Business Law Diem, Lisa Student Assignments Week 1 Mindy Pendergraft 8/03/2013

All required reading for week one was completed.

Prepare written responses to the following questions and case problems from the Clarkson, Miller & Cross textbook;

1. Question & Case Problem #1-9 parts a-e (p. 27) a) In this lawsuit, who is the plaintiff and who is the defendant? o In a lawsuit a plaintiff is the one who initiates the lawsuit, so in this case, Arthur Rabe is the plaintiff: (Legal, Ethical, Global, and Corporate Environment,2012, p.65). o In a lawsuit the defendant is the one whom the lawsuit is brought against; the accused person in a criminal proceeding. In this case Xavier is the defendant : (Clarkson, Miller, Cross,2012, p.65). b) Suppose that Rabe wants Sanchez to perform the contract as promised. What remedy would Rabe seek from the court? o If Rabe wants Sanchez to perform the contract as promised the remedy that Rabe should seek from the court should be equitable remedy of specific performance : (Clarkson, Miller, Cross,2012, p.8). o c) Now suppose that Rabe wants to cancel the contract because Sanchez fraudulently misrepresented the painting as an original Van Gogh when in fact it is a copy. What remedy would Rabe seek? o If Rabe wants to cancel the contract because Sanchez fraudulently misrepresented an original Van Gogh with a copy, Rabe would ask for the rescission remedy. d) Will the remedy Rabe seeks in either situation be remedy at law or a remedy in equity? What is the difference between legal and equitable remedies? o The remedy Rabe seeks in both situations is a remedy in equity, because they include specific performance and rescission o The difference between legal and equitable remedies is that legal remedies include monetary damages and equitable remedies include a specific act. e) Suppose that the trial court finds in Rabes favor and grants one of these remedies. Sanchez then appeals the decision to a higher court. On the appeal, which party will be the appellant (or petitioner), and which party will be the appellee (or respondent)? 1

Business Law Diem, Lisa Student Assignments Week 1 Mindy Pendergraft 8/03/2013
o When the trial court finds in Rabes favor and Sanchez appeals the decision Sanchez then would be the petitioner (party bringing the lawsuit) or appellant (the party appealing the case) and Rabe will be the appellee (party against whom an appeal is taken, the party who opposes setting aside or reversing the judgment) or the respondent ( the party who answers a bill or other proceedings) . : (Clarkson, Miller, Cross, 2012, p.8).

2. Answer the following questions based on the scenario in Question & Case Problem #4-1 (p. 90). 4-1) Discuss whether this Georgia statute violates any constitutional provisions. o State jurisdiction is confined to matters within a given state. In this example Georgia has the statutory authority to impose rear-fender mu guard requirements on domestic trucks. That is, trucks registered or home based within the state. Trucks not registered or home based in Georgia are classed as foreign trucks. So these trucks might fall under the commerce clause as the Georgia statute would effectively impede commerce between the states. : (Clarkson, Miller, Cross, 2012, p.75).

A.

Explain the purpose of the Commerce Clause. o The purpose of the Commerce Clause is to regulate interstate commerce. It provides the basis for national governments extensive regulation of state and even local affairs: (Clarkson, Miller, Cross, 2012, p.75).

B. How would you argue for and against the Georgia statute for contoured rear-fender mudguards under the Commerce Clause? Discuss both arguments. o o If I was arguing for the Georgia statute I would argue that the contoured rear-fender mudguards on trucks and trailers are safer than straight mudguards. If I was arguing against the Georgia statue I would argue that having the state telling people what mudguards they have to use goes against their freedoms outlined in the Constitution of the United States. : (Clarkson, Miller, Cross,2012, p.A-4 thru A-11).

o C. If you were a judge deciding a case on the constitutionality of this statute, who would win and why?

Business Law Diem, Lisa Student Assignments Week 1 Mindy Pendergraft 8/03/2013
o If I was a judge deciding the constitutionality of this statue I would rule for the Georgia statue, because it regulates business activities which will make others in the state of Georgia safer.

