BLAW 3310 Exam 2 LEE UTA

DEED

used for conveying an interest in land; a document that transfers title of real property from one party to another

INFRINGEMENT OF TRADEMARK

using someone's TM without permission to cause confusion

STRICT LIABILITY DOCTRINE

was the product sold in a defective condition? Anyone who handled a product in the chain of distribution is liable. Any seller of the defective product (manufacturer, wholesaler, retailer) is liable, regardless of negligence and regardless of knowledge of the defective condition of the product.

BUYER'S AND SELLER'S REMEDIES: GENERAL RULE

we try to put the non-breaching party in the same position they would've been in... could be (ex.) giving them difference between contract price; loss profits; incidental damages

STATUTORY LIMITS ON LIABILITY: GOVERNMENTS HAVE LAWS THAT TRY TO LIMIT LIABILITY

(1)Worker compensation statutes usually make that program the exclusive remedy for injured workers, unless an intentional tort was involved. (2)Federal regulations that prescribe maximum allowable radiation exposure levels set the standard of care upon which liability is based. (3)As government contractors, manufacturers of products made to government specifications are generally immune from product liability. (4)Products that must follow federal regulations regarding label requirements, including warnings of possible injuries, may not be subject to common-law failure-to-warn actions. Such defenses are limited. (5)State laws may specify limits on liability, such as Colorado's statutory limits on the liability of ski resorts for injuries suffered by skiers.

CASE: GREENMAN V. YUBA POWER

1st case to deals with strict liability of manufacturer of a product. Greenman's wife bought him a saw. Saw was defective - threw board at his head.

ASSIGNMENT

A transfer of contract rights to another party

Delegation

A transfer of contractual duties to a third party

TITLE INSURANCE

A type of insurance that protects the buyer in case problems with the title are found later; protects against claims against that property that are in public records (ex. forged deed somewhere in chain of title). Title insurance may not protect against claims against the property that were not known in the public records at the time the title search was done.

TRADE SECRETS

COKE FORMULA; may consist of any formula, pattern, device, or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it

design defect

Cases are not concerned with a product that has been poorly manufactured and causes an injury. Rather, such cases focus on the determination of whether an injury to users could have been prevented by designing the product differently.

Types of contracts subject to STATUTE OF FRAUDS

Contracts that must be evidence by writing: (1) land, (2) cannot be performed within 1 year, (3) promise to pay debt of another, including debts of estates, (4) marriage

CASE: BAXTER V. FORD MOTOR

Ford said windshield would never break. it did, and put Baxter's eye out.

ADVERSE POSSESSION

Gaining title to land by simple being there (being a trespasser). If you're trespasser long enough, you can gain title to the land. Conditions for AP: 1. Actual: the adverse user in fact uses or possesses the property in question. 2. Open: the use or possession must be visible so that the owner is on notice. 3. Hostile: the use or possession is without permission of the owner. 4. Exclusive: the use or possession is not shared with others who also have no right to use the property. 5. Continuous: the use or possession must go on without major interruption for as much time as required by law to obtain the easement by prescription or title by adverse possession.

Terminating an Offer

It is an offer can occur by the action of the parties or by the operation of law. The parties can terminate an offer by withdrawing it (by the offeror), rejecting it (by the offeree), or through lapse of time (by the inaction of the offeree).

What is PAROL EVIDENCE RULE permitted?

It may be introduced when the written contract is incomplete or ambiguous; when it proves fraud, mistake, or misrepresentation; or when the parol evidence explains the written instrument through previous trade usage or course of dealing. Another exception not mentioned in the book is that evidence of modifications the parties made after the contract is executed can be admitted.

Cybersquatting

It occurs when a trademark is used improperly in a domain name. That practice is expressly restricted by the Anticybersquatting Consumer Protection Act (ACPA), which prevents a website from capturing value from another's trademark.

