on your blue computer graded bubble sheet in the appropriate location.

Transcription

1 as your signature PRINT your name EXAM #3 Business Law Fundamentals LAWS 3930 sections -001, -002 and -003 Chapters 1-4, 24, 6, 7, 9 to 23; 43, 44, 46, 50 & 51 INSTRUCTIONS: 1. Affix your printed name as your signature in the space provided above. 2. This is a closed book exam. It is an objective test of your subjective knowledge. objective group work is academic dishonesty and earns the student a course letter grade of "F". You may make up your white copy of the exam as much as you wish. RECALL: To calculate your grade with just the answer key you need to mark your answers on your white copy of your exam. 3. The time for this exam is limited to the duration of a twice-a-week day class meeting time (i.e., 75 minutes [e.g., day exam starts at 10:30am and ends at 11:45am]). Time is forecasted as not being a constraint for any student. 4. Both print your last name and bubble in your last name on your blue computer graded bubble sheet in the appropriated location. 5. Both print your NU ID number and bubble in your NU ID number on your blue computer graded bubble sheet in the appropriate location. 6. This is a True-False exam. Use A for True. 7. Read carefully. Think. Read closely. Think. What is the hardest thing to see? That which is not there. To see that requires actual knowledge. Recall, this is an objective test of your subjective knowledge. 8. Recall the material difference between i.e. (that is) versus e.g. (for example). 9. This is not a trivia test. Accordingly, never is a question false because of a number in the question. For example, if a question describes Amd. X, then the number is accurate (e.g., the question is not about Amd. IX). The question might be false for a reason other than the number. Similarly, the Latin is not the source of falsity. Both numbers and Latin are included solely to aid the student's recall. 10. Students taking their Exam #3 on Tuesday at 6:00pm shall turn in both [1] white copy of exam; and [2] completed blue answer sheet. Students taking their Exam #3 on Wednesday at 6:00pm shall turn in both [1] white copy of exam; and [2] completed blue answer sheet. Students taking their Exam #3 in the Thursday 10:30am class shall exchange their blue answer sheet for an answer key and retain their white copy of the exam. Tuesday and Wednesday evening students may, starting after 11:30pm Thursday, retrieve their white copy exam and an answer key from Professor O'Hara's suite secretary in MH This Exam #3's default worth is 300 points of a course total of 1,000 points. There are 52 questions graded as if there only are 50. Accordingly, each correct answer on Exam #3 is worth 6.0 course points. 12. WARNING: A student earns NEGATIVE TEN COURSE POINTS for each failure to comply with Instruction #1, Instruction #4, and/or Instruction #5. WARNING: Exam score of zero if fail to answer correctly question #52. See NOTE E on page 2 of 8.

2 NOTES: A. Recall the material difference between i.e. (that is) versus e.g. (for example). B. Use bubble A for TRUE and use bubble B for FALSE. C. For clarity in distinguishing a "principal" from a principal as well as distinguishing an "agent" from an agent, quote marks will be used for the generic words "principal" and "agent" and no quote marks will be used for the specific words principal and agent. That is, "principal" and "agent" refer to all three relationships (i.e., principal and agent; and principal and independent contractor; and employer and employee). Similarly, quote marks are used to distinguish a transaction that fails to achieve lawful contract status thus is a mere "contract" and a force that does not achieve unlawful duress status thus is mere "duress". D. The quote marks described in NOTE C. might be the very essence of the question's truth or falsity. For example, it is true to say "An employee is one of the three relationships in "agent"."; and it is false to say "An employee is an agent.". E. Different students have different versions of this Exam #3. For a student's blue bubble sheet to be correctly scored requires that student to record that student's version of this Exam #3. AT THE BOTTOM RIGHT OF THIS PAGE, WHAT LETTER FOLLOWS THE YEAR 2018? RECORD THAT LETTER AS YOUR ANSWER TO graded QUESTION 52. Failure to correctly record your version shall earn you a score of zero on Exam #3. F. All appeals of this exam s questions must be: [F1] typed; [F2] signed by the student in three ways, typed name, handwritten signature, and typed university identification number; [F3] immediately following the [F2] signature, list in sequence, solely by number, each of the questions being appealed; [F4] since this exam's design (i.e., 52 questions graded as 50) presumes two professor errors, harmless error exists with two flawed question; thus, an appeal must appeal three or more questions and must prove at least three questions to be objectively ambiguous for there to be one non-harmless error; [F5] after the [F3] list, argue each question, one at a time; [F6] at the beginning of each question s [F5] appeal, identify at least two reasonable meanings that the question could have had; [F7] in each [F5] appeal, argue why one or more of the [F6] identified reasonable meanings is as appropriate or is more appropriate than the meaning used for the answer key answer; and [F8] the signed appeal must be personally handed to the instructor (or to the instructor's suite secretary in MH 228) no later than the first 15 minutes of your class section's Regent scheduled Final Exam time (see, Syllabus page 1): time is of the essence.