3. Answer the following questions based on the scenario in Question & Case Problem #4-7 (p. 91). - 4-7. Freedom of Speech Should the court grant this request? Why or why not? o I believe that the court should block the rule, because by banning the sale of those items to a certain age group is eroding on their First Amendment rights. I believe that the only thing this law would accomplish would be to take spray paint out of the hands of young artists and this will not help cut down on graffiti. : (Clarkson, Miller, Cross, 2012, p.A-4 thru A-11).

A.

B.

Explain freedom of speech as protected under the United States Constitution. o Freedom of speech is the right to express any opinions without censorship or restraint. : (Clarkson, Miller, Cross,2012, p.79 & 80). Identify the types of speech protected by the Constitution and describe what, if any, restrictions may be placed upon speech. o Symbolic speech- technically involves no speech at all, but it involves symbols that the courts have judged to be forms of free expression. Symbolic actions such as wearing black armbands in school and draft-card burning fit this category. Symbolic speech is highly controversial, and as a rule, the courts have sometimes considered it to be beyond the limits of free speech. : (Clarkson, Miller, Cross, 2012, p.80). o Restrictions; A balance must be struck between a governments obligation to protect its citizens and those citizens exercise of their rights. : (Clarkson, Miller, Cross, 2012, p.80). o o o Corporate Political Speech- statue that prohibits corporations from making political contributions or expenditures. : (Clarkson, Miller, Cross, 2012, p.80). Commercial Speech- communications-primarily advertising and marketing made by business firms that involves only their commercial interest. A state may restrict certain kinds of advertising. : (Clarkson, Miller, Cross, 2012, p.81).

o Restrictions; Valid as long as it meets three criteria: 3

Business Law Diem, Lisa Student Assignments Week 1 Mindy Pendergraft 8/03/2013
1) Seek to implement a substantial government interest. 2) Must directly advance that interest. 3) It must go no further than necessary to accomplish its objective. : (Clarkson, Miller, Cross, 2012, p.81). C. Based on the protections of and restrictions on speech under the Constitution, should the court continue to enforce the citys rules banning aerosol spray paint cans and broad-tipped indelible markers to persons under twenty-one years of age and prohibiting them from possessing such items on property other than their own? Explain your answer. o I think that the banning aerosol spray paint cans and broad-tipped indelible markers to persons under twenty-one years of age should not exist, because it infringes on their rights. It legally limits the ability to express their creativity. And it discriminates against them on the basis of age. : (Clarkson, Miller, Cross, 2012, p.269). o 4. Answer the following questions based on the scenario in Question & Case Problem #5-1 (p. 108) -If Trevor had the six basic guidelines for making ethical business decisions, would he still have sold the contaminated goods? Why or why not? o If Trevor followed the six basic guidelines for making ethical business decisions he would not have sold the contaminated peanut butter. Because his actions would of violated the conscience guideline. This guideline states that if you could not feel happy with being interviewed about what you are doing then your actions are wrong. I do not think Trevor would want the national news media to know that he was selling contaminated peanut butter. : (Clarkson, Miller, Cross, 2012, p.104).

A.

Identify and discuss the six basic guidelines for making ethical business decisions. o The six basic guidelines for making ethical business decisions are; 1) The law-is it legal? 2) Rules and procedures-are you following company protocol? 3) Value-is there a loophole making the action barely legal within the company, or society? 4) Conscience-do you feel guilty after completing the act? 5) Promise- does the act jeopardize the trust you have within the business and outside of the business?

Business Law Diem, Lisa Student Assignments Week 1 Mindy Pendergraft 8/03/2013
Heroes-is this an action that someone you look up to would do? WWJD? : (Clarkson, Miller, Cross, 2012, p.104). 6) Explain which of these six basic guidelines Trevor should have applied before selling the contaminated baked goods. Would his decision have been different? Why or why not? o I believe that Trevor should have applied the value, conscience, and heros guidelines. Because if someone close to him became ill because of his actions, he would have felt guilty and this would violate the conscience guideline. Second, Trevor would not want anyone to know that he sold contaminated food because the public would hold him accountable. Finally, Trevor could not find anyone or thing worth being a role model or a hero, that would think that selling goods to people knowing the good might make someone sick an ok thing to do. : (Clarkson, Miller, Cross, 2012, p.104). o Assume that Trevors conduct was legal. Discuss why it was unethical for him to sell the goods that had once tested positive for salmonella. o It is not ethical to sell any product knowing that it could harm, damage, or injure someone or thing. o

B.