WHEN CONTRACTS ARE PARTLY GOODS AND PARTLY SERVICES

Paramount Contracting Company v. DPS Industries - case with truckload of dirt - contract for SALE OF GOODS was predominant, so they SUED UNDER UCC

UNILATERAL CONTRACT

ONE promise for an action (A tells B to walk across bridge and in return, promised to give B money)

Infringement and fair use

The Copyright Act allows use of original material"for purposes such as criticism, comment, news reporting, teaching, scholarship, or research."If copying is not authorized for fair use, it is infringement. When considering whether a use is fair, the courts apply four factors: 1. The purpose and character of the copying (for commercial use or for nonprofit educational use). 2. The nature of the copyrighted work. 3. The extent of the copying. 4. The effect of the copying on the market for the work.

Statute of frauds

The basic rule is that a contract for the sale of goods for $500 or more is not enforceable unless it is in writing and signed by the party against whom enforcement is sought.

privity of contract

This refers to the relationship that exists between contracting parties. This made manufacturers not responsible for their items if they sold it to a dealer and a dealer sold it to a customer. This is now taken away.

Primary Areas of Product Liability Law

There are four key areas: (1) a defect in the product from manufacturing; (2) the manufacturer failed to warn the consumer of risks of use or of known hazards in certain uses of the product; (3) the product had a design defect in it that could have been avoided; and (4) the product resulted in latent injuries that may not become known for years. We consider each of these areas in turn.

Interference with contractual relations

This is a business tort, when a wrongdoer intentionally causes another party to break a good contract, the motive does not matter. The point is that breaking the contract is done to benefit the tortfeasor. This causes injury to the party who suffers the breach of contract. The party who suffers the breach may sue both the party who breached the contract for breach and the wrongdoer for the tort of interference with contract.

caveat emptor

This means let the buyer be aware

promissory estoppel

Under certain circumstances, the courts do not require consideration for a promise to be enforceable. The rationale for the doctrine is that it will avoid an injustice resulting from the promisee's reasonable reliance on the promisor's promise. (A bid made and then taken but then rejected. Now you have to pay the difference between your bid and second lowest.)

reality of consent (or genuine consent)

Under some circumstances, a person may enter into an agreement without knowing key information about the real nature of the transaction. Without knowledge, there is no _________________ by the parties, and the contract may be void. This may happen for different reasons.

Cover

When a seller fails to deliver goods, either by being too late to be useful or because the goods are nonconforming, the buyer is entitled to buy substitute goods and recover the price difference.

Incidental Damages

When the buyer properly rejects a delivery or does not receive the goods, under § 2-710. incidental damages include the reasonable costs of inspecting, receiving, transporting, and taking care of the goods while they remain in her possession. If there was no delivery at all, or if delivery is late, § 2-715 states that the buyer's incidental damages include all reasonable costs or direct expenses associated with the delay in receiving the goods or in tracking down substitute goods.

JOINT TENANCY

a purchase of property by two or more persons who have the same interest in the undivided possession of property. THERE IS RIGHT TO SURVIVORSHIP! (married couples or partners do this)

TRADEMARKS (TM)

a commercial symbol—a design, logo, phrase, distinctive mark, name, or word—that a manufacturer prints on its goods so they can be readily identified in the marketplace

CATEGORIES OF PRODUCT DEFECT

a product: contains a manufacturing defect; is defective by design; defective because of inadequate instructions/warnings

OFFER

a promise to do something or the not do some specific thing

SELLER'R REMEDIES

cancel contract, identify the goods, WITHHOLD/STOP DELIVERY, sue buyer to recover loss,

INTERFERENCE WITH PROSPECTIVE ADVANTAGE

a tort where there is an intentional and unjustified intervention with a relationship that a party had been developing with others in an effort to obtain new business or more business

DILUTION

a way to infringe; using a sign similar to a popular TM to draw attention to YOUR product (ex. Car garage using Nike Swoosh on their window to draw in customers)

MAILBOX RULE

acceptance is effective when SENT! acceptance is effective when SENT! acceptance is effective when SENT! acceptance is effective when SENT! acceptance is effective when SENT! acceptance is effective when SENT!

