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Study Guide (agency - chap 8 (agent duties (performance: reasonable…

- - - - Tort and contract remedies- breach of duty by principal follow normal contract and tort remedies, demand for an accounting- withhold further performance and demand for accounting, no right to specific performance-agent has no right to specific performance
    - - Constructive trust- agent obtains by virtue of the employment or agency relationship belongs to the principal, avoidance- agent breaches the contract principal can avoid, and indemnification- sometimes the principal can sue the agent if the principal was sued for what the agent did
- - - - promises to pay
        
        promissory note and certificate of deposits
      - order to pay
        
        drafts and checks
      - requirements for instruments to be negotiable
        
        in writing, singed by the maker or the drawer, an unconditional promise or order to pay, state fixed amount of money, payable on demand or at a definite time, and payable to order or to bearer
    - - special indorsements
        
        contains the signature of the indorser and identifies the person to whom the indorser intends to make payable
      - qualified endorsements
        
        indoors disclaims any contract liability on the instrument and notates
      - blank indorsements
        
        doesn't specify a particular indorsee
      - restrictive indorsements
        
        requires the indorsee to comply with certain instructions regarding funds
      - requirements for HDC
        
        take the instrument for value
        
        in good faith
        
        without notice that it is defective
    - - warranty liability
        
        doesn't require a signature and extends to both singers and non-signers
      - accommodation parties
        
        cosigner
      - universal defenses
        
        forgery of a signature, fraud in the execution, material alteration, discharge in bankruptcy, minority, and illegality, mental incapacity, and extreme duress
      - personal defenses
        
        breach of contract, lack or failure of consideration, fraud i the inducement, illegality, mental incompetence, ordinary duress or undue influence, discharge by pervious payment or cancellation, unauthorized completion of an incomplete instrument, non-delivery of the instrument
    - - articles of UCC govern EFT's
        
        article 3
        
        sets forth the requirements for all negotiable instruments
        
        article 4
        
        establishes a framework for deposits and checking agreements between a bank and its customers and governs the relationships of banks with one another as they process checks for payment
      - banks duties
        
        overdrafts- pay and charge, or don't pay and charge
        
        pay postdated check unless the customer called and said otherwise
        
        stale check- 6 months since date written doesn't have to pay
        
        stop-payment
        
        bank can keep paying checks of death until notified
        
        must funds available when needed
      - bank liable
        
        liable to its customer if the check is altered
      - types of EFT
        
        atms
        
        point of sale sytems- online terminals for debit cards
        
        direct deposits and withdrawals
        
        internet payment sytems
        
        risk: Consumers risk potential unauthorized access to personal data and fraudulent transactions.
  - - - articles of UCC
        
        2- sales contract
        
        2A- lease contracts
      - mirror image rule
        
        terms of the acceptance exactly match those of the offer
      - statute of frauds
        
        provision covering sales and lease contracts
        
        written or physical indicating parites intended to form a contract and signed
    - - title of goods passes: Before any interest the goods must be in existence and identified as the specific goods designated in the contract
      - rick passes to buyer is delivered or at destination
      - title passes at destination or when delivered
      - void title: seller is not the owner; theft
      - voidable title: obtained by fraud; purchased from minor, credit or dishonored
    - - delivery types
        
        tender of delivery: seller makes conforming goods available and gives the buyer whatever notification is reasonably necessary to enable the buyer to take delivery
        
        place of delivery
        
        delivery via carrier
      - perfect tender rule
        
        common law rule under which a seller was required to deliver to the buyer goods that conformed perfectly to the requirements stipulated in the sales contract
    - - warranties arise
        
        good title, no liens, no infringements
      - express warranties
        
        making representation concerning the quality, condition, description, or performance potential of the goods
        
        arises
        
        Before any interest the goods must be in existence and identified as the specific goods designated in the contract
        
        That the goods conform to any description of them
        
        that the goods conform to any sample or model of the goods shown to the buyer
      - implied warranites
        
