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SUBSTANTIVE LAW FOR THE LEGAL PROFESSIONAL
JUDY A. LONG, J.D.
CHAPTER 1
GENERAL BACKGROUND OF SUBSTANTIVE LAW
STUDY NOTES
Substantive law may be created by a legislature or by the courts. Law that is created by a legislature is known as statutory law, and the law created by the courts is called case law. State legislatures and courts create state law, and the United States Congress and the Federal appellate and supreme courts create federal law. In situations where there is a controversy over federal or state case law, a decision of the United States Supreme Court or that state’s highest state court will prevail. In controversies between case and statutory law, the statutory law will prevail.
Procedural law includes the rules for enforcing one’s rights in court and the procedures to follow. It includes administrative regulations issued by state and federal administrative agencies. Each agency maintains its own set of laws and regulations that govern that particular organization. For instance, the Internal Revenue Code establishes the laws that govern the Internal Revenue Service. The procedural rules that govern court cases are generally found in the Code of Civil Procedure (for civil cases) and the Code of Criminal Procedure (for criminal cases). Other classification systems refer to the laws that are promulgated by administrative arms of the federal and state governments as administrative laws.
The federal and most state systems of case law are based on the English common law, which maintains that earlier cases establish precedents for later cases. Case law is handed down by appellate and supreme court justices based on their interpretation of standards established in earlier cases or statutes. The system of relying on a prior case to establish precedent in deciding a later case is known as stare decisis. Statutory law is created by state and federal legislatures in order to maintain order and protect the safety and well being of the general public.
OUTSIDE ACTIVITIES
Visit a law library to peruse the various books that contain the statutory and case law for your state and for the federal government. Your school library may contain some of these volumes.
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WEB LINKS
The Web site for West Legal Studies provides links to the various state and federal sites.
CHAPTER 2
CONTRACT LAW
STUDY NOTES
Contracts are legally binding agreements between two or more parties that create a legal obligation on the part of the parties. They may involve mutual promises between the parties to perform a lawful act or not to do anunlawful act. The law requires that certain criteria must be met before a legally binding contract is formed. The basic elements of a contract include offer, acceptance, and consideration. If the contract involves a legitimate business relationship, the courts will generally intervene to establish the validity of the contract.
One of the parties (the offeror) will make an offer to enter into a contract with the other party (the offeree). The offeree must accept the offer and both parties must receive a bargained-for exchange, called consideration. In other words, each party must give up something of value and receive something of value in return.
Certain contracts are required to be in writing to satisfy the Statute of Frauds, which derives from the old English law on which our laws are based. The laws of individual states determine which contracts must be in writing, but the following are generally included:
- contracts for the sale of goods over $500 (or other amounts in some states);
- contracts for the sale of real estate;
- leases for a year or more;
- contracts to guarantee another’s debt; and
- certain long-term contracts.
All business contracts should be written and should include within the writing all of the terms required by the business. Under the Parol Evidence Rule, the courts will interpret the contract terms by looking at the “four corners of the contract” and will not make any assumptions as to the intent of the parties outside of the contract itself.
Contracts are classified into the following categories:
- Formal contract or simple contract
A formal contract is made under seal. Formal contracts also include those incorporated into a court record when the loser in court agrees to pay the court’s judgment amount. The latter are also called contracts of record.
Simple contracts comprise all other contracts and may be oral or written.
- Oral or written contract
Oral contracts are based on the words spoken between the parties and require all of the terms of a written contract, including offer, acceptance, and consideration. Written contracts are in writing and signed by both parties. Business contracts should all be in writing so that they may be proven in a court of law.
- Express or implied contract
An express contract is set forth in oral or written words. All of the terms of the contract are stated explicitly. Implied contracts are based on the conduct of the parties (implied in fact). A quasi-contract (implied in law) is based on the actions of one party that benefit the other party. If the benefiting party receives unjust enrichment because of the actions of the other party, the courts will generally require that the enriched party pay the other party the reasonable value of his services.
4.Bilateral or unilateral contract
A bilateral contract consists of mutual promises by both parties. A unilateral contract is based on a promise by one party and the action of the second party. If you tell John that you will give him $10 to wash your car, it is understood that John will not be paid the $10 until he washes your car.
5.Void and voidable contracts
Void contracts are illegal contracts that the courts will not enforce. Voidable contracts are based on fraud and may be set aside by the courts.