ADVERTISING RULE

advertising is only an INVITATION for someone to make an offer

ULTRA HAZARDOUS ACTIVITIES

an activity so abnormally dangerous that the actor is the guarantor of the safety (chemicals, explosives, nuclear). If anything bad goes wrong, YOU are liable

COPYRIGHTS

anything for the senses; rights of literary property as recognized by law; intangible assets, LASTS THE LIFE OF THE AUTHOR + 70 YEARS! The Copyright Act gives a copyright owner five rights over copyrighted works: 1. The right to reproduce the work. 2. The right to publish or distribute the work. 3. The right to display the work in public. 4. The right to perform the work in public. 5. The right to prepare derivative works based on the original work.

GENERAL WARRANTY DEED

best type of deed. grantor or seller warrants that property is free of any liens and encumbrances unless revealed in title

PERFECT TENDER RULE

buyer, IN GOOD FAITH, has right to reject for the slightest imperfection

IMPLIED WARRANTY OF MERCHANTABILITY

by making a sale of a product, seller warrants that the product will meet warranty of merchantability; that the product will perform the way it's supposed to do

ACCEPTANCE OF AN OFFER

can be accepted, but the person accepting must KNOW about the offer (ex. person who found lost dog, didn't know about reward (the offer))

BUYER'S REMEDIES

cancel contract, get goods from other supplier, sue seller for damages, reship goods, store goods

CASE: MACPHERSON V. BUICK MOTOR

case that deals with product liability that said consumer can sue the maker of a product directly - wooden spokes with crack - Buick was charged with NEGLIGENCE because, even though they didn't make the wheel, they could have inspected it.

TRADE DRESS

commercial symbol that concerns the "look and feel" of products and service establishments. Size, shape, color, texture, graphics. Protected by Lanham Act. MGM LION ROAR, PINK INSULATION

failure to warn

consumers of dangers in the use of a product, or to instruct consumers about proper procedures in using a product, has long been actionable. This applies where the manufacturer knows of a danger caused by the product's use that cannot be prevented entirely, but about which users could be warned. For example, lawn mowers now routinely have warning labels telling users not to try to unclog blocked grass discharge chutes while the mower is running.

WHAT CAN COURTS SUPPLY

courts can supply price BUT NOT QUANTITY

COPYRIGHTED MATERIAL FOR FAIR USE

educational, movie/game reviews, song criticisms, parody

INTENTIONAL MISREPRESENTATION

false representation has been made knowingly or w/o belief in its truth, recklessly, carelessly whether it be true or false

TENANCY IN COMMON

form of ownership in which each tenant (owner) has an undivided interest in the property. NO RIGHT TO SURVIVORSHIP.

FEE SIMPLE

highest form of ownership; your ownership can never be taken away (can stay in the family)

PUBLIC NUISANCE

interferes with the general public (public health and welfare)

CONSIDERATION

is something of value or something bargained for in exchange for a promise; that is, both parties to a contract get something and give up something. Did the other party (1) give something, or (2) SUFFER A DETRIMENT? (case with uncle, nephew, give up drinking alcohol and partying)

A TRADE SECRET MAY BE VALID IF

it's not known by the competition; the business would lose its advantage if the competition were to get it; owner has taken reasonable steps to protect the secret from disclosure

QUASI CONTRACT

means that there's no contract, but one party has conferred a benefit on other party, and it would be unjust for that other party to not pay (doctor saving lives, kid mowing lawn and not getting paid for it)

MERCHANT'S FIRM OFFER

merchant says, in signed writing, that he'll keep offer open for a period of time. He's obligated to keep offer open for MAX OF 3 MONTHS. Under common law I have to pay for the merchant to hold the item.

CONTRACT MODIFICATIONS

must be supported by new consideration to be binding on the parties. The UCC§ 2-209 makes a significant change in the common-law rule by providing that the parties need not provide new consideration to modify an existing contract. A modification to a sales contract, however, must meet the UCC's test of good-faith dealing and usually must be in writing.