C.

5. Answer the following questions based on the scenario in Question & Case Problem #5-6 (p. 109)

A.

Explain corporate social responsibility. o Corporate social responsibility is the concept that a corporation should act ethically and be accountable for their actions. : (Clarkson, Miller, Cross, 2012, p.G9). Explain whether you think corporate social responsibility applies or does not apply to these defendants. o I do not think that corporate responsibility applies here because Pfizer Inc. and the other companies are just the manufacturers and distributors of the legal over the counter cold medications and not the illegal by product that is being made from their legal medicine. Plus they are not the retailers or the persons selling the product to the public. Therefore they are not responsible for what is being added to or taken from their product. 5

B.

Business Law Diem, Lisa Student Assignments Week 1 Mindy Pendergraft 8/03/2013
C. Identify some of the broad-reaching implications of a companys failure to make ethical decisions. Who do those decisions impact? o If an unethical act is being committed knowingly and is acceptable then the people within the company will see that the unethical act is acceptable and they will also commit unethical acts, this act can have negative consequences for the employees and the business, because one unethical act breeds many unethical acts and no one would want to do business with a company that they could not trust.

1. A.

Answer the following questions based on the scenario in Question & Case Problem #6-1 (p. 133) Explain why Richard alleges libel instead of slander in his lawsuit. o The reason that Richard alleges libel instead of slander in his lawsuit is because the tort was committed within the letter that Dun wrote. Libel tort is committed within a writing or other permanent form (such as a digital recording). Slander is breaching this duty orally. : (Clarkson, Miller, Cross, 2012, p.121).

B.

Identify the elements of defamation that Richards must prove to establish his case for damages against Dun. o Richard must prove that Dun wrongfully hurt his good reputation. He must prove that Dun made a false statement as a fact and that he was just not stating his opinion. : (Clarkson, Miller, Cross, 2012, p.119).

D.

E.

F.

Based on these facts, discuss whether you think he does or does not establish these elements. Explain why or why not. o Based on these facts I do not think Richard has a case, because Dun can show that his statements that he wrote in his letter was not all false, shown by Richards driving record. What defenses, if any, can Dun assert in response to Richards claims? o Dun can assert as a defense to Richards claims by showing Richards driving record. And proving that his statement was not false. If you are the judge in this case, who wins and why? o If I was the judge in this case I would rule in favor of Richard, because Dun communicated to persons other than the defamed party. Plus he did it to hurt Richard

Business Law Diem, Lisa Student Assignments Week 1 Mindy Pendergraft 8/03/2013
by making sure that Richard did not find a job all because he was angry. This shows that Duns letter was a strong attack on Richards reputation.

2.

Answer the following questions based on the scenario in Question & Case Problem #6-3 (p. 133).

A. Identify and discuss the facts underlying all torts committed against persons by Gerrit in this scenario. o In this scenario I do not think there were not any torts against persons by Gerrit. I believe all of the torts committed toward property. B. Identify and discuss the facts underlying all torts committed against property by Gerritt in this scenario. o In this scenario there were three torts committed by Gerrit. First trespass to land. This tort was violated in the respect that Gerrit was ask to leave and he refused to leave. The definition of trespass to land is when a person, without permission, enters onto, above, or below the surface of land that is owned by another; causes anything to enter onto the land; or remains on the land or permits anything to remain on it. : (Clarkson, Miller, Cross, 2012, p.126). o The second tort violated was trespass to personal property. This tort was committed when Gerrit wrongfully took tools valued at $800 from ABC Auto Repairs property without the owners permission. The definition of trespass to personal property is when an individual wrongfully takes or harm the personal property of another or otherwise interferes with the lawful owners possession and enjoyment of personal property. : (Clarkson, Miller, Cross, 2012, p.127). The third tort violated was conversion, this tort was committed when Gerrit refused to give the tools back to the owner. The definition of conversion is when a person wrongfully possesses or uses the personal property of another without the permission. Any act that deprives an owner of personal property or of the use of that property without the owners permission of that property. : (Clarkson, Miller, Cross, 2012, p.127).

