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memorize.ai (lvl 286)

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Section 1

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proximate cause

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Government Law Politics

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Date created

Mar 14, 2020

Cards (43)

Section 1

(43 cards)

proximate cause

Front

foreseeability

Back

fiduciary duty.

Front

The duty of an agent to act always in the best interest of the principal, to avoid self-dealing.Preserve Confidential Information.Skill and Care.Act Only as Authorized.Good Conduct.Keep and Render Accounts. obey. give info.

Back

actual auth

Front

Actual authority can be of two kinds. Either the principal may have expressly conferred authority on the agent, or authority may be implied. Authority arises by consensual agreement, and whether it exists is a question of fact. An agent, as a general rule, is only entitled to indemnity from the principal if he or she has acted within the scope of her actual authority, and may be in breach of contract, and liable to a third party for breach of the implied warranty of authority. In tort, a claimant may not recover from the principal unless the agent is acting within the scope of employment.

Back

Respondeat Superior

Front

One of the many methods of finding someone vicariously liable for the wrongful actions of another.It is the legal theory that an employer is responsible for the negligent or wrongful acts of its employees performed within the line and scope of their employment,and a principal is responsible for the negligent or wrongful acts of its agent performed within the line and scope of its agency.It is not a theory of contract law—meaning who has authority to bind whom— but rather a theory of tort law and injuries to persons or property.

Back

eeoc

Front

Title VII established the Equal Employment Opportunity Commission (EEOC) to investigate violations of the act. A victim of discrimination who wishes to file suit must first file a complaint with the EEOC to permit that agency to attempt conciliation of the dispute. The EEOC has filed a number of lawsuits to prove statistically that a company has systematically discriminated on one of the forbidden bases. The EEOC has received perennial criticism for its extreme slowness in filing suits and for failure to handle the huge backlog of complaints with which it has had to wrestle.

Back

The Age Discrimination in Employment Act (ADEA)

Front

prohibits discrimination based on age, and recourse to this law has been growing at a faster rate than any other federal antibias employment law. In particular, the act protects workers over forty years of age and prohibits forced retirement in most jobs because of age.

Back

gratuitous

Front

An agency where the agent receives no compensation.

Back

apparent authority

Front

This type of agency is neither express nor implied. Instead, apparent authority is when a third party reasonably assumes that the principal granted authority to the agent. Apparent authority is assumed to exist by the third party through observing the principal's conduct. If the principal acts as though he or she has an agency relationship with the agent, then the principal will be legally bound by the agent's actions.

Back

authority

Front

Express means made in words, orally or in writing; implied means the agent has authority to perform acts incidental to or reasonably necessary to carrying out the transaction for which she has express authority. Apparent authority arises where the principal gives the third party reason to believe that the agent had authority. The reasonableness of the third party's belief is based on all the circumstances—all the facts. Even if the agent has no authority, the principal may, after the fact, ratify the contract made by the agent.

Back

agent

Front

person who is empowered by principal to perform a service

Back

implied

Front

Implied actual authority, also called "usual authority", is authority an agent has by virtue of being reasonably necessary to carry out his express authority. As such, it can be inferred by virtue of a position held by an agent. For example, partners have authority to bind the other partners in the firm, their liability being joint and several, and in a corporation, all executives and senior employees with decision-making authority by virtue of their position have authority to bind the corporation.

Back

retaliation cases

Front

he employee must show that the employer discriminated against him or her because that employee asserted his or her Title VII rights.

Back

terminating agency

Front

Bankruptcy of principal or agent,Abandonment by principal or agent,Death of principal or agent, Destruction of property,Mutual Consent, Incompetency - court proven,Completion

Back

ratification auth

Front

A situation in which a person or company inaccurately claims to be an agent for another person or company and conducts some act in that capacity, but which the principal (who is not actually a principal) later accepts and recognizes. Because the agent is not actually an agent, any act he/she conducts on behalf of the principal ordinarily would be invalid; however, agency by ratification exists because the "principal" confirmed the act.