TRADE NAME

name of company or business. Some companies (Coca-Cola) have same TM as trade name

QUITCLAIM DEED

not a good deed. Person who gives you this kind of deed says they give you all THEIR interests in the land: might not provide any assurance to good title of the property!

PROBLEM WITH PRODUCT LIABILITY

often, the person who bought product didn't buy from manufacturer (ex. cars at dealership - MacPherson v. Buick Motor)

OFFEROR

party making the offer

OFFEREE

party to whom the offer is made

SPECIAL WARRANTY DEED

person who gives you the deed says that THEY have not put any liens/encumbrances on it since THEY have owned it

TRESPASSING

physically being on land w/o permission; leaving your property on someone's land; flying kite over someone's property; no damage even has to occur. A property owner may not intentionally harm a trespasser or set a trap for one, but there is no duty to warn trespassers of dangerous conditions on property.

PATENTS

process or machine ... grant from the government to an inventor for "the right to exclude others from making, using, offering for sale, or selling" the invention. LASTS 20 YEARS AFTER FILING OF PATENT APPLICATION! The invention must be genuine, useful, novel, and not obvious.

BILATERAL CONTRACT

promise me something in return for my promise (I want painter to paint my house if I pay him)

TYPES OF DEEDS

quitclaim deed, warranty/general warranty deed, special warranty deed

The sophisticated user defense

relieves a manufacturer of liability for failing to warn of a product's characteristics or dangers when"the end user knows or reasonably should know of a product's dangers"(852 N.E.2d 100). This is similar to the more traditional open-and-obvious doctrine—no warning is needed when the danger is obvious.

PAROL EVIDENCE RULE

restricts the use of oral (parol) statements in a lawsuit, when the evidence is contrary to the terms of a written contract

WARRANTY OF INFRINGEMENT

sale is free of infringement (Copyright, TM, etc.)

Intent to Contract

sales contract "may be made in any manner sufficient to show agreement" between the parties. Suppose a seller delivers various restaurant supplies to a buyer's restaurant based on orders given by phone and e-mail. Prices are often not discussed or known to the buyer, who pays the invoice by mail. Under the UCC, a contract is formed by the conduct of the parties. It does not matter that the moment of contract formation is uncertain. In the Crest Ridge case, we see an example of this.

UCC: EXPRESS WARRANTY

seller's promise or guarantee as to the quality, safety, performance, or durability of goods being sold; (1) SAMPLE/MODEL, (2) DESCRIPTION, (3) ORAL/WRITTEN STATEMENTS

MERCHANT

someone who regularly deals with goods of a kind sold (auto parts dealer, art dealer, computer parts dealer)

PRIVATE NUISANCE

substantially interferes with private land owners around you.

UCC

the law that governs many contracts for the sale of goods

PRODUCT LIABILITY

the producer's responsibility for any injury that the business's products may cause.

STRICT LIABILITY BASED ON EXPRESS WARRANTY (BAXTER V. FORD MOTOR)

when a product specifically doesn't live up to its warranty, anyone who handled the product is liable (Baxter v. Ford Motor: Ford has express warranty that says windshield will never break... it does and puts Baxter's eye out. Baxter successfully sues.)

EASEMENT

when someone has right to enter your land and make certain use of it

COUNTEROFFER

when the response of the offer comes back with any differences. Can be accepted or not by original offeror

IMPLIED WARRANTY OF FITNESS OF PARTICULAR PURPOSE

when you go to a merchant and seek their recommendation... all that is required is that YOU THINK/RELY on that they know what they're talking about

Parol Evidence

written documents may not be contradicted by oral testimony, but that such testimony may be used to explain customary trade dealings or the meaning of certain terms. Parol evidence may not be used"if the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement."

DISCLAIMING WARRANTY OF MERCHANTABILITY

you must do this with BIG LETTERS! BOLD!

LIFE ESTATE

your interest ends at the end of your life