C. Assume the mechanics threw Gerritt off the property (instead of him running to his truck). Would the mechanics be guilty of assault and battery? What about ABC? Discuss what Gerritt

Business Law Diem, Lisa Student Assignments Week 1 Mindy Pendergraft 8/03/2013
would have to prove to establish that the mechanics and/or ABC committed an assault and battery against him. o If Gerrit was thrown off of the property by the mechanics, the mechanics would not be guilty of assault or battery. Because there was no unexcused or intentional act that caused another person to be apprehensive of immediate harm. The mechanics were just escorting him off of the property. : (Clarkson, Miller, Cross, 2012, p.118). o ABC was just revoking his permission to be on the ABCs property. There was no harm being committed. o Gerrit would have to prove that the mechanics and or ABC intended to cause harm to him to be guilty of assault. In order to prove that the mechanics and or ABC were guilty of committing battery Gerrit would have to prove that they did cause him harm. : (Clarkson, Miller, Cross, 2012, p.118).

3.

Answer the following questions based on the scenario in Question & Case Problem #7-3 (pp. 148-149)

A.

Define strict liability. o Strict Liability-Liability regardless of fault. : (Clarkson, Miller, Cross, 2012, p.147). Identify under what circumstances strict liability may apply. o The circumstance identified under strict liability involves acts that depart from a reasonable standard of care of case and cause injuries. A person who engages in certain activities can be held responsible for any harm that results to others even when extreme care was used. Such as abnormally dangerous activities, keeping wild animals, and product liability. : (Clarkson, Miller, Cross, 2012, p.147). Discuss what factors the court would consider in the Kleins case against Pyrodyne Corp. o The factors the court would consider in the Kleins case against Pyrodyne Corp. were that the Kleins attended an abnormally dangerous activity. Abnormally dangerous activities are those that involve a high risk of serious harm to a person or property

B.

C.

Business Law Diem, Lisa Student Assignments Week 1 Mindy Pendergraft 8/03/2013
that cannot be completely guarded against by the exercise of reasonable care. : (Clarkson, Miller, Cross, 2012, p.147). D. Based upon these factors, as the court, would you agree with the Kleins? Explain why or why not? o Based upon these factors. As the court I would agree with the Kleins, because there was a risk to injury with the use of the fireworks. Even though Pyrodyne Corp. was not negligent they were the ones performing the activity that caused the harm, there is still responsibility because of the dangerous nature of the undertaking. : (Clarkson, Miller, Cross, 2012, p.147).

9. Answer the following questions based on the scenario in Question & Case Problem #7-7 (p. 149)

A.

List the elements that Camp must establish for her negligence claim. o The elements that Camp must establish for her negligence claim is that she was not the one who was negligent. She must prove that Kasprzak and Marten told her she would not be liable for damages. She also must prove that the pallets did not fall because of the way she was driving. o She must prove the defendant owed her a duty of care and the defendant breached that duty, also that the defendants breach caused Camps injury. : (Clarkson, Miller, Cross, 2012, p.136). Based on the facts provided, identify and explain which ones she can and cannot prove. o Based on the facts of this case Camp could not prove any of these elements. o Duty of care; TNT Logistics Corp could not have known that Camp opening the door would result in her shoulder being injured. Opening the door is not what caused the injury, her trying to close the door to prevent the pallet from falling is what caused the injury. o You cannot prove the rest of the elements without proving duty of care. : (Clarkson, Miller, Cross, 2012, p.136). Identify the defenses TNT and Trelleborg may raise against Camps negligence claim. If you are TNT and Trelleborgs attorney, and based on the information provided, discuss which defense(s) would you raise and why.

B.

C.

Business Law Diem, Lisa Student Assignments Week 1 Mindy Pendergraft 8/03/2013
o TNT and Trelleborg defense could include that Camp knew of the dangers. Camp could have let the pallet fall or she could have told someone that she needed help opening the trailer door.

Reference Clarkson, K., Miller, R., Cross, F., (2012). Business Law Text and Cases Legal, Ethical, Global, and Corporate Environment (12 ed.). (Calhoun, J., Dewey, R., True-Baker, V., Lamar, J., Eds.). Canada: South-Western, Cengage Learning.

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