Back

quasi-contract

Front

A contract imposed on a party when there was none, to avoid unjust enrichment. Suppose, for example, that a carpenter mistakenly believes you have hired him to repair your porch; in fact, it is your neighbor who has hired him. One Saturday morning he arrives at your doorstep and begins to work. Rather than stop him, you let him proceed, pleased at the prospect of having your porch fixed for free (since you have never talked to the carpenter, you figure you need not pay his bill). Although it is true there is no contract, the law implies a contract for the value of the work.

Back

Workers Compensation

Front

insurance that pays for an employee's medical care in the event that he/she is injured at work. Workers' comp may also provide for lost wages and compensate for disability or reduced earning potential. In exchange for receiving workers' comp, the employee surrenders the right to sue the employer for negligence. Workers' comp is mandatory in many jurisdictions and employee paychecks are reduced by the amount of the premium.

Back

Specific performance

Front

An order directing a person to deliver the exact property (real or personal) that she contracted to sell to the buyer.

Back

binding

Front

Betty offers to give a book to Lou. Lou accepts. Betty offers Lou the book in exchange for Lou's promise to pay $15. Lou accepts. Betty offers to give Lou the book if Lou promises to pick it up at Betty's house. Lou accepts. The question is which, if any, is a binding contract? In American law, only situation 2 is a binding contract, because only that contract contains a set of mutual promises in which each party pledges to give up something to the benefit of the other.

Back

fidicuary duties

Front

C - confidentialilty L - loyality O - obedience - only legal instructions T - trust D - due care (due diligence) A - accountability D - disclosure - you have a duty to disclosed all information to your client.

Back

ucc

Front

...

Back

title 7 applies to

Front

1) employers with fifteen or more employees whose business affects interstate commerce, (2) all employment agencies, (3) labor unions with fifteen or more members, (4) state and local governments and their agencies, and (5) most federal government employment.

Back

fidicuary

Front

An individual in whom another has placed the utmost trust and confidence to manage and protect property or money. The relationship wherein one person has an obligation to act for another's benefit.

Back

clients

Front

duties owed to principals are also

Back

liability

Front

A person is always liable for her own torts, so an agent who commits a tort is liable; if the tort was in the scope of employment the principal is liable too. Unless the principal put the agent up to committing the tort, the agent will have to reimburse the principal. An agent is not generally liable for contracts made; the principal is liable. But the agent will be liable if he is undisclosed or partially disclosed, if the agent lacks authority or exceeds it, or, of course, if the agent entered into the contract in a personal capacity.

Back

Vicarious liability

Front

is a form of strict, secondary liability that arises under the common law doctrine of agency - respondeat superior - the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator.

Back

California Family Rights Act (CFRA)

Front

applicable to employers with 50 or more employees - contain overlapping and sometimes conflicting employee rights and employer obligations regarding California family leave. The FMLA and CFRA both require covered employers to provide time off for personal illness, to attend to the illness of a family member and in connection with the birth or adoption of a child. Though this sounds simple, FMLA leave act and CFRA issues are among the most litigated of all employment law cases and can result in large liabilities. Federal and California family and medical leave laws provide eligible employees with the equivalent of up to 12 weeks per year for: • Bonding with a newborn, adopted child, or child placed for foster care • Caring for a family member with a serious health condition • The employee's own serious health condition • A qualifying exigency relating to a close family member's military service (FMLA only) According to the federal Family and Medical Leave Act, eligible employees can get up to 26 weeks per 12-month period to care for an ill or injured service member (FMLA only). Family and medical leave laws also prohibit retaliation or discrimination against an employee for exercising rights under FMLA or CFRA or for giving information or testimony about alleged violations of California or federal family and medical leave laws.

Back

promissory estoppel

Front

To be prohibited from denying a promise when another has subsequently relied upon it.

