Common Law Legal Order - Altfragen (Markowetz)
22 flashcards · Law · by daniel-eder
Sources of Law?
Constitutional Law (Verfassung) in Austria there are also the principles of constitution above constitutional law. Statutory Law (einfache Gesetze) Treaties (Völkerrechtliche Verträge) Administrative Regulations (Verordnungen) Common Law (not in Austria, because Austria is a civil law country like all European countries exc. GB)
What is common law and what’s the difference to civil law?
Two general legal systems in the world: Common law systems ( about 80 Countries, incl US and UK) Civil law systems ( about 150 Countries, most European Countries, except UK) Some countries use a mix Common Law Principle of "stare decisis" = The Decision Stands Judges not only apply the law, they "make" newlaw their decision becomes precedent for future cases -> case law is a source of law in common law systems Role of the lawyer is more important than in Civil law lawyers make presentations to…
Elements of a Contract?
Offer and Acceptance mutual assent = "meeting of the minds" mirror image rule: acceptance cannot vary, otherwise it is a counter-offer Intention to be legally bound in commercial agreements this is presumed, unless expressly stated otherwise Consideration = something of value, given by a promisor to a promisee in exchange for something of value given by the promisee to the promisor "something of value" can be payment, and act or a forebearance to act (Duldung) important in common law countries…
What is the Peppercorn rule?
"Peppercorn" is a metaphor used to describe why the courts do not give weight to consideration in contract formation Featured in Chappell & Co Ltd v Nestle Co Ltd: "a peppercorn does not cease to be good consideration, if it is established that the promisee does not like pepper and will throw away the corn" It means that the adequancy or relative value of the consideration provided by each party will not be tested by the court even if one party gives away something of very small value (pepperco…
Which damages do you know?
Compensatory damages are given to a party which was detrimented (beeinträchtigt) by breach of contract. Compensatory damages compensate the plaintiff for actual losses suffered as accurately as possible. Exception damages are awarded to put the party in as good of a position as the party would have been, if the contract had been performed as promised. Reliance damages are usually awarded where no reasonable reliable estimate of exception loss can be made at or at the option of the plaintiff. Re…
Which elements for breach of contracts do you know?
The existence of a contract Performance by the plaintiff or some justification for nonperformance: If a contract is concluded, it has to be performed. Failure to perform the contract by the defendant and Resulting damages to the plaintiff
Is punitive damage civil procedure or criminal law?
Punitive damages have been characterized as “quasi criminal” because they stand halfway between criminal and civil law. Though they are awarded to a plaintiff in a private civil lawsuit, they are noncompensatory and in the nature of a criminal fine.
Features of civil procedure?
Really extensive and aggressive pre-trial discovery Heavy reliance on live testimony (Zeugenaussage) The jury system Aggressive pre-trial law and motion practice to reach a pre-trial settlement Concept of “opt-out/opt-in class action” (Sammelklagen): Opt-Out class actions by which the burden falls on class members (Sammelkläger) to notify the court that they do not wish to be bound by the judgment. On the opposite we have Opt-In class actions, where class members must join into the class. Ameri…
What’s FRCP?
Federal Rules of Civil Procedure Governs civil procedure in US federal courts Published by US Supreme Court Federal courts generally apply FRCP for procedural rules even when it applies substantive law (mat. Recht) of the states in cases where state law is in question Adopted by 35 states with minor variations Replaced formal common law pleading with "notice-pleading" less formal -> claim will not be dismissed just because of lack of exact legal terms More flexible and less technical Notice-ple…
Lieback vs. McDonalds?
Stella Liebeck, a 79-year-old woman suffered third-degree burns in her pelvic region when she accidentally spilled hot coffee in her lap after purchasing it from a McDonald’s restaurant. Liebeck’s attorney argued that at 180-190 F (82-88 C) McDonald’s coffee was defective, claiming it was too hot and more likely to cause serious injury than coffee served at any other establishment. McDonald’s had refused several prior opportunities to settle for less than what the jury ultimately awarded. The j…
Pennoyer vs. Neff?
