Beruflich Dokumente
Kultur Dokumente
substantive law: rights and duties that each person has in society (what)
procedural law: rules dealing with enforcement of substantive rights/duties (how)
public law (government)constitutional, criminal, taxation
private law (non-government)contracts, tort, property
common law: case-based system of law (Theory of Precedent/Stare Decisis)
o typescanon (Church), feudal (land ownership by Lords), merchant
civil law: law system involving comprehensive legislated code (Legislation)
Need for consistency and predictabilityLike cases need to be treated alike
stare decisis: to stand by a previous decision
distinguish: identify factual difference to justify different outcome than precedent
overrule: declare existing precedent no longer binding/effective
Sources of Law
o Statutes
Used to codify and modify law, authorize government programs
strict interpretation: provision applied only when facts covered
specifically by statute (content)
liberal approach: statutory interpretation that considers legislative
intent, purpose, history of statute, and context of language (context)
o Legislation Framework
passiveprohibit formerly permitted activity or remove prohibition
activegives government power to carry on program
equity: rules developed by courts of equity as exceptions to existing common law
equitable remedies: created by courts of equity when money damages did not
solve problem
specific performance: order by court of equity to carry out binding obligation
contempt of court: punishment for party refusing to obey courts order
Procedural Law: Using Courts
o Sue
citizens, non-citizens, and corporations may sue
unincorporated collectivity: group of people that cannot sue
individuals whose rights are specifically affected have standing
o Class Action: individual represents group of possible plaintiffs and
judgement decides matter for all members of class at once (e.g. group of
consumers)
members can opt to get out of class
res judicata: case that has already been decided by court and
cannot be brought before court again (binds all class members)
benefits
avoiding multiple actions and inconsistent results
allowing economic access to justice
deterring wrongful behaviour of defendants
o Settlement Out of Court
tort: wrongful act causing harm to person or property of another, identifies set of
circumstances that create right to claim
purpose of tort law is to COMPENSATE victim, NOT punish offender!
strict liability: imposed based upon causation regardless of fault
evolution of tort law
o fault of defendant: unjustifiable injurious conduct that
intentionally/carelessly disregards others interests
basis of liability = fault
justified with deterrent effect of liabilitypeople will be more
careful if they have to pay for consequences
compensation system based on fault = defectiveaccident
victims go uncompensated
o causation did defendants conductharm?
public policy: considerations/objectives that are considered beneficial to society
as a whole
o no-fault insurance: compulsory insurance that eliminates fault as a basis
for claims (e.g. auto insurance)
o workers compensation: employers contribute to fund used to compensate
workers injured in industrial accidents regardless of how it was caused
vicarious liability: liability of employer to compensate for torts committed by
employee during employment
o public policy reasons
just & practical remedyemployees have limited assets to
compensate victim
benefit burdenperson who makes profit should bear loss from tort
o exceptions
employee liable when harm results off-duty
employee liable if they delegate work to someone else without
employers consent
intentional torts: activity/conduct done deliberately, relates only to behaviour and
not resulting damage
o trespass: unlawful entering or remaining on others land without
permission
o assault: threat of violence to person
o battery: unlawful physical contact with person
nuisance torts
o public nuisance: interference with lawful use of public amenities
o (e.g. blocking public roads)
o private nuisance: interference with occupiers (including tenants and
owner) use and enjoyment of their land (e.g. excessive noise)
courts must consider 2 issues
1. degree of interference with occupiers use & enjoyment
2. economic importance of offending activity
Use of professional services reduces risks but results are not guaranteed (not
perfect)
Liability of professionals
o Contractual Obligationsbreach of contract
o Fiduciary Duty: duty imposed on person who stands in special relation of
trust to another (e.g. doctor-patient, lawyer-client)
characteristics
scope for exercise of some discretion/power
can unilaterally exercise discretion/power to affect clients
interests
client vulnerable/at mercy of fiduciary with power
professional must act honestly, in good faith, and only in best
interests of client (complete loyalty & fidelity)
must avoid conflict of interestcannot fulfill duty if conflict
o Tort Liability
allowing tort liability expands possible plaintiffs beyond clients (e.g.
audited financial statements given to lenders and investors)
third-party liability: liability to other person who stands outside
contractual relationship (e.g. real estate agent)
deceit: intentional tort imposing liability when damage is caused by
false statement made with intention of misleading another person,
can also occur when information is deliberately concealed/withheld
fraudulent misrepresentation: intentional tort imposing liability for
incorrect statement made knowingly with intention of causing injury
negligent misrepresentation: unintentional tort imposing liability
when incorrect statement is made without due care for accuracy
and injury is caused as result
disclaimer: express statement to effect that the person making it
takes no responsibility for particular action/statement
accuracy of statementassessed as of time info was given
Standard of Care for Professionals
o professionals must take reasonable care before making representation
o compare quality of professional work with standards of profession at that
time (e.g. comply w/ GAAP)
o reasonable standard includes not omitting essential info
reliance: acting in certain way because one believed info received
detrimental reliance: worsening of ones situation after acting upon false info they
believed to be true