        May arise from a course of dealing or usage of trade
      - magnuson-moss warranty act
        
        prevent deception in warranties by making them easier to understand
- - - - Chapter 7 bankruptcy
        
        purpose: provides for liquidation proceedings- the selling nonexempt assets and the distributions of creditors
        
        any person can file
      - chapter 11
        
        governs reorganization
        
        debtors pay a portion of the repayment plan
        
        reorganization plan file in 120 days
      - chapter 13
        
        for individuals provide for adjustment of debts by persons regular incomes
        
        turn over to trustee
        
        plan 3 or 5 years
      - chapter 12
        
        family farmers and family fisherman provide for adjustment of debts by persons regular income
        
        farmers: gross income least 50% farm dependent and debts at least 50% farm related
        
        fisher: 50% income dependent on commercial fishing and debts 80% of commercial fishing
  - - - garnishment
        
        legal process used by creditors to collect debt by seizing propter of the debtor
      - foreclosure avoidance
        
        lender grant a forbearance: postpone part or all payments
        
        workout agreement: contract to try to resolve the default
        
        short sale: sale property for less than balance owed
      - real property protected
        
        homestead exemption: retain some form shelter
      - personal propterty protected
        
        household furniture, clothing, vehicle, animals, equipment
    - - security interest created
        
        written or authenticated agreement
        
        secured party must give debtor something of value
        
        debtor must have rights in the collateral
      - rules of priority
        
        perfected security interest
        
        first to perfect
        
        first to attach
      - attachment and possession
        
        attachment: perfected at time the good was created
        
        most popular purchase-money security interest: arises when seller extends credit for part or all of the purchase
        
        possession: pledge cretain collateral as secuirty for debt and transfer the collateral into the creditor's possession
- - - - administrative agencies
        
        independent agencies: outside federal executive ran by commission or board
        
        executive agencies: single administrator appointed by president
      - Administrative procedure act
        
        provide for more judicial control over administrative agencies
    - - telemarketing and consumer fraud and abuse prevention act of 1994
        
        prohibits telephone solicitation using an automatic telephone solicitor and makes it illegal to transmit ads via fax without permission
      - fair packaging and labeling act
        
        labels to identify the product, the net of the contents, the manufacturer and the package or distributor
      - postal reorganization act of 1970
        
        merchandise sent by US mail can keep it, throw it away, or dispose of it in any manner; door to door sales have 3 day return
      - federal food, drug, and cosmetic act
        
        protect consumer against adulterated and misbranded foods and drugs establishes food standards specifies safe levels of hazardous foods additives and provides classification and ad
      - consumer product safety act
        
        regulations over matter of consumer safety and established the CPSC
      - truth-in-lending act
        
        sellers and lenders to disclose credit terms or loans terms so individuals can shop around for the best financing
      - fair and accurate credit transactions act
        
        combat identity theft
      - fair debt collection practices act
        
        attempts to curb perceived abuses by collection agencies and requires a collection agency to include a validation notice
      - fair credit reporting act
        
        protects against inaccurate credit reporting
    - - toxic substance control act
        
        to regulate toxic chemicals and chemical compounds
      - nuisance
        
        person may be held liable for using their property in a manner that unreasonably interferes with others rights to use and enjoy
      - superfund- CERCLA
        
        regulated the clean-up of disposal sites in which hazardous waste is leaking into the environment
    - - Sherman antitrust act
        
        protect trade and commerce against unlawful restraint and monopolies
      - clayton act of 1914
        
        section 7
        
        person or business organization cannot hold stock or assets in more than one business when the effect may be to substantially lessen competition
        
        section 3
        
        prohibits exclusice-dealing contract and tying arrangements
        
        section 2
        
        prohibits price discrimination
        
        section 8
        
        deals with interlocking directorates: individuals serving on two or more competing companies
      - purpose of informal agency actions
        