Neff, out of California, hired attorney Mitchell -> owed debts for legal services Neff possessed Oregon property worth $15,000 Mitchell sued Neff in Oregon; Neff didn't appear, lost by default judgment Neff's Land grant was not yet conferred (übertragen) at the time Mitchell waited (possibly for the arrival of the grant) to levy execution on the property, at which time the court ordered the land seized (beschlagnahmt) and sold it to pay the judgement. Mitchell bought land in public auction and…
Tell me something about bankruptcy?
in the US goverend by the constitution authorizes congress to enact uniform laws (Einheitsrecht) on bancruptcies througouth the US Congress used this authority to enact the "Bankruptcy Code" Bankruptcy cases are filed with US Bankruptcy courts federal law governs procedure but state laws are often applied when determining property rights Because state law plays a major role in many bankruptcy cases, it is unwise to generalize bankruptcy issues across state lines The most common form is Liquidat…
What do you think about the implementation of punitive damages in Austria, especially for international corporations?
-> Argue for/against! Do punitive damages even make sense in the Austrian legal system as a civil law system? Pros: Deterrence for internat. corporations to violate laws Encouraging legal pursuit: encourages victims to defend themselves legally Cons: often arbitrary impact on business climate: may discourage investments in Austria by internat. corporations inequality: overcompensation can lead to further inequality within society (especially if the targets of the lawsuit are NOT internat. corpo…
Minimium contact doctrine - what does it say, when someone live in California and another in New York and the trial takes place in New York?
According to this doctrine, a state court can only exercise jurisdiction over an out-of-state defendant if that defendant has sufficient "minimum contacts" with the forum state. in casu: minimum contacts: NY court must determine whether Cal. defendant has sufficient minimum contacts in NY e.g. business transactions, property ownership, other activities connected to state of NY Purposeful availment: Cal. defendants contact with NY must be deliberate, not just random Fairness: It must be fair and…
Features of Bancruptcy?
Voluntary (debtors file petition) / involuntary bankruptcy (creditors file petition) Commencement (Beginn) of a bankruptcy case creates an estate (Vermögen) is used to pay off creditors All bankruptcy cases are handled by the Bankruptcy Court The US Attorney General appoints a separate US Trustee for each of 21 geographic regions for a 5-year-term. The automatic stay prohibits the commencement, the enforcement or appeal of actions and judgments against the debtor, for the collection of a claim…
Bankruptcy Chapter 7?
Liquidation involves appointment of a trustee, who collects and sells the non-except property All states allow debtors to keep essential property Most common filing
Bankruptcy Chapter 11, 12, 13?
Reorganization Allows debtor to keep some or all of the property and use future earnings to pay off creditors
Bankruptcy Chapter 15?
Cross-border insolvency added in 2005 important for foreign companies with US debts
Role of the US Trustee in Bankruptcy?
Appoints and supervises the private trustees for, especially, Chapter 7 Cases
Automatic Stay in bankruptcy?
happens at the moment a bankruptcy petition is filed prohibits the commencement, the enforcement or appeal of actions and judgements (judicial or administrative) against the debtor, for the collection of a claim that arose prior to the filing of the bankruptcy petition. The automatic stay also prohibits collection actions and proceedings directed toward property of the bankruptcy estate itself.
Who cannot be a deptor?
governed by Bankruptcy Code banks and other deposit institutions, insurance companies, railroads and certain other financial institutions and equities regulated by the federal and state governments
Red-Bull-Case?
Benjamin Careathers, consumer of Red Bull, sued for false advertising Arguing: He got neither wings, nor enhanced performance Claimed Red Bull deliberately mislead customers because research indicated that energy drinks provide their boost only through caffeine, not any other ingredient more expensive than e.g. starbucks coffee for the same amount of caffeine Red Bull settled out of court: $ 13m settlement payment $ 6.5m of that for a fund to pay back consumers Pleged to refund $ 10 to each dri…