!
Important Notice
You have now completed the unit
on Contracts!
Flush at your own risk!
Week 2 – The World of Tort
Law
UNIVERSITY OF PHOENIX
LAW/421
Dr. Mark L Pugatch
RECOMMENDED APPROACH
In this class, you need to think
GRAY
There are no absolutes in law
Use words like depends, maybe,
likely, could, or might
IRAC
• I
ISSUE
• R
RULE OF LAW
• A
ANALYSIS
• C CONCLUSION
THE CIVIL REMEDY
Recovery in $$$$$$
Deep Pockets
Joint and Several Liability
Indemnification
Scienter
TORT LAW
TORT- Civil Wrong
Intentional – Act of the Mind- Intent
Negligence – Accident, Carelessness
Duty, Breach, Causation, Damages
Strict Liability – Presumed Fault
Do not have to demonstrate duty and breach
of duty – presumed
Intentional Torts
Formulated in the mind-conscious intent
• Assault- intentional placing of another in fear or
apprehension of an impending battery
• Intentional Infliction of Emotional Distress
• Battery- intentional touching of another without
permission
• False Imprisonment-detention of another for an
unreasonable amount of time with no safe
means of escape
Shopkeeper’s Privilege
Custody vs Detention
• Custody- Arrest
Constitutional rights attach
Miranda warnings given
• Detention- temporary restriction of
movement to ascertain safety and gather
information
The Reasonable Person Test
• To avoid sensitivities of individual and the
differences between persons…
• We use the “reasonable person test”how an imaginary, non gender specific
individual would act when exposed to
the same set of facts and
circumstances”
Intentional Torts (cont’d)
• Trespass-unauthorized entry onto the real
property of another
• Conversion-intentional taking of the
personal property of another with the
intent to permanently deprive
Larceny vs Embezzlement
• Defamation
Slander vs Libel
Intentional Torts (Cont’d)
• Defamation- Individual
Make a false statement
Knowing that it is false
Publish it to others
Person is damaged
vs Public Defendant
Need to show all 4
elements plus
“actual malice”
• Fraud- intentional (Misrepresentation-mistaken)
Make a false statement
Knowing that it will be relied upon
It is reasonably relied upon
To the detriment of the victim
Negligence
• Recklessness or carelessness, accidental harm
results from conduct not planned or precipitated
4 Required Elements
Duty of care – Protect from harm-invitees
Higher duty-revenue producing public businesses
Breach- Failed to protect from harm
Causation- Cause of harm
Damages- Victim is damaged-physically,
psychologically or financially
CAUSATION
Essential element of Negligence
“But for Cause” or “Actual Cause”
Were you the bridge of harm?
Superceding, Intervening Cause
Breaks the chain of causation, limits
the liability of original tortfeasor – $$$$
DEFENSES TO TORT CLAIMS
1. ASSUMPTION OF THE RISK
Complete defense
2. SUPERCEDING, INTERVENING CAUSE
Also referred to as: COMPARATIVE
FAULT (others)
Partial defense
3. CONTRIBUTORY NEGLIGENCE (you)
(Apportion Fault in %)
Strict Liability
• Activities that are so dangerous that you
cannot protect yourself from harm even
with precaution
• Product Liability
• Activities with higher duties
• Violations of statutes/laws
• Allows for victim only to prove causation and
damages, fault is presumed
Defenses to Strict Liability
•
•
•
•
•
•
Misuse
Not used in required manner
Modification or redesign
Assumption of risk
Comparative fault
Scienter
RESPONDEAT SUPERIOR- How
to Attach Liability to an Employer
Deep Pocket Recovery
Can you attribute employee conduct to their
employer?
Yes
“ Course and Scope
of Employment”
No
“Frolic and
Detour”
Third Party Liability
• Wrongs against others
• To gain a deep pocket recovery, victims
will seek to extend liability from agent
(employee) to principal (employer)
• Third party liability
Damages from Torts
• Special Damages- Measurable in exact
terms, medical treatment, loss of income,
property damage
• General Damages- Pain and suffering
• Punitive Damages- Only given in heinous
cases to teach lesson or deter conduct in
future, multiples of actual damages
Bailments
• Bailments -temporary possession of
personal property
• Turned over for service, safekeeping
• Examples: Dry cleaners, Common
carriers, Valet parking or parking lots
• Disclaimer from liability
• Damages=reasonable value for
replacement
Intellectual Property
Article 1, Section 8-US Constitution
• Gives tangible property rights to intangible
property
• Governed by federal law
• Trademarks (Cybermarks)-10 years
Generic trademarks-coke, xerox, kleenex
• Patents-14 years design patents (method,
process, invention)
Must register as prototype- 1 yeargeneral use law
Intellectual Property
• Copyrights-life of artist plus 70 years-automatic
once completed, does not have to be published
• Qualitative (how much)/ Qualitative (how
significant) Tests
• Effected when conceived, register, enforce
• Trade Secrets- “don’t reveal”
Agreements to not disclose enforceable in CA
• Confidentiality Agreements
• Not to Compete Agreements
TPM so as to avoid involuntary servitude
Intellectual Property (cont’d)
• Paris Convention
• Definition
Signed in 1883 it provides two fundamental patent rights:
(1) citizen or resident of any signatory country will enjoy
in all signatory countries the rights each signatory
country grants to its own citizens and residents; (2)
citizen or resident of any signatory country, within 12
months (6 months for trademarks) after filing a patent in
the home country, can file an application in any signatory
country to receive the benefits of the original filing date.
