Beatty Business Law Vocabulary – Flashcards
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agent
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person who acts for a principal
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agent liability full disclosed principal
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acceptance
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accommodation party liability
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...
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agent liability partially disclosed principal
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agent liability undisclosed principal
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...
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agent's duties
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answer
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the pleading, filed by the defendant in court and served on the plaintiff, which responds to each allegation in the plaintiff's complaint
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anticipatory breach
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breach of contract committed prior to the time of required performance
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apparent authority
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situation in which conduct of a principal causes a third party to believe that the principal consents to have an act done on his behalf by a person purporting to act for him when, in fact, that person is not acting for the principal
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arbitration
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form of alternative dispute resolution in which the parties hire a neutral third party to hear their respective arguments, receive evidence, and then make a binding decision
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assault
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intentional act that causes the plaintiff to fear an immanent battery
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assignment of contract/duties
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assumption of the risk
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principle that a person who voluntarily enters a situation of obvious danger cannot complain if she is injured
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attachment
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court order seizing property of a party to a civil action, so that there will be sufficient assets available to pay the judgement
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automatic stay
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prohibits creditors from collecting debts that the bankrupt incurred before the petition was filed
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bailment
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giving possession and control of personal property to another person
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bankruptcy
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legal process intended to insure equality among the creditors of a corporation declared in bankruptcy
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bankruptcy trustee
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private individual or corporation appointed in all Chapter 7 and Chapter 13 cases to represent the interests of the bankruptcy estate and the debtor's creditors.
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battery
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intentional touch of another person in a way that is unwanted or offensive
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beyond reasonable doubt
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governments burden in a criminal prosecution; the case against the defendant must be proved to such an extent that no reasonable person would doubt it
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bilateral contract
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binding agreement in which each party has made a promise to the other
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bilateral mistake
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occurs when both parties negotiate based on the same factual error
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breach of contract
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occurs when one party fails to live up to the terms of a contract
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burden of proof
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allocation of which party must prove its case. In a civil case, the plaintiff has the burden of proof to persuade the fact finder of every element of her case. In a criminal case, the government has the burden of proof.
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business judgement rule
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common law that protects managers from liability if they are acting without a conflict of interest and make informed decisions that have a rational business purpose
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buyer in ordinary course of business (BIOC)
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one who buys goods in good faith from a seller who routinely deals in such good ways
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cancelled out terms
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...
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capacity to contract
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legal ability to enter into a contact
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chapter 11
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also known as reorganization bankruptcy, the most complex bankruptcy filing and the one that most troubled businesses file, the debtor continues to function, maintains ownership of all assets, and tries to work out a reorganization plan to pay off creditors
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chapter 7
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this is a liquidation bankruptcy, which means that the trustee sells off all non-exempt assets held by the debtor so that the debts can be repaid to the fullest extent possible. Anything that cannot be paid after liquidation is discharged
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class action
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method of litigating a civil lawsuit in which one or more plaintiffs (or occasionally defendants) seek to represent an entire group of people with similar claims against a common opponent
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clear, cogent, and convincing
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...
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click wrap and shrink wrap
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...
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close corporation
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company who stock is not publicly traded, also known as close held corporation
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collateral
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property subject to a security interest
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common law (case law)
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judge-made law, that is, the body of all decisions made by appellate courts over the years
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comparative negligence
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rule of tort law that permits a plaintiff to recover even when the defendant can show the plaintiff's own conduct contributed in some way to her harm
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compensatory damages
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damages that flow directly from the contract
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complaint
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a pleading, filed by the plaintiff, providing a short statement of the claim
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consequential damages
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damages resulting from the unique circrumstances of this injured party
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consideration
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in contract law, some of legal value that has been bargained for and given in exchange by the parties
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constitution
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law determining the fundamental political principles of a government
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contract
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legally enforceable promise or set of promises
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copyright
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under federal law, the holder of a copyright owns a particular expression of an idea, but not the idea itself. the ownership right applies to creative activities such as literature, music, drama, and software
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corporation
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an organization that is authorized by law to carry on an activity but treated as though it were a single person
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counter offer
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response to an offer wherein the offeree changes one or more of the terms of the contract, becomes the offeror, and sends the offer back to the original offeror.