3 QUESTIONS: (Recall page 2's Notes C and D.) 1. T F In Amendment XI with respect to corporation plaintiffs the USA States individually and collectively surrendered all of their sovereign immunity in the federal courts; but with respect to law suits by State citizen plaintiffs they surrendered none of their sovereign immunity. 2. T F Promissory estopple requires both the plaintiff's justifiable reliance and the plaintiff's detrimental reliance to have been reasonably foreseeable to the defendant. 3. T F Four terms of a contract are presumed to be material: parties, time, price, and subject matter. 4. T F Statute of Frauds requires five types of contracts (e.g., take longer than one year) to have their material terms in writing and signed only by the party to be sued (because the plaintiff signs the complaint). 5. T F A contractual condition turns on a duty. Making a condition express routinely makes a breach of that express condition a material breach of that contract. 6. T F In Nebraska, because the Unicameral adopted the UCC2 (i.e., Uniform Commercial Code, Article 2, Sale of Goods) all contracts contain an implied obligation of good faith and none of the parties have the legal power to disclaim. 7. T F To be a UCC2 consumer that person must be a citizen. Whereas, even a mere legal person can be a UCC2 merchant. 8. T F The common law of contracts has the opposite initial presumption from the UCC2 on whether the parties desire a contract. 9. T F The common law of contracts, the UCC2, and the CISG (United Nation's Convention on the International Sale of Goods) each uses the Mirror Image Rule but in very different ways and with very different intensities.

4 10. T F The common law of contracts, the UCC2, and the CISG each uses the Mail Box Rule but in different ways that reflect their differing contexts and public policy goals. 11. T F The UCC 2 governs contracts for the sale of goods. Services are not goods because services are not tangible and movable personal property. But, goods can include services if the predominant nature of the transaction is a sale of goods. 12. T F A UCC2 contract may have open terms and the parties may supply additional terms. But, like a common law contract modification of a UCC2 contract requires consideration that is a good faith dispute. 13. T F The UCC2 created the concept of identification. Identification requires the goods to exist and the seller to designate the goods. 14. T F A sale transfers title upon actual delivery. Identification creates in the buyer a insurable interest in the goods. For the buyer to obtain the insurable interest the seller must make actual delivery to the buyer. For UCC2 consumer buyers that delivery occurs at the seller's front door. For UCC2 merchant buyers that delivery occurs at the seller's back door. The buyer and seller are free to change those default locations for actual delivery (e.g., a shipment contract). 15. T F Both the common law of contracts and the UCC2 use the same rule: a seller with void title only transfers to the buyer void title. 16. T F Both the common law of contracts and the UCC2 divide contractual performance into three groups: complete performance (e.g., perfect tender); substantial performance (i.e., a breach for which damages are owed but which discharges the contract); and material breach (i.e., a breach for which damages are owed but which does not discharge the contract).

5 17. T F The UCC2 created the right to cure. The breaching party's right to cure alters the non-breaching party's duty to mitigate damages. 18. T F The UCC2 created the right to cover. The non-breaching party's right to cover alters the non-breaching party's duty to mitigate damages. 19. T F The UCC2's commercial impracticability replaced the common law's commercial impossibility. Both the UCC2 and the common law allow the parties to define Force Majeure for the purposes of their contract. 20. T F Under the UCC2 a buyer has absolute right to inspection prior to sale. 21. T F Both the common law of contracts and the UCC2 use the concept of incidental damages: both include within incidental damages lost profits. 22. T F Election of remedies exists via pleading in the alternative, anticipatory breach, and UCC2 warranties. 23. T F The UCC2 created the implied warranty of merchantability. The warranty of merchantability is breached if the goods either are not fit for their ordinary purpose or the goods will not pass without objection in the market. 24. T F The UCC2 warranty of fitness for a particular purpose must be express. 25. T F The common law implies three warranties into all sales: an implied warranty of good title, an implied warranty of no liens, and an implied warranty of no scienter infringement. 26. T F Both UCC2's section and the Restatement of Torts section 402A dramatically expanded the zone of protected interests component of standing to sue far more than either expanded the injury in fact component of standing to sue.