Back

terminate

Front

Agencies terminate expressly or impliedly or by operation of law. An agency terminates expressly by the terms of the agreement or mutual consent, or by the principal's revocation or the agent's renunciation. An agency terminates impliedly by any number of circumstances in which it is reasonable to assume one or both of the parties would not want the relationship to continue. An agency will terminate by operation of law when one or the other party dies or becomes incompetent, or if the object of the agency becomes illegal. However, an agent may have apparent lingering authority, so the principal, upon termination of the agency, should notify those who might deal with the agent that the relationship is severed.

Back

Unilateral contracts

Front

A contract that is accepted by the performance of the requested action, not by a promise. If Charles says to Fran, "I will pay you five dollars if you wash my car," Charles is contractually bound to pay once Fran washes the car. Fran never makes a promise, but by actually performing she makes Charles liable to pay.

Back

Employee or independent contractor?

Front

the principal supervises details of the work the principal supplies the tools and place of work the agents work full time for the principal the agents receive salary or hourly wages, not a fixed price for a job the work is part of the regular business of the principal the principal and agents believe they have an employer-employee relationship the principal is in business

Back

employment at will

Front

That rule holds that in the absence of a contractual agreement otherwise, an employee is free to leave employment at any time and for any reason; similarly, an employer is free to fire employees at any time and for any reason

Back

quid pro quo

Front

"one thing in return for another." If any part of a job is made conditional on sexual activity, there is quid pro quo sexual harassment.I can get you off of the night shift if you'll sleep with me,"

Back

employers liability

Front

Employers are vicariously liable, under the respondeat superior doctrine, for negligent acts or omissions by their employees in the course of employment (sometimes referred to as 'scope of employment').[1] For an act to be considered within the course of employment, it must either be authorized or be so connected with an authorized act that it can be considered a mode, though an improper mode, of performing it. For instance, an employer will be held liable if it is shown that the employee had gone on a mere detour in carrying out their duties, whereas an employee acting in his or her own right rather than on the employer's business is undertaking a "frolic" and will not subject the employer to liability. employer will be held liable if an employer does an authorized act in an unauthorized way Generally, an employer will not be held liable for assault or battery committed by employees,

Back

consideration

Front

he quid pro quo (something given or received for something else) between the contracting parties in the absence of which the law will not enforce the promise or promises made.

Back

Agency/employ at Will

Front

if they make no agreement in advance about the term of the agreement, either principal or agent can terminate at any time

Back

Family and Medical Leave Act (FMLA

Front

provides eligible employees with unpaid, job-protected leave for certain family or medical conditions

Back

disparate impact

Front

the employee need not show that the employer intended to discriminate but only that the effect, or impact, of the employer's action was discriminatory. Usually, this impact will be upon an entire class of employees. The plaintiff must demonstrate that the reason for the employer's conduct (such as refusal to promote) was not job related. Disparate impact cases often arise out of practices that appear to be neutral or nondiscriminatory on the surface, such as educational requirements and tests administered to help the employer choose the most qualified candidate. In the seminal case of Griggs v. Duke Power Co., the Supreme Court held that under Title VII, an employer is not free to use any test it pleases; the test must bear a genuine relationship to job performance.

Back

hostile work environment

Front

An employee has a valid claim of sexual harassment if sexual talk, imagery, or behavior becomes so pervasive that it interferes with the employee's ability to work to her best capacity.

Back

disparate treatment

Front

In this type of lawsuit, the plaintiff asserts that because of race, sex, religion, or national origin, he or she has been treated less favorably than others within the organization. To prevail in a disparate treatment suit, the plaintiff must show that the company intended to discriminate because of one of the factors the law forbids to be considered.

Back

exceptions to title 7.

Front

merit:Merit decisions are usually based on work, educational experience, and ability tests. All requirements, however, must be job related. seniority

Back

negligence

Front

(1) a duty of due care that the defendant had, (2) the breach of the duty of due care, (3) connection between cause and injury, and (4) actual damage or loss.

Back

Statute of Frauds

Front

A rule requiring that certain contracts be evidenced by some writing, signed by the person to be bound, to be enforceable.

Back

Title VII of the Civil Rights Act of 1964

Front

It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.

Back