States have laws that restrict individuals in certain capacities from making valid contracts. The parties must be legally competent to enter into a contract.
Breach of contract lawsuits involve one party claiming that the other party has not fulfilled his part of the contract because he has not performed his obligations as required in the contract. He may also breach the contract by announcing that he will not perform at the time he had promised to perform. Since this performance requirement has not yet occurred, the breach is often called anticipatory breach or anticipatory repudiation. By informing the other party that he will not perform his part of the contract at the required time, he is breaching the contract.
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OUTSIDE ACTIVITIES
Go to the law library to research the laws relating to contract law in your own state. Complete the State Specific Information boxes in the textbook. File this material in your Notebook.
Visit a paralegal or attorney who is involved in contract law.
WEB LINKS
The Web site for West Legal Studies provides links to the various state and federal Web sites.
CHAPTER 3
SALES AND COMMERCIAL PAPER
STUDY NOTES
The law of sales was established to provide a standardized system for sales contracts. The sale and distribution of goods may be conducted more proficiently and promptly with a uniform code for the making of sales contracts. Thus, the Uniform Commercial Code (UCC) was established to provide a uniform system of laws related to sales contracts among the states. The Statute of Frauds requires that all contracts for the sale of goods valued at $500 or more must be in writing. The UCC creates uniformity among these contracts. Contracts covered by the UCC must be for the sale of “goods,” that is, merchandise that is tangible and movable.
Real estate contracts are not covered by the UCC. Contracts for the sale of stocks and bonds, and other intangibles, are not covered either.
Article 2 of the UCC requires a higher standard for merchants, who are defined as those who hold themselves out as having knowledge and skill of that particular product, or those who are engaged in the sale of the type of goods being sold.
A bailment is a temporary delivery of property by the owner into another person’s custody (keeping). Examples of bailments include the loan of a book to a friend, the storage of property in a commercial warehouse, and the repair of an automobile in a repair shop. A bailment for term is a delivery of property for a set length of time.
The person who possesses the personal property and turns it over to the other party is known as the bailor; the party who gets custody of the property is called the bailee.
An option is a separate contract where one party pays money for the right to buy something from or sell something to the other party at a set price within a specified time period. An example would be a commodity option where the buyer may buy the commodity (such as wheat, rice, or cotton) at a certain price by the end of the month (or some other agreed upon time period). One may also have a commodity option to sell a commodity for a certain price by the end of the specified time period.
If the seller of an item of real or personal property retains the title to the property until the buyer has paid the total price, a conditional sale has occurred. Under the UCC, the conditional sale is known as a “security agreement.” In most cases, title to property will transfer when the seller delivers the item to the buyer and the buyer pays for it.
The student should learn the meanings of the following terms: fungible goods, sales forms, conditional sales, negotiable instruments, and holder in due course.
OUTSIDE ACTIVITIES
Obtain copies of sales forms and agreements and place them in your Notebook. Research the law of commercial sales in your own state.
WEB LINKS
The Web site for West Legal Studies provides links to the various state and federal sites.
CHAPTER 4
BUSINESS ORGANIZATIONS
STUDY NOTES
The most common types of business organizations are:
1.Sole proprietorship—an unincorporated business usually owned by one person;
2.Partnership—an organization composed of two or more individuals who have jointly agreed to operate a business for profit; and
3.Corporation—a business entity existing separate and apart from its shareholders, who are the owners of the corporation.
The student should study the structure of these different types of business organizations and how they are organized. The methods used for mergers, consolidations, and dissolutions are described in this chapter.
An agency relationship exists when one party, the agent, acts for or represents another party, the principal, by the latter party’s authority. In this situation, the principal may be held liable for the acts of her agent in business transactions. The association exists based on an express or an implied contract.
Many different government regulations exist for the control of business. Treaties are made that affect international business. Study these regulations and treaties.
OUTSIDE ACTIVITIES
Visit a corporation that is engaged in international trade. Visit different types of business organizations, preferably those involved in the legal area.
WEB LINKS
The Web site for West Legal Studies provides links to the various state and federal Web sites.
CHAPTER 5
CIVIL LAW AND PROCEDURES
STUDY NOTES
A tort is a civil wrong that causes harm to another’s person or property. In order to commit a tort, one must have a legal duty and breach that duty, thus causing harm to the other individual. The individual who commits the tort is known as the tortfeasor. Some of the more common categories of torts include intentional torts, negligence, strict liability, products liability, and defamation.