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court of general jurisdiction
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Another term for trial court; that is, a court having jurisdiction to try all classes of civil and criminal cases except those that can be heard only by a court of limited jurisdiction
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court of limited jurisdiction
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A court whose jurisdiction is limited to civil cases of a certain type, or which involve a limited amount of money, or whose jurisdiction in criminal cases is cofined to petty offenses and preliminary hearing
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court of appeals
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a court whose jurisdiction is to review decisions of lower courts or agencies
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court of original jurisdiction
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court where the defendant was originally tried
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cover
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buyer's right to obtain substitute goods when a seller has breached a contract
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creating an agency relationship
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...
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crime
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punishable offense against society
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cross examination
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when a lawyer questions an opposing witness during a hearing
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cure
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seller's right to respond to a buyer's rejection of non-conforming goods; the seller accomplishes this by delivering conforming goods before the contract deadline
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defendant
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person being sued
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definiteness of terms
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reasonable terms by which court can establish if a breach has occurred, stating parties, subject matter, terms of payment, etc. Courts can supply a missing term when parties have manifested an intent to form a contract
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tort
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any wrongdoing for which an action for damages may be brought
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delegation of duties
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contracting party transfers her duties pursuant to a contract to someone else
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deposition
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form of discovery in which a party's attorney has the right to ask oral questions of the other party or of a witness. answers are given under oath
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direct examination
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during a hearing, for a lawyer to question his own witness
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discharge in bankruptcy
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termination of an obligation. A discharge in bankruptcy terminates the debtor's obligation to pay the debts discharged by the court
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discharge of contact
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party to a contract has no more duties
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discovery
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stage in litigation, after all pleadings have been served, in which each party seeks as much relevant information as possible about the opposing party's case
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diversity jurisdiction
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the power of the federal courts to hear matters of state law if the opposing parties are from different states and the amount in controversy exceeds $75,000
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domestic corporation
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corporation is considered a domestic corporation in the state in which it was formed
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draft
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the drawer of the instrument orders someone else to pay money. checks are the most common form of draft. the drawer of a check orders a bank to pay money
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easement
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right to enter land belonging to another and make a limited use of it, without taking anything away
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exculpatory clause
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contract provision that attempts to release one party from liability in the event the other party is injured
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executed contract
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binding agreement in which all parties have fulfilled all obligations
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express authority
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words or conduct of a principal that, reasonably interpreted, cause the agent to believe that the principal desires him to do a specific act
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express contract
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binding agreement in which the parties explicitly state all important items
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express warranty
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a guarantee, created by the words or actions of the seller, that goods will meet certain standards
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false imprisonment
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intentional restraint of another person without reasonable cause and without her consent
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federal jurisdiction
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those cases that involve US laws, treaties with foreign nations or interpretations of the law or actions of the Congress or President, also interstate laws
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federal question
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...
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fiduciary relationship
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relationship of trust and confidence between principal and agent; agent owes duties of care, obedience, accounting, loyalty and disclosure
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financing statement
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document that a secured party files to give the genera public notice that the secured party has a secured interest in the collateral
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fixture
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good that is attached to real estate
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foreign corporation
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corporation formed in another state
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fraud
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deception of another person to obtain money or property from her
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fraudulent transfer
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transfer of a debtor's property made with intent to defraud or for which the debtor receives less than the transferred property's value
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gap fillers
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rules set by the Uniform Commercial Code for supplying missing terms
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goods
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anything movable, except for money, securities, and certain legal rights
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holder in due course
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someone who has given value for an instrument, in good faith, without notice of outstanding claims for other defenses
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illusory promise
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apparent promise that is unenforceable because the promiser makes no firm commitment
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implied authority
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when a principal directs an agent to undertake a transaction, the agent has the right to do acts that are incidental to it, usually accompany it, or are reasonably necessary to accomplish it
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implied contract
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binding agreement created not by explicit language but by the informal words and conduct of the parties
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implied warranty
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guarantees created by the Uniform Commercial Code and imposed on the seller of goods
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impossibility of performance
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may be allowed in case of death or illness that prevents the performance of a personal service contract; the destruction of the exact subject matter, or the means for performance; and illegality, or situations in which the performance of a contract becomes illegal
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incidental damages
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relatively minor costs, such as storage and advertising, that the injured party suffered when responding to a contract breach
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injunction
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court order that a person either do or stop doing something
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insider trading
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buying or selling corporate stock by a corporate officer or other insider on the basis of information that has not been made public and is supposed to remain confidential
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intellectual property
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intangible property that is the result of creativity (such as patents or trademarks or copyrights)
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intentional tort
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act deliberately performed that violates a legally imposed duty and injures someone
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interrogatory
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form of discovery in which one party sends to an opposing party written questions that must be answered under oath
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involuntary petition
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...