Passing Off / Palming Off
• Passing off (Britain) / Palming off (US) is a common
law tort which can be used to enforce unregistered
trademark rights. The tort of passing off protects the
goodwill of a trader from a misrepresentation that causes
damage to goodwill.
• The law of passing off prevents one person from
misrepresenting his or her goods or services as being
the goods and services of the claimant, and also
prevents one person from holding out his or her goods or
services as having some association or connection with
the plaintiff when this is not true.
Cybersquatting
• Obtain possession of domain name with
no logical relationship
• Aspire to make money from its ownership
• Hope that true owners will want to obtain
in future
• Do so in bad faith
Visual Artists Rights Act (1990)
• The Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106A,
is a United States law protecting artist rights.
• VARA was the first federal copyright legislation to grant protection to
moral rights. Under VARA, works of art (paintings, drawings, prints,
sculptures, still photographic images) that meet certain requirements
afford their authors additional rights in the works, regardless of any
subsequent physical ownership of the work itself, or regardless of
who holds the copyright to the work. For instance, a painter may
insist on proper attribution of his painting and in some instances may
sue the owner of the physical painting for destroying the painting
even if the owner of the painting lawfully owned it.
• While federal law had not acknowledged moral rights prior to this
act, some state legislatures and judicial decisions created limited
moral rights protection. The Berne Convention required protection of
these rights by signatory states, and it was in response that the U.S.
Congress passed the VARA.
• Sculptors may object to statues being removed from donated land
Dram Shop Rules
• Dram-Unit of Liquid Measurement –Ireland
• Theory of Liability
• Business Establishments/ Airlines
Homeowners
• Civil/Criminal Penalties in CA
Important Notice
• You have now completed the discussion of
Torts
• Be prepared for BUG USA next week!
• Flush at your own risk!
1
Ethics Essay
Daniel L. Barrera
ETH/316
Aug 3, 2015
Mr. Ed McCullough
2
Title of Paper
Triple click your mouse anywhere in this paragraph to replace this text with your
introduction. Often the most important paragraph in the entire essay, the introduction grabs the
reader’s attention—sometimes a difficult task for academic writing. When writing an
introduction, some approaches are best avoided. Avoid starting sentences with “The purpose of
this essay is . . .” or “In this essay I will . . .” or any similar flat announcement of your intention
or topic. Read more: Center for Writing Excellence>Tutorials and Guides>Essay
Development>Guidelines for Writing Academic Essays.
Level One Heading
Replace the level one heading with the words for your heading. The heading must be in
bold font. Headings are a necessary part of helping your audience track the sub-topics discussed
in the body of the essay or report.
Be sure to indent the first line of each paragraph between five and seven spaces by
pressing the Tab key one time on the keyboard. In addition, remember to double space the entire
paper using the double space functionality in Word. This template is already formatted for double
spacing. Read more: Center for Writing Excellence>Tutorials and Guides>Software Tutorials
and Guides>Formatting Tutorial for APA.
In addition, keep in mind an academic essay should contain at least five paragraphs,
which includes the introduction (introductory paragraph), the body (which is generally at least 3
paragraphs), and the conclusion (generally one paragraph). Most well-developed paragraphs
contain at least 3-5 sentences, one of which is the topic sentence. Limit each body paragraph to
one sub-topic.
3
Level Two Heading
Replace the level two heading with the words for your heading. The heading must be in
bold font. Read more about APA headings on the APA Style Blog.
Conclusion
The closing paragraph is designed to bring the reader to your way of thinking if you are
writing a persuasive essay, to understand relationships if you are writing a comparison/contrast
essay, or simply to value the information you provide in an informational essay. The closing
paragraph summarizes the key points from the supporting paragraphs without introducing any
new information.
4
References
This is a hanging indent. To keep the hanging indent format, triple click your mouse on this line
of text and replace the information with your reference entry. You can use the Reference
and Citation Examples (Center for Writing Excellence>Tutorials and Guides>Reference
and Citation Examples) to help format your source information into a reference entry.
The reference page always begins on the top of the next page after the conclusion.
…
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