Most tort actions are based on negligence. Negligence has been defined as a requirement that all individuals have a duty to conduct themselves so as not to create an unreasonable risk of harm to others. In other words, we must conduct our activities with reasonable care so as not to injure another’s person or property. If we breach that duty, we may be held liable in a negligence action.
The most common intentional torts include assault, battery, false imprisonment, conversion, intentional infliction of emotional distress, and trespass to land or personal property. Each of these torts must be committed by the defendant with the intent to commit them and must cause the plaintiff damages that are caused by the commission of the tort against her.
In a civil case, the first pleading filed to commence the lawsuit is the complaint. The summons is prepared and filed with the court along with the complaint. The defendant may respond to the complaint with one or more of the following documents: answer, cross-complaint, demurrer, and motion to strike. If the defendant fails to answer the complaint in the allotted time, the plaintiff may file a request to the court to enter a default judgment. The period of time in a lawsuit during which both sides formally exchange facts and information is known as the discovery phase. Forms of discovery include written interrogatories, depositions, requests for admission, requests for production and/or inspection, and requests for physical examinations.
Many states either encourage or require the parties to submit to the arbitration or mediation process in order to attempt to settle the case without a trial. Most states have some sort of settlement conference among the attorneys and judge prior to the actual trial. The legal assistant may assist the attorney at trial and may also prepare the trial notebook.
OUTSIDE ACTIVITIES
Visit a civil trial. Visit an attorney or paralegal who is involved in civil trial work.
WEB LINKS
The Web site for West Legal Studies provides links to the various state and federal sites.
CHAPTER 6
CRIMINAL LAW
STUDY NOTES
Civil law deals with the rights and responsibilities of individuals to others. Criminal law deals with wrongs against society in general. Substantive criminal law defines the elements of the individual crimes and determines what acts are prohibited and what the punishment is for committing those acts. Criminal procedure defines the procedures followed to bring defendants to justice. It commences with the police investigation of the criminal act and continues through the justice process, which includes arrest, arraignment, preliminary hearing, trial, and sentencing.
Criminal acts can be divided between felonies and misdemeanors, depending on the nature of the crime itself. Felonies are serious crimes that expose the defendant to imprisonment for more than one year, generally in state prison. If the felony involves a violation of federal law, as is the case with drug trafficking, the defendant may be incarcerated in a federal prison. Murder, manslaughter, kidnapping, robbery, arson, rape, and burglary are all felonies.
A misdemeanor is a less serious crime that is punishable by incarceration (generally in a county jail) for up to one year. Petty theft, malicious mischief, and simple assault are examples of misdemeanors.
Most crimes consist of two elements: the criminal intent and the act itself. Crimes are categorized by crimes against the person, the public, or property. Crimes directed against an individual are known as crimes against the person and include homicide, mayhem, rape or sexual assault, assault, battery, and kidnapping. Crimes against the public are categorized into two groups: crimes against public morality and crimes against public order. Crimes against public morality include prostitution, indecent exposure, and obscenity. Offenses that disturb the orderly running of society are considered to be crimes against the public order and include rioting, disorderly conduct, and drug sales. Most crimes against property involve unlawfully taking the property of another by stealing, force, fire, or deceit. They include arson, burglary, robbery, and other theft crimes.
Defenses to crimes should be reviewed. Constitutional defenses include double jeopardy, entrapment, illegal search and seizure, and First Amendment issues.
Basic procedures followed from arrest to trial and sentencing include arrest, interview, investigation, arraignment, preliminary hearing, plea bargaining, trial, and sentencing.
OUTSIDE ACTIVITIES
Visit a criminal trial, a criminal lawyer, and/or a criminal trial judge.
WEB LINKS
The Web site for West Legal Studies provides links to the various state and federal Web sites.
CHAPTER 7
FAMILY LAW
STUDY NOTES
Family law encompasses a broad area that includes domestic relations issues such as divorce, dissolution, annulment, adoption, and others. However, in actual practice, most family law offices specialize in divorce or dissolution and the various issues surrounding them, such as abuse, support, custody, and visitation. Before individuals marry, they may wish to enter into a prenuptial agreement that provides for the disposition of the property of the two individuals if they obtain a divorce or dissolution, or upon the death of one of the parties.