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judge
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a public official authorized to decide questions bought before a court of justice
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jurisdiction
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power of a court to hear a particular dispute, civil or criminal, and to make a binding decision
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jury
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a body of citizens sworn to give a true verdict according to the evidence presented in a court of law
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latent defect
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hidden structural defect that would not be discovered by ordinary inspection
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law
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a rule or body of rules of conduct inherent in human nature and essential to or binding upon human society
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lawsuit
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a legal action in which a person or group sues to collect damages for some harm that is done
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legality of contract
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letter of intent
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any letter expressing an intention to take (or forgo) some action
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limited liability partnership
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partnership in which all partners are limited partners
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liquidated damages
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contract clause specifying how much a party must pay upon breach
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maker
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issuer of a promissory note
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material breach
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breach serious enough to destroy the value of the contract and to give a basis for an action for breach of contract
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mediation
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process of using a neutral person to aid in the settlement of a legal dispute. a mediator's decision is non-binding
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merchant
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someone who routinely deals in a particular good
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mirror image
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contract doctrine that requires acceptance to be on exactly the same terms as the offer
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misrepresentation
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factually incorrect statement made during contract negotiations
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mitigation of damages
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rule requiring a plaintiff to do whatever is reasonable to minimize damages caused by the defendant
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mortgage
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security interest in real property
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motion
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formal request that a court take some specified step during litigation. for example, a motion to compel discovery is a request that a trial judge order the other party to respond to discovery
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mutual obligation
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...
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negligence
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violation of a standard of care set by statute
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negotiable instrument
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type of commercial paper that is freely transferable
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non-compete clause
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part of a contract in which a person agrees not to open a certain type of business or seek employment doing certain things in a particular area for a period of time
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non-dischargeable debt
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debt that cannot be eliminated in bankruptcy
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novation
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substituting a new obligation for an old one or substituting new parties to an existing obligation
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offer
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in contract law, an act or statement that proposes definite terms and permits the other party to create a contract by accepting those terms
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open terms
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an offer must be definite enough for the parties to ascertain its essential terms when it is accepted
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oral contract
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an agreement that is not in writing and is not signed by the parties but is a real existing contract that lacks only the formal requirement of a memorandum to render it enforceable in litigation
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parol evidence
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written or oral evidence, outside the language of a contract, offer by one party to clarify interpretation of the agreement
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past consideration
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consideration that took place in the past or that is given for something that has already been done is not regarded as legal by the courts
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patent
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grant by the government permitting the inventor the exclusive use of an invention
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pay to the order of
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can sign over to someone else
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perfection
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series of steps a secured party must take to protect its rights in collateral against people other than the debtor
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performance of contract
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personal property
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all property other than real property
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pierce corporate veil
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generally, stockholders are not liable for the acts or debts of a corporation. A court can reach stockholders for acts or debts of a corporation only if they 1) abused privilege of incorporating; AND 2) fairness requires. In Mass, courts MAY pierce to avoid fraud or unfairness
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plaintiff
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person who is suing
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pleadings
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documents that begin a lawsuit; the complaint, the answer, the counterclaim, and the reply
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preponderance of evidence
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level of proof that a plaintiff must meet to prevail in a civil lawsuit, it means that the plaintiff must offer evidence that, in sum, is slightly more persuasive that the defendant's evidence
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principal
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in an agency relationship, the principal is the person for whom the agent is acting
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principal's liability
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promisee
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person to whom a promise is made
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promisor
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person who makes the promise in a third party beneficiary benefits from
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promissory estoppel
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equitable doctrine that prevents the withdrawal of an offer by an offeror if it will adversely affect an offeree who has adjusted his position in justifiable reliance on the offer
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promissory note
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promise to pay a specified amount on demand or at a certain time