        To provide advance notice that formal rulemaking may be forthcoming
    - - accountant's duty of care
        
        prove: duty, brach, causation, and damages
      - private securities litigation reform act of 1995
        
        party is liable only for the proportion of damages for which or she is responsible
      - section 188 and 10(b) and SEC rules 10b-5 liable for fraud
      - section 12
        
        imposes civil liability for fraud in relation to offerings or sales of securities
      - section 11 of securities act of 1933
        
        liability on accountants for misstatements and missions of material facts in registration statements
      - sarbanes-oxley act of 2002
        
        imposes a number of strict requirements on both domestic and foreign public accounting firms
      - actual fraud
        
        he or she intentionally misstates a material fact to mislead a client and the client is injured as a result of justifiably relying on the misstated fact
      - • Constructive fraud
        
        may be found when an accountant is grossly negligent in performing his or her duties
  - - - Davis-Bacon Act
        
        requires contractors and subcontractors working on federal government construction projects to pay prevailing wages to their employees
      - The Walsh-Healy Act
        
        applies to US government contracts and requires that a minimum wage and overtime be paid to employees of manufacturers or with contracts
      - FLSA
        
        extended wage-hour requirements to cover all employers engaged in interstate commerce
      - Worker Adjustment and Retraining Notification Act
        
        requires employers to provide 60 days notice before layoff or closing
      - Family and Medical Leave Act
        
        allows employees to take time off for family or medical reasons
      - Occupational Safety and Health Act (OSHA)
        
        employers post certain notices in the workplace, maintain specific records, and submit reports
      - State workers compensation laws
        
        compensating workers for injuries on the job
      - social security and medicare
        
        social security act provides for old-age, survivors, and disability insurance
        
        medicare is federal government health insurance program for 65 and older or disabled
      - COBRA
        
        prohibits employer from eliminating a worker's medical, vision, or dental insurance on termination
      - HIPAA
        
        restricts the manner of patient information
      - Affordable Care Act
        
        50 or more employees have to require health benefits
      - ICRA
        
        provide amnesty to certain groups of aliens living illegally in the US
      - Immigration Act
        
        placed caps on number of visas each year
        
        company seeking to hire a noncitizen worker may do so if the worker is self-authorized
      - National Labor Realtions Act
        
        rights of employees to engage in collective bargaining and to strike
      - Norris-LaGuardia Act
        
        statute restricted the power of federal courts to issue injunctions against unions engaged in peaceful strike
        
        national policy permitting employees to organize
      - Labor Management Relations Act
        
        prohibits unions from reusing to bargain with employers, engaging in cretain types of picketing, featherbedding
      - Comprehensive Environmental Response, Compensation, and Liability Act
        
        regulates the cleanup of hazardous waste disposal sites
      - equal pay act of 1963
        
        requires equal pay for male and female employees working at the same establishment doing similar work
      - civil rights act of 1866
        
        protect the rights of freed slaves, prohibits discrimination on the basis of race or ethnicity in the formation or enforcement of contracts.
    - - Title VII of the Civil Rights Act of 1964
        
        prohibits employment discrimination on basis and prohibits discrimination in the hiring process, discipline procedures, discharge, promotion, and benefits and prohibits discrimination in most federal government employment
      - Age Discrimination in Employment Act
        
        prohibits: basis of age against 40 years old
      - Americans with Disabilities Act
        
        requires employers to reasonably accommodate the needs of persons with disabilities
      - Affirmative Action
        
        job-hiring policy that gives special consideration to protect classes to overcome present effects of past discrimination
      - sexual harassment
        
        quid pro quo: sexual favors
        
        hostile-environment: pattern of sexually offensive conduct
    - - business necessity
        
        A defense to allegations of employment discrimination in which the employer demonstrates that an employment practice that discriminates against members of a protected class is related to job performance.
      - seniority system
        
        In regard to employment relationships, a system in which those who have worked longest for the company are first in line for promotions, salary increases, and other benefits; they are also the last to be laid off if the workforce must be reduced.
      - After-Acquired Evidence of Employee Misconduct
        
        evidence that the employer discovers after a lawsuit is filed—of an employee’s misconduct
      - bona fide occupational qualification (BFOQ)
        
        Identifiable characteristics reasonably necessary to the normal operation of a particular business. These characteristics can include gender, national origin, and religion, but not race.