6 27. T F A defect requires knowledge. The knowledge of the merchant Reasonable Person has been increasing and continues to increase. Thus, business liability for defects has been and continues to increase. 28. T F A latent defect exists if the seller knows the buyer will not discover the defect even if the buyer exercises the buyer's absolute right to engage in a reasonable inspection. If there is a latent defect, then the seller has a duty warn the buyer (e.g., label). 29. T F The federal government's regulation of business tends to focus on the cause because of the federal government's Commerce Clause jurisdiction. The USA State governments' regulation of business tend to focus on the symptom because the State governments' far broader Police Power jurisdiction. 30. T F Federal preemption of the USA States is favored. USA State preemption of the federal government is not favored. 31. T F Because only the legislature has the power to create a crime every administrative agency's attempt to define a crime is void for vagueness. 32. T F An administrative agency's interpretive rule tends to only raise questions of procedural due process (i.e., notice and hearing both proportional to the interests involved) whereas an administrative agency's legislative rule activates substantive due process (i.e., active judicial review of the proportionality of the procedural due process). 33. T F All administrative agency actions always are subjected to judicial review both within the agency and outside of the agency. A plaintiff seeking judicial review of an administrative agency's actions will lack standing to sue in an Article III court if the plaintiff does not exhaust all administrative remedies within the agency.

7 34. T F Both the constitutional right to privacy in the EU (European Union) as well as the statutory right to privacy in the EU are much weaker than those same rights under the USA Constitution and USA statutes. 35. T F The 1890 Shearman Act makes it a federal felony to destroy competition. The Rule of Reason permits as lawful any restraint of trade that is proportional to the parties' legitimate business interests. That proportionality is measured by the restraint's purpose, intent, effect on the market, and power conferred on the restraining parties. 36. T F The judicial review of the Sherman Act includes the Per Se Unreasonable Rule. If experience indicates that a type of restraint is disproportionate, then that restraint, by itself, is a felony. There are four types of restraint subjected to the Per Se Unreasonable Rule: price fixing; vertical divisions of territories; group boycotts; and tying. 37. T F Antitrust damages are subjected to a statutory trebling. 38. T F The Clayton Act is an example of the specific controls the general. Because both mergers and interlocking directorships have sufficiently strong legitimate business interests the general Sherman Act was void for vagueness but the specific Clayton Act can make them felonies. 39. T F The Noerr-Pennington Doctrine enforces the free speech rule of no content regulation of political speech (e.g., lobbying before the executive branch and lobbying before the legislative branch) while enforcing perjury rules in the judicial branch. 40. T F Both gambling and insurance allocate risk for a price. 41. T F All insurance contracts always are adhesion contracts for which all ambiguities always are interpreted against the drafting party (i.e., the insurer).

8 42. T F All insureds must have an insurable interest: or, the contract is gambling instead of insurance. All insurance contracts require an insurable interest at the time of contract (e.g., UCC2 buyer has the insurable interest). 43. T F All insurers strive for inverse adverse selection. 44. T F All insurance contracts are required to require from the insured both a deductible and a co-pay so as to manage the moral hazard. 45. T F An insurance agent can, but an insurance broker can not, issue a binder of the insurer to the insured. 46. T F Capacity is the ability to grasp the natural consequences of one's actions. The Law requires different amounts of capacity for different legal transactions. The Law requires the most capacity for crime (e.g., due to substantive due process) and the least capacity for wills. 47. T F A person making a will must have the capacity to grasp their signature (i.e., any mark with the current intent to authenticate the record/document); their property; and the natural objects of their bounty (i.e., objectively, who does that person love). 48. T F A person may grant a Power of Attorney (PoA) over that person's financial matters or medical matters. Every PoA must satisfy the Equal Dignity Rule. 49. T F A living will is void in Nebraska as contrary to the public policy. 50. T F When a grantor creates a trust the trustee takes up a fiduciary duty owed to the grantor. The trustee owes the grantor of a trust utmost good faith (i.e., honesty in fact and personalized objective). 51. T F The defendant commits common law fraud when the defendant knowingly and intentionally misrepresents a material fact (e.g., expert's opinion) thereby inducing the plaintiff's justifiable reliance and proximately causing the plaintiff's damages. 52. E Answer question #52 E or earn a zero on Exam #3.