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prosecutor
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a government official who conducts criminal prosecutions on behalf of the state
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proxies
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(1) person whom the shareholder designates to vote in her place (2) written form that a shareholder uses to appoint a designated voter
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punitive damages
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money payments for damages that go beyond what the innocent party actually lost and that are designed to punish the wrongdoer
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quasi contract
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legal fiction in which, to avoid injustice, the court awards damages as if a contract
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real property
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land, together with certain things associated with it, such as buildings, subsurface rights, air rights, plant life, and fixtures
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reasonable man
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self defined
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reformation
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process by which a court rewrites a contract to ensure its accuracy or viability
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regulation
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act of controlling or directing according to rule
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rejection
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act of rejecting something
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rescind contract
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to cancel a contract by mutual agreement
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restatement law of contract
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restitution
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restoring an injured party to its original position
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revocation
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act of disavowing a contract offer so that the offeree no longer has the power to accept it
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revoke offer
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to not accept an offer
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scope of employment
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- performing work assigned by the employer - engaging in course of conduct subject to employer's control
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secured transaction
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business arrangement in which a buyer or borrower gives collateral to the seller or lender to guarantee payment of an obligation
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security interest
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interest in personal property or fixtures that secures the performance of some obligation
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shareholder
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someone who holds shares of stock in a corporation
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shareholder's rights
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sole proprietorship
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type of business entity which legally has no separate existence from its owner. The owner assumes all debts, and business is done in his or her own name and there is only one owner
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specific performance
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contract remedy requiring the breaching party to perform the contract by conveying land or some unique asset, rather than by paying money damages
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state jurisdiction
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state courts have exclusive jurisdiction over all matters to which the federal judicial power does not reach
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statute
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law passed by a legislative body, such as Congress
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statue of frauds
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law provides that certain contracts are not enforceable unless in writing
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statute of limitations
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statute that determines the period within which a lawsuit must be filed
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strict liability
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tort doctrine holding to a very high standard all those who engage in ultra hazardous activity or who manufacture certain products
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summary judgement
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power of a trial court to terminate a lawsuit before a trial has begun, on the grounds that no essential facts are in dispute
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supreme court
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the highest federal court in the United States
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termination of offer
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to either no accept, take too much time, or restate an offer
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third party beneficiary
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someone who stands to benefit from a contract to which she is not a party. an intended third party beneficiary may enforce a contract, a incidental third party beneficiary may not
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tort
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civil wrong, committed in violation of a duty that the law imposes
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tortious interference with contract
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tort in which the defendant deliberately impedes an existing contract between the plaintiff and another
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trade secret
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formula, device, process, method, or compilation of information that, when used in business, gives the owner an advantage over competitors who do not know it
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trademark
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any combination of words and symbols that a business uses to identify and distinguish its products or services and that federal law will protect
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UCC
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Uniform Commercial Code: Facilitates commerce among states by providing a uniform, yet flexible, set of rules governing commercial transactions
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unconscionable contract
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agreement that a court refuses to enforce because it is fundamentally unfair as a result of unequal bargaining power by one party
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undue influence
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one party so dominates the thinking of another party to a contract that the dominant party cannot truly consent to the agreement
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unilateral contract
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binding agreement in which one party has made an offer that the other can accept only by action, not words
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unilateral mistake
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occurs when only one party negotiates based on a factual error
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unliquidated damages
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claimed damages that are disputed, ether because the parties disagree over whether there is in fact a damage or because they disagree over the amount
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usury
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charging interest at a rate that exceeds legal limits
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voidable preference
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paying one debtor to avoid payments to others in bankruptcy
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voluntary petition
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bankruptcy petition filed by a debtor
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written contract
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letter, sales slip, an invoice, or several words placed on a piece of paper
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